1950Present : Nagalingam J.
AXDIBIS, Appellant, and WANASINGHE (Excise Inspector),
S. C. 999—M. C. Anuradhapura, 4,542
Excise Ordinance—Search without warrant—Non-compliance with provisions ofSection 36—Inadmissibility of evidence thus obtained—Cap. 42, ss. 33, 34, 36.Evidence obtained as -a result of an illegal search in contravention of theprovisions of section 36 of the Excise Ordinance cannot be availed of by theprosecution in order to sustain a charge of unlawful sale of arrack.
yy PPF.AL from a judgment of the Magistrate's Court, Anuradhapura.
I/. JLT. Kumardkulasingham, with C. Jayawichrome, for accused appel-lant.
Mahendrarajah, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 20, 1950. Xagalixgam J.—
The. appellant, a cook in what is described as a Railway RunningBungalow at Anuradhapura, appeals from his conviction under section43 (g) of the Excise Ordinance (Cap. 42) on a charge of his having soldarrack without a licence from the Government Agent.
A point of law is raised against the validity of the conviction. Thefacts, so far as they are relevant for the purpose of determining thequestion raised are:The Excise Inspector, on receipt of information
from a person designated in the course of these proceedings as the bogus,customer, that sale of arrack was taking place at the Railway RunningBungalow, made an entry in his notebook, entered the premises andtook into custody certain bottles of arrack and glasses. It is urged,that the entry of the Excise Inspector into the premises was unlawfuland that any evidence obtained in consequence cannot be led in Courtso as to afford a foundation for the charge.
The Excise Inspector in giving evidence-in-chief did not testify to-any circumstances establishing the legality of the entry into the premises.He spoke to the bare fact that he did enter the premises. The defence,however, pursued the question in cross examination and elicited theinformation that the Inspector had purported to act under section 36of the Exeise Ordinance by making an entry in his notebook before heset out from the station. Further interrogation revealed that the reasonfor his not having obtained a search warrant from the Court was that“ the bogus customer was in a hurry to get hack to Trincomalee ”.
Now, the question is whether the entry made by the Excise Inspectorin his notebook in these circumstances afford a justification for his entry.Section 36 of the Ordinance requires that before an Exeise Inspectorcan exercise the power vested in him under "that section of entering andsearching premises he must record the grounds for his belief in regard
to two circumstances, (a) that an offence under section 48 or 44 has been,is being or is likely to be committed, (fa) that a search warrant cannotbe obtained withoutaffordingthe offender an opportunityeither (i)
of escape or (ii) of concealingevidenceof the offence. Thefact that
the bogus customer was in a hurry to get away from Anuradhapuracannot therefore be regarded as a factor that confers on an Excise Ins-pector the necessaryauthorityentitlinghim to make an entry in his
notebook in order toenter thepremisesis clear. The entry,therefore,
of the Excise Inspector into the premises was unlawful and was nocjustified by the provisions of the law.
This leads to the main question in the case as to whether evidence■obtained as a result of illegal entry into premises can be legitimatelyplaced before Court and a conviction based upon such evidence. I havehad occasion in the case of Murin Per era v. Wijesinghe1 to express theview that evidence obtained in such circumstances is inadmissible andI have referred therein to the local cases where a contrary view* had beentaken. Learned Crown Counsel referred to two other cases as havingbeen decided anterior to the first of these cases, namely, that of Bandara-%vela v. Carolis Appri-.
