036-NLR-NLR-V-60-CYRIL-DE-SILVA-and-others-Appellants-and-S.-I.-AZEEZ-Inspector-of-Police.pdf
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K. D. DE SILVA, J.—Cyril de Silva v. Azeez
1958Present: K. D. de Silva, J.CYRIL DE SILVA and others, Appellants, and S. I. AZEEZ (Inspector
of Police)
8. C. 185, wi th Application 136—M. G. Colombo South, 85,869
Unlawful gaming—Search warrant issued under repealed Ordinance— Validity-Revised Edition of the Legislative Enactments Ordinance (Cap, 1), s. j0(3)—Gaming Ordinance (Cap. 38), ss. 2, 7.
A search warrant issued in terms of the repealed Ordinance jSTo. 17 of 1889has no legal effect and cannot be taken into consideration in a prosecution forunlawful gaming under the Gaming Ordinance (Cap. 38 of the Bevised Editionof the Legislative Enactments).
A
./APPEAL from a judgment of the Magistate’s Court, Colombo South.
S. Barr Kumarakulasinghe, with G. L. L. de Silva, for theaccused-appellants.
M. Goomaraswamy, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
September 8, 1958. K. D. de Silva, J.—
This appeal and the connected application m revision result from aconviction under section 2 of the Gaming Ordinance (Cap. 38) (herein-after referred to as the Ordinance). On December 22,1957, Sub-Inspector
K. D. DE SILVA, J.—Cyril de Silva v. Azeez
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Rajapakse of the Mt. Lavinia Police placed before the Magistrate, Col-ombo South, written information on oath to the effect that premisesNo. 515, Galle Road, Mt. Lavina, known as the “ Mount Sports Club ”was being kept as a common gaming place and obtained the searchwarrant PI. The same day the Sub-Inspector in the company of otherPolice Officers watched the premises from outside and observedabout fifteen to twenty persons playing a game called “Baby”with cards for money stakes, there. He then entered the building) dis-closed his identity and explained the purpose of his visit and also prcfe-dueed the search warrant from his pocket. He took charge of theproductions and arrested sixteen persons who had participated in thegame of cards. The appellants are fourteen of those persons arrested.Subsequently he filed a plaint against all the sixteen persons arrestedby him. On being charged under section 2 of the Ordinance the appel-lants pleaded not guilty while two others pleaded guilty to the charge*.After trial the Magistrate convicted the appellants and imposed a fine ofRs. 25 on each. The principal question which arises on this appealrelates to the validity of the search warrant PI. The learned Magistrateheld, inter alia, that the appellants had failed to rebut the presumptionwhich arose under section 7 of the Ordinance. It was contended onbehalf of the appellant both here and in the court below that nopresumption arose under section 7 as the search warrant in question wasirregular on the face of it. This search warrant has been filled up ona printed form. The material part of it is as follows asa- nv
“ This is to authorise and require you forthwith to enter and searchNo 515 Galle Road, Mt. Lavinia—the Mt. Sports Club and to exerciseall and singular the powers conferred upon you by this Warrant andby the 7th section of the Ordinance No. 17 of 1889. ”
There is no reference to Cap. 38 in this document. Clearly a printedform meant to be used under Ordinance No. 17 of 1889 has been utilized.That Ordinance was amended by Ordinance No. 37 of 1917. In theRevised Edition of the Legislative Enactments which came into forceon the 30th day of June 1938 the Gaming Ordinance was revised and thesections were renumbered. That Revised Edition of the LegislativeEnactments came into being under the provisions of the LegislativeEnactments Ordinance (Cap. 1). Sub-section 3 of section 10 of thatOrdinanc eprovided as follows:—
From the date appointed in such proclamation the revised editionshall be deemed to be and shall be without any question whatso-ever in all Courts of Justice and for all purposes whatsoeverthe sole and only proper Statute Book of Ceylon in respect ofthe legislative enactments therein contained and shall be substi-tuted for, firstly, the revised edition of the legislative enactmentsof Ceylon in force immediately before the date appointed in suchproclamation and secondly for all Ordinances passed between thethirty-first day of December, nineteen hundred and twenty-three, and the thirty-first day of December, nineteen hundred
1»2
The Commissioner of Income Tax v. Sri Lanka Omnibus Go., Ltd.
1 ' and thirty-seven, or such later date as the Governor may fixunder section 2 ; and the legislative enactments firstly and• ; secondly herein referred to except such legislative enactments'as may be omitted under section 4 shall be repealed from that
,date.
In terms of this sub-section, on the Revised Edition coming into rorce,the Gaming Ordinance No. 17 of 1889 as amended by Ordinance No. 87of 1917 stood repealed and the Gaming Ordinance (Cap. 38) took itsplace. Therefore no proceedings can be had under the repealedOrdinance. The search warrant PI on the face of it has been issued underthe repealed Ordinance. Consequently, it has no legal effect. TheMagistrate has therefore erred in holding that a presumption of guiltarose under section 7. The search warrant PI cannot be taken :ntoconsideration in deciding the case against the appellants. Once thesearch warrant is eliminated from the proceedings the other evidencein the case is quite insufficient to support the charge of unlawful gaming.
I would therefore set aside the convictions of the appellants andthe fines imposed on them and allow the appeal and the applicat ion inrevision.
Appeal allmcuh