Present: Schneider J.
REX PAREED et ah664—M. C. Colombo, 8,671.
Gaming—Search warrant—Determination ofauthority—Reissue • with
endorsement—Validity—Ordinance No. 17 of 1809, s. 7.
Where a warrant issued under the Gaming Ordinance was onceexecuted by search, its authority is exhausted.'
Where such a warrant was reissued by a Magistrate with anendorsement, based upon a statement made by an Inspector ofPolice that gaming was continuing in the same place,—
Held, that. such an endorsement does not operate to give itthe force of a new warrant issued under section 7 of the Ordinance.
The insertion of a returnable date in regard to a warrant issuedunder the section cannot control the effect of the word 14 forthwith **in the warrant.
PPEAL from a conviction by the Municipal Magistrateof Colombo.
Tisseverasinghe, for accused, appellants.
Crosette Tambyah, for Crown, respondent.
October 27, 1927. Schneider J.—
At the argument of these appeals it was agreed that the followingwere the facts:—Upon due information placed before him theMunicipal Magistrate of Colombo rightly issued a warrant in thefrom A in the schedule to the Gaming Ordinance, No. 17 of 1839,to a Sub-Inspector of .Police authorizing him "forthwith to enterand to search ” a " place ” mentioned thefrein. The only vari-ations in the warrant from the form A are that under the signatureof the Magistrate there appears the date 6.8.27, which isthe date of the issue of the warrant, and at the* bottom " Return-able 15.8.27." Acting upon this warrant the Sub-Inspectorof Police in question entered into and searched the " place."Several persons were arrested and some money and playing cardswere seized. A prosecution followed, and the warrant in questionwas produced at the trial on August 17. The result of thatprosecution is of no consequence. But the endorsement on the backof the warrant, which at the date of that endorsement was in thehands of the Sub-Inspector of Police to whom it had been
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issued, shows that this Sub-Inspector of Police had made an 1987.application to the Court before August 15. The endorsement isthe following:—“ This warrant has already been once executed.
The Police (SubrInspector) Sohokman of Pettah) brings it to my partednotice that he has himself seen unlawful gaming still continuingon the same premises. I authorize a further search on thesame warrant." This endorsement is signed by the Magistrate andbears date 12.8.27.
Acting in these circumstances the Sub-Inspector of Police enteredthe place once again on August 15 and arrested twelve persons,some of whom are the appellants, and all of whom, he says, he found“ gambling for a stake ". He says he found in cash Bs. 7.18scattered on the ground, a pack of cards, and a hanging lamp. Theappellants are the 1st, 2nd, 5th, 6th, 7th, 8th, 11th, and l2thaccused. The 3rd, 4th, 9th, and 10th, who are the remainingaccused, were convicted upon pleas of guilty tendered by them.
It was agreed that the conviction of the appellants by the Magistrateshould be sustained or set aside, as it is held that the entry into the“ place " was dr was not under a warrant rightly issued under theprovisions of section 7 of the Ordinance. Two distinct questions ariseaccording to the view taken on the facts agreed upon. Wasthe warrant of August 6 exhausted by the search of that date? Ifit was, did the endorsement operate as a new warrant issuedtinder section 7 of the Ordinance. The argument for the appellantswas that the warrant was spent by the entry into the “ place ’’and the search made upon its authority, because it was the onlyentry and search the warrant authorized, and next, that being so,even if the endorsement be regarded as the issue of a fresh warrant,it was not issued on the Magistrate “ being satisfied upon writteninformation on oath, " as required by section 7 of the Ordinance.
The question before me was discussed before the Magistrate, andhe held that the warrant was in force till August 15, which was thedate endorsed upon it as the returnable date. I am unable to takethe same view.
