Wakilii

Rex v Gacharu (Criminal Appeal No. 368 of 1947)

East African Court of Appeal · [1947] EACA 65 · 1947 Appeal Dismissed, Sentence Reduced AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for possession of apparatus designed to distil native spirituous liquor
Decision
Conviction upheld but sentence reduced; appellant fined Sh.600 with three months imprisonment with hard labour in default

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that to constitute an offence under s.4(2) of the Native Liquor (Amendment) Ordinance 1941, the prosecution need not prove that the apparatus was used for unlawful distillation or that there was intention to use it. Possession with knowledge of the apparatus's character is sufficient. A person charged cannot avoid liability by asserting innocent purpose unless he satisfies the court he was unaware the apparatus was of a kind forbidden by the Ordinance. Appeal dismissed but fine reduced from £100 to Sh.600 as excessive given no evidence of actual distillation.

Outcome

Conviction upheld but sentence reduced; appellant fined Sh.600 with three months imprisonment with hard labour in default

Facts

Police raided the appellant's premises and found a still (Exhibit 1), an empty container smelling of honey beer, and dry wimbi in his store. The appellant held a permit to brew native beer. He explained he obtained the still from a disused military camp and intended to use it as a water container. There was no evidence the still had ever been used to manufacture native spirituous liquor. The appellant was convicted under s.4(2) of the Native Liquor (Amendment) Ordinance 1941 for possessing apparatus designed for distilling native spirituous liquor and sentenced to a fine of £100 with six months imprisonment with hard labour in default. The hearing occurred about a fortnight after seizure. Evidence that the exhibit smelt of Nubian gin at the hearing was considered unreliable as to what happened in the interval.

Issues

  1. Whether possession of an apparatus designed for distilling native spirituous liquor without proof of actual use or intent to use constitutes an offence under the Native Liquor (Amendment) Ordinance 1941 s.4(2).
  2. Whether the appellant's assertion of lawful excuse and lack of knowledge of the apparatus's character was sufficient to avoid liability.
  3. Whether the fine of £100 was excessive in the circumstances.

Orders

  • Appeal against conviction dismissed.
  • Fine reduced from £100 to Sh.600.
  • In default of payment of Sh.600, appellant to serve three months imprisonment with hard labour.
  • Exhibit 1 to be confiscated and destroyed.
  • Exhibits 2 and 3 to be returned to the appellant.

Rules and key headnotes

Criminal Law & Procedure — Possession Offences — Apparatus for Distilling Native Liquor — Elements of Offence
To constitute an offence under s.4(2) of the Native Liquor (Amendment) Ordinance 1941, the prosecution need not prove that the apparatus has been used for unlawful distillation or that there was an intention to use it for that purpose; possession of the apparatus with knowledge on the part of the possessor as to its character is sufficient.
Criminal Law & Procedure — Lawful Excuse — Burden on Accused — Knowledge of Character of Apparatus
It is not enough for a person charged with possession of apparatus designed for distilling native liquor to assert that his possession was for an innocent purpose unless he can satisfy the court that he was quite unaware that the apparatus or utensil was of a kind the possession of which is forbidden by the Ordinance.
Evidence — Evidentiary Value — Condition of Exhibit After Seizure — Interval Between Seizure and Examination
Where an exhibit is examined a fortnight after seizure and there is no evidence of its condition at the time of seizure, evidence of its smell at the time of hearing has no evidentiary value as it is impossible to determine what happened to the exhibit in the interval.

Legislation cited (1)

  • Native Liquor (Amendment) Ordinance 1941 s.4(2)

Full judgment

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Rex v Gacharu (Criminal Appeal No. 368 of 1947) [1947] EACA 65 (1 January 1947)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.