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Present ; Bertram O.J.
—ANUKUIiAS UR1YA v. MEKASHA et ol.
142—P. /C. Gampola, 4,038Unlawful gaming—Police should lead direct evidence before obtaining
search, warrant—Hearsay—Must informant be called at the trial—
Description of premises in the warrant—Habit ualit-y—Publicity.
To obtain asearch warrant undertheGamingOrdinance the
police should satisfy the Magistrate by direct evidence of theunlawful gaming. It will not- do for them merely to tender hearsayevidence. They must either produce their informant,' or they mustaccompany the informant. to the 'spot which he had disclosed, andthen observe what goes on. and give direct evidence themselves-
The proceedings for the issue of the warrant ought to be beforethe defence at the trial, so that they may be able to raise anynecessary" points against its validity. Though -the informantmay have been called as a witness in connection with the issueof the search warranty the police are not bound to call him at thetrial any morethan they are boundtocall anyother witness.
Their failure todo so may be a pointforcomment-,but it- -cannot
affect the validity of the warrant.
It is enough if the description in the warrant- of the premisesto be searched sufficiently identifies the premises. It is not'necessary (where & number exists) that- the number of the premisesmust be referred to in the warrant.
The question as to what is habitvality ..and publicity with reference' to gambling- discussed.*'*, s – ■ ."*
rp HE facts are fully set out in the judgment.
Jansz, C.C., for the Crown, appellant.
January 31, 1922. Bertram 6.J.—
This .is an appeal against ah acquittal. The charge was laidunder the Gaming Ordinance, 1889, an Ordinance which lias led to acertain amount of discussion on a great number of legal points.It is important, however, that this Ordinance should not be allow.edto beeome encrusted with technicalities. It is a strict Ordinance, andmust be strictly and jealously construed. But that does not meanthat it must be construed in a meticulous or technical spirit-.
It seems to me that the learned Magistrate, who has written a verycareful and painstaking judgment, had been led into certain mis-conceptions which vitiate his conclusions. In all Cases under thisOrdinance the first step to ascertain is, whether the search warrantwhich initiates the proceedings has been validly iSshed. If it has
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been validly issued, then section 9 creates a very strong presumption,and it is for the defence, if it can, to rebut that presumption. Ifit transpires that the warrant was not validly issued, then the casemust be examined on the facts apart from the presumption.
Now it seems to me that the -learned Magistrate has been ledinto erroneous conclusions, both as regards the validity of the issueof the search warrant and as regards the facts. With regard to thesearch warrant, he takes two exceptions to it. First of all he saysthat the defence had. no opportunity of crosSr-examining the originalinformant ; secondly, he thinks that the premises were not identifiedwith sufficient particularity. The first point seems to me clearlyerroneous. What happened was this. The prosecuting policeofficer at -the trial informed the Court that be did hot propose to callthe informant ; at a later etage of the proceedings he declined togive the informant's name. Now this may have been right or wrongon the part of the police officer ; but it was not a circumstancewhich could affect the Validity of the search warrant. The questionof the validity of the search warrant must be tested by whathappened at the time when it was issued, not by anything that mayhave been done at the subsequent trial. But, in my opinion, subjectto one small point, there is nothing to criticise in the. proceedingsat the subsequent trial. The position as regards . the informant wasthis.. Our decisions have required that the police in such casesshould satisfy the Magistrate under section 7 by direct evidence.It will not do for them merely to tender hearsay evidence. They musteither, therefore, produce their informant, or they must accompanythe informant to the spot which he had disclosed, and then observewhat goes on, and give direct evidence themselves. In this case they'called the informant before the Magistrate. Now when- that hasbeen done in the proceedings for the issue of the warrant, I do notthink it is competent for the police to decline to disclose the nameof the informant. The proceedings for the issue of the warrantought to be before the defence at the trial, so that they may be ableto raise any necessary points against its validity. It ought not to beonly on the appeal that the validity of the warrant can be challenged.Therefore, if the name of the informant appears on the record inconnection with the issue of the warrant, it is futile to speak ofrefusing to disclose his name. His name is disclosed already.But though this is so, the police are not bound to call the informantany more than they are bound to call any other witness. Theirfailure to do so may be a point for comment. It certainly cannotaffect the validity of the warrant, nor would it necessarily affectthe case itself. The .question with which at this stage the Courthas now to concern itself is the question of the presumption. Withthat the informant has not necessarily anything to do. The pre-sumption arises on what is found upon the mid, and at this raid theinformant is not necessarily present. Though the defence cannot
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insist on the informant being called, it is, of course,* always opento the Court to examine the informant for its own satisfaction, and
if anything is disclosed on the evidence which ^causes the Court
to doubt the truth of the informant’s story. Such.a course would jfewfafe-
not unreasonably be taken. This question of the* calling of the“
informant, therefore, in the present circumstances, can be leftout of account.
