084-NLR-NLR-V-59-S.-PARAMANATHAN-Chief-Preventive-Officer-Excise-Striking-Force-Appellnat-and.pdf
.372
'Paramctnalhan v. Goonetcardene
1957Present ; H. N. G. Fernando, J.
S. PARAjMANATHAN (Chief Preventive Officer, Excise StrikingForce), Appellant, and GOOXEWARDENE, Respondent.
S. G. 506—M. G. Kanadulla, 13,171
Charge of selling foreign liquor without licence—Pica of lawful sale after procurementfor private use—Burden of proof—Evidence Ordinance, s.105—Eccise
Ordinance, ss. 17 proviso {d), 43.
"Where, in a prosecution, under Section 17 of llio_ Excise Ordinnnce for tliosale of foreign liquor without a licence, tho complainant proves tlio sale, tlioburden lies on tho accused to prove tlio matters set out in paragraph (d) oftho proviso to tho Section if ho seeks to rely on them. –
Kair v. Saundias (1936) 37 X. L. It. 439, discussed.
H. X. G. FERNANDO, J.—Paramanalhnn v. Gooncwardenc
373
4^-PPEATv, with tlic sanction of the Attorney-General, from a judgment•of the Magistrate’s Court, Ivanadulla..
A. O. A lies, Deputy Solicitor-General, with 3lerryn Fernando, CrownCounsel, for the comi>Iainant-appclIant.
Jl. A. Kannangara, with J/. Bafeek and O. L. L. de Silva, forthe accused-respondent-.»
Cur. adv. vull.
November 2S, 1957. H. N. G. Feexaxdo, J.—'
This is an appeal with the sanction of the Attorney-General against-the acquittal of the accused on a charge of having sold beer without alicence. Section 17 of the Excise Oidinanec provides that no person shallsell foreign liquor without a licence ; and the relevant provisions of section43 declare that any person who in confinvention of the Ordinance sellsany excisable article is guilty of an offence ; it is not disjmted that beeris an excisable article.
In the course of giving ev idence for the prosecution a PreventiveOfficer stated that there would be no evidence to prove that the beerhad been procured cither unlawfully or for a purpose other than theaccused’s jjrivatc vise. At this stage, the accused was acquitted, theMagistrate expressing the opinion that the burden lay on the prosecutionto prove that the sale was of liquor procured either unlawfully or-otherwise than for private use.
Section 17 contains four provisos, the fourth of which is —
“ Provided that—
nothing in this section applies to the sale of any foreign liquorlegally procured by any person for his private use and sold by him orby auction on his behalf, or on behalf of his representatives in interestupon his quitting a station or after his decease. ”
This proviso was construed in the case of Perera v. Benedict1 whereIt was held that once the prosecution proves the sale of foreign liquor by-a person who has no licence to sell, the burden lies on the accused t-oprove the matters set out in paragraph (d) of the proviso if he seeks torely on them. Again in Sclliah v. de Silva 2 it was held that the twocategories of sale excepted by the proviso were firstly sale by a person uponhis quitting his station, and secondly sale by the representatives ininterest of a deceased person. I would respectfully agree with both these-decisions, which are directly contrary to the view taken by the Magistratein the present case.
Counsel for the respondent has relied very strongly on the decision of aDivisional Bench in Fair v. Saundias 3. The provision there in questionwas section SO (3) (6) of the Motor Car Ordinance of 1927 (now repealed) :—
1 (194G) 47 N. L,. R. 519.2 {1947) 49 N. L. R. 45.
3 {193G) 37 N. L. R. 4.39.
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H. NT. G. FBRJT-iNDO, J.—Paramannthan v. Goonewardene
" SO. (3)
(6) The owner of the motor car shall also be guilty of an offence, ifpresent at the time of the offence, or, if absent, unless the offence wascommitted without his consent and was not due to any act or omissionon his part, and he had taken all reasonable precautions to prevent theoifence. ”
The argument for the prosecution was that the condition set in paragraphwas an exception or proviso in the law defining the offence and thataccordingly section 105 of the Evidence Ordinance cast on the accusedowner the burden of proving that the circumstances mentioned in thecondition had in fact existed. The Divisional Bench however heldupon an examination of paragraph (b) that the consent of the ownerto the commission of the offence and his failure to take reasonable pre-cautions to prevent it were essential ingredients of the offence defined insection 80 (3) and that the prosecution had therefore to establish thefact of such consent and of such failure as part of its case. The relevantportion of the judgment of Abrahams C.J., is not an attempt to ascertainthe intention of the Legislature by an interpretation of the enactment,and his decision as to where the burden of proof lay is reached by firstattempting to determine how a charge under the section should be framed.