The power to issue such a search warrant as is contemplated bysection 7 is derived solely from the provisions of that section—not under section 9 of the Criminal Procedure Code, as CrownCounsel on behalf of the respondent contended. It appears to methat the language of section 9 considered in the light of theprovisions in sections 68, 70, and 72 indicates clearly that a searchin the nature of that provided for in section 7 of the GamingOrdinance does not come within. the provisions of the CriminalProcedure Code, which contemplate only warrants issued for the pur-poses indicated in sections 68,. 70, and 72, which are different fromthe purpose of a warrant under section 7 of the GamingOrdinance. A consideration of the provisions of the Gaming
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Ordinance relating to the arrest of persons and the search of personsand places will indicate that the intention underlying the provisionsis prompt action. Certain public officers are given power to arrest,search, and produce before a Court persons found gaming, and toseize and' take before a Court appliances for gaining (section 6). ,A Magistrate is given power to issue a warrant authorizing thedoing of those things by “ any person named therein ” (section 7)or himself to do those things (section 8).
Section 7 enacts that the warrant shall be in the form A. Thatform is a substantive part of the Ordinance. A Magistrate does notpossess the power to vary it. The 'warrant is to 44 authorize andrequire ” the person named “ forthwith to enter and to search theplace **. The form provides for the signature and the designation ofthe public officer issuing it, but there is no provision for a dateappearing on it. There can be no objection to the insertion of thedate of issue, as the insertion of that date will have no bearing uponthe word “ forthwith M appearing in the body of the warrant.A Magistrate does not possess the power to give an extendedinterpretation to the word “ forthwith ” by anything he may inserton the warrant at the time he issues it. “ Forthwith ” should betaken to mean as soon as possible. Within what time such a warrantshould be executed it is not possible to determine at the time itis issued. It will depend on circumstances, which can only beascertained after it has been issued and an attempt made to executeit. 1 cannot, therefore, accept the Magistrate’s view that the,warrant in this instance was to be considered as in force till August15 simply because that date was inserted at the bottom of thewarrant as the date for its return. It seems to me that it is afallacy to say, even in regard to an ordinary warrant, that it is inforce until the returnable date. It is of the very nature of theauthority granted by any warrant that the warrant will ceaseto be in force when the act authorized by it has been done, whichshould be before the date fixed for its return to the Court. Whenthe returnable date arrives ordinarily, a warrant must be returnedto the Court whether it is executed or not. Upon such return thewarrant ceases to be in force. It is, of course, open to a Courtto extend the date of return even after the warrant has been returnedto the Court. There are two sections in the Criminal ProcedureCode which are of some assistance in the consideration of this point,although, in my opinion, those sections of the Criminal ProcedureCode have no application whatever to warrants issued under theprovisions of the Gaming Ordinance. Section 73 of the CriminalProcedure Code enacts that the provisions of section 50 of the Codeshall apply to search warrants issued under Chapter VI. of theCriminal Procedure Code. Section 50(2) provides that a
warrant remains in force until it is cancelled by the Court which
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issued it, or until it is executed. These provisions seem to embodythe ordinaiy principle that a warrant ceases to be in force, eitherwhen it is cancelled by a Court for some reason, or it is executed,or by the efluxion of time fixed by a Court for its duration, whenit should be returned to the Court. There can be no objectionto the insertion of a returnable date in regard to a warrant issuedunder section 7 of the Gaming Ordinance, but the insertion of sucha date cannot control the effect of the word “ forthwithThe
evidence in this case proves that the warrant in question wasexecuted on August 6 by a search made under its authority of theplace, and the seizure of money and cards, and by the productionbefore the Court of the persons found gaming.' The authority con-tained in the warrant was exhausted by that entry on August 6,and although the returnable date had not arrived the warrantwas spent. If, therefore, the entry into the place, and the search,on August 15 be regarded as upon the original warrant issued onAugust 6, it was an entry and search not made in pursuance of awarrant issued under section 7. If on the other hand, it be regardedto have been made under the authority of the endorsement madeon August 12 by the Magistrate on the back of the warrant regardingthat endorsement as being tantamount to the issue of a. freshwarrant, the entry and search cannot even then be regarded ashaving been made in pursuance of a warrant issued under section 7.Before such a fresh warrant could have been issued the Magistrateshould “ have been satisfied upon written information on oath ”before he issued it. The only information he acted upon in makingthat endorsement is the statement made by the Sub-Inspectorto him that he had seen gaming still continuing in the place.* Thatinformation was not on oath. The endorsement cannot be regardedas a fresh warrant issued under the provisions of section 7.
The appeals, therefore, must be allowed and the accusedacquitted.
Rex v. Parted
REX v. PAREED et al