1953 'Present: Swan J.

D. E. F. FERNANDO, appellant, and E. L.. GOONEWARDENE
(Excise Inspector), Respondent

S. C. 855-M. C. Panadure, 22,497

Excise Ordinance {Cap. 42)-Section 55- Is a Vedarala a " medical practitioner " ?- Medical Practitioners Ordinance (Cap. 90), ss. 35, 40.

Where, in a prosecution under the Excise Ordinance, the accused, who was a Vedarala, pleaded that as a " medical practitioner " he was entitled to rely on the provisions of section 55 of that Ordinance-

Held, that a Vedarala was not a " medical practitioner " within the meaning of that term in section 55 of the Excise Ordinance.

Amarasekera v. Lebbe (1914) 17 N. L. R. 321, followed.

APPEAL from a judgment of the Magistrate's Court, Panadure.

H. W. Jayewardene, for the accused appellant.

N. Tittawella, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

March 9, 1953. SWAN J.-

The appellant was charged with having without a licence from the Government Agent, W. P., (1) manufactured an excisable article, (2) established and worked a brewery to manufacture an excisable article, (3) possessed materials, utensils, implements and apparatus for the purpose of manufacturing an excisable article, (4) bottled an excisable article for sale, (5) possessed an excisable article and (6) kept and exposed for sale an excisable article in breach of Sections 14 (a), 14 (d), 14 (e), 14 (f), 44 and 17 of the Excise Ordinance-offences punishable under Sections 43 (b), 43 (e), 43 (f), 43 (h), 44 and 43 (g), of the said Ordinance. He was found guilty after trial and sentenced to pay fines amounting to Rs. 400.

The offending liquor was a preparation called " Kamasan Jeewaneeya " which on analysis was found to contain 3 to 3.7 % alcohol. The facts were not denied, but it was contended on behalf of the appellant that he was entitled to prepare and sell this stuff as it was a medicinal preparation,

and that he was a medical practitioner within the meaning of that word as used in Section 55 of the Excise Ordinance. This creates an exemption in respect of bona fide medicated articles. The Section reads as follows :- " Nothing in the foregoing provisions of this Ordinance applies to the import, manufacture, possession, sale or supply of any bona fide medicated article for medicinal purposes by medical practitioners, chemists, druggists, pharmacists, apothecaries or keepers of dispensaries ; but the Governor may by notification prohibit throughout the Island or within any local area the import, manufacture, possession, supply, or sale of any such article either absolutely or except under such conditions as he may prescribe, and the provisions of this Ordinance shall thereafter apply to any article so prohibited. "

The learned Magistrate held that the appellant who is a vederala within the accepted meaning of that word did not act bona fide in the preparation of this so-called medicated article. I am unable to confirm the learned Magistrate's conclusion on this point. The evidence, in my opinion, proves the bona fide of the appellant. It was admitted by one of the prosecution witnesses that he was a vederala in practice for at least 12 years. In his evidence the appellant stated that he prepared this concoction according to an old prescription, and that he used yeast as a preservative. Unfortunately the learned Magistrate apparently drawing on his own knowledge thought that yeast was not a preservative but a basis or nucleus of alcoholic fermentation. The evidence also proved that the appellant had carried on the manufacture and sale of this medicated preparation quite openly for a number of years. In the circumstances I would hold that the learned Magistrate could not and should not have said that this " Kamasan Jeewaneeya " was not a bona fide medicated article. But can the accused claim exemption under Section 55 ? That is the crucial question which, however, the Magistrate did not consid