IN 1966, Nandlall – a farmer, 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 the defendant had been charged under the wrong section.

Customs Officer Seerattan, who instituted the charge, appealed the magistrate’s ruling; and the Full Court, presided over by Chief Justice Harold Bollers, heard the matter and found that the magistrate was clearly wrong, because a conviction ought to have ensued. The appeal was therefore allowed, and the order of dismissal was set aside.

The facts of the case disclosed that, on March 31, 1966, at about 1:10 pm, the appellant, an officer of the Customs and Excise Department, had gone with another Customs Officer and a party of policemen to the backlands of Perseverance in Essequibo, where, in a very bushy area, the respondent was found sitting in a boat in a branch of Lake Mainstay 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 he believed the said articles were part of a bush-rum ‘still’, whereupon the respondent said he was going to make a drum of bush-rum for his son’s wedding.

He was arrested and taken, along with the seized articles, 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 prosecution had closed its case, and the magistrate dismissed the respondent, upholding his counsel’s submission that the charge was brought under the wrong section; it 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 said she found the respondent in possession of the above-mentioned articles, and that those said articles could have been used in the manufacture of spirits; but she was of the opinion that the prosecution could not succeed under section 104 (3), the section under which charges had been laid, because 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 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 the Full Court’s decision, Chief Justice Bollers, who had sat along with Justice Arthur Chung, held that:
(1) The submission that the appellant should have been authorised 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, which 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 a 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 magistrate’s acquittal of the respondent was clearly wrong, and a conviction ought to have ensued.

The Full Court, in order to achieve that objective, 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.

Chief Justice Bollers said that, 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 authorised 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 magistrate’s acquittal of the respondent was therefore clearly wrong, and a conviction ought to have ensued. We therefore allow the appeal and set aside the order of dismissal. We, however, concur 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 apparatus”, 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 it 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.”
By George Barclay