IN 1966, Nandalall, a farmer 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.

Customs Officer Seerattan, who instituted the charge, appealed the magistrate’s ruling.
The Full Court, presided over by Chief Justice Harold Bollers, which heard the hearing, found that the magistrate was clearly wrong, and that a conviction ought to have ensued.
The appeal was allowed and the order of dismissal set aside.
The facts of the case disclosed that on March 31, 1966, at about 1:10pm, the appellant, an officer of the Customs and Excise Department, went with  another Customs Officer and a party of policemen to the backlands of Perseverance , Essequibo, where in a very bushy area  the respondent  was found sitting  in a boat in a branch of Main Stay Lake and 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 disclosed his identity and told the respondent that he believed that the said articles to be part of a bush rum still, whereupon the respondent said that he was going to make a drum of bush rum for his son’s wedding.
He was then arrested and, along with the articles, seized, was 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 closed his case  after the close of the case for the prosecution, and the magistrate dismissed the respondent, upholding his counsel’s  submission that the charge was brought under the wrong section  and should properly have been brought  under section 11 of the Spirits Ordinance ,Chapter 319 (which relates to distilling spirits without a licence)
In her Reasons for Decision,  the Magistrate stated  that she found that the respondent  was found in possession of the above-mentioned articles and that those said articles could have been used for the manufacture of spirits but 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 and, 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 she accordingly dismissed the complaint.
The prosecution appealed on the ground that the learned Magistrate was erroneous in point of law when she held that the charge was brought under the wrong section.
Delivering the Reasons for its decision, Chief 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 present no real difficulty since the magistrate had found that the respondent was in possession of distillery apparatus for the manufacture of spirits and 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  and the Court would 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.

The appeal was allowed and the Magistrate’s Order of Dismissal was set aside.
The then Assistant Director of Public Prosecutions, Mr. J. Gonsalves-Sabola appeared for the appellant while Attorney-at-Law, Mr.  E. Hanoman represented the respondent.
According to Chief Justice Bollers, in the present case the respondent 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.

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.

The acquittal of the respondent by the magistrate was therefore clearly wrong  and a conviction ought  to have ensued.  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 the proper charge should have been according to the wording of Section 104 (3) –“custody of distillery apparartus” –  instead of “ possession of distillery apparatus” as appears in the statement of  offence and particulars of offence.

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.