118-NLR-NLR-V-59-ALICE-et-al.-Appellants-and-EXCISE-INSPECTOR-KANDY-Respondent.pdf
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WEEKASOORIYA, J.—Alice v. Excise Inspector, Kandy
1955Present : Weerasooriya, J.
ALICE et ah, Appellants, and EXCISE INSPECTOR,KANDY, Respondent
S. C. 921-922—M. C. Kandy, 1,311
Excisable article—Unlawful possession alleged against husband and -wife—Proof opconscious possession—Excise Ordinance, ss. 43 (a), 50.
"Where an excisable article is found inside a house, the chief occupant is-not liable to be prosecuted for unlawful possession of it unless there is evidence-that ho was in conscious possession of it.
j^^PPEALS front a judgment of the Magistrate's Court, Kandy. '.1 ~M. M. Kumarakulasingham, for the accused-appellants.
Shiva Pasupati, Crown Counsel, for the Attorney-General.
Cur. ado. vult.
November 25, 1955. "Weerasooriya, J.—'•
Learned counsel who appeared for the two accused-appellants (whoare husband and wife) submitted that the prosecution version that fivegallons'of fermented toddy in various utensils were found in the kitchen■ of the house occupied by the appellants should not have been accepted
tYEERASOORI YA, J.—Alice v. Excise Inspector, Kandy
551
by the trial Judge in view of certain contradictions in..the evidence ofthe two principal witnesses who spoke to the raid. But the trial Judge,no doubt, took into consideration these contradictions when ho decided •that the testimony of the witnesses relating to the discovery of the toddywas true. The finding against the 1st accused-appellant (the wife) must,therefore, be affirmed, and her appeal is dismissed.
Then it was submitted that in any event the conviction of the 2ndaccused-appellant cannot stand since it was admitted by the prosecutionwitnesses that at no time during the raid or even thereafter while theraiding party were in the house of the appellants, was the 2nd accused-appellant seen either in the house or the vicinity of it. The raid tookplace at about 6 a.m. The 2nd accused-appellant gave evidence thathe left home at 4.30 a.m. on a journey involving the purchase of a cow,and returned only at 0.30 p.m. Even accepting this evidence thereis the fact, as held by the learned trial Judge to have been proved, thatat about 6 a.m. this large quantity of fermented toddy was found in thekitchen of the house of which he admittedly was the chief occupant.Having regard to the time of the raid it seems highly improbable that thetoddy was brought into the house after the 2nd accused-appellant hadleft it. According to the evidence the only inmates of the house whenthe raiding party arrived were the 1st accused-appellant and somechildren. It must be taken, therefore, as sufficiently established thatthe toddy* had been brought into the house prior to the departure of the2nd accused-appellant. The important question then n whether thelearned trial Judge was in the circumstances justified in finding thatthe 2nd accused-appellant also, as the chief occupant, was in consciouspossession of the toddy. Learned counsel for the appellant referredme to the case of Cornells et al. v. Excise Inspector 1 where it was held,following certain previous decisions cited in the judgment, that the mevofinding of an excisable article in a house occupied by husband and wifewas insufficient to establish possession by the husband who was notpresent at the time of the search. In that case (unlike in the case underappeal) there was, apparently, no evidence supporting an inference thatthe article in question had been brought into the house at a time whenthe husband was present.
Learned Crown Counsel cited the unreported case of Atlapall>i v.Ponnusamy et al. 1 2 where the evidence was that in the course of a searchof a house in the absence of the husband, who was the chief occupant,but in the presence of his wife who objected to the search, some ganjawas found in a locked room which had to be forced open as the key of itwas not forthcoming. It was held on those facts by Macdonell C.J.that both husband and wife were in possession of the ganja.
There is, therefore, authority for the view that the chief occupantof a house may, having regard to the circumstances proved, bo held tobe in possession of an article found in the house in the course of a searchin his absence. In the present case, however, the toddy was found in
1(1940) 47 N. E. It. 407.■
2S. O. Nos. 460-401 ; P. C. Point Pedro 1903 (S. O. Minutes of Sept. ■ 23rd 1932) •Excise Judgments File E. O. S. 71S. Ill—7.
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"WEERASOORIYA, J.—Alice v. Excise Inspector, Kandy .■ ..
the kitchen of the house. The house is said to consist of a living room,a kitchen and a verandah. There is no evidence whether the kitchenis an open one or not, and the situation, of it in relation to the livingroom. The raid took place on a Sunday but no evidence has been ledto show when the 2nd accused-appellant, who is employed in the PublicWorks Department, returned home on the previous day and, assumingthat the toddy had been brought on that evening, what opportunities hehad of knowing that it was in his .house,..' .■-.
The learned Magistrate has stated that he had no doubt that the 2ndaccused-appellant was in control of the toddy, but in the absence of'direct evidence it seems to n?e that he should have indicated in his judg-ment the process of reasoning on which he arrived at that view. He alsoobserved that the 2nd accused-appellant ” possibly managed to makegood his escape when the police party raided his house Now if thiswas a reasonable inference it might have been urged that since the 2ndaccused-appellant’s conduct ’when the raiding party approached thehouse was unsatisfactory the presumption in S. 50 of the Excise Ordinance _could be applied against him. Hut it is clear that in making this observa-tion the learned Magistrate merely gave expression to what was nothingmore than a surmise..'.
The appeal of the 2nd accused-appellant is allowed and his convictionand sentence are set aside.'–…
Appeal of 1st accused dismissed.Appeal of 2nd accused allowed.