One is that of Silva v. Hendrick Appu3. It is in reality not a case whichcould be said to support the view expressed in Bandaratvela v. CarolisAppu (supra). In that case the point was expressly taken that, inasmuch•as the Excise Inspector had made a search without having first obtaineda search warrant or recorded in writing the grounds that rendered animmediate search desirable, the proceedings were illegal. Wood KentonC.J. did not deal with the point raised but he did hold that “ a contra-vention of the provisions of section 86 does not invalidate proceedingslike the present in tvihich there is ample independent evidence of the illicitsale ”. If it be permissible to draw any inference from the languageused by the learned Chief Justice, this much is clear, that he did regardthe non-compliance with the provisions of section 36 as invalidatingthe proceedings but that as there was other evidence of an independent•character he did not regard the illegal search as a ground for not affirmingthe conviction; but I think that the true and proper method of construingthe judgment is to say that .the learned Chief Justice did not expresshis view on the question as to whether the proceedings should be heldto be invalid because of the non-compliance, with the provisions of section436, for he was not called upon to discuss that question in view of the•other evidence available and which rendered it unnecessary for him to.grapple with the problem. Certainly, the case is no authority for theproposition that evidence obtained as a result of an illegal search couldbe availed of by the prosecution to sustain a charge.
The other case is that of Mirigama v. John Sing ho4-. This is a casewhere the question that arose for determination was somewhat different.The point taken there was that a Police Officer—and, it must be noted,not an Excise Officer—who had entered the premises, not avowedly for thepurpose of detecting an Excise offence but for certain other purposes,■discovered, in the course ofrthe search made by him in connection with
1 (1950) 51 N. L. It. 377.3 (1917) 4 C. W. R. 232
* (1926) 27 N. L. R. 401.' (1926) 4 T. A. R. 71
those other purposes, the existence of a certain quantity of ganja, and itwas argued on behalf of the accused that the proceedings could nottherefore be justified- Garvin A.C-.J. rejected the contention on theground that the entry having been lawful though not in pursuance of theprovisions of the Excise Ordinance the prosecution was not therebyvitiated. It will be noticed that this case does not concern itself with a■decision of the question as to whether evidence obtained as a result of.an illegal entry upon premises is admissible.
After the case of Murin Perira v. Wijesinghe (supra) was decidedby me, my attention was drawn to an article in the Journal of CriminalLaw 1 where the question whether evidence illegally obtained is admissi-ble is discussed in reference to the Scotch case of Latvrie v. Muir. Thefull report of this judgment is not available but an exeerpt from thejudgment is set out in the article itself. This was a case which in viewof the importance of the issue raised was heard before the High Court ofJusticiary in Scotland by a Bench of seven Judges. The judgment ofthe Court delivered by Lord Cooper, Lord Justice-General, expressesso clearly and adequately the views I entertain on this subject that I■cannot do better than quote his language and adopt it as my own : —
“ From the standpoint of principle, it seems to me that the lawmust strive to reconcile two highly important interests which areliable to come into conflict—(a) the interest of the citizen tcs be protectedfrom illegal or irregular invasions of his liberties by the authorities,and ib) the interest of the State to secure that evidence bearing uponthe commission of crime and necessary to enable justice to be doneshall not be withheld from courts of law on any merely formal ortechnical ground. Neither of these objects can be insisted upon tothe uttermost. The proteetidta. of the citizen is primarily protectionfor the innocent citizen against unwarranted, wrongful and perhapshigh-handed interference, and the common sanction is an actionfor damages. The protection is not intended as a protection for theguilty citizen against the efforts of .the public prosecutor to vindicatethe law. On the other hand the interest of the State cannot bemagnified to the point of causing all the safeguards for the protectionof the citizen to vanish, and of offering a postive inducement to theauthorities to proceed by irregular methods”.
The facts of the case were that the accused, a dairy keeper, had beenconvicted of the offence of using without premission a number of milkbottles belonging to St. Cuthbert’s Co-operative Association Ltd., andthe evidence led against her was that obtained as a result of a searchof her premises made without authority. The .Court held that theconviction could not stand for the reason summarised by the writer ofthe article as follows —
“ The Inspectors who exceeded their authority were not policeofficers enjoying a large residuum of common law discretionary powers.They were the employees of a limited company acting in associationwith the Milk Marketing Board- Their only powers were derivedfrom the contracts between the Board Bind certain milk produce's
