William Appuhamy v. S. I. Police,, Waitegcma
1954Present: Pulle, J.
W. D. WILLIAM APPUHAMY, Appellant, and S, I. POLICE,WATTEGAMA, Respondent
S. C. 331—M. C. Panwila, 8,015
Gaming Ordinance (Gap. 38)—Search warrant to enter a hotel—Conditions necessaryfor issue thereof—Sections 7, 21 (b).
A search warrant authorising entry into a hotel is not valid for the purpose offurnishing presumptive proof of unlawful gaming in terms of section 7 of theGaining Ordinance unless the informant, upon whose evidence it is issued,expressly states that the hotel is unlicensed and, therefore, not protected bysection 21 (b) of the Gaming Ordinance.
■^APPEAL from a judgment of the Magistrate’s Court, Panwila.
Walter Jayavxtrdene, for the accused-appellant.
V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
1 (1914) 18 N. L. R. 117.5 (1951) 54 N. L. R. 350.
3 (1955) 57 X. L. R. 436.
PXJLliE, J.—William Appuhamy v. S, I. Police, Wattegama44T
August 23, 1954. Pdixe, J.~ –
The appellant was one out of forty persons who were charged with having,on the 3rd January, 1954, committed the offence of unlawful gaming.He was convicted and fined Rs. 25. Of the points of law certified in thepetition of appeal only one was pressed before me. It was to the effectthat the search warrant on which the premises were entered was impro-perly issued and that, therefore, no presumption of guilt could ariseunder section 7 of the Gaming Ordinance (Cap. 38).
The submission questioning the validity of the search warrant is based,on section 21 the relevant portion of which reads as follows:—
“ Nothing in this Ordinance contained shall be held to apply to or in.any way to affect—
any hotel duly licensed under any Ordinance or Ordinances for thetime being in force regulating the licensing of hotels, so long as the licenceof such hotel continues in force. ”
The search warrant authorised the entry into and search of “ Amarasiri ”Hotel, No. 11, Matale Hoad, Wattegama, and it was based on the evidenceof the informant who stated,
“ I know Amarasiri Hotel bearing No. 11, Matale Road, Wattegama..This hotel is run by Podimahataya alias William Appuhamy. ”
The argument for the appellant was that, in view of the expressexclusion of hotels of the description mentioned in paragraph (6) ofsection 21 from the purview of the Ordinance, it was the duty of the-leamed Magistrate to have satisfied himself before issuing the warrantthat what was described by the informant as a hotel was not protectedagainst entry. In other words, the evidence of the informant immediatelyraised the question whether or not a warrant could issue and in theabsence of evidence that the hotel was not protected the issue of thewarrant could not be justified.
In my opinion the submission on behalf of the appellant isright. I donot for a moment suggest that whenever it is alleged that any place isused as a common gaming place a duty is cast on the Magistrate to satisfyhimself upon evidence of a negative character that it is not exemptedfrom entry. Where, however, there is evidence which would fairly raise-the issue whether the place is exempted or not, the matter calls for furtherinquiry and before a warrant is issued the Magistrate should satisfyhimself that the place which under certain conditions may be exemptfrom search does not in fact enjoy that immunity. It seems to me thatif a contrary view is taken the protection afforded by section 21 againstthe most vexatious consequences of the search of a hotel, club or resthousewould in a large measure be illusory.
In fairness to learned Crown Counsel I must say that he did not disputethe reasonableness of the view which I have expressed. He limitedhimself to the argument that although the informant described theplace as a “ hotel ” that word should not be understood in any sense
Sirimalie v. Pinchi Ukku
covered by the meaning of the word “ hotel ” in paragraph (b) of section 21.There might be substance in this argument, if the informant’s evidencetaken as a whole indicated that the word “ hotel ” was just a name andnothing more in order to fix the place where unlawful gaming was carried■on. It is clear he meant more for he said, “ This hotel is run byPodimahataya alias William Appuhamy
Had the appellant been charged with keeping a common gaming place■.it is possible that even without the aid of any presumption his guiltcould have been established. His conviction for unlawful gaming,however, can only be justified on the presumption under section 7 andas it cannot be called in aid for the reasons I have given, I set aside the.conviction and sentence and acquit the appellant.
W. D. WILLIAM APPUHAMY, Appellant, and S. I. POLICE, WATTEGAMA, Respondent