Rex v Gacharu (Criminal Appeal No. 368 of 1947) [1947] EACA 65 (1 January 1947)

# APPELLATE CRIMINAL

## Before Nihill, C. J., and BOURKE, J.

## REX, Respondent (Original Prosecutor)

# GERARD S/O GACHARU, Appellant (Original Accused)

# Criminal Appeal No. 368 of 1947

Criminal law—Possession of still—Apparatus designed to distil native spirituous liquor—The Native Liquor (Amendment) Ordinance, 1941, s. 4 (2)—Lawful excuse.

The police carried out a raid on the premises of an African and found in his store a still, an empty container smelling of honey beer and a quantity of dry wimbi. There was no evidence that the still had ever been used to manufacture native spirituous liquor and the African sought to explain his possession of it by saying that he obtained it from a disused military camp and intended to use it as a water container. He also had a permit to brew native beer.

He was convicted of being in possession of an apparatus or utensil designed or adapted for the distillation of native spirituous liquor contrary to section 4 (2) of the Native Liquor (Amendment) Ordinance, 1941, and sentenced to pay a fine of £100 with six months' I. H. L. in default of payment.

### The African appealed.

Held (16-10-47).—(1) To constitute an offence under the section it is not necessary for the prosecution to show either that the apparatus has been used for unlawful distillation or even that there was an intention so to use it, the possession of the apparatus with the knowledge on the part of the possessor as to its character being sufficient.

(2) It is not enough for a person charged with possession to assert that his possession was for an innocent purpose unless he can satisfy the Court also that he was quite unaware that the apparatus or utensil was of a kind the possession of which is forbidden by the Ordinance.

(3) Having regard to the fact that the prosecution were quite unable to show that that the appellant had ever distilled native spirituous liquor or that he had ever used the still for this purpose the fine was in the circumstances excessive.

Appeal dismissed but fine reduced to one of Sh. 600 with three 'months' I. H. L. in default of payment.

## A. R. Kapila for the Appellant.

Holland, Crown Counsel, for the Crown.

**JUDGMENT.**—In this case the appellant was convicted for being in possession of an apparatus or utensil designed or adapted for the distillation of native spirituous liquor contrary to section 4, sub-section 2 of Ordinance 6 of 1941. Possession of the utensil known as Exhibit 1 in this case was not disputed by the appellant, and we think that there was sufficient evidence for the Magistrate to come to the conclusion that Exhibit 1 is an easily recognizable part of an apparatus designed for distilling native spirituous liquor.

The only question, therefore, for us to consider is whether the evidence given by the appellant can be said to amount to a lawful excuse such as to enable him to avoid liability under the section. It would seem that the Magistrate came to a conclusion adverse to the appellant mainly on the ground that there was evidence that Exhibit 1 smelt of Nubian gin on the day of the hearing. We think that on this point the learned Magistrate misdirected himself. The hearing of this case took place about a fortnight after the exhibit had been seized at the house of the appellant, and it is impossible to say what had happened to the exhibit in that interval. Had there been evidence, which there was not, that Exhibit 1 smelt of Nubian gin at the time it was taken away from the house of the appellant the

inference drawn by the learned Magistrate would have been fully justified, but as it is the evidence with regard to smell we consider has no evidentiary value. Taking the evidence as a whole, however, we think there was sufficient material on which the Magistrate could conclude that the appellant's contention that he had no knowledge that Exhibit 1 was a part of an apparatus designed for distilling native spirituous liquor was untrue. The appellant is a person who possesses a permit for the brewing of beer and we cannot believe that he would be unaware of the use for which Exhibit 1 was designed, or of how the substance known as Nubian gin could be manufactured. There is no evidence in this case to show that the appellant had ever used Exhibit 1 for the distillation of Nubian gin, and Mr. Kapila has asked us to find from our examination of the exhibit that in fact it never can have been so used. There is certainly no indication that Exhibit 1 has ever been placed upon a hot fire. However, in order to establish an offence under the section it is not necessary for the prosecution to show either that the apparatus has been used for unlawful distillation or even that there was an intention so to use it. What constitutes the offence is the possession of the apparatus or utensil with the knowledge on the part of the possessor as to its character. It is not enough, therefore, for a person charged with possession to assert that his possession was for an innocent purpose unless he can satisfy the Court also that he was quite unaware that the apparatus or utensil was of a kind the possession of which is forbidden by the Ordinance. As we have already indicated, we are not prepared to say that the Magistrate in this case was wrong in concluding that the appellant must have so known. The appellant has not been convicted previously for an offence under this Ordinance and he is a person otherwise with a clean criminal record. The learned Magistrate has imposed the maximum fine allowable under the Ordinance, although he has refrained from imposing a sentence of imprisonment as well. It is no doubt necessary on convictions under this Ordinance that heavy penalties should be imposed, not only because it is difficult to secure evidence on which prosecutions under the Ordinance can be based, but because the profits from the sale of unlawfully distilled liquor are known to be great and the evils attendant on the sale and consumption of such liquor are recognized to be widespread. We should, therefore, in most cases hesitate to interfere with the discretion of Magistrates who impose heavy penalties following convictions on offences against this Ordinance. We think, however, that in the present case, bearing in mind that the prosecution were quite unable to show that the appellant had ever distilled Nubian gin, nor that he had ever used Exhibit 1 for this purpose, that a fine of $£100$ was excessive under all the circumstances. The appellant at the time of the commission of his offence held Government employment, and we are told, although we have no means of checking this information, that his conviction must result in his dismissal from the service. As we think this is likely that is a factor which we also take into account.

In dismissing this appeal against conviction we vary the sentence imposed, i.e. a fine of £100, to a fine of Sh. 600, in default of payment of this fine of Sh. 600 the appellant to go to prison for three months with hard labour. We direct that Exhibit 1 be confiscated and destroyed and that Exhibits 2 and 3 be returned to the appellant.