1916 Present: De Sampayo J.

SEENITAMBY v. VALIPURAM.

723-P. C. Point Pedro, 5,403.

Opium-Sent by one person to another doing business with him-" Dispose of" -Excise Ordinance, No. 5 of 1910, s. 7 (2).

The appellant sent by ss. " Lady McCallum " from Point Pedro to his son at Batticaloa, with whom he was doing business, opium concealed in bundles of tobacco.

Held, that accused had " disposed of " the opium within the meaning of section 7 (2), of Ordinance No. 5 of 1910.

THE facts are set out in the judgment.

Hayley (with him Naganathan), for first accused, appellant.

S. Obeyesekere, C. C, for respondent.

Cur. adv. vult.

August 30, 1916, DE SAMPAYO J.-

The appellant, Valipuram, has been convicted of the offence of having unlawfully disposed of 12 lb. of opium in breach of section 7 (2) of the Ordinance No. 5 of 1910, and has been sentenced to pay a fine of Rs. 1,000. The opium was found in a bundle of tobacco which, with seven other bundles, had been conveyed by the ss. " Lady McCallum " from Point Pedro to Batticaloa on December 22, 1915. According to the shipping order the eight bundles of tobacco were consigned by V. Arumugam to S. Kasipillai under the mark " S. K." The shipping order was received by and presented at the Batticaloa Customs by Namasivayam, who is a son of the appellant. Namasivayam, who with his father, the appellant, would appear to carry on a business at Batticaloa, used to clear goods for Kasipillai there, and he professed ignorance of any opium being concealed in the bundle of tobacco. Kasipillai, however, repudiated the transaction altogether, and stated that he new nothing of the tobacco being sent to his name at Batticaloa. V. Arumugam, whose name also appeared on the shipping order as consignor, similarly denied having sold the tobacco to Kasipillai, or having sent it to Batticaloa. The case for the prosecution is that the names of these two persons were utilized by the real consignor without their knowledge in order to cover the illegal transaction. Arumugam says that some days previous to December 22 he sold and delivered to the appellant a quantity of tobacco which was lying in a house at Point Pedro, and which the appellant made into bundles there. There is good reason for accepting the evidence

of Arumugam and the other witnesses who were called for the prosecution, and this evidence supports the finding of the Police Magistrate that it was the appellant who sent the tobacco by the Lady McCallum," and that in this matter his son Namasivayam was acting in concert with him at Batticaloa.

It is argued that, even on the assumption that the bundles of tobacco were so sent, there is no proof that the appellant had put the opium into one of them, and that some one on board the steamer might well have put it there. There are no circumstances indicating that the bundles of tobacco were interfered with on the way. On the contrary, the evidence is that they arrived at Batticaloa intact. It is for the appellant to explain, if he can, how the opium came to be among his goods; he has not done so, and the reasonable inference, I think, is that he was responsible for its introduction.

The more difficult question is whether, in the circumstances above disclosed, the appellant can be said to have " disposed of " the opium within the meaning of section 7 (2) of the Ordinance No. 5 of 1910. It is argued that, since his son Namasivayam does . business with him, the sending of the opium to Namasivayam does not amount to transfer of the opium or of its possession. The expression " dispose of," generally speaking, no doubt conveys the idea of such a transfer. Even if that is the sense in which it is used in the above section of the Ordinance, there has, I think, been a transfer in this case. The appellant, as he denies the sending altogether, has, of course, nothing to say as to the opium being sent for himself or for the purpose