Present: De Sampayo J. 1919

JAYAWARDENE v. FERNANDO.

651-P. C. Kalutara, 50,632.

Licensed distillery opened by a balapukaraya during absence of licensee- Admission of unregistered servant into distillery-Is licensee responsible ?-Are bottles vessels ?-Excise rules, July 7, 1916- Excise Ordinance, ss. 45 and 50.

Accused, a licensed distiller locked up the distillery, put the key in a drawer of a table in his house, left his village. At night one Pedro, registered servant of the accused, who was as well a balapukaraya, got the keys from the accused's mother and admitted into the distillery a person who was not a registered servant. The accused was charged for breach of rules Nos. 21 and 22 published in the Gazette (July 7, 1916).

Held, that as the act was done during the accused's absence and without his knowledge and authority, he cannot be said to have " wilfully " contravened the rule, and that he was not in the circumstances of the case responsible for the act of Pedro.

Query, whether glass bottles are " vessels " within the meaning of the term in rule 6 of the Excise rules (July 7, 1916).

THE facts appear from the judgment.

Bawa, K.C. (with Canakaratne), for accused, appellant.

Dias, C.C., for respondent.

October 22, 1919. DE SAMPAYO J.-

In my opinion the conviction in this case cannot be supported. The accused is a licensed distiller, and he has been charged on two counts for breach of certain rules framed under the Excise Ordinance. The first charge is that he admitted into the distillery, without the permission of the Superintendent of Excise, one Justina Fernando, who was not a registered servant, and employed her for the transport of arrack, in breach of rules Nos. 21 and 22 published in the Government Gazette of July 7, 1916. The facts are that the accused had on the day in question left his house and village with his wife and did not return till the next day. Before going away he locked up the distillery and put the key in the drawer of a table in his house, which was left in charge of his mother. At night, during his absence, one Pedro Fernando, a registered servant of the accused, as well as a balapukaraya (that is to say, a man who brings his own toddy into a distillery and gets it distilled there), got the keys from the accused's mother, opened the distillery, and admitted into it the woman Justina Fernando, who was subsequently

detected in the act of going away from the distillery with two pots of arrack. The question is whether the accused can be held to be guilty of a breach of the rules above mentioned. It is section 45 (6) of the Excise Ordinance that declares breaches of rules to be offences, but it has the limitation that the person to be charged should have " wilfully " contravened the rules. When the act complained of in this case was done during the accused's absence and without his knowledge and authority, he cannot be said to have " wilfully" contravened the rule. The Police Magistrate has, however, held that the accused is responsible for the act of his servant Pedro Fernando. He probably had in view the" provision of section 50 of the Ordinance, which enacts-

" The holder of a license, permit, or pass under this Ordinance shall be punishable, as well as the actual offender, for any i offence under section 43 or section 44 or section.45 committed by any person in his employ and acting on his behalf-as if he had himself committed the offence, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence."

Now, Pedro Fernando was no doubt in the accused's employ, but there is no proof that he acted on the accused's behalf or within the scope of his employment. On the contrary, the circumstances indicate that he was not acting on behalf of his master. Being a balapukaraya he apparently admitted Justina Fernando into the store on his own account a