Solicitor General V. W.Vicotrya Fernando

1965 Present : T. S. Fernando, J.

THE SOLICITOR-GENERAL, Appellant, and W. VICTORIA FERNANDO,
Respondent

S, C.1360 of 1964-M. C. Kanuwana, 6018 / E

Excise Ordinance-Section 17-Charge of unlawful possession of fermented toddy- Evidence of expert-Meaning of term " persons specially skilled "-Evidence Ordinance, s. 45.

The training, practical knowledge and experience of a person who is not a professional analyst may be sufficient in certain cases to qualify him, within section 45 of the Evidence Ordinance, as " specially skilled " on a question of science involving the examination or analysis of a substance. Therefore, in a prosecution for unlawful possession of an excisable article, namely fermented toddy, an Excise Inspector who has sufficient experience and practical knowledge in the detection of excise offences relating to fermented toddy may be qualified to give evidence as an expert on the question whether the liquid claimed to have been found in the possession of the accused was fermented toddy.

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

V. S. A. Pullenayegum, Crown Counsel, in support of the appeal.

No appearance for the accused-respondent.

Cur. adv. vult

March 17,1965. T. S. FERNANDO, J.-

The respondent to this appeal was charged in the Magistrate's Court with the offence of possession of an excisable article, to wit, 1 gallon and 4 drams of fermented toddy, without a pass or permit from the proper authority, in contravention of section 17 of the Excise Ordinance and punishable under section 46 thereof.

The case did not proceed to the stage of trial. It was admitted before the learned Magistrate that the liquid in question had not been forwarded to the Government Analyst for examination and report. The prosecution apparently relied on other evidence to establish that the liquid claimed to have been found in the possession of the respondent was an excisable article, viz., fermented toddy. That other evidence was apparently the evidence of an Excise Inspector who claimed to have more than ten years' experience in the detection of excise offences relating to fermented toddy and to possess the practical knowledge that qualified him as an expert on the question as to which the Magistrate had to form an opinion, viz., whether the liquid claimed to have been found in the possession of the accused was fermented toddy. The learned Magistrate, considering himself bound by the decision of this Court in

Mitradasa Fernando v. Sub-Inspector of Police, Kalubovila [1 (1961) 63 N. L. R. 422.], although there were other decisions which had taken a contrary view, purported to acquit the respondent without taking the evidence of the prosecution.

In Mitradasa Fernando's case (supra) the charge was one of possession of unlawfully manufactured liquor, and the prosecution relied on the evidence of a Sub-Inspector of Police who claimed to be an expert who had undergone a special course of training in the Excise Department to identify excisable articles. Basnayake C.J. held that the evidence of the Sub-Inspector was not relevant to the charge unless he came with in the class of persons contemplated as experts in section 45 of the Evidence Ordinance. He went on to hold that the evidence did not show that the Sub-Inspector was specially skilled in any science or art which qualified him, as in the case of the Government Analyst, to express an opinion on the question whether the liquor seized was Government arrack or unlawfully manufactured arrack.

For several years the Excise Department, in establishing that particular liquor seized is an excisable article, hat been relying on and the Courts have often accepted the evidence of officers, irrespective of the Department to which they belong, who have satisfied such Courts of their experience and capacity to distinguish between various kinds of liquor. I do not propose on this appe

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