Rex v Imam (Cr. R. 82/1933.) [1933] EACA 25 (1 January 1933)

## CRIMINAL REVISION.

Before SIR JACOB BARTH, C. J., and GAMBLE, Ag. J.

REX (Original Complainant)

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## YUSUF S/O IMAM (Original Accused). Cr. R. 82/1933.

- The Liquor Ordinance, Cap. 71 of the Revised Laws-Section 43, native obtaining intoxicating liquor—Punishment by imprisonment—Definition of intoxicating liquor and of methylated spirit—Penal Code, section 26 (3)—Alternative sentence of fine. - Held (1-7-33).—That section 26 (3) of the Penal Code cannot be presumed to override the special provision as to punishment laid down in section 43 of the Liquor Ordinance.

That there is no power to invoke section 28 of the Penal Code in order to substitute a sentence of fine in lieu of the imprisonment prescribed by the section of the Liquor Ordinance referred to.

That it is preferable to charge an accused person in possession of methylated spirit with being in possession of intoxicating liquor.

Branigan, Acting Crown Counsel, for Crown.

Accused absent, unrepresented.

Branigan submitted that section 26 of the Penal Code applies to other Ordinances even where express provision is therein made. Section 28 is designed to cover the case where express provision is not made in the penal sections of other Ordinances.

The facts of the original trial were briefly as follows: The accused was charged with being in possession of methylated spirit under section 43 of Cap. 71 of the Revised Laws. The accused pleaded not guilty, and explained that he was a painter and that he used the methylated spirit found in his possession as a drying medium for paint. The prosecution evidence was to the effect that the accused was found drinking the spirit in his room out of a cup, and that at the time the accused was drunk. Corroborative evidence was given.

ORDER.—This file has been submitted for revision by the learned Resident Magistrate, Nairobi, on two questions: -

- (1) Whether section 26 of the Penal Code empowers the Court to inflict a sentence of fine instead of imprisonment when a local Ordinance provides for imprisonment only. - (2) Whether methylated spirits come within the definition of intoxicating liquor.

Under section 43 of Cap. 71, any native found in possession of any intoxicating liquor shall be liable to imprisonment of either description for six months.

Section 26 (3) of the Penal Code reads: " $\triangle$ person liable to imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment." The question to be decided is whether this sub-section applies to sentences generally under local Ordinances.

Section 28 of the Penal Code has been quoted, which deals with the quantum of imprisonment in default of payment of fine. But this section reads: "Where a fine is imposed under any law"; the latter three words are omitted from section 26 (3).

It is a well-known principle that special provisions override general provisions, and that where there is a special provision made in respect of the proper punishment for one specified offence, that provision overrides any general provision for the punishment of offenders generally.

In this instance, prior to the passing of the Penal Code, at any rate, the Legislature had decided that for an offence contra section 43 of Cap. 71 the convict should not be allowed the alternative of paying a fine.

We are not prepared to hold that section $26$ (3) impliedly overrides the special provision laid down in section 43 of Cap. 71.

There must also be considered the effect of section 3 of the Penal Code, the relevant words of which read: "Nothing in this Code shall affect the punishment of a person for an offence against any other law in force in the Colony other than this Code.'

In our opinion, to hold that where an Ordinance prescribes one form of punishment the Court may invoke the provisions of section 26 of the Penal Code, and impose a different and lesser form of punishment, would be definitely contrary to the wording and intention of section 3 of the Penal Code and would certainly be "affecting the punishment".

The learned Resident Magistrate has pointed out the anomaly of being able to impose a fine instead of imprisonment for a serious offence under the Code, and not being able to do so in the case of a less serious offence under an Ordinance. We are not unmindful of this apparent anomaly, which, however, cannot be cured by disregarding the provisions of section 3 of the Penal Code.

For the above reasons, we consider the learned Resident Magistrate had no power to substitute a sentence of fine in lieu of the imprisonment prescribed by section 43 of Cap. 71.

In view of the fact that the learned Resident Magistrate did not take a serious view of the offence in the case under review, we do not consider it necessary to substitute a sentence of substantive imprisonment for the fine imposed; this would necessitate the accused being brought before the Court to show cause.

The order will be that the fine of Sh. 20 shall be refunded to the accused.

As regards the second reference, the accused admitted being in possession of methylated spirits. Intoxicating liquor means any spirits which contain more than 2 per cent of alcohol. The accused has not set up the defence that the methylated spirits, of which he admitted the possession, did not contain more than 2 per cent of alcohol; were he to do so, the Crown would have to prove by analysis or otherwise the alcoholic content.

In our opinion, the accused was properly convicted.

We are of the opinion that in future cases of this nature it would be preferable to charge an accused person with being in possession of intoxicating liquor, namely, methylated spirits.