With great respect I do not appreciate the validity of tins test of for-mulating the form of a charge as a means of construing the intention ofthe Legislature : to my mind a charge can be correctly drafted onlyafter the intention has been ascertained.
The judgment of Dalton S.P.J. proceeds on a quite differentbasis. He refers to the valued principle that the prosecution must alwaysprove the ingredients of an offenceand that section 105 is no real exceptionto this principle because the burden of proving an exception would onlyarise after the essential elements have been proved by the prosecution.He recites , also the rule of construction in favour of the subject of aStatute which encroaches on the rights of subjects. Manifestly theright which Dalton, J. had in mind was the right that a person shouldnot be made criminally liable for the act of another. From which itwould follow that the prosecution would have to prove the owner’s actor omission (that is his consent, or his failure to take precautions) before acase to answer could arise. Dalton, J. also pointed out that mens reais with some exceptions an essential clement in constituting a breach ofthe Criminal Law.
Having regard to the general principles as to burden of proof empha-sized in his judgment, Dalton, J. reached the conclusion that there wasnothing in section 80 (3) (b) to show by clear implication that the Legis-lature intended to effect any change in the general law. I would respect-fully adopt this mode' of approach to section 17 of the Excise Ordinance.
The Excise Ordinance considered as a whole contains a series of pro-hibitions and restrictions (in one view of an arbitrary nature) as to themanufacture, possession and sale of excisable articles. The efiect ofsome of these provisions is that a foreign liquor cannot reach the hands ofa private individual in a lawful manner unless it has first been imported,possessed and sold by a person or persons holding the requisite licences.
H. X. G. FERXAXDO, J.—Paranuinathan t'. Gooncuardene
375
from the Government, and it is quite reasonable to suppose an intentionon the part of the Legislature to prohibit or control further dealings insuch liquor by any such private individual. This indeed is precisely the .intention which the first two lines of section 17 appear to express :—
" Ko excisable article shall be sold without a licence. ” It seems obviousin the context of the Ordinance that the prohibition against sale (that isagainst “ anj- transfer otherwise than by way of gift ”) is an absolute oneand that no proof of mens rea would be required. It is in my opinionequally clear that no question of the protection of the rights of the sub-ject can arise because the Ordinance constitutes a complete denial ofany right of the subject to obtain possession of excisable articles otherwisethan in accordance with a licensing system.
If then section 17 only consisted of the first two lines which I havecited, a case for the prosecution would be complete upon proof firstlythat an article is an excisable article and secondly that it was sold, andno possible argument would be available that further proof of any othermatter is necessary. But the section contains what is in form a proviso,paragraph (a) of which permits the sale of toddy by a licensed drawer oftoddjr to a licensed manufacturer of toddy or arrack. The only otherrelevant paragraph in the proviso is the paragraph (d) now underconsideration.
Having regard to the construction placed on paragraph (<2) in the caseof Selliah v. de Silva 1 which recognises only an extremely restricted righton the part of a private purchaser of foreign liquor to sell that liquor,it should be clear that in so far as foreign liquor is concerned, cases suchas those contemplated in paragraph ((7) would be extremely rare. Tiiatbeing so it would be unreasonable to suppose that the Legislature intendedto lay on the prosecution the burden of establishing that a particularsale does not fall with in the scope of the exception, because in that viewthe prosecution would be called upon to displace a possibility whichwill almost never be present.
In tlie rare case in which there has been a sale in the circumstancescontemplated in proviso (d) it would be a simple matter for the accusedto satisfy either the prosecuting authority or the Court of the cir-cumstances of the sale and no hardship would be caused by imposing thatburden on him. For these reasons and for the reason also that the formadopted in section 17 for this particular eventuality is that usually utilisedby the Legislature in framing an exception to liability I would followwithout hesitation the decision of this Court in Perera v. Benedict 2.Although the case of Nair v. Saundias 3 is not referred to in that judgment,
I am satisfied that it is not an essential element in a charge undersection 17 that there should be disproof of the excusatory circumstancesspecified in proviso (d).
The verdict of acquittal and discharge is set aside and the case isremitted to the Slagistrate for a fresh trial.
Acquittal set aside.
1 {1947) 49 IV. L.R. 45.3 (1946) 47 N. L. R. 519.
3 (1936) 37 IV. L. R. 439.