SIRIMANIS PEIRIS, Appellant, and P. THAMOTHERAM PILLAI, Respondent

026-NLR-NLR-V-58-SIRIMANIS-PEIRIS-Appellant-and-P.-THAMOTHERAM-PILLAI-Respondent.pdf

Present: T. S, Fernando, J.SIR TM ANTS' PETRIS, Appellant, and P. THAMOTHERAMPILL AT, Respondent
S. C. CCJ—M. C. Childw, 1-3,COS
Excise Ordinance—Section -it—Charge oj possession oj unlawfully ‘manufacturedarrack—Quantum of ccidcncc—Manufacture of arrack—Is it a Gomnmrnlmonopoly ?
In a prosecution for possession of uuhnvfiilfy irmn»if;tc(need jimiek in bre.tehof section 44 of the Kxcisc Ordinance. the Court* will not take judicial noticethat nnv arrack lhat. is not what is called Government arrack is unlawfullylnanufactured arrack.
■i^LPPEAL from a judgment- <>T the- Magist rate’s Court, Chiluw.
A. C. A lies, Crown Counsel, with P. Weera-singhe, Crown Counsel, fortlie Attorney-General.
K.C. de Silcci, with I'. C. Gunatiluka, for the accused-respondent.
.Cur. adv. vult.
August 21, 1956. T. S. Feuxaxdo, J.—
The complainant- appeals to this Court with the sanction of theAttorney-General against the acquittal of the accused who was tried on acharge of possession of 7 drams of unlawfully manufactured arrack inbreach of section -14 of tlie Excise Ordinance.
The learned Magistrate has accepted the evidence of the witnesses forthe prosecution in regard to the possession by the accused of the arrack,but has acquitted him on the ground that there was no ‘‘ strict proof”that the arrack was unlawfully manufactured. The evidence relied onby the prosecution to discharge the burden that lay upon it to establishbeyond a reasonable doubt- that the liquid produced in court in bottleP. 1 was unlawfully manufactured arrack was a report of t he GovernmentAnalyst. The relevant part of this report reads as follows :—
“ The physical and chemical characteristics of the contents of P. 1were not similar to those of any variety of Government arrack. Inmy opinion P. 1 contained arrack, but not any variety of Governmentarrack ns issued from Government Warehouses. ”
This report proves that the contents of P. I were arrack and that thisarrack was not Government arrack as issued from Government "Ware-houses. Docs it also prove that the arrack was unlawfully manufac-tured ? Or can I say that what is not Government arrack as issued fromGovernment Warehouses must be unlawfully manufactured arrack ?The appeal really turns on the answer to one or other of thesetwo questions.
I regret I am unable to take judicial notice that a 113' arrack that is notwhat is called Government arrack is unlawfully manufactured arrack..Mr. Alles has referred me to the following observations of Soertsz J. inYoganulhan v. JlIutlii/an-*c 1 in dealing with an argument that what isnot Government arrack is not necessarily unlawfully manufacturedarrack.
“The manufacture of arrack is a Government monopoly in the Island.The arrack manufactured L13’ the Government has certaincharacteristics. Therefore all arrack can be sub-divided into two, andonfy two, classes for the purposes of the Ordinance, and a validproposition stated as follows that arrack that is not Governmentarrack must be unlawfully manufactured arrack.
If the manufacture of arrack is a Government iiiono]jo]y in this IslandI woidd, with great respect, agreo with the observation that what isnot Government arrack is unlawfully manufactured arrack. As statedearlier, however, I am not prepared to take judicial notice that such aGovernment monopoly exists. These observations of Soertsz J. weremade in 103S, and without evidence I am not prepared to say' that therehas been no change in Government policy on this question all theseeighteen years. Moreover, if the manufacture of arrack is a Governmentmonopoly today, it is surely- not a difficult matter, and certainly not oneoutside the resources of the Excise Department, to establish that fact inevidence at the trial.
Another case2 recently' decided by Mec-rasooriya J. was also citedto me in support of this appeal. Tn that ease there ■was not only evidencethat- the liquor produced was not Government arrack, but also specificevidence to satisfy the court that manufacture of arrack was being done
under licence and only at nine specified distilleries in the Island and
at the- Government distillery at Secduwa. That case is thereforedearly distinguishable from the 011c now before me. Indeed, if evidencehad been led in this case to establish to the satisfaction of a court that themanufacture of arrack is a Government monopoly, the prosecution wouldhave been in no difficulty in discharging the burden that lay upon it toestablish that the liquor in P.l was unlawfully manufactured arrack.
As a final argument, Air. Alios brought to ray attention the fact thattwo witnesses for the prosecution had stated in evidence that P.l containedunlawfully manufactured arrack. -Mr. dc Silva argued that the evidenceof these witnesses on this point cannot he accepted as they have notstated what- experience they had to enable them to distinguish one kindof arrack from another. It is true- that the witnesses were not cross-examined on the point, but as the learned Magistrate's judgment is silenton the question of this evidence there appears to have been an impliedrefusal by him to act on this evidence. Moreover, it is quite apparentthat in preferring this appeal reliance was placed by the complainantTcally on the Government. Analyst's report and not on the evidence of
5. C. A’o. U/Oj;p. C. Kurnnnjnl-t o-j.SiG — S'. C. 31inutes oj 2. 3. 1!/3S.
.S'. C. .Vo. ’/.I/. C. Chi lit rv 112—£■'. C. Minnies of 0 "»
these two witnesses. The prosecution might have been permitted tomake use of this evidence if it had' been attempting to maintain a con-viction entered by the Magistrate ; but different considerations shouldweigh in the present circumstances where an accused person has beenacquitted and the real question upon which the appeal turned has beenanswered against the prosecution. It would not bo fair to permit theprosecution to revive this evidence at this stage, and this appeal musttherefore be dismissed.
A pineal d ism issed.