Custody of distillery apparatus….
IN 1966, Nandalall, a farmer who was found in possession of a distillery apparatus for the manufacture of bush rum, had the matter dismissed against him after the magistrate declared that he was charged under the wrong section of the law.

The customs officer who instituted the charge, one Mr Seerattan, appealed the magistrate’s ruling.

The Full Court, which heard the hearing and was presided over by Chief Justice Harold Bollers, found that the magistrate was clearly in the wrong and a conviction ought to have resulted.

The appeal was allowed and the order of dismissal set aside.

The facts of the matter was that at about 1:10pm on March 31, 1966, the appellant (Seerattan), an officer of the Customs and Excise Department, went with another Customs Officer and a party of policemen to the backlands of Perseverance, on the Essequibo Coast, where, in a very bushy area, the respondent (Nandalall) was found sitting in a boat in a branch of Mainstay Lake, while another man was seen swimming about 10 yards away from the said boat, in which was found a copper coil and a retort with attached gooseneck.

The appellant (Seerattan) disclosed his identity and told the respondent (Nandalall) that he believed the said articles to be part of a bush rum still, whereupon the respondent replied that he had acquired the materials at reference to make a drum of bush rum for his son’s wedding.

He was then arrested and, along with the articles, taken to the Anna Regina Police Station where he was later charged with being in possession of distillery apparatus for the manufacture of spirits, contrary to Section 104 (3) of the Spirits Ordinance, Chapter 319.

The respondent (Nandalall) closed his case after the close of the case for the prosecution, and the magistrate dismissed him, upholding his counsel’s submission that the charge brought against him was laid under the wrong section, and should properly have been brought under Section 11 of the Spirits Ordinance, Chapter 319 (which relates to the distilling spirits without a licence).

In her Reasons for Decision, the Magistrate who tried the matter stated that while she found that the respondent was indeed in possession of the above-mentioned articles, and that those said articles could have been used for the manufacture of spirits, she was of the opinion that the prosecution could not succeed under Section 104 (3), the section charged, as that section envisaged a warrant and seizure which was not the case before her. She also made the point that although the exhibits could have been used for the manufacture of spirits, they were not, in fact, so being used when the respondent was found in possession of them, and as such had accordingly dismissed the complaint.

The prosecution used as its grounds for appeal that the learned Magistrate was erroneous in point of law when she held that the charge was brought under the wrong section. Then Assistant Director of Public Prosecutions, Mr J Gonsalves-Sabola appeared for the appellant, while Attorney-at-Law, Mr E Hanoman represented the respondent.

Delivering the Reasons for the Full Court’s decision, Justice Bollers, who sat along with Justice Arthur Chung, held that:

(1) The submission that the appellant should have been authorized to enter and search the place where the distillery apparatus was found was worthless in view of sub-section (5) of Section 104 of the Ordinance, since that made it quite clear that any Customs Officer may seize any distillery apparatus without warrant.

(2) Under sub-section 6 of Section 104 of the said Ordinance, it is provided that anyone found in a place where distillery apparatus for the manufacture of spirits is found, or in the vicinity thereof, shall be ‘deemed’ to be the owner or person in charge of the apparatus, unless he proves to the contrary, and here, the respondent had never attempted to discharge that onus.

(3) The statement of offence and particulars were wrongly worded, and the proper charge should have been according to the wording of Section 104 (3) itself, viz., “custody of distillery apparatus,” instead of “possession of distillery apparatus,” and this would have presented no real difficulty, since the magistrate had found that the respondent was indeed in possession of distillery apparatus for the manufacture of spirits, as it was trite that anyone who is in possession of something must necessarily be in custody of it.

(4) Accordingly, the acquittal of the respondent by the Magistrate was clearly wrong, and a conviction ought to have ensued. The Court, in order to achieve that object, would order that a conviction for the offence of “custody” of distillery apparatus, contrary to Section 104 (3) be substituted, and that the complaint and conviction order be amended accordingly. The Court would then impose a fine of $250 or three months imprisonment plus one day’s imprisonment, and the respondent would be given three months to pay the said fine.

Expanding upon the second argument he made in arriving at a decision, Justice Bollers that in this instance, the respondent (Nandalall) never attempted to discharge the onus placed upon him in respect of sub-section (6), and therefore must be deemed to be the owner or person in charge of the distillery apparatus for the manufacture of spirits.

He also contended that the submission that the Customs Officer should have been authorized by warrant to enter and search the place where the distillery apparatus was found was worthless, in view of sub-section (5), which empowers him to seize the distillery apparatus without a warrant.

Noting that the acquittal of the respondent by the magistrate was therefore clearly wrong and a conviction ought to have ensued, Justice Bollers said: “We therefore allowed the appeal and set aside the order of dismissal. We, however, concurred with the observation of counsel for the appellant that the statement of offence and particulars of offence in the charge were incorrectly worded, and that the proper charge should have been according to the wording of Section 104 (3) – ‘custody of distillery apparatus’ — instead of ‘possession of distillery apparatus’ as appears in the statement of offence and particulars of offence.”

He conclud
ed his argument by saying: “This situation presented no difficulty, for the magistrate found that the respondent was in possession of the distillery apparatus for the manufacture of spirits and is trite that anyone who is in possession of something must be in custody of it and indeed, the evidence in the present case clearly disclosed that the respondent was in custody of the distillery apparatus. Hence, we made the order that a conviction for the offence of custody of distillery apparatus contrary to Section 104 (3) be substituted and that the complaint and conviction order be amended accordingly and a fine of $250 or three months imprisonment be imposed.”