037-NLR-NLR-V-67-THE-SOLICITOR-GENERAL-Appellant-and-W.-VICTORIA-FERNANDO-Respondent.pdf
1965Present: T. S. Fernando, J.THE SOLICITOR-GENERAL, AppeUant, and W. VICTORIA
FERNANDO, Respondent
8. G. 1360 of 1964—M. G. Kanuwana, 6018IE
Excise Ordinance—Section 17—Charge of unlawful possession of fermented toddy—Evidence of expert—Meaning of term “ persons specially skilled ”—EvidenceOrdinance, s. 45.
The training, practical knowledge and experience of a person who i3 not aprofessional analyst may be sufficient in certain cases to qualify him, withinsection 45 of the Evidence Ordinance, as “ specially skilled ” on a question ofscience involving the examination or analysis of a substance. Therefore,in a prosecution for unlawful possession of an excisable article, namely fermentedtoddv, an Excise Inspector who has sufficient experience and practical knowledgein the detection of excise offences relating to fermented toddy may be qualifiedto give eviience as an expert on the question whether the liquid claimed tohave been found in the possession of the accused was fermented toddy.
.A.PPEAL from a judgment of the Magistrate’s Court, Kanuwana.
V. S. A. PuUenayegum, Crown Counsel, in support of the appeal.
No appearance for the accused-respondent.
Gur. adv. vvlt.
March 17, 1965. T. S. Fernando, J.—
The respondent to this appeal was charged in the Magistrate’s Courtwith the offence of possession of an excisable article, to wit, 1 gallonand 4 drams of f. rmented toddy, without a pass or permit from the properauthority, in contravention of section 17 of the Excise Ordinance andpunishable under section 46 thereof.
The case did not proceed to the stage of trial. It was admitted beforethe learned Magistrate that the liquid in question had not been forwardedto the Government Analyst for examination and report. The prosecutionapparently relied on other evidence to establish that the liquid claimedto have been found in the possession of the respondent was an excisablearticle, viz., fermented toddy. That other evidence was apparentlythe evidence of an Excise Inspector who claimed to have more thanten years’ experience in the detection of excise offences relating tofermented toddy and to possess the practical knowledge that qualifiedhim as an expert on the question as to which the Magistrate had toform an opinion, viz., whether the liquid claimed to have been foundin the possession of the accused was ft rmented toddy. The learnedMagistrate, considering himself bound by the decision of this Court in
Mitradasa Fernando v. Sub-Inspector of Police, Kcdubovila1, althoughthere were other decisions which had taken a contrary view, purportedto acquit the respondent without taking the evidence of the prosecution.
In Mitradasa Femavdo's case (supra) the charge was one of possessionof urlawfully manufactured liquor, and the prosecution relied on theevidence of a Sub-Inspector of Police who claimed to be an expert whohad undergone a special course of training in the Excise Departmentto identify excisable articles. Basnayake C.J. held that the evidenceof the Sub-Inspector was not relevant to the charge unless he camewitl in the class of persons contemplated as experts in section 45 of theEvidence Ordinance. He went on to hold that the evidence did notshow that the Sub-Inspector was specially skilled in any science or artwhich qualified him, as in the case of the Government Analyst, to expressan opinion on the question whether the liquor seized was Governmentarrack or unlawfully manufactured arrack.
For several years the Excise Department, in establishing that parti-cular liquor seized is an excisable article, has been relying on and theCourts have of.en accepted the evidence of officers, irrespective of theDepartment to whieh they belong, who have satisfied such Courts oftheir experience and capacity to distinguish between various kinds ofliquor. I do not propose on this appeal to refer to the two cases citedto the learned Magistrate or to other cases decided by this Court wherea view differe: t to that formed by Basnayake C.J. has been expressedon this very point. It is sufficient to observe that no previously decidedcase appears to have been brought to the notice of the learned ChiefJustice. Instead, I think it is opportune to quote from a decision ofthe Privy Council (brought to my notice by Mr. Pullenayegum) in theWest African case of Said Ajami v. Comptroller of Customs 2. In thatcase Their Lordships of the Judicial Committee were called upon toconsider whether a bank manager who had been engaged in bankingbusine- s in Nigeria for 24 years and had in the course of his businesskept in touch with current law and practice with regard to notes thatwere legal tender in French West Africa was a person “ specially skilled ”on a point of foreign law so as to render him an expert within the meaningof the Evidence Ordinance of Nigeria. (Section 56 of that Ordinance isin the material respects similar to section 45 of our Evidence Ordinance—Cap. 14). In tendering their advice to Her Majesty, Mr. L. M. D. deSilva stated in the report of the Board as follows :—
“ The Ordinance enacts that the evidence of a person “ speciallyskilled ” on a point of foreign law is admissible as expert evidence.The knowledge which entitles a person to be deemed “ speciallyskilled ” on some points of foreign law may, in Their Lordships’ opinion,be gained in appropriate circumstances by a person whose professionis not that of the law. ”
According to Their Lordships, a principle which emerged from aconsideration of relevant cases is that not only the general nature, butalso the precise character of the question upon which expert evilencois required, has to be taken into account when deciding whether thequalifications of a person entitled him to be regarded as a competentexpert. So the practical knowledge of a person who is not a lvwyermay be sufficient in certain cases to qualify him as a competent experton a question of foreign law. Analogously the training, practicalknowledge and experience tf a person who is not a professional analystmay be sufficient in certain cases to qualify him as a competent experton the question of examination or analysis of a substance, a questionof science which, I take it, was the question in the case bef >re the learnedMagistrate here. I therefore think the Magistrate should not haverefused to hear the evidence of the Excise I: spec tor and any otherevidence that the prosecution proposed to lead before him.
The acquittal is set aside and, when the record is received back inthe Magistrate’s Court, the Magistrate will take the evidence for theprosecution and proceed thereafter according to law.
Acquittal set aside.