Raghubar ats Police [1946] FJLawRp 8; [1875-1946] 3 FLR 469 (25 October 1946)

[1875-1946] 3 FLR 469

SUPREME COURT OF FIJI

Appellate Jurisdiction

RAGHUBAR

ats

POLICE.

Thomson, J.

October 25, 1946.

Distillation Ordinance, Cap. 193-s.22-illicitly distilled spirits-whether spirits upon which the full duty has not been paid.

Illicitly distilled spirits were found on the premises of Raghubar who was convicted of the offence defined by s.22 of the Distillation Ordinance which refers to spirits upon which the full duty has not been paid.

HELD –

Illicitly distilled spirits are spirits upon which the full duty has not been paid.

Bisnath also Police [1943] 3 Fiji LR

APPEAL by case stated against conviction. The facts and argument fully appear from the judgment.

R. D. Bagnall, for the appellant.

E. M. Prichard, for the respondent.

THOMSON, J.-This is an appeal by way of case stated from a decision of the Magistrate at Ba.

The appellant was charged that he unlawfully had in his possession spirits on which the full duty had not been paid in contravention of s.22 of the Distillation Ordinance (Cap. 193) and he was convicted of that offence. He now appeals on the ground that as the spirits in question were illegally distilled no duty was payable on them and that therefore the learned Magistrate was wrong in law in proceeding to conviction.

The material portions of s.22 of the Ordinance read as follows:-

"22. Every person ... upon whose premises shall be found spirits upon which the full duty has not been paid except as herein provided shall be liable to a fine or to imprisonment."

Counsel for the appellant in the course of an able and attractive argument referred to the terms of the section and pointed out that non-payment of the full duty was an essential ingredient to constitute an offence against the section. He pointed out that the only provision in the Ordinance imposing any duty on spirits was contained in s.14 and that that section imposed the duty mentioned in it only upon "spirits distilled in accordance with the provisions of this Ordinance". He went on to argue that no duty was payable (or in fact could be paid) on spirits distilled otherwise than in accordance with the provisions of the Ordinance (as were the spirits in this case) and that accordingly the offence charged could not be committed in respect of such spirits.

On the other hand, my attention was invited to the decision of Sir O. Corrie, C.J., in the case of Bisnath v The Police (Criminal Appeal No. 22 of 1942). The same point was raised in that case with regard to a prosecution under s.23 of the Ordinance and in the course of his judgment the learned Chief Justice said: "S.23 is not restricted in terms to spirits distilled under the Ordinance which, in s.22, provides penalties for illicit distillation, and it is clear that the term "the full duty" in s.23 means, in the words of s.14, "the same duties which are or may be from time to time payable upon spirits of a corresponding description and strength imported into the Colony.' "

With respect, I agree. This may be penal enactment, it may be a revenue enactment. But the special rules as to the interpretation of such enactments are only applicable when there is difficulty in the application of the fundamental rule that the grammatical and ordinary sense of the words in the enactment itself is to be adhered to. And in applying that rule here I see no difficulty. The section does not say "spirits upon which the full duty which is payable upon such spirits has not been paid", it says "any spirits upon which the full duty has not been paid", there is only one duty mentioned in the Ordinance, that is the duty described in s.14, and the only question that has to be decided under the section is whether or not that duty has in fact been paid. Whether duty is or is not payable is beside the point. The ordinary and grammatical sense of the words of the section is that when the spirits are spirits on which the duty has not been paid an offence is committed, and I fail to see how any possible degree of strictness of construction as against the Crown can avoid that conclusion.

The appeal is dismissed.