054-NLR-NLR-V-16-ELIATAMBY-v.-DAPADAPU.pdf
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Present: Ennis J.
ELIATAMBY v. DAPADADU.
92—P. C. Chilaw, 36,717.
Keeping open licensed premises after hours—Ordinance No. 12 of 1891,
s. 39.
The offence under section 39 of Ordinance No* 12 of 1891(keeping open licensed premises) is constituted by the mere openingof the tavern within prohibited hours, and no further duty wouldbe cast upon the prosecution than to show that the tavern was openduring these hours.
(DubUante) The accused might be able to show that the tavernwas open for some lawful purpose, and take himself out of theoperation of the section.
In any event it would be incumbent on the defence to show aclear necessity to open the tavern even for a lawful purpose.
T
HE accused in this case were charged under section 39 of Ordi-nance No. 10 of 1844, as amended by No. 12 of 1891, with
having kept open a tavern within the prohibited hours. The learnedMagistrate acquitted the accused relying on Per erai v. Gomesz.1The Attorney-General appealed.
Garvin, Acting &-(?., for the Attorney-General.—The case reliedon by the Magistrate was explained by the same Judge in Coorayv. Fernando.2 The section is clear, and it is no defence for theaccused to say that he opened the tavern for some purpose otherthan the selling of arrack.
No appearance for the respondent.
i (1909) 12 N. L. B. 210.a (1912) 15 N. L. R. B. 175.
19-
1018*
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IMS; March 28, 1918. Ennis J.—
SUatambf In this case the accused were charged under section 89 oi Ordi-
t>apadaM n^nc6 jjor. 12 of 1891 with keeping open licensed premises withinprohibited hours. The Court below, although holding that thepremises had been kept open within prohibited hours, consideredit the duty of the prosecution to prove that it had been kept openfor the sale of liquor. The offence under the section, however, isconstituted by the mere opening of the tavern within prohibitedhours, and no further duty would be cast upon the prosecution thanto show that the tavern was open during these hours. It is possible,however, that the accused might be able to show that the tavernwas open for some lawful purpose, and take themselves out of theoperation of the section. I have, however, some doubt as to thisposition, and do not wish to decide it. But, in any event, I considerit would be incumbent on the defence to show a clear necessity toopen the tavern even for a lawful purpose. In the present case theMagistrate believed that the tavern had been open under circum-stances which gave rise to a suspicion that it was open for the saleof liquor. I therefore think that he should have convicted thefirst, second, and fourth accused on the evidence led by the prose-cution. As regards the third accused, the appeal is not pressedagainst him. I accordingly convict the first, second, and fourthaccused of the offence with which they were charged, and fine thefirst and second, who call themselves tavern-keepers, Bs. 10, andthe fourth accused, who is said to be a watcher, Rs. 5.
Set aside.