T. S. FERNANDO, J.—Azees v. Seneviratne
1966Present : T. S. Fernando, J,A. M. K. AZEES, Appellant, and W. T. SENEVIRATNE(S. I. Police), Respondent
S. C. 1246 of 1965—M. C. Chilaw, 3353
Police Ordinance (Cap. 53)—Section 68—Premises suspected of containing stolenproperty—Right of a police officer to enter therein without a warrant—CriminalProcedure Code, s. 10.
Section 68 of tho Polico Ordinance permits a police officer to enter withouta warrant any premises which he reasonably suspects of containing stolenproperty. This right is not affected by section 70 of tho Criminal ProcedureCode nor confined to cases of just suspicion as do not reasonably admit ofdelay in the search.
_/-PPEAL from a judgment of the Magistrate’s Court, Chilaw.
/If. M. Kumarakulasingham, with C. Ganesh, for the accused-appellant.
ft. Abeysuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 9, 1966. T. S. Fernando, J.—
The appellant and his wife were convicted by the Magistrate on chargesof criminal insult and intimidation—sections 484 and 486 of the PenalCode. The allegation of the prosecution was that certain words utteredby the appellant and his wife constituted insult and intimidation. Theappellant was sentenced to undergo 3 months’ rigorous imprisonmenton each count, the sentences to run concurrently. His wife was sentencedto pay a fine of Rs. 25 on each count, in default 2 weeks’ simple imprison-ment, the default sentences to run concurrently. She has not appealed,and I find on reference to the record that she has paid the fines.
In regard to the appeal of the appellant, I must observe that theoffences have been committed by these two accused persons a little aftermidnight after they had had the harrowing experience of a prolongedsearch of their house by police officers. The police officers claimed theysearched this house after a complaint received by them that an enclosedback verandah of a certain house had been broken open and a smallquantity of crockery and glassware had been stolen. The person whomade the complaint did not himself seek to implicate either the appellantor his wife, but that person did say that a man named Arthur had statedto him that a lad described as a son of the ex-constable Azees was seencoming out of the back verandah. The police officers had not soughtout the man Arthur to question him themselves nor had they gone insearch of the appellant’s son who, according to the evidence, is anemployee at a cinema. Instead, they decided on suspicion to search the
T. H. KliltMANIII), .1. -Atrivi i>. Simevintlnti
house of tlio Jt|>]><-Iho11 for the stolen articles. How they hoped to identifythe articles iu I lio absence of Hid person who imull! the complaint orany oilier person from f-lui house alleged to have been burgled in notlovcalcd in Ilin i!viili!iii!i!. Tim search iliil not rovrnl any of the articlesfor vvliinh Mm Police worn searching.
beamed in ill i isel (or tlin a|>|»i!llaiit‘ contended that, thn Police hailsearched t ho house without legal aid liority. I am, however, compelledon tlin authority of thn decision in Minkin v. Iliwjiri Itiiniln 1 to holdagainst thin contention. It- in a decision of a bench of three judges, andItertram, (!.•!. t-horn Htatcd that. “ under tlin- provisions of section fill(now section tiH of (lap. r,:|) of till! I’olion (tnlinalion No. Itl of ISISfi, a|iolio.i! ollinn.r may enter without, a warrant, any premises in whinh interalia ho. has just- nailsn to believe that (limn has Imnil iiommiflnil or isalioiit. to l>i! committed or wliinli contains stolen property. Niioli rightsam not iillccled liy section 70 of tlin. (Viminal I’ronnilili'i! (!odo imr con-linnil to cases of just suspicion as do not. rnasoualily admit, of delay iu thnsearch ".
Ill regal'd to tlin Hi!litnui<i! which appears to In: heavy, the. Inarund Magis-trate. has stat.ed that it was not possililn lor him to take a lenient, viewin this ease as thn appellant is all ex-policeman who should have knownbetter anil cnndilntod himself pro|M:l'ly. Thn appellant. has hithnrliihome, a good character. Jlis sleep on thn night ill ipinsfion and I lieprivacy of his home wen*, hath disturbed by police otlicnrs who werei|iiitn. aware. I hat t he appellant himself had lieeti at one time in the PoliceService. There was no good reason shown why the Police could nothave waited till morning to make a search of this particular house.Police officers must themselves learn to take with good grace annoyanceon the part of householders who feel aggrieved at the way the policesometimes administer the law. Rough or abusive language whichshocks and upsets drawing-room affability need not necessarily lie madethe subject of criminal charges iu Court, merely because police officersare tin-, persons who happen to lie at the receiving end of that kind ofluiiguage. The. model police ofliccr is the. ollicer who tom|>nrs the exerciseof his statutory powers not only with moderation but also with goodhumour. If, as appears to nin iu the present case, the statutory powerwas unnecessarily exercised at. that, time of night, it was no heinousoffeuee for the citizen to have given vent to his outraged feelings.
I would i|uush the sentences imposed by the learned Magistrate andsubstitute therefor lines of its. 2f> on each count., iu default 2 weeks'simple imprisonment, the default sentences to run concurrently, iuthus equalising the sentences imposed on husband and wife, 1 findsome satisfaction iu thin age of equality of the sexes, iu not visitingfoul language used by the male with greater severity than similarlunguugu used by the female.
J (J««) 4 0. /,au> lien. 10(1.
A. M. K. AZEES, Appellant, and W. T. SENEVIRATNE (S. I. Police ), Respondent