BASNAYAKE J.—Appturingho v. Van Buren.
1948Present: Basnayake J.
APP USING HO ei al., Appellants, and VAN BUREN (ExciseInspector), Respondent.
S. C. 911014—M. C. Chilaw, 33,861.
Penal Code, sections 183, 220a, 344—Obstruction to Public Servant—Arrest withoutwarrant—Record of grounds of belief—Condition precedent—Poisons, Opiumand Dangerous Drugs Ordinance, section 75.
An Excise officer has no power to arrest a person who commits an offenceunder the Poisons, Opium and Dangerous Drugs Ordinance unless he eitherhas a warrant or makes the record specified by section 75 (2) of that Ordinance.An arrest otherwise made is illegal and resistance to it-is not an offence.
^^PPEAL from a judgment of the Magistrate, Chilaw.
E. Chitty, with Cecil Wijeratne, for the accused, appellants.
V. T. Thamotheram, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 24, 1948. Basuayake J.—
The four accused-appellants were tried and convicted of offencespunishable under sections 183, 220a and 344 of the Penal Code. Thefirst and fourth appellants were each fined Rs. 50 under section220a, the second and third appellants were each fined Ks. 25 in respectof the offence punishable under section 183 and Rs. 25 in respect of theoffence punishable under section 344.
It appears from the evidence of Excise Inspector Van Buren thaton March 11, 1947, at about midday he arrested the fourth appellant,who runs a bicycle repairing business, on a charge of selling ganja, andtook him to the adjoining premises as he intended to search it. Therehe met the third appellant, whom he searched, but found nothing onhim. The first and second appellants arrived while the Excise guardswho accompanied the Excise Inspector were searching the house.Meanwhile the Excise Inspector had sealed the ganja he found in thepossession of the fourth appellant, and when he asked him to placehis thumb impression on the sealed packet the first, second andthird appellants told him not to do so, whereupon the fourth appellantrefused to place his thumb impression. Next the Excise Inspectorasked the fourth appellant to sign a bail bond. Again the other threeappellants forbade him to sign it, and he refused to sign. He wasthen asked to accompany the Excise Inspector to the Police Station.He took him by his hand and was leading him towards his car, whenthe first appellant seized him by his waist and pulled him away, sayinghe would not allow the fourth appellant to be taken away. Thesecond and third appellants gripped the Excise Inspector’s hands andreleased his hold on the fourth appellant, who" was himself doing allhe could to release himself. Having freed the fourth appellant thefirst, second and third appellants were taking him to a room of thehouse, when three of the guards attempted to prevent it. The
ASNAYAJtE J.—Appuaingho v. Van Buren.
appellants then appealed for help to the bystanders of whom therewere about fifty. They then rushed in to their aid. The Inspectorand his guar is withdrew fearing that if they persisted in their effortsto take the fourtn appellant away the crowd might turn againstthem, and they left the scene and lodged a complaint at the MarawilaPolice Station.
The Excise Inspector's evidence was not challenged nor was theevidence of the Excise Guard David. The appellants did not giveevidence or call any witnesses. It is submitted by counsel for theappellants that the Excise Insjiector had no power to arrest the fourthappellant and hence the appellants have not committed the offencesalleged against them. I am of opinion that the counsel’s submissionis entitled to succeed. The powers of search and arrest in regard tooffences relating to dangerous drugs are to be found in section 75 ofthe Poisons, Opium and Dangerous Drugs Ordinance (hereinafter re-ferred to as the Ordinance). Under that provision an Excise Inspectorhas ordinarily no power tp search' any premises or arrest any personcommitting any offence thereunder except under the authority of asearch warrant given under sub-section (1). But where a searchwarrant cannot be obtained under sub-section (1) without affording theoffender an opportunity of escape or of concealing evidence of theoffence, he may after recording the grounds of his belief, and at anytime •within the next twelve hours, exercise all or any of the powersconferred on him by that sub-section. In the present case there wasneither a search warrant under section 75 (1) of the Ordinance nordid the Excise Inspector make the record prescribed by section 75 (2).That record is a condition precedent to a search or arrest without awarrant, and a search or arrest made without that record is illegal.
I shall now consider each of the offences alleged against theappellants in their order. The first charge is that they did volun-tarily obstruct a public servant, to wit, H. L. Van Buren, ExciseInspector, in the discharge of his public functions and thereby com-mitted an offence punishable under section 183 of the Penal Code.The appellants are clearly not guilty of this offence as Excise InspectorVan Buren’s action -was illegal. A public servant who does an illegalact cannot be said to be discharging his public functions in doingthat act. The second charge is that the first three appellants diduse criminal force on Excise Inspector Van Buren, a public servant,in the execution of his duty as such public servant in apprehendingthe fourth appellant and thereby committed an offence under section344 of the Penal Code. As I observed earlier, the Excise Inspectorwas not lawfully executing his duty as a public servant in apprehendingthe fourth appellant, and the act of'the first three appellants does nottherefore fall within the ambit of the section under which they are charged.
The last charge is that the first three appellants did intentionallyrescue the fourth from the lawful custody of H. L. Van Buren,Excise Inspector, and thereby committed an offence punishable undersection 220a of the Penal Code. The allegation in the charge thatthe fourth appellant was in lawful custody is ill-founded. He was
Kitnapulle v. CltristoJJelz.401
under unlawful arrest, and the first three appellants cannot bepunished under section 220a, for that section penalises only the actof rescuing from lawful custody. I do not propose to discuss theother submissions of learned counsel as it is unnecessary to do so.It appears from the reasons of the learned Magistrate that the ExciseInspector relied on section 34 of the Excise Ordinance. That sectionapplies only to offences punishable under sections 43 and 44 of theExcise Ordinance and is of no avail in regard to offences under theOrdinance relating to dangerous drugs.
It is not inappropriate to repeat the words of Lord Simonds inthe case of Christie and another v. Leachinskyx. “ .. .it ia the
right of every citizen to be free from arrest unless there is in some othercitizen, whether a constable or not, the right to arrest him. I wouldsay next that it is the corollary of the right of every citizen to be thusfree from arrest that he should be entitled to resist arrest unlessthat arrest is lawful ”, Again at page 576 he says “ My Lords, theliberty of the subject and the convenience of the police or any otherexecutive authority are not to be weighed in the scales against eachother. This case will have served a useful purpose if it enablesyour Lordships once more to proclaim that a man is not to bedeprived of his liberty except in due course and process of law ”.The liberty of the subject is equally prized here as in England andthe words I have quoted from the judgment of the House of Lordsmay serve to impress on officers such as the Excise Inspector in thiscase that a citizen should not be deprived of his liberty except indue course and process of law. Requirements such as are prescribedby section 75 (2) of this Ordinance should be meticulously observed.
The convictions are quashed and the appellants are acquitted.