Rex v D'souza (Cr. App. 22/1931.) [1931] EACA 21 (1 January 1931)

## APPELLATE CRIMINAL.

Before SIR JACOB BARTH, C. J. and DICKINSON, J.

REX (Respondent) (Original Prosecutor) $\overline{1}$

F. X. D'SOUZA (Appellant) (Original Accused) Cr. App. 22/1931.

The Sugar Ordinance (Cap. 134)—Illegal importation of sugar.

$Held$ (28-5-31): - That in the absence of proof of importation into a prohibited area, a conviction under section 4 cannot be supported.

Modera for Appellant.

Abbott, Crown Counsel, for Crown.

The appellant was originally charged before the Second Class Court at Machakos with illegally importing into his shop at Momandu three bags of sugar, but pleaded not guilty.

The defence was that the appellant was not a party to the transaction. An employee stated that a lorry arrived at the appellant's shop on 25th April, 1931, from Mombasa. The driver stated that he had three bags of sugar for sale which the witness purchased for Sh. 80. Another witness for the prosecution gave evidence that the appellant arrived at the shop on 27th April and he saw them place four bags containing sugar in the Momandu shop, and that three natives who carried the sugar were given gratuities. Corroborative evidence was given by further prosecution witnesses. The defence was a complete denial that the four sacks seen in the shop contained sugar.

The Magistrate found the accused guilty under section 4 of the Ordinance, and sentenced him to pay a fine of Sh. 1,000 or in default three months hard labour, and to pay the costs of the prosecution, Sh. 65/97, at the same time cancelling his sugar permit and confiscating the sugar to the Crown.

Modera.-Momandu is in the Machakos area and accordingly there was no illegal importation if the sugar was brought from Machakos. The evidence was insufficient to justify a conviction under section 4 for importation from outside the prohibited area, and no attempt had been made to prove a case under section 5.

Abbott.-If Momandu is not in Machakos area an offence has been proved, but if Momandu is in Machakos area conviction cannot be supported.

The Court adjourned from 26th May, 1931, to 28th May, 1931, for information on this point.

On the latter date Abbott for the Crown indicated that he did not wish to support the conviction as he was satisfied that Momandu was in the Machakos area.

The judgment of the Court was delivered by Sir J. W. Barth, Chief Justice.

JUDGMENT.—The appellant was convicted by the Magistrate holding a Second Class Subordinate Court at Machakos of a breach of section 4 of the Sugar Ordinance, in that he illegally imported into his shop at Momandu three bags of sugar on 27th April, 1931.

The evidence shows that the appellant brought four bags of sugar from Machakos to his shop at Momandu.

The strongest ground of appeal is that both these places are in a prohibited area, and that section 4 of the Sugar Ordinance means that sugar must not be imported from outside such an area into it. With this construction we entirely agree. The Crown has urged that all the circumstances of the case show that this sugar was illicitly brought into the prohibited It probably was, but the Court is entirely without any área. proof of that fact and in our opinion the conviction under section 4 of the Ordinance must be quashed.

It has been suggested that the conviction could be altered to one under sections 5 and 8 of the Ordinance, that is of being in possession of the sugar in a prohibited area without a permit. This, however, in our opinion is so different from the original charge that it would prejudice the appellant if this Court arbitrarily altered the finding in the manner suggested. Machakos and Momandu are both in the Machakos district.

The conviction and sentence are reversed. The orders for cancellation of the sugar permit of the accused and for costs are reversed.