045-NLR-NLR-V-07-VIGORS-v.-DE-SOYSA.pdf
( 193 )
VIGORS v. DE SOYSA.P. C., Kalutara, 5,014.
1904.
May 2.
Arrack—Ordinance No. IS of 1691—License to distil issued to B on behalf ofA—Liability of licensee to make returns of distillation.
Where', at the request of A, an arrack renter, the Government Agentissued under Ordinance No. 13 of 1891 a license to distil arrack, whereinthe name of the proprietor of the distillery was stated to be ** B, for A, "and A was charged with having failed to make a correct return asrequired by section 16.of Ordinance No. 13 of 1891,—
Held that, though the license was issued to B for 'A, yet B was theactual licensee, and as such »as responsible for the returns.
Semble, that the making of incorrect returns is not an offence under-section 18 of the Ordinance.
T
HE accused, being the arrack renter of the Western Provincefor two years ending December 31, 1904, requested the
Government- Agent by letter to be " good enough to grant a licenceto the distillery situate at Otaruyawnttn in Katukurunda, KalutaraTotamune, in the name of Don Suaris Rodrigo of Beruwala, onmy (i.e., his own) behalf for the year lvii)3, under the managementof C. D. S. Gunasekera, and I beg to state that I am prepared tocomply with the necessarv reauirements of the Ordinance No. 13of 1891.”
The Government Agent accordingly issued a license to distilspirits as follows: —
No. 134.
Licence to distil >Spirits.
This is to certify that I, William Loring Kindersley, Assistant GovernmentAgent for the Kalutara District, do hereby license the distillation of arrackby (the party or parties), with the still and at tho place hereunder mentioned,from the 29th day of May, 1903. to the 31st day of December, 1903.
Name of Proprietor. Name of Manager Size of. Still. ! Where situated.
i
W. Suaris Rodrigo, for A C. D. S. Guns- 170 gallon i
i
| Otarayuwattu
J. R. de fjoysa sekvra j at Katukurunda
W. L. Kindebslet,
This 20th of May, 1903.* Assistant Government Agent.
The accused Mr. De Soysa was charged by tbe GovernmentAgent with having failed to make a frud return as licenseddistiller for distillery No. 134 at Katukurunda for the two weeksending 5th and 12th December, lp03, as /required by section 16of Ordinance No. 13 of 1891, and thereby haviug committed anoffence punishable under Section 18 of the Ordinance.
( 194 )
1904. It was contended that the licensed distiller was Don SuarisMan 2. Bodrigo and not Mr. De Soysa, and that, therefore Mr. De Soysa‘ could not be punished for a failure to make the necessary returnsfor those two weeks.
The Police Magistrate found the accused guilty, and sentencedhim to a fine of Bs. 20 by the following judgment: —
“ The application for the license is by Mr. De Soysa. It is hewho owns the business and makes his money on it. It is for hisconvenience that Bodrigo's name was put on the license, but it wasall along clear that De Soysa is the real distiller. Bodrigo isa mere sort of factory hand employed to watch the boiling of thetoddy and its distillation. I hold that accused De Soysa is thedistiller, and is liable under the Ordinance. I therefore convicthim, as it was his duty to see that the returns were sent in.”
The accused appealed.
The case was argued before Layard, C.J.. on 22nd April, 1904.and re-argued before Sampayo, A.J., on 28th April.
Walter Pereira, for appellant.
Rdmanathan, S.-G., for respondent.
Cur. adv. vult.
2nd May, 1904. Sampayo, A.J.—
In this case the ■ Assistant Government Agent of Kalutaracomplained to the Court that the accused A. J. R. de Soysa, beingthe licensed distiller for .1903 of the distillery No. 134, situated atKatukurunda, had failed .to make true and correct returns for theweeks ending 5th and 12th December, 1903, as required bysection 16 of the Ordinance No. 13 of 1891, and that he therebycommitted offences punishable under section 18 of t-lie saidOrdinance. The Police Magistrate convicted' the accused on thischarge, and sentenced .him to pay a fine.
It appears that the accused, who was the arrack renter of theCentral Province for 1903 and 1904, wrote to the GovernmentAgent on 9th February, 1903. requesting him .to grant, a licenseto the above distillery in the name of Welipitiyage Don SuarisRodrigo on his (the accused's) behalf, giving the name of oneCharlds de Silva Gunasekera as the manager of the distillery,and stating that he (the accused) was prepared to comply withthe requirements of* the Ordinance. A license was upon thisapplication granted, wherein the name of the grantee was givenas “ Suaris Bodrigo for A. -L R. de ‘Soysa,” and the name ofGunasekera is given as the manager. It is argued for the accused,who has appealed, that the licensed distiller is not himself hut
( 195 )
Suaris Bodngo and I think that this contention is right. Itmay be that the license was issued to Bodrigo for or on behalfof some' one else, but he is nevertheless the licensee, and isresponsible as such. The Government Agent might have refusedto grant the license to any one but the applicant therefor, buthe did not do so, and, in my opinion, the accused cannot be «-ddto be the licensed distiller.
It appears from the letter of the Assistant Government Agentof 26th April, 1904, in reply to an inquiry directed by Layard, C.J.,before whom this case first came for argument, that as a matter offact the returns both for the weeks in question and for all the otherweeks in the year were made by the manager Gunasekera, and theAssistant Government Agent adds that his real complaint is thatthe returns were incorrect. This is a new phase of the matter, butneither in the written complaint made to the Court nor in theproceedings and judgment of the Police Magistrate does it appearin what respect the returns were incorrect. Moreover, the offencecreated by section 18 of the Ordinance relates to neglecting orrefusing to make any return required by the Ordinance to be madein the form and within the time specified, and it seems to me thatmaking an incorrect return is not an offence under that section.But I need not go into this point, because in any case the person tobe charged would be the licensee, and I have already held that theaccused was not the licensee. I may add that it was stated at theBar that the Chief Justice came to the same conclusion as regardsthe construction of the actual license issued.
I set aside the conviction and acquit the accused.
J004.
May 2.
Nampavo,
A.J.