SWAN J.—Andit/a Vidane «. .Jansze
Present : Swan J.
ANDIYA VIDANE, Appellant, and I. JANSZE (ExciseInspector), Respondent 4
S. C. 1,077—M. C. Chilaw, 52,026
Excise officer—Power to release on bail an arrested person—Excise Ordinance (Cap. 42),
ss. 7, 33 (1), 34, 37—Criminal Procedure Code, ss. 2, 30, 39.
An excise officer is not prima facie a peace officer. When he arrests aperson without a warrant, under section 34 of the Excise Ordinance, he hasno power under section 37 to release that person on bail.
Therefore, when an excise officer takes a bond from a surety in order tosecure the arrested person’s attendance in court, a Magistrate has nojurisdiction to forfeit that bond if the accused fails to appear.
xjLPPEAL from a judgment of the Magistrate’s Court, Chilaw.
G. E. Chilly, with A. S. Vanigasooriar, for the surety appellant.A. Mahendrarajah, Crown Counsel, for the Attorney-General.,
Cur. adv. vull.
January 13, 1954. Swan J.—
This appeal raises an interesting question, namely whether an ExciseInspector can take from a person whom he has arrested a bond in orderto secure his attendance in court and whether a Magistrate can forfeitthat bond if the accused fails to appear.
Excise Inspector Jansze of Chilaw had arrested one Devadasan on acharge of possessing an excisable article. He then took a bail bondfrom DeTadasan and the appellant by which Devadasan undertook to
SWAN J.—A.ndiya Vidane v. Jansze
appear and the appellant bound himself as surety to produce Devadasanin court on 23.4.52 to answer the charge against him. The accusedfailed to appear, and the appellant was noticed to show cause why hisbail bond should not be forfeited. Mr. Vanderkoen appearing for himsubmitted that the Excise Inspector had no authority to release theaccused on bail and that the court had no jurisdiction to forfeitthe bond of the surety. The learned Magistrate however overruledthe objection and forfeited the bond.
In the course of his order the learned Magistrate observed that thebond was voluntarily given. He also remarked that “ most personsarrested would be so happy to get out on bail forthwith that they wouldnot question whether the taking of bail was permitted or not ”. Butneither of these matters is really relevant to the point in issue. It maybe that a bond given by an arrested person in circumstances like thesecould be enforced by the person to whom it was given. The question iswhether the Magistrate’s Court had jurisdiction to forfeit it.
That the Inspector had the right to arrest the accused without a warrantis beyond question. Section 34 of the Excise Ordinance makes that quiteclear. As the offence was bailable the accused was entitled to be releasedon bail. If Mr. Jansze was a Peace Officer he could have released theaccused either on his own bond or on bail. Section 36 of the CriminalProcedure Code provides that a peace officer making an arrest withoutwarrant shall without unnecessary delay and subject to the provisionsherein mentioned as to bail take or send the person arrested before aMagistrate having jurisdiction in the case, and section 39 provides thatno person who has been arrested by a peace officer shall be dischargedexcept on his own bond, or on bail, or under the special order in writingby a Magistrate.
The crux of the question, therefore, is whether an Excise Officer canbe equated to a peace officer. In section 2 of the Criminal ProcedureCode the expression “ peace officer ” is said to include Police Officers andHeadmen appointed by a Government Agent to perform police duties.In the Excise Ordinance an Excise Officer is stated to mean a GovernmentAgent, Assistant Government Agent or an officer or other persbn appointedor invested with powers under Section 7. So that an Excise Officer is notprima facie a peace officer. We must therefore see whether there isanything in the Excise Ordinance which can be construed as conferringupon Excise Officers the power, authority, rights or obligations of peaceofficers.
Section 33 (1) of the Excise Ordinance provides :—
“ Within such specified area as the Minister by notification maydirect any excise officer not below such rank as the Minister mavprescribe shall, within the limits of the area to which he is appointed,and as regards all offences under this Ordinance, exercise the powersthat may be exercised in respect of cognizable offences by an inquirer,or by an officer in charge of a police station, under the provisions ofChapter XII of the Criminal Procedure Code,”
SWAN J.—Andiya Vidane v. Jansze
Admittedly no notification has been made under this Section. Butthe learned Magistrate upon an interpretation of section 37 took theview that an Excise Officer hy necessary implication is invested with allthe powers of a peace officer. Now Section 37 reads as follows :—
“ The provisions of the Criminal Procedure Code, relating to arrests,searches, search warrants, the production of persons arrested, andthe investigation of offences shall he held to be applicable to all actiontaken in these respects under this Ordinance.”
The learned Magistrate’s reasoning is that inasmuch as section 37 of theExcise Ordinance makes the provisions of the Criminal Procedure Codeapplicable it follows that section 36 of the Criminal Procedure Code whichprovides for what is to be done to a person arrested must be read inExcise cases to read as if it was “ an Excise Officer making an arrest withouta warrant shall without unnecessary delay and subject to the provisions herein-after mentioned as to bail take or send the person arrested before the Magistratehaving jurisdiction in the case ’ ’.
I am unable to agree with this view for the simple reason that whilesection 37 of the Excise Ordinance refers to the production of personsarrested it does not mention the taking of bail or the release of arrestedpersons on their own bond or on bail.
Mr. Chitty suggests that the legislature apparently did not think itprudent to give Excise Officers the power to release arrested persons onbail. He also points out that in Excise Stations there are no lock-upsso that if an arrested person does not choose to give bail or sign a bondthe officer who arrests an offender would not know what to do with himtill he is produced in court. In this connection he drew my attention tosection 66 of the Police Ordinance which provides that every persontaken into custody by a police officer without a warrant shall forthwithbe delivered into the custody of the officer in charge of the station inorder that such a person may be secured until he may be brought before aMagistrate to be dealt with according to law.
There may be something in Mr. Chitty’s suggestion but there is nodoubt in my mind that inasmuch as section 37 makes no reference at allas to the applicability of the provisions of the Criminal Procedure Codewith regard to releasing arrested persons on their own bond Or on bail,Excise Officers who arrest persons without a warrant have no power torelease them on bail.
The order forfeiting the bond of the appellant is set aside. If theamount forfeited has already been paid it will be refunded.
ANDIYA VIDANE, Appellant, and I. JANSZE (Excise Inspector), Respondent