44 NAGALINGAM A.J.—Darlis v. Assistant Government Agent, Matara.
1946Present: Nagalingam A.J.
DARLIS, Appellant, and ASSISTANT GOVERNMENT AGENT,
1J.16—M. C. Matara, 62,865.
Regulation 2a of Defence (.Food Control) (Special Provisions) (No. 3) Regula-tions 1943—Scope of—Right of authorised person or his nominee tosearch premises for controlled article—Penal Code, ss. 183, 344.
Regulation 2a of the Defence (Food Control) (Special Provisions)(No. 3) Regulations, 1943, does not entitle an authorised person to searchany premises for a controlled article unless the article had been trans-ported or. removed thereto at a point of time in sufficient proximityto the time at which the search is attempted to be made. Neither does itempower a search for the purpose of ascertaining whether there is anyhoarding of a controlled article.
The person or persons upon whose suspicion action could be takenunder the aforesaid Regulation are the Food Controller or a Peace Officerand not any person authorised by either of them. It is also necessarythat the suspicion must be with regard to the transport or removal of acontrolled article to some particular place or premises.
j/^PPEAL against a conviction from the Magistrate’s Court, Matara.
L. A. Rajapakse, K.C. (with him C. J. Ranatunge and V. Wijetunge),for the accused, appellant.
J. G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
December 12, 1946. Nagalingam A.J.—
The appellant in this case has been convicted under sections 183 and344 of the Penal Code of having obstructed a public servant in thedischarge of his public functions and with having used criminal forceon him in the execution of his duties as such public servant and has beensentenced to undergo imprisonment for a term of six months on eachcount, the sentences to run concurrently.
The case for the prosecution is that a Food Control Field Assistantwent to search the house of the accused with a view to discoveringwhether paddy or rice was hoarded in the house of the accused and,while the Field Assistant was engaged in examining certain bags whichhe suspected contained paddy or rice, he was obstructed by the accusedand certain others from discharging his duties and criminal force was alsoused on him*to prevent him from carrying out his functions.
On appeal the point is taken on behalf of the accused that the FieldAssistant had no legal right and was vested with no lawful authority toenter the house of the accused and make the alleged search and thatas his entry was not only unlawful but illegal the accused was entitled,even if he did so, to resist the Field Assistant from carrying out actswhich he was not empowered by law to do.
N AG ALIN GAM A.J.—Darlis v. Assistant Government Agent, Matara. 45
The Field Assistant who was supported by the Deputy Food Controllerfor the area, who is also the Assistant Government Agent, asserted thathe was empowered to make the search by reason of the authority conferredon him by three documents granted to him by the Deputy Food Controller.These documents were produced in evidence marked PI, P2 and P2a.The date on which the accused is alleged to have committed the offenceis set out in the charge sheet as 19.2.46 and there is no error in regardto that date. The document PI, however, which was produced by theField Assistant, is one bearing date 23.5.46, and the appellant rightlycontends- that document PI cannot in any way be relied upon by theprosecution to justify an entry made on 19.2.46. The document PI,therefore, is of no assistance to the prosecution. The document P2a isone which has been issued to the Field Assistant on 18.12.45, but itpurports to be an authority granted by the Assistant Government Agentby virtue of the powers vested in him by section 4 of the Defence (PaddyCultivations) Regulations published in Government Gazette No. 9,077 oi3.2.43. It is pointed out that these Regulations were rescinded27.9.43 by new Regulations published in Government Gazette No. 9,176of that date. It is therefore manifest that when in December, 1945,the Assistant Government Agent issued letter of authority P2a, hepurported to act under non-existent Regulations and therefore theauthority F2a was bad and conferred no powers of search on the FieldAssistant.
The prosecution, therefore, has to fall back upon document P2 dated18.12.45 in order to establish the lawfulness of the entry and search.This document is stated to have been issued by the Deputy Food Controllerby virtue of powers vested in him “ by rules (strictly speaking regulations)2 (1), 3 of Part B and 2a of the Food Control Regulations, 1938 and 1943 ”made under section 5 of the Food Control Ordinance, Cap. 132. TheFood Control Regulations, 1938, framed under sub-section 5 of the FoodControl Ordinance are set out in the 1940 Supplement, Vol. III., at page154. It is in three sections lettered A, B, and C. It is' conceded that thereference to the Regulations is to those under section B. The Regula-tions under head B have been amended by the Defence (Food Control)(Special Provisions No. 3) Regulations, 1943, and it is necessary toconsider these Regulations to ascertain whether the powers conferred"by the document P2 on the Field Assistant are within the enablingpowers vested in the issuing authority. The powers granted may bedivided into three parts, (1) to inspect or search vehicles suspected to beconveying any controlled foodstuffs, (2) to seize such twodstuffs transportedor removed in contravention of any order for the time being in force, (3)to inspect and search any premises in which controlled foodstuffs aresuspected to be stored in contravention of any order for the time beingin force and to seize such foodstuffs. It is unnecessary for the purpose ofthis appeal to consider heads (1) and (2).
