Rex v Mall (Criminal Appeal No. 208 91 1943.) [1944] EACA 6 (1 January 1944)

APPELLATE GRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and BARTLEY, J.

REX, Respondent (Original Prosecutor)

BABU RAM s/o JEWA MALL, Appellant (Original Accused)

Criminal Appeal No. 208 of 1943

Criminal Law—Supplying natives with methylated spirits—Selling methylated spirits without a licence—Liquor Ordinance, 1934, sections 39 and 44.

The appellant was convicted on two counts under the Liquor Ordinance, 1934, for supplying natives with methylated spirits and selling methylated spirits without a licence in connexion with the same transaction.

*Held* (24-3-44).—(1) That methylated spirits is included in the definition of "intoxicating liquor" in section 3 of the Liquor Ordinance, 1934.

(2) That the provisions of the Liquor Ordinance, 1934, apply to persons selling methylated spirits to natives.

(3) That as a person licensed under the Liquor Ordinance, 1934, is prohibited from selling methylated spirits under his licence, a person cannot be prosecuted for selling methylated spirits without a licence under the Liquor Ordinance, 1934,

Mangat for the Appellant.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—Making due allowance for the alterations in the time recorded in the Occurrence Book, which point was considered by the learned Magistrate, on the evidence which he believed there is no room for doubt as to the correctness of the identity of the accused as the person selling methylated spirits to natives. He was fined Sh. 3,000 on this charge and having regard to the seriousness of the offence of selling methylated spirits to natives and the fact that the case is not one of an isolated transaction we do not consider the sentence excessive.

The accused was further convicted of selling methylated spirits without a licence contrary to section 44 of the Liquor Ordinance.

Section 4 $(2)$ of the Liquor Ordinance, 1934, reads:

"No person licensed under this Ordinance for the sale of intoxicating liquor for consumption on the premises shall sell or keep or permit to be sold or kept on the licensed premises methylated or other denatured spirits."

It is clear from that section that a licence under the Liquor Ordinance, 1934, does not authorize the holder to sell methylated spirits and it follows that a person cannot be prosecuted for selling methylated spirits without a licence under the Liquor Ordinance. We therefore set aside the conviction and sentence on the second count.

With regard to the first count it is clear from the definition of "intoxicating liquor" in section 3 that methylated spirit is included in that definition and it is also clear from section $2(3)$ which reads:

"The provisions of this Ordinance shall not apply:

(3) To any person who is not licensed for the sale of intoxicating liquor for consumption on the premises, selling methylated spirits to persons other than natives, Abyssinians, Somalis, Malagesies or Comoro Islanders,"

that the provisions of the Liquor Ordinance apply to persons selling methylated spirits to natives.

The appeal on the first count is dismissed.