Present: Ennis, De Sampayo, and Porter JJ.

 MISSO v. PERERA

 P. C. Gampaha, 33,076.

Excise Ordinance-Sale of arrack for a higher price than that appearing on the signboard at the tavern-Prosecution for breach of condition -Is proof of strength of arrack necessary?

Accused sold arrack at a rate higher than that appearing on the signboard exhibited in the tavern and was charged for breach of condition 3 (3) of the General Conditions applicable to all Excise Licenses (Excise Notification No. 133 ; Gazette of May 25, 1923).

Held, that it was not necessary for the prosecution to prove the strength of the arrack sold.

THE Itinerating Police Magistrate of Colombo stated a case under section 353 of the Criminal Procedure Code as follows:-

Case stated by the undersigned under the provisions of section 353 of the Criminal Procedure Code, 1898.

At the Itinerating Police Court of Colombo, held at Gampaha, before the undersigned on February 20, 1924, J. Paul Perera, the above-named defendant, was charged as follows :-

That he did on October 25, 1923, at arrack tavern, Weligampitiya, sell arrack at a higher rate than, the current rate appearing on the signboard, to wit, at Rs. 15" 14 a gallon, whereas the rate appearing on the signboard was Rs. 13-92 a gallon, in breach of condition 3 (3) of the General Conditions applicable to all Excise Licenses appearing in Excise Notification No. 133 and published in the Government Gazette No. 7,330 of May 25, 1923, read with section 24 of Ordinance No. 8 of 1912, and thereby committed an offence punishable under section 43 (h) of the Excise Ordinance, No. 8 of 1912.

At the hearing of the said charge it was proved that the accused did sell arrack at a rate higher than that appearing on the signboard exhibited in the tavern of which he is a tavern-keeper. The current rate of sale appearing on the signboard was Rs. 13-92 per gallon of arrack, and in a gallon there are 76,800 minims or drops of arrack. The accused sold a certain quantity of arrack for 75 cents, which, when measured by the complainant then and there, was found to contain only 3,805 minims or drops. The rate as worked out from this brought the price at Rs. 15-14 per gallon of arrack, which was about 9 per cent, higher than the current price as exhibited on the signboard. I considered that this excess was far too much to be accounted for by the loss of arrack in the process of transferring from cask to bottle at the sale or from the bottle in which it was sold into the measuring glass or bottle at time of measurement, and that only about 2 or 3 per cent, should be allowed for this loss and any error in calculation
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2. It was thereupon contended on the part of the defendant that it was incumbent on the part of the complainant to prove the strength of the arrack sold, and that inasmuch as he did not test the strength of the

arrack sold or exhibited for sale by Syke's hydrometer, and was, therefore, not in a position to state what the strength of the arrack sold was, the case must fail, and the defendant acquitted of the charge against him.

In support of this contention the judgment of His Lordship the Chief Justice in P. C. Hatton, case No. 9,652 (S. C. No. 661), was cited, and also the decision of His Lordship Mr. Justice Porter in a case in appeal from this Court.

3. But I being of opinion that the judgment in P. G. Hatton, case No. 9,652, was not applicable to this case inasmuch as this prosecution was for an infringement of general condition 3 (3) applicable to all excisable licenses for the year 1923-24, whereas the prosecution in the Hatton case was for an infringement of condition 23 of the Arrack Rent Sales Conditions, held that proof of the strength of arrack sold was not necessary. The two conditions are entirely different. Under the latter condition the sale price of arrack is fixed with reference to its strength, and therefore proof of strength is necessary whe