THE KING t>. SILVA.
D. C., Kalutara, 1,572.
Arrack—Ordinance No, 10 of 1844, 8. 7—Leaving distilled spirits in a part ofthe distillery other than store.
Where a renter sent his agent to buy arrack o| a distiller -and V fheagent went to the distillery, had his cask filled on a Saturday evening,^ andwent away saying he would obtain a permit of removal and come backfor the cask, but did not return as he fell ill and died, and where theexcise officer, visiting the store on Monday thirty-six hours after the sale,prosecuted the distiller for leaving 80 gallons of distilled spirits in apart of the distillery other than the store—
Held, that the case was not taken out of the scope of section 7 ofthe Ordinance No. ' 10 of 1844, as property in possession of the renter /under section 32, and that the distiller was liable to the penalty pro-vided in section .7*
HE accused, being a licensed distiller and the manager of hisbusiness as such distiller, was charged with leaving on 24th
October, 1904, 80 gallons and 9 gills of distilled spirits in a part ofthe distillery other than the store or secure house constructed onthe premises, and thereby committed an offence punishable undersectipn 7 of Ordinance No. 10 of 1844.
After hearing evidence the District Judge (Mr. Brodhurst)iound as follows: —
“ The arrack in question, some 80 gallons, was found in a cask iniihe accused’s distillery outside the store. The accused alleges,■and I see no reason to doubt the correctness of his statement, thathe is under agreement to supply his arrack to Mr. A. N. Silva, anarrack renter in Colombo, and that this arrack had been measuredout and poured into Mr. A. N. Silva’s cask and handed over to hisagents. The agents then went away leaving the arrack in thedistillery,, intending to get a permit in due course and remove thearrack. It is argued for the defence that the ownership and pos-session of the arrack had passed to the purchaser, who is a renter,and who might lawfully possess the arrack under section 82 of theOrdinance.*
4t The Ordinance (section 7) does not appear to contemplate pos-session of arrack by some other person in a distillery. It providesthat any spirits found in the distillery outside the store shall beforfeited, unless the same shall be lawfully possessed by “ him,”i.e., the distiller, rectifier, or compounder.
" The plain question seems to be, Did the’ accused allow thearrack to remain in his premises .and outside his store for anunnecessarily long time ?
( 177 )
“ The arrack was measured on a Saturday evening, and no permitfor removal could be obtained until the following Monday. Thearrack remained outside the store over the Sunday and was seized-on the Monday. I am of opinion that the accused should not haveallowed the arrack to be measured on a Saturday evening, or, if he•did allow it, he should have locked up the arrack in his store untilthe permit for removal was brought. I find nothing in the case toahow that it was necessary to leave the arrack outside the store forsome thirty-six hours. It does not appear from the evidence that itis actually necessary to leave the arrack outside at all pending theproduction of the permit, though it may be the custom to do so.The arrack has to be measured in the store, and there seems to. beno* reason why the cask should not be filled in the store andbrought out when the permit is produced.
“ I find the accused Anthonis Silva guilty of leaving 80 gallons 9gills of arrack in his distillery in a place other than the store, inbreach of section 7 of Ordinance No. 10 of 1844, and I sentence himto pay a fine of Es. 100, and I order the arrack to be confiscated.*’
The accused appealed.
. The case was argued on 5th April, 1905.
Walter Pereira, Z.C., for appellant.
Rdmandthan,. S.-G., for respondent.
Cur. adv. vult.
11th April, 1905. Moncreiff, J.—
The appellant is a distiller. On the evening of Saturday, the22nd day of October, 1904, one Silva, who is a renter, sent hisagents to the distillery with a cask belonging to him to be filledwith arrack.. The renter had advanced to the distiller Es. 4,000and in consideration of that sum the distiller, as on other occasions,complied with his request and filled his cask with arrack. Therenter’s agents then went away, saying that they would obtain apermit to remove the cask. Pedro Silva, one of the agents, fellill, went to Colombo, and died; and on Monday, the 24th October,thirty-six hours after the arrack was poured into the cask, theexcise officer came upon .the scene. This prosecution ensued, andthe distiller, who appeals, was under section 7 of Ordinance No. 10of 1844 fined Es. 100 and the arrack was confiscated. The convictionclearly comes within section 7, unless the case is taken out of theoperation of the section by virtue of the exceptions specifiedtherein. Of course a reasonable time must be allowed for theremoval of arrack after it is poured into the purchaser’s cask, butin this case I agree with the District Judge that the delay was
something more than reasonable. The parties must have beenaware that a permit could not be obtained before Monday morning.The section, however, does not apply where the spirits in questionare lawfully possessed by the distiller under any of the provisionsof the Ordinance.
Mr. Pereira contended that the case was taken out of the sectionby virtue of possession under section 32, because the spirit hadbeen sold to the purchaser in whose possession it was found. Theargument is that property passed to the renter when the arrackwas poured into his cask, and that on his leaving the cask in thedistiller’s premises the distiller’s possession of the cask was inlaw the possession of the renter who had bought it. I think,hpwever, that to adopt that view it would be necessary. to putan undue strain upon the terms of the 32nd section.
In view of the fact that the course pursued was said to be inaccordance with the practice of distillers, the Solicitor-Generalexpressed an opinion that the case might be met by a nominal fine.On the strength of that opinion 1 substitute a fine of Bs. 10 for thefine inflicted by the District Judge. I do not appear to havepower to set aside the forfeiture of the arrack, which is theproperty of the renter.
THE KING v. SILVA