105-NLR-NLR-V-22-SIRIWARDENE-v.-FERNANDO.pdf
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Present: Schneidei A.J.SIBIWARDENE v. FERNANDO.
240—P. C. Chilaw, 10,300.
Excise Ordinance—Four persons carrying eight bottles of arrack in a
cart.
Four persons had each bought two bottles of arrack and carriedthem in a cart.
Held, that no offence was committed.
“ It is permitted by the law for two persons to be in posses-sion of four bottles of arrack provided the quantities are keptseparate.”
rpHB facts appear from the judgment.
– R. L. Pereira, for first accused, appellant.
M. W. H. de Silva, C.C., for respondent.
1921.
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1921. March 14,1921, Sohnetdbr AJ.—
Siriwardene The appellant in this case and one Marsilinu Fernand} werev. Fernando charged as first and second accused as follows :—
“ That on December 21, 1920, they did possess thirty drains ofarrack, an excisable article, without a permit, in excess of thequantity provided by Excise Notification No. 5 read with sections 4and 16 of Ordinance No. 8 of 1912; that at the same time and placethey did transport the arrack, without a permit, in breach of ExciseNotification No. 7 read with section 12 of the same Ordinance.”.
The learned Magistrate convicted the appellant with being iifrpossession without a permit of thirty drams of arrack, a quantityin excess of that prescribed by Excise Notification No. 5 read withsections 4 and 16 of Ordinance No. 8 of 1912. He discharged thesecond accused.
The case-for the prosecution is that the two persons accused inthis .case and two others were detected carrying in a cart eightbottles* of arrack, and when questioned by the Exoise Inspectorwho stopped the cart, each of the four persons claimed to havebought and to be removing two out of the eight bottles of arrack.The Excise Inspector himself admits that this claim was put forwardto him the moment he stopped the cart. If the claim made bythese persons be accepted, it is obvious that none of these personsis guilty of being in possession of or of transporting a quantity ofarrack in excess of that permitted by the law, because the notifi-cation relating to the matter permits the possession and transportwithout a license at one time by a single person of sixteen drams,which it is admitted in appeal is equivalent to two bottles of thesize used in this Island. ^Therefore, it is permitted by the law fortwo persons to be in possession of four bottles of arrack providedthe quantities are kept separate. The learned Magistrate dischargedthe second accused, giving as his reason that the charge of trans-porting need not be pressed. He evidently, therefore, regardedthe second accused as simply a carter, who was driving the cartin which the arrack was discovered. To my mind the evidenceEstablishes beyond any doubt that the thirty dr&ms or four bottleswhich were produced in this case and formed the subject-matter ofthe charge were four bottles of arrack which had been purchasedby the appellant and Simon Peries. I am unable to understandhow the charge came to be framed .charging two persons with beingin possession of thirty drams and thereby committing an offence.It is obvioqp from the evidence that the prosecution is bound tofail. There is no reason why the evidence for the defence shouldnot be accepted that the four bottles had been purchased by theappellant and Simon Peries.
I* therefore set aside ^he conviction and acquit the accused.
Set aside.