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Present: Bertram C.J.
POLICE SERGEANT, TANGALLA, v. PORTHENIS el al.
669-673—P. 0. Tangalla, 10,177.
Unlawful gaming—Search, warrant—Ordinance No, 17 of 1889, s. 7.
For the purpose of obtaining a warrant under section 7 of theGaming Ordinance, No. 17 of 1889, general evidence to the effectthat the informant has reason to believe that gaming is going onupon the premises is not sufficient.
Where a Police Sergeant swore an affidavit to the effect (1) thathe had received credible information and had reason to believethat the offence of public gaming was being carried on, and (2) thathe had watched the house for the past seven days and had foundpeople habitually congregating there for the purpose of gaming forstakes, but did not explain why he formed that inference,—
Held, that the issue of the search warrant under section 7 wasirregular.
J.S. Jayawarde.ne., for the appellants.
September 10. 1920. Bertram C.J.—
In deciding this case the Magistrate does not seem to have had theadvantage of having before him the Various decisions which thisCourt has given on the construction of section 7 of the GamingOrdinance, No. 17 of 1889. The Magistrate says, in regard to theaffidavit which was sworn for the purpose of obtaining a warrant,“ In this statement he,” that is, the Police Sergeant, “ gave thegrounds for believing that unlawful gaming was being carried on,and I fail to see what further evidence could have been adduced.”The grounds given were two : firstly, that he had reoeived credibleinformation, and had reason to believe, that the offence of publicgaming was being carried on ; and, secondly, that he had watchedthe house for the past seven days and had found people habituallycongregating there for the purpose of gaming for stakes.
The authorities on this subject commence with Anderson v. Said-nubai,1 and the subsequent cases are’Keegel v. James Appu,i 2 Lewis-piUai v. Ghelliah,3 The Sub-Inspector of Police, Panadure, v. Charles*Seyne v. Podi Sinnof and Silva v. Silva,3 As the result of all these
i (1896) 2 N. L. R. 78.4 (1916) 3 O. W. R. 98.
* (1897) 3 N. L. R. 76.6 (1917) 4 O. W. R. 130.
» (1916) Bal., Notes of Cases 54.6 (1920) 22 N. L. R. 27.
( 1W )1920.
authorities, it appears to be established that the very strictest con-struction must be given to the provisions of section 7 with regard tothe issue of a search warrant. The result of the issue of a searchwarrant is so drastic, that this Court has come to the conclusion thatspecial care should be taken to see that all the conditions attachingto the issue of a warrant are fully complied with. If, upon a placebeing entered on a search warrant, any instrument or appliances forgaming are found, and those included a pack of cards, then the place ispresumably a common gaming place. Any person found there orfound escapingtherefrom, or found in possession of anyinstrument orappliance for gaming, is deemed to be primd facie guilty of unlawfulgaming, and all persons found on the premises are liable to arrestwithout warrant. The Courts, therefore, have declared that theMagistrate must be satisfied upon sufficient primd facie evidence.It is not enough that general evidence should be given him that the* informant has reason to believe that gaming is going on upon thepremises. That disposes of the sufficiency of the first ground onwhich the warrant was sought in this-case.
With regard to the second ground, all that the Police Sergeantsaid was that for some days past he found people congregating, andhe adds “ for the purpose of gaming for stakes.” He does notexplain why he formed that inference. Nor did the Magistratemake any further inquiry as he might have done under the section.It seems to me, therefore, that the issue of the warrant cannot bejustified. We have, therefore, to look to see whether outside thewarrant—that is, outside the presumption which arises undersection 7—there is sufficient evidence that this place was kept onthe occasion when it was raided as a common gaming house. Whatthe police found on entering were eight persons sitting in a ringplaying cards. There is only one circumstance which excitessuspicion. Although most of those persons were of the status ofproctors’ clerks, there was in the assembly one Sanitary Boardcooly. Is that enough to show that the place was a common gaminghouse, that is to say, is it enough to show that it was open to all andsundry for the purpose of gaming ? I do not think so. The factsare perfectly consistent with the entry being restricted to those whowere selected as being safe and discreet. The fact that one of themwas a cooly and the others were proctors’ clerks is no doubt apeculiar circumstance. But is this circumstance alone sufficientto show that the public had access to the house on the occasion ofthe gaming ? It seems to me that outside the presumption thereis not sufficient evidence to justify the’ conviction, which must,therefore, be quashed.