1946 Present: Dias J.

PERERA, Appellant, and BENEDICT (Inspector of Police),
Respondent.

794-M. C . Colombo, 16, 563.

Sale of foreign liquor-?sale? includes any transfer other than by way of gift-Traditio longa manu sufficient where article transferred is bulky or heavy-Plea of purchase for private use-Burden of proof-Excise Ordinance (cap. 42), ss. 2,17 (d), 43 (g).

Where the accused was charges with having sold twelve cases of foreign liquor (brandy) without a licence from the proper authority in breach of section 43 (g) of the Excise Ordinance-

Held, that the word ?sale? in section 2 of the Excise Ordinance has not the same meaning it has in the sale of Goods Ordinance and includes any transfer otherwise than by way of gift. Where owing to the weight or bulk of the article sold actual delivery is difficult there would be sufficient proof of a transfer if there is evidence that the transferor placed the thing before the transferee with the object of transferring the possession.

Held, further, that where, in a prosecution for sale of foreign liquor, the accused pleads the benefits of section 17 (d) of the Excise Ordinance the burden is on him, once the prosecution has established sale, to prove that the liquor which he had produced was ?for his private use?.

APPEAL against a conviction from the Magistrate?s court, Colombo.

N. Nadarajah, K. C. (With him P. Navaratnarajah), for the second accused, appellant.

J. G. T. Weeraratne, C.C. for the crown.

Cur. adv. vult.

November 12, 1946, DIAS J-
   
The fact of this case are not in dispute. Inspector Benedict of the Criminal Investigation Department received information which caused him to suspect that the first accused was in possession of stolen liquor. He therefore sent Peon Wilson on February 21, 1946, to a certain place in Darley road to investigate the truth of his information. Wilson met the first accused who admitted that he had certain cases of brandy for sale. He agreed to sell them, but as there was another man in the business, he requested Wilson to see him again on the following day. Wilson reported these facts to Mr. Benedict. Accordingly on February 22, 1946, Wilson again saw the first accused and arranged to take delivery of the brandy at 9 am that day at the Indian Press in Sea street. Wilson thereafter met the first accused and this appellant at the Indian Press when the first accused showed him sample bottles of the brandy. Wilson requested them to wait saying that his principal would turn up shortly. Mr. Benedict and Sergeant Abeyewardene then met both accused. The first accused again produced the samples and informed Benedict of the price of the cases of brandy. The appellant, who was present, added that there were twelve cases in all and Benedict agreed to purchase the lot, and requested that the twelve case should be brought to the Indian Press for delivery. The appellant agreed and the

Inspector and his party left. On their return to the Indian Press half an hour later, they found that the dozen cases had been brought as agreed. The Inspector having examined the case, issued his private cheque for a sum of Rs. 3, 850 which was the price agreed on. As soon as the appellant took charge of the cheque, Sergeant Abeyewardene disclosed his identity, took back the cheque, seized the cases of brandy and arrested the two accused.

From the report submitted by Inspector Benedict to the Magistrate it is clear that the authorities were uncertain as to what precise charge should be framed against the accused, because the Inspector says that the cases of brandy are ?suspected to be stolen property?. It is, therefore, manifest that the accused were not arrested for an illegal sale, but for being in possession of stolen properly. Subsequently, the police filed a plaint charging both accused with having sold brandy on February 2, 1946 without a licence from the proper authority in breach of sect