022-NLR-NLR-V-02-SAHIB-v.-WARLIANU.pdf
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SAHIB v. WARUANU.P. C., Colombo, 41,659.
Tavern, being found in, after hours for dosing—Ordinance No. 12 of 1891,s.40.
In section 40 of Ordinance No. 12 of 1891 the word “ on ” in thesentence, " If any person is found on suoh tavern, &c.,” is a slipfor “ in ; ” and hence a person found immediately outside a tavern,and to whom wrack is passed on through a window, oannot beconvicted, under that section, of being found on a tavern when thesame is required to be dosed.
1896.
June 3,
T
HE evidence in this case showed that the accused was seenat about 8.50 p.m. standing at the side window, which was
open at the time, of a tavern at Mutwal and drinking from a glasswhich was given him from inside the tavern through the window.The Police Magistrate charged him with being found on the premisesof the tavern during the hours it was required to be closed, anoffense punishable under section 40 of Ordinance No. 12 of 1891.and convicted him thereon.
The accused appealed.
Pereira, for accused appellant—The charge discloses no offence.The word “ premises ” in section 40 of the Ordinance does notmean the “ premises of a tavern.” It means premises licensedfor the sale of intoxicating liquor as'distinguished from a tavern.The immediately preceding section, section 39, clearly indicatesthe difference. There the words are, “ all licensed taverns and“ all premises licensed for the sale of intoxicating liquor shall be“ closed,” &c. Then, the word “ on ” in the third line of the sectionis clearly a mistake for “ in ; ” and inasmuch as the accused was notfound within *he tavern, he could not be found guilty under thatsection.
Cooke, C. C., for complainant, respondent.
3rd June, 1896. Bonseb, C.J.—
In my opinion this conviction cannot be supported. Theappellants were convicted of “ being found on the premises of“ tavern No. 8, in Modara street, during the hours at which a tavern“ is required by the Ordinance to be closed.” Now there is noOrdinance which makes it an offence to be found on the premisesof a tavern. Ordinance 12 of 1891, section 40, makes it an offenceto be found “ on a tavern.” The words there “ on such tavern“ or premises ” are clearly a slip for in such tavern or on such'premises, as will be seen on reading the following words of the
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1896.
June 3.
Bonsbb.C.J.
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same section, where the word in is all along used with respect to atavern and on with respect to premises. It is easy to see how themistake occurred. Section 4.0 of Ordinance No. 12 of 1891 is a re-enactment of section 38 of Ordinance No. 7 of 1873 and section 4 ofOrdinance No. 22 of 1873. In that latter section the word tavern didnot ooour, but only the word premises; and in this particular instancethe draftsman in inserting the word tavern omitted to use theappropriate preposition “in.” So the charge must be amended to acharge of being found on tavern No. 8, omitting the words “ the“premises of.” Then, holding as Ido thattheword “on’’there means“in,” does the evidence in the case support a charge that these menwere found in this tavern ? The evidence is that they were not inthe tavern at all, in any sense of the word ; they were outside it.The door was locked, but the liquor was passed out of a window. Ifthe Magistrate had in his charge followed the words of the Ordinance,he could not have convicted the accused. This case illustrates—what I have had occasion to remark before—that it is importantthat the charge should be stated in the very words of the Ordinance.