( 121 )
NUGAWELA v. SARDINA el al.
P. 0., Regalia, 17,916.
Gaming—Search warrant—Material for its issue—Instruments for gamingbeing found at the place searched, and flight of people therefrom—Presumption under s. 10 of Ordinance No. 17 of 1889.
Where a search warrant to search a place under section 7 of “ TheGaining Ordinance, 1889,” was issued on the bare statement, onoath, of a headman that he had “ good reason to believe that the“ place was kept as a common gaming place ”—Held, that thematerial for the issue of the warrant was insufficient, and the faotthat instruments for gaming were found in the place, and thatpersons were seen to escape therefrom on its being entered on suchwarrant, did not give rise to the presumption under section 10 asto the place being a common gaming place.
TN this case the accused appealed from the following judgment-*■ of the Police Magistrate of Kegalla :—
The accused, thirteen in number, are charged with unlawfully gamingin a house occupied by the first, second, third, fourth, fifth, and eighthaccused. The fourteenth accused pleaded guilty to the charge. Thehouse was entered under the provisions of Ordinance No. 17 of 1889 bythe complainant armed with a warrant issued by this Court. It hasbeen urged by the counsel for the defendants that that warrant wasissued on insufficient grounds, and my attention has been called to thejudgment of the Supreme Court in P. C., Matara, 699. I consider thatthe warrant was issued on sufficient grounds. The Court considers thewritten information on affirmation of the Ratemahatmaya sufficientground for issuing the warrant. I cannot gather from the judgmentquoted that more is required. It has been proved to my satisfactionthat the accused were all in the house playing with dice and betting onthe throw. A bamboo dice box, dice, and some copper money and arupee were found in the maduwa. I do not believe the evidence forthe defence. I do not believe that the first seven accused were aiTestedin their beds and assaulted and ill-treated in the manner described bythem.
I find the accused guilty, &c
W. Pereira, for appellants, cited judgment in case No. 699,P. C., Matara (5 N. L. R. 76), and contended that, inasmuch as,apart from the presumption under section 10 of the Ordinance,the Police Magistrate did not hold that the place where the accusedwere gaming was a common gaming place, the accused were entitledto be acquitted.
Loos, C. C., for respondent.
7th March, 1898. Lawkie, J.—
These appellants were convicted of unlawful gaming and weresentenced to a fine of Rs. 3*50. The appeal is on the point of lawthat the warrant issued under the 7th section of the OrdinanceNo. 17 of 1889 was issued on insufficient evidence, and therefore
( 122 )
that the arrest of the accused in the place and their escaping there*from did not give rise to the presumption that they had unlawfullygamed. The warrant was issued on a written statement, on oath,by a headman that he had good reason to believe that the place waskept as a common gaming place.
In my opinion that was not information on which the Magistratecould be satisfied that there was good reason to believe that theplace was kept as a common gaming place.
The information must be a statement of facts from which theMagistrate may reasonably believe that a place is a common gamingplace.
It is not enough that a headman comes before the Magistrateand swears, “ I believe the place is a common gaming place.”
The headman’s belief is of no consequence. He has to furnishfacts which the Magistrate can believe, and from which he candraw an inference. Here no facts were furnished. The warrantought not to have been issued.
In the present case, however, the convictions seem to me to reston the evidence of eye-witnesses of the acts of the accused. Theconviction does not rest on the presumption.
NUGAWELA v. SARDINA et al