Shantha v . The Attorney-General and another
SHANTHAVTHE ATTORNEY-GENERAL AND ANOTHERCOURT OF APPEAL
S.N. SILVA, J.
C.A. No. 142/87M.C. KULIYAPITIYA 18183 OCTOBER, 1988
Excise Ordinance – Transport of unlawfully manufactured liquor – Excise Ordinance,Sectbns 46, 47 and 54 – Sentence – Confiscation of vehicle.
A sentence of one year's rigorous imprisonment and fine of Rs. 2000/- for transportof unlawfully manufactured liquor is unlawful, as under s. 47 of the Excise Ordinance,the accused is liable only to a maximum of six (6) months rigorous imprisonment andto a fine of Rs. 1000/- or both.
Section 54 provides for the confiscation of the excisable article or materials or theapparatus used in the commission of the offence. The motor cycle used tor thetransport is not liable for confiscation.
APPEAL from conviction and sentence by Magistrate's Court, Kuliyapitiya.
K.S. Tilakeratne for accused – appellantAsoka Weerasooriya, S.C. for the State
Sri Lanka Law Reports
(1991) 1 Sri L.R.
October 03, 1988
S. N. SILVA, J.
In this case the accused-appellant was charged with havingcommitted the offence of transporting 240 grams of unlawfullymanufactured liquor in terms of sections 46 and 47 of the ExciseOrdinance. The accused-appellant pleaded guilty to the charge andthe learned Magistrate sentenced the accused to a term of 1 year'srigorous imprisonment and to pay a fine of Rs. 2000/-. The learnedMagistrate also made order that the motor cycle which was used forthe transport of the unlawfully manufactured liquor be confiscated.
In terms of section 47 of the Excise Ordinance the accused is liableonly to a maximum of 6 months rigorous imprisonment and to a fineof Rs. 1000/- or both. The sentence imposed by the learnedMagistrate is unlawful.
The learned Magistrate has not indicated the provision under whichthe motor cycle was confiscated. Section 54 provides for theconfiscation of the excisable article or materials or the apparatusused in the commission of the offence. The motor cycle used by theaccused-appellant would not be liable for confiscation in terms of thisprovision. Accordingly I would set aside the order of confiscation.
As regard the punishment that has been imposed, I note that theaccused-appellant has been convicted on 3 previous occasions.However the offence and the sentences imposed on those occasionsare not on the record. In these circumstances I would set aside theterm of 1 year's rigorous imprisonment and impose in its place asentence of 6 months rigorous imprisonment suspended for a periodof 5 years. The fine of Rs. 2000/- is also in excess of the maximumprovided in the penal section. In the circumstances I set aside thefine of Rs. 2000/- and impose in its place a fine of Rs. 1000/- indefault of payment of the fine the accused will serve a term of 6weeks rigorous imprisonment. Subject to the foregoing variation, theconviction is affirmed and the appeal is dismissed.
Confiscation of vehicle set aside.