186-NLR-NLR-V-47-MARAMBE-EXCISE-INSPECTOR-Appellant-and-JOHN-Respondent.pdf
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Maram.be (Excise Inspector) v. John.
1946Present: Dias J.
MARAMBE (EXCISE INSPECTOR), Appellant,and JOHN, Respondent.
1,064—M. C. Kurwnegala, 30,470.
Cultivation of hemp plants—Nature of evidence sufficient to prove cultivation—Ganja plants fall within the definition of “ hemp plants ”—Burden ofproof as regards licence—Poisons, Opium and Dangerous Drugs Ordi-nance (Cap. 172), 88. 26, 76 (5) (a).
Where the charge against the accused was that, without a licencefrom the Governor, he planted, cultivated or had in his possession -anumber of hemp plants in breach of the provisions of section 26 of thePoisons, Opium and Dangerous Drugs Ordinance—
Held, (i.) that the accused’s act of placing a shade or screen overnewly planted ganja plants amounted to the cultivation of such plants ;(ii.) that ganja plants come within the definition of “ hemp plants ” ;(iii.) that the burden was on the accused to prove that he had a licence.
‘ (1934) 36 N. I,. R. 135. Cf. Dias v Wijetunge (1946) 47 N. L. R. at p. 225.
(1916) 2 C. W. R. 69.
(1931) 32 N. L. R. 318.
(1922) 4 Ce-j L Roc 83.
6 (1943) 45 N. L. R. 115.
DIAS -T.—Marambe ( Excise Inspector) v. John.
527
A
PPEAL against an acquittal from the Magistrate's Court, Kurune-gala.
A. O. IS. Ameer, C.C., for the complainant, appellant.
C. R. Guneratne, for the accused, respondent.
Cur. adv. wit.
October 23, 1946. Dias J.—
The charge against the accused is that on March 26, 1945, at Meegaha-ella, without a licence from the Governor, he planted, cultivated or had inhis possession fifteen hemp plants in breach of the provisions of section 26of the Poisons, Opium and Dangerous Drugs Ordinance (Chap. 172)and punishable under section 76 (5) (a) of that Ordinance.
The testimony of Excise Inspectors Marambe and Sabaratnam is tothe effect that on receipt of certain information they proceeded to thespot and saw the accused by the side of a stream planting branches toserve as a screen to give shade to fifteen ganja plants. These appearedto have been newly planted. The soil was loose round them and theleaves were drooping. When the accused saw the Inspectors, he tookto his heels and was arrested. The plants were then uprooted, parcelled,sealed and produced in Court. Both Inspectors say that they are ganjaplants, and there has been no cross-examination to suggest that it isdisputed that the plants are ganja plants.
When the case for the prosecution closed, the Magistrate withoutcalling upon the defence, acquitted the accused holding that the evidencedid not disclose that the accused planted, cultivated or possessed theganja plants. In his opinion, the case, at its best, is only one of strongsuspicion against him. The complainant appeals against that orderwith the sanction of the Attorney-General.
I agree with the Magistrate that there is no evidence that the accusedplanted or possessed these ganja plants. Is there evidence that hecultivated them ?“ Cultivation ” is the improvement of a plant by the
exercise of labour and care. In Inspector of Excise v. Lebbe 1 where theevidence was that a site had been cleared and prepared in a belt of jungleadjoining the garden of the accused, who was seen loosening the soilround the ganja plants growing at that spot and weeding the site, itwas held that the accused had “ cultivated ” ganja plants.
I hold that the act of placing a shade or screen over newly plantedganja p’ mts amounts to the cultivation of such plants. The evidencewhich the Magistrate has not disbelieved proves that these plants hadbeen newly planted in a prepared site and that by giving cover or shadeto them, the accused was engaged in cultivating them.
Ganja plants come- within the definition of “ hemp plants SeeWilson n. Kotalawda 2. The offence with which the accused is chargedis one which does not require the proof of mens rea by the prosecution—
Perumal v. Arumogam 3.
1929) 31 N. L. R. 211.
» (1939) 40 N. L. B. 632.
(1946) 47 N. L. R. 46.
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DIAS J.—Marambe {Excise Inspector) v. John.
It has been urged on behalf of the accused that it is incumbent on theprosecution to establish that the accused acted “ without the licenceof the Governor ” in terms of section 26 which defines the offence. I amunable to agree. It is for the prosecution to establish that hemp or ganjaplants had been cultivated, and that such cultivation was done by theaccused. The onus then shifts to the accused to establish by a balanceof evidence that what he did was with the licence of the Governor, thisbeing an exception to criminal liability. See Mudaliyar, Pitigal Kor ale v.Kiribanda l, CheUiak v. Coopera, Wijesiughe v. Dhanapala 3. Joseph v.Sugathadasa 4, and Pcrera v. Kannangara 5.
In my opinion the acquittal of the accused was premat ore. Theaccused should have been called upon for his defence. I set aside theacquittal, and send the case back for trial in due course.
Acquittal set aside
i
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{1909) 12 N. L. R. 304 {Dio. Ct.).* (1938) 39 N. L. R. 534
{1937) 39 N. L. R. 112.* (1938) 16 T. L. R. 8.
• (1939) 40 N. L. R. at p. 468.