130-NLR-NLR-V-55-CICILIN-PERERA-Appellant-and-D.-B.-SAMARADIWAKARA-S.-I.-Police-Respondent.pdf
SWAN J.—Cidlin Per era v. Sa .naradiaakara453
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1953Present : Swan J.
OICTLIN PERERA, Appellant, and D. B. SAMAR AD1AYAKARA(S. I. Police), Respondent
S. C. 1,098—M. C. Colombo, 40,090
Excise Ordinance (Ca-p. 42 -Authority of police officer to prosecute thereunder—Sections 2, 43, 40.
A police officer is an excise officer within the meaning of section 49 of theExcise Ordinance and is therefore competent to institute a prosecution undersection 43 of that Ordinance.
/.PPEAL from a judgment of the Magistrate’s Court, Colombo.
E. de Silva, with D. S. Nethsinghe, for the accused appellant.
R. de Fonseka, Crown Counsel, for the Attorney-General.
*' Cur. adv. vult.
March 2, 1953. Swan J.—
The point urged by learned Counsel for the appellant that therehas been an irregularity in these proceedings which amounts to anillegality and that the conviction must be quashed.
454
SWAN J.—Cicilvn Per era v. Saanaradiwakara
Th.e accused was charged with, the sale of an excisable article, to wita quantity of arrack, without a licence from the Go vernnf ent Agent inbreach of Section 43 of the Excise Ordinance (Cap. 42,'i' and havingthereby committed an offence punishable under Section 43 (g) of thesaid Ordinance. The prosecution was initiated upon a report by Sub-Inspector Samaradiwakara of the Mt. Lavinia Police. Learned Counselfor the appellant contends that the Court could not have taken cognizanceof the alleged offence upon that report. He relies on Section 49 of theOrdinance which enacts that no Magistrate shall take cognizance of anoffence punishable under Section 43 except on his own knowledge orsuspicion or on the report of an Excise Officer.•*
This is not the first time that this point has been taken. It had beenraised time and again, very often successfully, until the Crown appealedagainst the order of acquittal in Perera v. Nagoor Pitche x. In that case itwas brought to the notice of this Court that there was an Excise notificationpublished in the Government Gazette of 13.12.1912 which authorizedPolice Officers not under the rank of Sergeant to perform certainduties under certain sections of the Excise Ordinance. It should be notedthat in section 2 the expression Excise Officer is stated to mean a “ Govern-ment Agent, Assistant Government Agent, or any Officer or personappointed or invested with powers under Section 5Dale eta J. in the course
of his judgment referred to the case of Abeygunasekera v. SuwarisAppu2where it was held that an officer or other person appointed or investedwith powers under Section 7 was an excise officer within the meaningof Section 49. He also referred to the case of Sub-Inspector, Mirigamav. John Singho 3 upon which Counsel for the appellant relies. In thatcase Garvin J. dismissed an appeal by the Crown against an order ofacquittal based on similar grounds. The learned Judge in so doingmade reference to the judgment of de Sampayo J. in Mishin v. Fernando 4.As Dalton J. pointed out the proceedings in Mishin v., Fernando 4 wereinstituted by a Police Constable, It is clear that in Sub-Inspector,Mirigama v. John Singho3 Garvin J. did not consider who was anexcise officer for the purposes of Section 49.
I find that the notification of 13.12.1912 has been superseded bya notification published in the Government Gazette of 8.i2.1950 in whichthe authority is extended to all Police Officers. But learned Counselfor the appellant submits that I cannot take judicial notice of theseGazette notifications. On this point there cannot be any doubt becausethe Excise Ordinance has been amended by Ordinance No. 25 of 1938and a new Section has been added, namely Section 58, which expresslyrequires a Court to take judicial notice of every excise notification.
The last submission of learned Counsel for the appellant was that theSub-Inspector who reported the matter to Court should have assertedthat he was an excise officer by virtue of the Gazette Notification. I donot think so, but even if he should have done that, thfe omission wouldbe only a mere irregularity that would not vitiate the proceedings.
The appeal is dismissed. 1
Appeal dismissed.
1 {1929) 30 N. L. JR. 464.3 (1926) 4 T. L. H. 71.
(1913) 16 N. L. It. 510.9J{4) 2 0. A. B. 34.