SANSONI, O.J.,—Galahitiyawa v. Inspector Joseph
GALAHITIYAWA, AppeUant, and INSPECTOR JOSEPH, RespondentS. C. 849-869—M. C. Kandy, 39009
Charge of unlawful betting on a horse-race—Burden of proof—Search warrant—Materialon which it may be issued—Betting on Horse-racing Ordinance (Cap. 44),ss. 3 (3), 11 (2), 17, 18, 19.
A search warrant under section 17 of the Betting on Horse-racing Ordinancemay be issued by a Magistrate upon evidence on which he has every reasonto suspect that an offence against the Ordinance is being committed.
In a prosecution for accepting an unlawful bet on a horse-race the burdenis on the accused person to prove that the bet in question was a taxable bet.
Newspapers and leaflets may be produced by the prosecution as evidenceto prove that the bet which woe placed or accepted was on horse-races.
Once the search-warrant is held to have been properly issued and executed,the burden is on the accused to rebut the presumptions created by sections18 and 19 of the Ordinance.
A.PPEAL from a judgment of the Magistrate’s Court, Kandy.
0. E. Chitty, Q.C., with Eardley Perera, A. S. Vanigasooriyar andNimal Senanayake, for the accused-appellants.
R.Abcysuriya, Crown Counsel, for Attorney-General.
Cur. adv. vult.
October 10, 1966. Sansoni, C.J.—
The preliminary proceedings hn this case consisted of an applicationby Inspector Joseph for a search warrant under section 17 of the Bettingon Horse-racing Ordinance, Cap. 44. The application was supportedby an affidavit of the Inspector, and the Magistrate recorded the evidenceof one John Singho and constable Premaratne on the 22nd August, 1964,which was the day on which the application was made.
As Mr. Chitty argued that the search warrant was issued on insufficientmaterial, I shall briefly set out what these witnesses said. John Singhostated that on the previous afternoon he was searched by InspectorJoseph. He had no money or instruments of unlawful betting on him.He was given a chit on which the names of two horses were written induplicate and a Rs. 5/- note, and was asked to go to No. 25, Castle HillStreet, to the first floor Sinhagiri Hotel, and place two bets for a winand a place on the horses named in the chit.
SANSONI, C. J.—OcUahitiyawa v. Inspector Joseph
He went there and found two persons seated at a table who wereaccepting bets. One of them gave him one half of the chit and kept theother, after making an entry on both halves. He produced the halfgiven to him:Rs. 2/- was retained by them. Constable Premaratne
in his evidence referred to Inspector Joseph writing out the names ofthe two horses in duplicate from what he called a Sporting Card (P2).He accompanied John Singho to the first floor of the Sinhagiri Hotel,where there were two persons seated at a table accepting bets on horseraces. One of them took the chit from John Singho and returned halfto him, after making an entry on it. He was also given Rs. 3/- out ofthe Rs. 5/-. Premaratne said that there were several other personswho came there and placed bets. On this evidence the Magistrate saidthat he was satisfied that the offence of accepting illegal bets was beingcommitted on those premises, and he issued a search warrant.
The leaflet P2 contains news about horse races, and programmes ofraces to be run in England. Amongst those races were the Seven-OaksPlate in which Tamerlina was running and the Covert Side HandicapPlate in which La Tristesse was running. Those were the two nameswritten by Inspector Joseph on the chit. It is idle to pretend that anyperson seeing a leaflet like P2 would not know, when he read it, that itrefers to horse races to be run that day at Lingfield Park in England.It should be read with the names on the betting slip, and it throwslight on the names written on the slip. The Magistrate had every reasonto suspect on the evidence placed before him that an offence against thisOrdinance was being committed, and he acted quite correctly in issuingthe search warrant. If he had not come to that conclusion he mighthave been thought to be too pernickety. Lord Goddard C.J. once said :“ Although I do not know that Judges have any judicial knowledge offish shops, we do have such knowledge as can be gained by walking aboutand using our eyes ”, and I think a Magistrate can recognize a horse-raceprogramme when he sees it.
Mr. Chitty. argued that leaflet P2 should have been produced byInspector Joseph. But Premaratne identified P2 as the document fromwhich Inspector Joseph got the names of the horses for the purpose ofwriting the betting slip. There was no further evidence needed inrespect of P2.
