Attorney General V. Miranda Et Al

Present: Wood Renton J.   June.15,1911

ATTORNEY-GENERAL v. MIRANDA et al.

334-P. C. Batticaloa, 31,217.

Ordinance No. 12 of 1891, s. 13-Selling intoxicating liquor without a license-Assignment of stock by licensee to a third person-Power of attorney executed by licenses in favour of the third person-Sale of liquor by third person-Abetment.

It is an offence for an unlicensed person to sell his own liquor on licensed premises under the cloak of another licensed person.

The assignee of a licensee cannot carry on the sale of his own liquor under the license of his assignor, except in the specific cases contemplated by section 14 of Ordinance No. 12 of 1891.

Where intoxicating liquor is sold by retail by an agent on behalf of an unlicensed owner, the sale is, for the purpose of section 3 of the Licensing Act, 1872, which is almost identical in terms with section 13, sub-section (1), of Ordinance No. 12 of 1891, a sale by the owner and not the agent, and the fact that the agent who conducted the sale was licensed affords the owner no defence.

IN this case, the facts of which are fully stated in the judgment of Wood Renton J., the first accused was charged with the offence of selling or exposing for sale intoxicating liquor without a license, in breach of section 13 of Ordinance No. 12 of 1891; and the second accused was charged with having abetted the first in the commission of that offence. The learned Magistrate acquitted the accused.

The Attorney-General appealed.

Walter Pereira, K.C., S.-G., for the appellant.-The Police Magistrate has acquitted the accused on the ground that the sale was not effected by the first accused himself, but by his agent. Even if an agent had sold the liquor on behalf of the first accused, the accused would be guilty under section 13, sub-section (1), of Ordinance No. 12 of 1891. Counsel relied on P. C. Matara, 30.8471.

Van Langenberg, for the respondents.-The first accused did not himself sell the liquor. He could not therefore be convicted under section 13 of Ordinance No. 12 of 1891. The law does not prohibit the assignment of a business. Section 11 of Ordinance No. 12 of 1891 enacts that a licence shall not be assignable or transferable. The Ordinance, however, contemplates the assignment of the business; section 14 speaks of assigns. The first accused is an assignee of the second accused's business. He holds a power of

1 S. C. Min,, Sept. S, 1910.

attorney from the second accused. The deed of assignment and the power of attorney were intended to amount to an irrevocable power of attorney. The first accused consulted a notary, and acted quite bona fide throughout. Counsel cited Encyclopoedia of the Laws of England, vol. XII., p. 212. Mens rea has not been proved in the case of the second accused.

Cur. adv. vult.

June 15, 1911. Wood Renton J. -

This is an appeal by the Attorney-General against the acquittal of the accused-respondents, who were charged in the Police Court of Batticaloa, the first accused-respondent with the offence of selling or exposing for sale intoxicating liquor without a license in premises No. 8 in Central road, Puliyantivu, in breach of section 13 of Ordinance No. 12 of 1891; and the second accused-respondent with having abetted the first in the commission of that offence. So far as it is necessary to state them at present, the material facts lie within narrow compass. The second accused-respondent had a license to sell intoxicating liquor on the premises in question. On January 28,1911, by deed No. 1,625, he made an out-and-out assignment of his stock on the premises in question to the first accused-respondent. By deed No. 1,626 of the same day he executed a perpetual power of attorney in the first accused-respondent's favour. In that power of attorney the deed of assignment is referred to. But the power of attorney is inaccurate, where it states that what the second accused-respondent had done wa

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