The only question is whether the rules relied on confer on the AssistantGovernment Agent power to confer authority to inspect or search anypremises for any controlled articles and to seize such articles. Regulation2 (1) relates to the transport or removal of the controlled article in a
46NAG ALIN GAM A.J.—Darlis v. Assistant Government Agent, Matara.
vehicle or vessel and is the basis for the authority embodied under head(1). Regulation 3 is the source of the authority conferred under head (2)and Regulation 2 (A) is said to be the foundation for the issue of theauthority under head (3). The charge sheet shows that the search wasin pursuance of the authority conferred under head (3), for it specifiesthe function performed by the Field Assistant when he was obstructedas “ while searching a house for hoarding of rice Regulation 2 (A)runs as follows : —
“Where a Food Controller or peace officer has reason to suspectthat any cattle, food or article of food has been transported or removedto any place or premises in contravention of any order for the timebeing in operation, the Food Controller or any Peace Officer or anyother person authorised thereto in writing by the Food Controllermay enter, inspect and search such place or premises
It would be noticed that this Regulation does not empower the search of. any premises for discovering whether there has been hoarding of any ofthe controlled articles. But what it does empower is that where there isreason to suspect that a controlled article has been transported or removedto any place or premises, then the place or premises to which the controlledarticle may have been removed may be entered, inspected and searched.It has been contended that the existence of a controlled article in a housewbuld presuppose the transport or removal of that article thereto andtherefore a search of the house would be in order. There are twoobjections to this argument. In the first place when the Regulationrefers to the controlled article having been transported or removed itmust necessarily mean that the removal or transport was at a point oftime in sufficient proximity to the time at which the entry or search of theplace where the article has ■ been removed to is attempted to be made.To my mind, it is clear that under this Regulation it would be anunjustifiable act for an authorised person to make a search of premiseson the footing, to take an extreme case, that the removal or transportto the premises had been effected a year earlier. What particular periodof time should be regarded as sufficiently close to the date of removal ortransport to justify a search under this Regulation would depend uponthe particular facts of each case and also dependent upon a number offactors. Secondly, in the present case, however, the Field Assistantdid not purport to enter or make search of the premises on the footingthat any controlled article had been transported or removed into thepremises. It cannot therefore be said that Regulation 2 (A) empowersthe issue of the authority under head 3 to inspect and search premisesfor the purpose of ascertaining whether there is any hoarding of acontrolled article. The authority P2, therefore, is one which did notempower the Field Assistant to make a search of the accused’s premisesfor investigating if' any controlled article had been hoarded. In thisview of the nature of the authority it must follow that the attemptedsearch of the premises was illegal and that the accused was entitled toresist and prevent a search from being made.
NAG ALIN GAM AJ.—Darlis v. Assistant Government Agent, Matara. 47
There is auother matter which has been argued before me and in regardto which I would wish to make some observations, and that is whethereven if the authority had been in the express terms of Regulation 2 (A)such authority could have been issued in general terms, that is to say,empowering the search not of any particular place or premises but ofsuch places or premises as the Field Assistant or other authorised personmay decide to search. There is a marked difference in the languageused not merely in analogous Regulations but in these Regulationsthemselves in regard to the nature of the power conferred on a personwho is authorised to make a search. For instance, the language that isused in Regulation 2 (1) in regard to the authority to be conferred on aperson empowered to search is different from that used for a similarpurpose under Regulation 2 (A). Under Regulation 2 (1) the words are“Where the Food Controller or a Peace Officer or any person authorisedthereto in writing by the Food Controller has reason to suspect ”, that isto say, where either the Food Controller suspects or a Peace Officersuspects, or where a person authorised in writing to perform the functionsunder this Regulation by the Food Controller has reason to suspect,then each of those persons may take such steps as are permitted under it.The point to be stressed is that it would be sufficient for the purpose ofthis Regulation that the person authorised has reason to suspect, and it isimmaterial whether the person who issues authority entertains anysuspicion or not. Now, if one examines the language of Regulation 2 (A)it would be found that the person or persons upon whose suspicion actioncould be taken under this Regulation are the Food Controller or a PeaceOfficer and not any person authorised by either of them, and where eitherthe Food Controller or a Peace Officer has reason to suspect, then either ofthem may authorise any other person to enter and search the place orpremises. It must also be noted that the authority should be in writing.The authority, therefore, should show on the face of it that the personissuing the authority to inspect or search has reason to suspect and thatin pursuance of his suspicions he issues the authority, and it is alsonecessary that his suspicion must be with regard to the transport orremoval of any controlled article to some particular place or places orpremises and that the authority that is issued must empower the personauthorised to inspect such place or places or premises to which the issuingauthority has reason to believe the controlled article has been removed ortransported. It would not be a proper exercise of the functions of thepower conferring authority to empower a subordinate officer or otherperson to make search of all or any places generally, as it is only toinspect such places or premises as those to which the controlled articlehas been transported or removed that the Regulation authorises thesearch.
A similar view was taken in an allied matter in the case of GnananandaThero v. Village Headman of Madakotuwa1 where Soertsz J*. held that itwas irregular for a competent authority to have issued in blank arequisition form enabling a subordinate officer to fill it with a view torequisitioning paddy, which was the controlled article! dealt with in thatcase. It is unnecessary to stress the fact that these Regulations curtailvery considerably the right a subject has of excluding the unwarranted
* (1946) 47 N. L. B. 188.
48 NAGAXJNGAM A-J.—Darlis v. Assistant Government Agent, Motors.
interference with the privacy of his home, and where the legislature hastaken special precautions to vest the exercise of a discretion in a.particular class of persons and not in others, it would be manifestlywrong to permit a subordinate officer to enter houses at his owndiscretion uncontrolled by that of a higher authority.
The appeal is therefore entitled to succeed, and I allow the appealand acquit the accused.
DARLIS, Appellant, and ASSISTANT GOVERNMENT AGENT, MATARA, Respondent