( 473 )
Present: Pereira J. and Ennis J.
ZILVA v. SINNO.
766 and 767—P. C. Gampola, 5,484/5,485:
Excise • Inspector enlisting services of constable to help him to search
for excisable articles—Obstruction to constable—Charge of .obstructing.
Excise Inspector—Power of Excise Inspector to search house.
An Excise Inspector may legitimately:-enlist the services oi a-police constable to help him in searching a house for. excisable-articles in any case in which the Inspector himself has the right tosearch, but when obstruction is offered to the constable in so helpingthe Excise Inspector, the offender should be charged with obstruct'ing, not the police constable, bnt the Excise Inspector ‘ himself rinasmuch as there is. no provision in the Excise -Ordinance. givingan Excise Inspector any right to give a police. constable an orderto search a house.
The power of an Excise Inspector to search' a house for excisable- articles is dependent upon, his having made a record of the groundsof his belief as to the necessity of a search, as is provided by section36 iff tiie Ordinance. In a prosecntion for obstructing him insearching a house, the fact iff his having , made such a record shouldbe affirmatively established by evidence.
HIS case was reserved for argument before a Bench of two• Judges by Pereira J.-
J:■ de Baram, for the .accused, appellant.—There is nothing in,the record to show that the" search by the Excise Inspector was
( 474 )
lawful. Section 36 of the Excise Ordinance empowers an ExciseOfficer to make search without a warrant only after having recordedhis grounds for believing that an offence under section 48 or 44 hasbeen, or is being, or is likely to be, committed, and that a searchwarrant cannot be obtained without affording the offender anopportunity of escape. In this case there is no proof that such arecord was made. The search was, therefore, not lawful. DeenAssert v. Silva;1 see also 13 Cal. 199. It is no part of the dutiesimposed by law on an Excise Peon to help an Excise Inspectorto search a dwelling house for excisable articles. The Attorney-General v. Silva.*
The second accused was wrongly convicted of voluntarilyobstructing the constable.
S. Obeyesekere, C.C., for the respondent.—There is no evidenceone way or the other as to the making of the record as required bysection 36. The Court will presume that all official acts have beenregularly performed. Evidence . Ordinance, section 114. Counselalso cited 10 N. h. R. 18, 20 Bom. 732, Broom's Legal Maxims 739.
Cur. adv. vvlt.
tOctob.er 6, 1914. Pbreiua J.—
In this case the first accused has been convicted under section 188-of the Penal Code of voluntarily obstructing a public officer, to wit,Excise Inspector de Zilva, in the discharge of hi6 public functions,and the second aceu6ed, under the same section, with voluntarilyobstructing Police Constable Ekanayaka while acting under thelawful orders of Excise Inspector de Zilva in the discharge of his^public functions. It appears that the Excise Inspector receivedinformation that arrack was being illicitly, sold in the house of thefirst accused, and therefore he “ made a raid,*' as he says, on thatIiou6e with the assistance of Police Constable Ekanayaka and others.He seized the first aceused while selling arrack, and then made uphis mind to search the house. His own words are: 11 I seized thearrack as it was being sold, and then I said I must search the house."In the course of the search, or some time after, he and the policeconstable were beaten by the accused, and hence this charge. Now,in a case of obstructing a public servant in the execution of his duty,it is essential that it should be proved beyond doubt that the public•servant had proper legal authority to do the act in the doing of whichhe was obstructed. Assuming for the sake of argument that theExcise Inspector had full authority to search the first accused's house,can it be said that Police Constable Ekanayaka was acting under hislawful orders? There is nothing to show that the Excise Inspector"had any right to give any orders to the police constable to searchany house at all. The faet, however, that the Excise Inspector hadaao such tight did not imply that he^ could not legally enlist the
a (JM7) 6 Tam. 61.* (1914) 17 N. L. R. 193.
( 475 )
services of the police constable to search the house,, provided- ofcourse that he himself had proper authority to search. But, then,the obstruction of the police constable would be tantamount toobstruction of the Excise Inspector himself, and the conviction ofthe second accused with having obstructed the police c'onstablewhen acting under the lawful orders of the Excise Inspector cannotbe supported.
It has not been contested that an Excise Inspector is a public*servant, and that volnutarily obstructing him in the discharge ofhis public functions would be an offence under section 188 of thePenal Code. The main question in the case is whether the Excise-Inspector had lawful authority to search the first accused % house.Power of search is given to him under section 86 of the ExciseOrdinance, No. 8 of 1912. What that section enacts (omittingimmaterial portions) is that when an Excise Officer has reason to>believe that an offence under section 48 or section 44 of the Ordi-nance has been, is being, or is likely to be, committed, and that asearch warrant cannot be obtained without affording the offenderan opportunity of escape or of concealing evidence of' the offence,,he may, after recording the grounds of his belief, enter and searchany- place, &c. There is no evidence whatever in this case that theExcise Inspector made the record required by this section. CrownCounsel argued that under section 114 of the Evidence Ordinancethe Court should presume that such a record was made, becausethat section enacts that the Court m^y presume that judicial mid'official acts have been regularly performed. This, if I might say so,is tantamount to begging the question. It assumes that the act ofsearch was an official act. It does not become so until the- record’referred to has been made. It is that record? that vests in* an Excise-Officer the authority to search. Until he makes ft be has no moreauthority in that direction than any ordinary individual. I thinkthat in every case of search by an Excise Inspector compliance byhim with the requirements of section 36 should be affirmativelyestablished by him by evidence. Moreover, in this particular case,the fact cited above as having been sworn to by the Excise Inspectorhimself renders it unlikely that he made the necessary record, and',,assuming that section 114 of the Evidence Ordinance applied, Ishould not be prepared to presume anything under that section,,
For the reasons given above I would set aside the conviction and!acquit the accused.
I agree. The evidence • given by the Excise Inspector precludethe Court from drawing the presumption contemplated in sections114 of the Evidence Ordinance.
ZILVA v. SINNO