Solicitor General V. Perera

1914 Present: Pereira J.

SOLICITOR-GENERAL v. PERERA.

504-P. C. Avissawella, 16,774.

Excise Ordinance, No. 8 of 1912, ss. 17, 26 and 30-Arrack renter failing to pay instalment of rent-Cancellation by Government Agent of license to sell arrack under s. 26 (1) (a)-" Fee "-Appeal-Points of law not stated in the petition of appeal urged at the hearing of the appeal-Criminal Procedure Code, s. 340.

 Where, in a criminal case, a party has no right of appeal except on a matter of law, the petition of appeal should contain a statement of the matter of law to be argued, and the appellant should at the argument confine himself to the matter stated in the petition; but where a party has a general right of appeal under section 338 of the Criminal Procedure Code, he is not subject to be restricted to the grounds urged in the petition of appeal.

Where the Governor had delegated to the Excise Commissioner the power under section 24 of the Excise Ordinance to determine the conditions and restrictions for the grant of licenses under the Ordinance, and a certain condition in a license had the sanction of the Excise Commissioner,-

Held, that the condition was valid, and a breach of it justified the cancellation of the license.

The term " fee " used in the Excise Ordinance means a sum paid on the issue of a license for the license. The money stipulated to be paid by the buyer of an exclusive privilege to sell arrack cannot be regarded as a fee for the issue of a license.

THE facts are set out in the judgment.

Elliott (with him B. F. de Silva), for accused, appellant.-The renter, Perera, did not pay one instalment of the sum for which he had purchased the exclusive privilege of selling arrack. That was not a ground for cancelling the license under section 26 of the Excise Ordinance.

Under section 18 the Governor has the right to grant to any person the exclusive right of selling arrack subject to such conditions.

as he may impose. The conditions of this license were not imposed by the Governor.

The Governor cannot cancel a license except on grounds specified in the Ordinance. The default in paying an instalment is not a ground falling under section 26 (1) (a), under which the Government Agent purported to act.

Where a lump sum. is required for granting an exclusive privilege for sale of arrack no duty or fee is due (see section 18).

The terms " duty " and " fee " cannot apply to an instalment of the sum for which the privilege was sold. Fee is given for obtaining licenses, and not for obtaining a monopoly. The term " duty " means excise duty.

The license is issued free of any fee in a case like the present.

The Government Agent can cancel the license only under section 26 (1) (d), and that when the renter surrenders his right. Subsections (b) and (c) have no application to this case.

Bertram, K.C., A.-G., for the respondent.-The appellant cannot argue any point of law other than the point certified (see Criminal Procedure Code, section 340 (2) ).

[Pereira J.-That section applies to cases when no appeal lies as of right except on a point of law] The section is wide enough to cover an appeal on points of law in any case.

Elliott.-In the present case an appeal lies as of right on facts, as the accused has been sentenced to a fine of Rs. 100. The appellant's proctor need not have certified any point of law. The fact that one point of law has been certified does not preclude the appellant from raising other points.

"Where a renter makes default of payment on an instalment, the procedure to be followed is laid down in section 30. Section 26 does not apply to such a case.

Bertram, K.C., A.-G (with him Mahadeva, Acting C.C.,), for the respondent,-It was open to the Government Agent to insert in the license issued by him the conditions of arrack rent sale published in the Gazette of February 6, 1913. The Governor has by notification under section 7 (f) delegated his powers under secti

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