With regard to the second point taken to the' validity of thewarrant, the learned Magistrate seems to hold that – if the housewhere the gambling is going on has in factgota number fixed to it,that number must be referred to in the warrant" I'confess that I amat a loss to understand the reasoning upon which the learned .Magistrate has arrived at this .conclusion. All .that is necessaryis that the description of the premises in. the warrant should suffixciently identify, those premises, and there can-be no doubt that inthis case the identification was sufficient. The warrant, therefore,being good, the next question that arises is:Was what was found
at the raid sufficient to set up the presumption ? Of that therecannot be the least doubt.
Then comes the question: Has the defence removed that pre-sumption ? Again, there can be. no doubt, because the defencecalled no witnesses. The Magistrate, however, preferred to dealwith the case on the facts. I will, therefore, consider it fromthat point of view. He appears to have had no doubt that on along succession of evenings, gambling was carried on. But he askshimself, was such gambling carried on with “ habituality ” and with“ publicity ” following a previous decision of this Court. Here thetest which the Magistrate propounded to himself was certainly sound.He thinks, however, that “ habituality ” is not shown, becausethere is a gap in the series of evenings on which – gaming went on.The house was repeatedly watched by the police. Gambling wasseen to be going on on August 21, 23, 26, 28, and on September 2,and after that point there is no evidence of any further gamblinguntil the 16th. The learned Magistrate thinks that this hiatusdestroys the necessary continuity.
I cannot myself take this view. It does- not follow that becauseno evidence was given of gambling during this interval that it didnot take place. But even though there was a gap, that would notdestroy the habituality. In the next place:Is there proof of
publicity ? Mr. Jansz has pointed out one circumstance, and thatis that time after time, when gambling was being watched, the ninthaccused, the occupier of the premises, was observed taking acommission from the gamblers. The commission was described bya well-recognized word, the word “ tkon.’r This was obviously partof the system under which the gambling was carried on. Of course,one can conceive of a private gambling club being carried on inwhich “ than ” is taken by the proprietor or manager. But such a
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*988. hypothesis is negatived in this case by two circumstances:One is
Bbatram that the gamblers were of a miscellaneous description, includingC-T.both Sinhalese and Moors; and secondly, there is the evidence,
Manmhula- which I see no reason to disbelieve, that those who watched theAfemtito Prerri>ses saw persons freely coming and . going. Sometimes awoman was at the door, sometimes a child, and sometimes nobodyat all. All those circumstances taken together seems to me aipplyto prove publicity.
There is one circumstance which. affected the mind of the Magis-trate, and that is that- whereas the informant asserted that thegambling took place. in the front room, the police witnesses saidthat it took place in the back room, which was a kitchen. Thatcertainly is a circumstance. I do. not know how it is to be explained.If it suggested » suspicion that .there was no gambling at all, andthat the whole thing was a concocted conspiracy on the part of thepolice, it might be sufficient to turn the scale. But the circum-stances disclosed by the raid leave no doubt upon my mind thatthere was continuous gambling going on, whether with or withoutintervals. I. do not think, therefore, that this circumstance, thoughcertainly – deserving of notice, is in any way decisive. In my viewof the facts, I think the right course for me is to convict the accusedpersons now, and to sentence them all to fines of Bs. 20, or, in-defaultof payment, to a fortnight’s rigorous imprisonment. I make orderaccordingly.
MANUKULASURIYA v. MERASHA et al