072-NLR-NLR-V-27-BANDARAWELA-v.-CAROLIS-APPU.pdf
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Present: Jayewardene A.J.BANDARAWELLA v. CAROLIS APPU.
78—P. C. BaduUa-Haldummulla, 19,311.
Excise Ordinance—Search by Inspector without warrant—Failure tonote grounds of belief—Ordinance No. 8 of 1912, s. 36.
Where an Excise Inspector, who had not complied with therequirements of section 36 of thoExcise Ordinance, in effecting asearch without a warrant, was allowed to enter a house withouthindrance.
Held, that the evidence obtained under such entry was ad-missible.
APPEAL from & conviction by the Police Magistrate of Badulla-Haldummulla. The accused was convicted under section43 (a) of Excise Ordinance of being in possession of fermentedtoddy beyond the prescribed quantity. The evidence for theprosecution consisted of that of the Excise Inspector who enteredand searched the house of the accused without a warrant and foundthe toddy. It was admitted that the Inspector had not in effecting
12(61)29
192ft
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1924.
Bandar a-iveUa v.CarolieAppu
the search complied with the requirement of section 36 of theOrdinance in recording his grounds of belief aB to the necessity ofa search. The learned Police Magistrate held that the entry wasregularly made.
Rajapakse, for accused, appellant.
J. E. M. Obeyesekere, C. Cfor complainant, respondent.
March 31, 1926. Jayewabdene A.J.—
In this case the appeal is founded on an objection to the ad-missibility of the evidence on which the conviction is based. Theaccused has been ''convicted of being in possession of fermentedtoddy over the prescribed quantity, an offence punishable undersection 43 (a) of the Excise Ordinance, 1912. The evidence for theprosecution consisted of that of the Excise Inspector who statedthat he entered and searched the house of the accused and foundthe toddy referred to in the plaint. The search, it was alleged,was under section 36 of the Excise Ordinance, which empowersan Excise Officer who has reason to believe that an offence undersection £3 or 44 of the Excise Ordinance has been, is being, or islikely to be committed,and that a search warrant cannot be obtainedwithout affording the offender an opportunity of escape or ofconcealing evidence of the offence after recording the grounds ofhis belief to enter and search any place, &c. It was contendedin the Court below, and it is contended before me, that the entryand search cannot be regarded as made under that section, becausethe Inspector had not complied with its requirements. Th ■ learnedMagistrate held that the search was regularly made. In viewhowever, of the admission of the Inspector, that he had not recorded“ the grounds of his belief,” I do not think that the entry can beregarded as one under section 36. The recording of <e the groundsof his belief ” is a condition precedent to the exercise of the right ofentry and search conferred by that section: Zilva v. Sinno.1 Iwould, therefore, hold that the requirements of section 36 havenot been complied with, and the entry cannot be justified underthat section. Then the question arises whether the evidenceobtained by such an entry is admissible in law. The object ofsection 36 is to give Excise Officers power to enter and searchhouses without a warrant in circumstances of urgency. It protectsthem against resistance and obstruction in so doing if they complywith its requirements. If an officer enters without such com-pliance and is resisted or obstructed, he is without remedy ashis entry is illegal, but if he is allowed to enter and search withoutobjection can it be said that his evidence of what he heard, saw, or111914) 17 N. L. R. 473.
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found is admissible ? Section 36 itself does not exclude evidenceobtained under such circumstances, and I know of no provisionof the law requiring its exclusion. A similar objection was takenin Silva v. Hendrick Appu,1 but the point was not decided as therewas other evidence to support the conviction, and Wood Kenton C. J.said: “ I am clearly of opinion, however, that a contraventionof the provisions of section 36 does not invalidate proceedings likethe present in which there is ample independent evidence of theillicit sale.” Zilva v. Sinrvo (supra) was also cited in this connectionbut it has no bearing on the question of the admissibility of anExcise Officer’s evidence. I might, however, refer, to an Indiancase under the Madras Akbari Act, the equivalent of the localExcise Ordinance, in which a Magistrate acquitted an offenderarrested by.an Inspector outside his circle or jurisdiction, althoughhe believed the evidence for the prosecution, on the ground thatan-Inspector’s powers of arrest were restricted to his circle and theproceedings were unwarranted. The High Court set aside theacquittal remarking that the question whether the officer whoeffected the arrest was acting within or beyond his powers inmaking the arrest did not affect the question whether the accusedwas, or was not, guilty of the offence with which he was charged :Emperor v. Bavalu Kesigadu.- Reference has also been made tothe provisions of “ The Gaming Ordinance, 1889,” but I do notthink that any argument can be based on them, as by section 59of the Police Ordinance, 1865, Police Officers are authorized to enterand inspect gaming houses without a warrant. But it is argued,however, that if evidence obtained without complying with therequirements of section 36 be held to be admissible, the provisionsof that section would be reduced to a nullity, particularly in viewof the fact that as a general rule the villager here does not dare tooppose a uniformed officer even when he attempts to enter a housefor the purpose of searching it. I am not prepared to say thatvillagers, specially those engaged in committing excise offences,are so docile as to allow their houses to be searched without protest.But, however, that may be, there is no rule of law requiring therejection of such evidence and commonsense commends itsadmission.
1926.
Javbwab-
l>ENB A.J.
Bandara-
weUav.
f^arolis
Appu
I come to the conclusion that the evidence objected to has beenrightly admitted, and dismiss the appeal.
Appeal dismissedi
1 (1917) 4 C. W. R. 232.
* (1902) 26 Mad, 124.