W eerasinghe v. KarunarcUne
Present: G. P. A. Silva, J.WEERASINGHE, Appellant, and R. H. M. ICARUNARATNE(Police Sergeant), Respondent
S. C. 222/67—31. C. Galle, 27924
Unlawful betting on horse-racing—Quantum of evidence—Elements necessary toconstitute a proper search by a police officer—“ Premises ”—Betting on Horse-racing Ordinance [Cap. 44), ss. 2, 3 (3), 11 (2), 17, 19 (b).
The presumption of being guilty of the offence of unlawful betting on a horse-race would not arise under section 19 (b) of the Betting on Horse-racingOrdinance unless the instruments of unlawful betting found in the possessionof the accused person were found in consequence of such a search of promises aswas in conformity with the requirements of section 17. The possession by aperson of betting slips or other material which may be deemed to be instrumentsof unlawful betting does not by itself constitute an offence.
The evidence in the present csso was that a police party did not set out onany information received in regard to any unlawful betting being carried on inany premises but that, while they were proceeding along a road, they cameacross the accused by accident and, when he was searched on suspicion, foundin his possession certain instruments of unlawful betting.
88G. P. A. SILVA, J.— Wcerasinghe v. Karunaratne
Held, that there was a clear contravention of section 17 (2) of the Betting onHorse-racing Ordinance because the police officer who made the search did sowithout recording the grounds of his suspicion and, secondly, because there wasno proof that the documents in question wore contained in any premises ’within the meaning of that word as defined in section 2.
.A.PPEAL from a judgment of the Magistrate’s Court, Galle.
A. H. C. de Silva, Q.C., until K. C. Kamalanathan and V. Selvarajah,for the Accused-Appellant.
Faisz Mustapha, Crown Counsel, for the Attorney-General.
May 9, 1967. G. P. A. Silva, J.—
The accused-appellant in this case was charged with the followingoffence, namely, that he did on the 15th June, 1966 bet unlawfully ona horse-race by having in his possession instruments of unlawful betting,to wit : betting slips, payment chits, sporting cards, etc., in breach ofsection 3 (3), read with section 19 (6) of the Betting on Horse-racingOrdinance (Chapter 44 of the Legislative Enactments), and with havingcommitted an offence punishable under section 11 (2) of the Betting onHorse-racing Ordinance. The evidence in this case consisted mainlyof that of a Sub-Inspector of Police who stated that on the day in questionhe and a police party were proceeding towards Matara on the Galle-Matara Road when he saw a man standing by the road-side who, onseeing him, hid a parcel in his breast under his shirt. On suspicion hestopped the Land Rover in which he travelled, went up to him andsearched and found a parcel which contained cash Rs. 15 in an envelope,4 betting slips which contained the names of three horses, two sportingcards, one pencil, one piece of carbon and one small bill book. TheSub-Inspector also stated that the accused had no permit or licence toaccept bets or to have the betting slips in his possession.
The learned counsel for the appellant does not contest this evidence buthe argues that the search of this person has not been made in accordancewith the provisions of the Betting on Horse-racing Ordinance. Theword “ instrument of unlawful betting ” is defined in the Ordinance andwhat was found in the possession of the accused could come within thedefinition of instruments of unlawful betting. Under section 3 (3)any person who—
makes or places a bet on a horse-race other than a taxable bet, or
receives or negotiates a bet on a horse-race other than a taxable bet,shall be deemed to bet unlawfully on a hqpse-race and shall be guiltyof an offence. Section 19 (6) enacts that any person who is four.d inpossession of any instrument of unlawful betting on the occasion of
G. P. A. SILVA, J.— Weerasingtu, v. KarunarcUne
his being searched under this Ordinance, shall be presumed, until the •contrary is proved, to be guilty of the offence of unlawful betting on ahorse-race. The important words under this section are “ on the occasionof being searched under this Ordinance”. The presumption wouldtherefore apply only to a person who has been searched under the pro-visions of this Ordinance and certain instruments of unlawful bettingare found in his possession. In order to consider whether a person hasbeen searched under this Ordinance, one has to look at section 17. Section17 (1) provides that a search warrant may be issued by a Magistrate tosearch the premises, upon the Magistrate being satisfied that there isreason to suspect that any offence against this Ordinance or any regu-lation made thereunder is being or has been committed, or that thereis any document or thing directly or indirectly connected with any suchoffence, in any premises. The facts in this case do not fall within theprovisions of sub-section 17 (1). The only other search that is contem-plated under this Ordinance is one under section 17 (2). This sub-sectionrequires that where a police officer of or above the rank of Sergeant incharge of a police station has reason to suspect that any such offence,that is to say, an offence referred to in section 17 (1), is being or has beencommitted, or that there is any such document or thing, in any premisesand that a search warrant cannot be obtained under sub-section (1)without affording the offender an opportunity to escape or of concealingevidence of the offence, he may, after recording the grounds of his suspicionexercise all or any of the powers which could have been conferred on himby sub-section (1). The premises contemplated in this section wouldbe premises which are defined in section 2. It would thus appear thatthere was a clear contravention of section 17 (2) because the policeofficer made a search of the accused without recording the grounds ofhis suspicion and secondly because there is no proof that the documentsin question were contained in any premises, as contemplated by theOrdinance. On the evidence it is clear that the police party did not setout on any information received in regard to any unlawful betting beingcarried on in any premises but they came across the accused by accidentas they were proceeding on some other business towards Matara-GalleRoad. On a consideration of the provisions of section 19 (&), it wouldappear that the possession of betting slips or other material which maybe deemed instruments of unlawful betting by any person does not byitself constitute an offence. The presumption of being guilty of theoffence of unlawful betting would only arise if such person were to befound in possession of such instruments during a proper search ofpremises within the meaning of the Ordinance. Crown Counsel hasvery properly indicated that he is unable to support this conviction.
Tor the above reasons I set aside the conviction and sentence andacquit the accused.
B. WEERASINGHE, Appellant, and R. H. M. KARUNARATNE (Police Sergent), Respondent