Present: Wood Renton J.
GUNEWARDENE u. PAKEER LEBBE.
743—P. 0. Kandy, 27,173.
Charge—No formal charge—Search warrant notwarrant ” within the
meaning of s. 187 of the Criminal Procedure Code—Irregularitynot cured by s. 426.
A formal charge is necessary in all cases in which the CriminalProcedure Code requires it, and section 425 does not cure anyirregularity in that respect.
A search warrant is not a warrant within the meaning of section 187 (2)of the Criminal Procedure Code.
fj) HE facts are set out in the judgment.
Gladwin Koch, for appellant.—There is no legal proof of possessionby the accused of the cacao so as to throw on him the ,burden ofexplaining its presence. The house in which the cacao wa.s foundbelongs to his mother, and is occupied by her jointly with the accusedand others. (3 N. L. R. 170, Koch's Reports 12, 2 Leader 107.)
The cacao found in the house in question cannot reasonably besaid to be stolen. Proof is not forthcoming that any cacao wasstolen from complainant’s estate, and general, statements that theftswere of frequent occurrence on the estate is scarcely sufficient tosustain a charge like the present.
No charge has been framed against the accused. The entry“ charge explained ” has been held not to satisfy the requirements-of section 187 of the Criminal Procedure Code. The accused wasnot brought before the"Court on summons or warrant. (4 N. L. R.104, 4 A. C. R. 141, 1 S. G. D. 84, 2 S. C. D. 53, 2 Leader 119.) *
Bawa, for respondent.—[Wood-Renton J.—I only desire to hearyou on the objection that no charge has been framed.] There isproof here that a search warrant was issued, and as section 17 (2) ofthe Cacao Ordinance empowers a peace officer to arrest any personin possession of wet cacao suspected to be stolen, it is urged thata special, quality is given to search warrants by this Ordinance, andthe accused can be said to have been brought before Court on awarrant as contemplated by section 187 (2).
Koch, in reply.—A search warrant does hot contain a state-ment of the particulars of the offence, and would not sufficientlyapprise the accused of the- precise accusation against him.
Gut. adv. vvlt..
( 184 )
dune war denev. PakeerLebbe
November 14, 1911. Wood Benton J.—
The accused-appellant was charged in the Police Court of Kandywith having been in possession or charge of wet cacao suspected tohave been stolen, in contravention of the provisions of section 17 (1)of “ The Cacao Thefts Prevention Ordinance, 1904. ” The learnedPolice Magistrate convicted him, and sentenced him to one month’srigorous imprisonment. Two main points were pressed upon me byMr. Koch in support of the appeal: in the. first place, that no chargehad been framed against the appellant; and in the next place, thatthe cacao in question had not been found in his exclusive possession.The latter point is, in my opinion, clearly bad on the evidence. ButI think that the appellant must succeed on the former. With theassistance of counsel on both sides I have carefully examined therecord, and I cannot find that the accused-appellant was broughtbefore the Court either by summons or by warrant. Unless, there-fore, there is some provision in The Cacao Thefts PreventionOrdinance, 1904, ” which dispenses with the necessity for a charge,or. which otherwise meets the point that I am dealing with, theprovisions of section 187 (1) of the Criminal Procedure Code apply.A formal charge is necessary, and its absence, in accordance withwell-known and recognized decisions, will be fatal to the proceedings.As I have already said, the proceedings commenced withoutsummons or warrant. The conductor of the estate from which thecacao is suspected to have been stolen appeared before the Courtand gave information against the accused-appellant and two others,with whose cases we are not now concerned. The learned PoliceMagistrate thereupon issued a search warrant, and the peace officerwho executed that warrant produced the accused-appellant before theCourt. The search warrant is clearly not in itself a warrant withinthe meaning of section 187 (2) of the Criminal Procedure Code. Butit was argued by Mr. Bawa, the respondent’s counsel, that inasmuchas under section 17 (2) of the Ordinance of 1904 a police officer or apeace officer who finds any person in possession or charge, of wetcacao which he suspects to have been stolen may bring such personbefore a Police Magistrate, the eSect of this enactment is to add aspecial statutory quality to any search warrant which has formedthe foundation of the police officer’s or the peace officer's inquiriesThere would, I think, have been considerable force in this argumentif section 17 (2) of the Ordinance of 1904 had said anything aboutsearch warrants. It does not, however, do so. It authorizes anypolice officer or peace officer who finds any persons in possessionor charge of wet cacao to bring him before a Police Magistrate forth-with. The power which it creates in no way depends upon the issueor the existence of a search warrant at all. It would, therefore,I think, not be right to hold that by virtue of the provisions of thesub-section just mentioned a search warrant becomes a warrantwithin the meaning of section 187 (2) of the Criminal Procedure Code.
( 185 )
It appears from the record that the Police Magistrate told the 1M1.accused-appellant what he was charged with. In the journal entries Woodfor October 9, 1911, I find an entry in these terms: "Charge under Renton.T.section 17 (1) of Ordinance No. 8 of 1904 explained." That, cuncm^iuwhowever, is insufficient. A formal charge must be framed in cases v. Pakcerwhere the Criminal Procedure Code requires this to be done, and Ld>Usection 425 of that Code will not, in my opinion, cure any irregu-larity in this respect. The conviction and the sentence on theaccused-appellant must be set aside. I have seriously consideredthe question whether the case ought not to be sent back for a newtrial, since I am not favourably impressed with the conduct of theaccused-appellant on the merits. But after having carefully thoughtthe matter over, I agree with the point put by Mr. Koch at the closeof his argument for the appellant. This is a statutory offence.
The statute extends the old law by making the mere possession of wetcacao, which is reasonably suspected to have been stolen, primdfacie evidence of the guilt of the accused. In such cases I think theprosecution may fairly be called upon to prove its charge strictly inthe first instance, and as this has not been done in the present caseI direct the acquittal of the apcused-appellant.
GUNEWARDENE v. PAKEER LEBBE