Present : Akbar J.
DEWASUNDERA v. SINNATHANE et at.
43—P. C. Mullaittivu, 10,725.
Insufficient material—Excise Ordinance, No. 8 of 1912, s. 35.
The affidavit of an excise inspector, based on hearsay evidence,is insufficient material upon which a Magistrate would be justifiedin issuing a search warrant under section 35 of the Excise Ordinance.
PPEAL from a conviction by the Police Magistrate of Mullait-tivu.0
R. L. Pereira, K.C. (with Ramachandra), for the accused, appellant.March .14, 1930. Akbar J.—
These three accused have been convicted for obstructing anexcise inspector in the discharge of his public functions; viz., whenhe' was searching the house of the first accused under a searchwarrant issued to him by the Magistrate under section 35 of theExcise Ordinance. If the Government Agent or the Magistrate,upon information obtained and after such inquiry as fie thinksnecessary, has reason to believe that an excise offence has beencommitted or is likely to be committed, he may issue a warrantfor a search.
The whole question in this case hinges on whether the searchwarrant was properly issued in terms of section 35. The proceed-ings which led to the issue of the warrant dearly show that theprosecuting excise inspector swore an affidavit saying that he hadreceived information which he reasonably believed to be true thatRasamma (wife, of the first accused) was selling foreign liquorillicitly, and he therefore moved for a search warrant to search and
. ( . 494 )
1930 inspect the house of the woman. This affidavit is dated DecemberT 10, 1929, and it was sworn to before Mr. Poulier, the Police Magistrate.
' * On the same day a man called Sinniah Vytilingam gave evidence
Deuaeundera before the Magistrate saying that he was employed at the JaffnaSinnotham Picture Palace and that he had bought brandy from* a woman calledPonnammah and from another man called Kanapathy, upon wh^ehthe Magistrate issued a search warrant to search the house of theabove three persons, meaning thereby the woman Rasamma, thewoman Ponnamma, and the man Kanapathy. He not only orderedthe excise inspector to search the houses of these three persons, butalso to enter all their houses in this connection. In my opinionthe issuing of the warrant to search the house of Rasamma wasillegal under section 35 in the absence of any proper evidencebefore the Magistrate. The prosecuting inspector's affidavitshows that he was relying on hearsay evidence, and on suchevidence the Magistrate cannot and should. not issue a warrant tosearch the house of the woman Rasamma for brandy or any otherforeign liquor.
Therefore the whole question resolves itself into whether theprocedure adopted at the inquiry justified the issue of the warrant.I think every effort should he made to impress upon Magistratesthe importance of search warrants and that they should not belightly issued. The Magistrate attempts to correct this grave errorby supplementing the evidence of Vytilingam by stating as follows :“ On December 16 Vytilingam was brought to me by the exciseinspector ; I recorded his evidence and issued the search warranton which the events of this case arose. The three names mentionedto me on that occasion by Vytilingam (as people from whom hebought foreign liquor) were (1) Ponnammah, (2) Kanapathy, and (3)Rasammah. In making the record of this information' I find Ihave omitted the name of Rasammah ; .the information I received,however, was against her too. The first accused is the husband ofRasammah. The search warrant applied to the premises which theexcise inspector endeavoured to search.
I need not go on to consider this case further, but I must mentionthat objection was taken to the Police Magistrate hearing this caseon, .other grounds. The accused called two witnesses whose evi-dence has not been considered by the Magistrate at ail. They aretwo outsiders. One calls himself the manager of the estates ofWijayawardene, Sedawatta, who was supervising the cutting of astatue of Buddha. He says that there was no obstruction of thekind specified by the prosecuting inspector. His evidence iscorroborated by a man called Ramaswamy of India. In thecircumstances I think the conviction cannot stand. I set aside theconviction and acquit all three accused.
DEWASUNDERA v. SINNATHANE et al