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Present: Lyall Grant tT.
DANIEL t). SANDRIS APPU584—P. G. Badulla, 4?,012.
False weights, and measures—Authority of Police Sergeant—Power tosearch premises—Ordinance No, 14 of 1878, s. 7.
A Police Sergeant; has power to enter any place without a warrantfor the purpose of – inspecting or searching weights or measuresor instruments for. weighing and to initiate . a prosecution undersection 7' of Ordinance No. 14 of 1878.
PPEAL from an acquittal by tbe Police Magistrate of Badulla.
J,E. M. 0bey8ekerat C.C., for complainant, appellant.
October 4, 1929; Lyall, Grant J.—■
In this case the accused was charged with having in his possessionweights, which, when tested, were found to be in excess by a certainamount, and also with having in his possession at the same timeand place certain unstamped weights, and with thereby havingcommitted an offence punishable under section 7 of Ordinance No. 4of 1919.
When the case was called, objection was taken that by section 6 ofOrdinance No. 14 of 1878 entrance must be made by an Examinerof Weights and Measures duly sworn or affirmed, that this had notbeen done in this case, and that the whole procedure ab initio wasirregular. The entrance and search was made by Police SergeantDaniel, who appears as complainant in the case. In the PoliceCourt it was argued for the complainant that he was acting byvirtue of section 51 of Ordinance No. 16 of 1865. The Magistrate,however, held that that section cannot over-ride the expressprovisions of the special Ordinance No. 14 of 1878 promulgatedsubsequently. He upheld the objection and acquitted the accused.He also ordered the destruction of the productions in the case.
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1029. jt does not appear to have been brought to the notice of thei.vat-tlearned Magistrate that section 119 of the Criminal Procedure Code
Ohaat? J. of 1898 empowers any Peace Officer, not below the rank of Sergeant,Daniel v. to enter any place without a warrant for the purpose of inspectingSandris or searching for any weights or measures or instruments for weighing,App*1 used or kept therein, whenever he has reason to believe that thereare in such a place any weights, measures, or instruments forweighing which are false. By section 8 of the same Ordinance“ Peace Officer ” includes a Police Officer.
It is clear that the decision of the Magistrate is based on a mis-understanding of the law, and that on this ground it must be setaside. The charge, however, it must be observed is not in orderinasmuch as it charges the accused with having certain illegalweights in his possession. Section 7 of Ordinance No. 14 of 1878penalizes a person either using or in whose store, shop, &c., shall befound any weight or measure, &c., not in conformity with thestandard. It is obvious that the charge must be amended so as tobring it into conformity with the section, and incidentally I wouldpoint out that the incorrect section has been quoted in the charge.In view of the judgment of my brother Schneider in the case ofSub^Inspector of Police, Moratvwa v. Naina Mohamed,l it wouldalso seem advisable that the charge should set out that thecomplainant was authorized to search and to seize the weights inquestion.
The order of acquittal will be set aside and the case returned forthe accused to be tried upon an amended charge. Incidentally I.should like to draw the Magistrate's attention to the fact that he hasno power to order the destruction of productions until the appealabletime has elapsed. (Criminal Procedure Code, s. 413 (3).) Suchpremature destruction may have serious consequences.
' s. r,. 7?. $61.