1 January, 1950, at-p. 81.
and distributors, of whom the appellant was not one. Persons insuch a special position should know the precise limits of their-authority and should be held to exceed thtese limits at their peril.It was found that they acted in good faith but it was incontrovertible thatthey obtained assent to their search by a positive misrepresentation. ”
The writer of the article goes on to sum up the legal position in these-words : —
“ The proper view was that there ^fas no absolute rule, the questionbeing one of circumstances. Whether an irregularity could be excuseddepended on its nature and the circumstances in which it was com-mitted. It would be a material consideration that the departurefrom the strict procedure had been adopted deliberately to secureevidence by an unfair trick or that the irregularity violated rides -pre-scribed by statute, as Pood and Drugs cases. On the other hand, itwould usually be wrong to exclude some highly incriminating produc-tion in a murder trial merely because it was found by a police officerin the course of a search authorised for a different purpose or before aproper warrant had been obtained. ’ ’
Under our law, there is no question of any common law powers beingvested in the Police or, much less, in the Officers of the Excise Depart-ment. In regal’d to serious crimes, which are all, one may say, includedin the description of cognizable offences under the Criminal ProcedureCode, powers of search are conferred on a Police officer by the CriminalProcedure Cclde i.tself to make search without obtaining a search warrant ;nor is there any provision in the Code which requires that a Policeofficer should make any entry in his notebook before he enters uponpremises in order to make a search in the course of investigations intoa cognizable offence. That the Legislature applied its mind to thequestion of whether similar powers should be vested in Excise Officersis manifest frcjm a perusal of the provisions of section 33 of the exciseOrdinance. The Legislature apparently took the new that ExciseOfficers should not be conferred such large powers as in the case of PoliceOfficers, and hence by this section the Legislature enacted that wherethe Governor (now 'Minister of Home Affairs and Sural Development)by notification directs that an Excise Officer may exercise powers that-may be exercised by a Police Officer under Chapter XII of the CriminalProcedure Code, such Excise Officer may in that event exercise suchpowers in regard to all offences under the Excise Ordinance which wouldinclude, therefore, a power of search without any previous formalitiesbeing observed by him, in that regard.
It is not suggested in this case that the Excise Inspector in questionhas been empowered to exercise the powers conferred on a Police Officerunder Chapter 12 of the Criminal Procedure Code. The Excise Ordi-nance, however, permits of an Excise Officer making a search of premiseseither (a) if he has obtained a search warrant or (b) if he makes an entryin terms of section 36 of tjpe Ordinance in his notebook before enteringupon premises to make a search. Section 34 does not, it would be noted,enable an Excise Officer to enter upon premises to make a search.
The powers of an .Excise Inspector, therefore, being purely statutory,his right to enter upon premises must be limited by the provisions ofthe Ordinance and, unless an Excise Officer can show that his entry wasin pursuance of one of the provisions of the Ordinance, he has no powersof entry, and his entry otherwise would be illegal. Should it be heldthat the evidence obtained by an Excise Officer in contravention of theprovisions of the Ordinance is admissable and legal, then the very objectof the Legislature in trying to circumscribe the powers of an ExciseInspector in regard to search ^yould be completely nullified, and thecourts would then be conferring wide powers of search on an ExciseOfficer entirely unwarranted by the Ordinance,—a result which can uponno known canon of interpretation of* Statute Law be sustained. It is notdifficult to see that the view of the Legislature in so circumscribingthe powers of an Excise Inspector was based upon the considerationthat a citizen should be “ protected from illegal or irregular invasions•of his liberties by the authorities ”, Looked at from this standpoint,it is apparent that the only way in which the object of the Legislaturecan. be achieved and Excise Officers confined to exercise their powerswithin the limits permitted to them by law is by the Courts refusing totake cognizance of and disregarding evidence that may have beenimproperly or illegally obtained as a result of an unlawful or unauthorisedentry upon premises.
In this view of the matter, it must follow that the entire evidencegiven by the Inspector and the guard must be rejected. The case,'therefore, cannot be said to have been proved against the accused.
I therefore set aside the conviction and acquit the accused.
ANDIRIS, Appellant, and WANASINGHE( Excise Inspector), Respondent
1950Present : Nagalingam J.