On the afternoon of 22nd August, Inspector Joseph gave the samedecoy an All-on chit in 'duplicate with the names Resistance and Poppy,and a marked Rs.,2/- note,.and asked him to go to the same place andplace the bet. Premaratne was told to watch the transaction. 1staccused took the chit, wrote a number on both halves, and gave thedecoy one half and retained the other. 2nd accused accepted the moneyand returned Rs. 3/- to him.
A little later Joseph followed them there. He then found one copy ofthe All-on chit on the first accused and the other copy with the decoy.Second accused had the marked Rs. 2/- note. On the table at which
8ANSONI, C.J.,—Oalahitiyawa v. Inspector Joseph
the two accused were seated, there was a newspaper or leaflet with parti-culars of races to be run that day. There was Rs. 867/95 in a drawerwhich was in second accused’s charge, while the first accused had severalAll-on chits. All the other accused had AD-on chits and leaflets withparticulars of races to be run. In the leaflet which was on the table,amongst particulars of races, Resistance and Poppy were mentionedas two of the horses running in the Front Plate and the New-chapelHandicap respectively.
The Inspector also produced copies of the Daily Telegraph and theTimes of 22nd August, 1964, in which Resistance and Poppy werementioned as running in those two races at Lingfiekl Park. The parti-culars in these two newspapers were found to be identical with theparticulars appearing in the leaflet found on the table. They wererelevant evidence making it more probable, according to common senseand common knowledge, that the races mentioned were proposed to berun that day at that place.
No evidence was led for the accused. The learned Magistrate con-victed all of them except 3rd accused (who was absent at the trial)of the following charges :—
“ (1) 1st and 2nd accused received or negotiated a bet to wit an“ All-on ” bet for Rs. 2/- comprising of a bet for Rs. 1/- for ‘Win’and a bet for Rs. 1/- for ‘ Place ’ on two horses named “ Resistance ”and “ Poppy ” supposed to be run in the Lingfield Park in Englandon 22nd August, 1964 from one K. K. John Singho, other than ataxable bet in breach of Section 3 (3) (b) of Chapter 44 of the LegislativeEnactments of Ceylon and thereby committed an offence punishableunder Section 11(2) of Chapter 44 of the Legislative Enactments ofCeylon read with Section 18 of Chapter 44 L. E. C.
At the same time and place aforesaid the abovenamed 3rd to22nd accused make or place with the 1st. and 2nd accused above-named bets on Horse Races proposed to be run at Lingfield Park inEngland, on 22nd August 1964 other than taxable bets in breach ofSection 3 (3) (a) of Chapter 44 L.E.C. read with sections 18 and 19 andthereby committed an offence punishable under section 11 (2) of Chapter44 of the Legislative Enactments of Ceylon.”
I think greater care should have been taken to draft the charges incorrect English, with a little more attention to the wording of the Ordin-ance. The Magistrate correctly held that the bet accepted by 1stand 2nd accused had not been proved to be a taxable bet, and the burdenof proving that was on them—See Lantis v. Musafer1. He also held,correctly in my view, that there was sufficient evidence, on the newspapersand leaflets produced by the prosecution, to prove that the bet placedand accepted was on horse-races, in the absence of any evidence to rebutsuch prima facie proof. See Mihindukulasuriya v. David2.
1 (1948) 49 N. L. B. 334.
(1956) 57 N. L. B. 382.
Premasinghe v. Bandara
But the most important evidence of all in favour of the prosecutioncomes from the presumptions created by sections 18 and 19 of the Ordi-nance. Once the search warrant is held to have been properly issuedand executed, the premises in question are presumed, until the contraryis proved, to have been kept or used for the purpose of unlawful bettingon a horse-race, since instruments of unlawful betting were found inthem and upon persons found therein—Section 18. Further, and alsoarising out of section 18, all these accused were not only found in premisesso presumed to have been kept or used for that purpose, but were alsoproved to have been in possession of instruments of unlawful betting.They are therefore presumed, until the contrary is proved, to be guiltyof the offence of unlawful betting on a horse race—Section 19. Sinceno evidence was adduced to the contrary, these presumptions remainedunrebutted and the charges were proved.
It may not have been strictly necessary, in the charges framed, tospecify that 1st and 2nd accused received or negotiated (count 1) orthat 3rd to 22nd accused made or placed (count 2) bets on horse-races,since the offence in either case is betting unlawfully on a horse-race.The presumptions already mentioned apply, even though more particularswere furnished in the charge than the accused were entitled to.
The appeals are dismissed.
GALAHITIYAWA, Appellant, and INSPECTOR JOSEPH, Respondent