017-NLR-NLR-V-50-GUNAWARDENE-Appellant-and-RICHARD-S.I.-POLICE.-Respondent.pdf
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Ounavtardene «. Richard.
19^8Present: Basnayake J.
GUNAWARDENE, Appellant, and RICHARD (S. I. Police),Respondent.
S. C. 403—M. C. Kandy, 30,812.
Betting on Horse -Racing—Possession of betting slips—When is it an offence ?—Chapter 36—Sections 3 (3) (b) and 17 {b).
The possession of betting slips is not an offence under section 3 (3)of the Betting on Horse-Racing Ordinance. Where, however, premisesare searched under the Ordinance, there is a presumption under section17 that a person in possession of betting slips is guilty of the offence ofunlawful betting.
1 {1880) 6 Calcutta 496.* {1913) 3 C. A. C. 26.
3 {1881) 7 Calcutta 208.5 {1913) 2 Cr. A. R. 45-
3 {1908) 11 N. L. R. 371.e {1917) 20 N. L. R. 136.
BASXAYAKE J.—Guuawardenc v. Richard.
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^LPPEAH from a judgment of the Magistrate, Kandy.
Bernard Sri Kantha, with Walter Wimdlananda, for the accused,appellant.
R. A. Kannangara, Crown Counsel, for the Attorney-General.
June 18, 1948. Baskayase J.—
Cur. adv. vult.
The accused-appellant was tried on the following charges :
“ That you did, within the jurisdiction of this court at 139, BrownriggSt., Kandy, on December 13,1947, receive from, negotiate with personsunknown, unlawful bets on horse races proposed to be run in Indiaon December 13, 1947, in breach of section 3 (3) (6) of Chapter 36,1ST. L. E. C., as amended by section 3 (2) of Ordinance No. 55 of 1943,and thereby committed an offence punishable under section 10, Chapter36, as amended by section 6 (3) (2) (a) of Ordinance No. 55 of 1943.
2. In the alternative the said accused did in breach of section3 (3) Chapter 36, as amended by section 3 (3) (b) of Ordinance No. 55of 1943, have in his possession instruments of unlawful betting, towit, 14 betting slips in an envelope with letters S. N. with namesof horses proposed to be run in India on December 13, 1947, twoenvelopes, 8 betting slips with names of horses proposed to be runin India on December 13, 1947, lists of accounts in Sinhalese, andthereby committed an offence punishable under section 10, Chapter 36,as amended by section 6 (3) (2) (a) of Ordinance No. 55 of 1943.”
At the conclusion of the trial the learned Magistrate acquitted theappellant of the first charge and convicted him of the second and sentencedhim to pay a fine of Rs. 75. This appeal is from that conviction andsentence.
Section 3 (3) of the Betting on Horse-Racing Ordinance, as amended bysection 3 (2) of the Betting on Horse-Racing (Amendment) Ordinance,No. 55 of 1943 (hereinafter referred to as the Ordinance) reads :
“ (3) Any person who—
(а)makes or places a bet on a horse-race other than a taxable
bet, or
(б)receives or negotiates a bet on a horse-race other than a taxable
bet
shall be deemed to bet unlawfully on a horse-race and shall be guiltyof an offence.”
The allegation in the charge is that in breach of the above-quotedsub-section the accused did “ have in his possession instruments ofunlawful betting ” described in the charge. That section does notpenalise the acts alleged in the second charge. Mere possession of instru-ments of unlawful betting is not a breach of section 3 (3) of the Ordinance.The accused has therefore been wrongly convicted and his convictioncannot stand.
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BASNAYAKE J.—Gunawar dene v. Richard.
The learned. Magistrate does not appear to have given sufficient atten-tion to the words of paragraph (6) of section 17 of the Ordinance. Thatsection reads :
“ 17. Any person who is found—
(а)in' any premises kept or used for the purpose of unlawful hetting
on a horse-race ; or
(б)in possession of any instrument of unlawful hetting on the
occasion of his being searched under this Ordinance,
shall be presumed, until the contrary is proved, to be guilty of the
offence of unlawful betting on a horse-race.”
The possession of any instrument of unlawful betting is an offenceunder section 17 (6) and not under section 3 (3). But mere possessionof “ betting slips ” is not an offence even under section 17. To comewithin the ambit of that section the accused must be found in possessionof an instrument of unlawful betting on the occasion of his being searchedunder the Ordinance. Unlawful betting, -with its grammatical variationsand cognate expressions, when used in relation to a horse-race meansmaking, placing, receiving or negotiating a bet on a horse-race otherthan a taxable bet x. Section 15 provides for the search of premiseswhere there is reason to suspect that any offence against this Ordinanceor any regulation made thereunder is being or has been committed, orwhen there is any document or thing directly or indirectly connectedwith any such offence. A search may be carried out under the authorityof a search warrant granted by a Magistrate. In any case where a searchwarrant cannot be obtained from a Magistrate without affording theoffender an opportunity of escape or of concealing evidence of the offence,a police officer of or above the rank of sergeant in charge of a police stationmay, after recording the grounds of his suspicion, search any premises.
In the instant case there is no evidence that the search was undersection 15. The presumption created by section 17 does not thereforearise in regard to the possession of the betting slips in question. AsI have indicated earlier, a person found in possession of instruments ofunlawful betting is not guilty of an offence unless it can be proved thathe falls within the ambit of section 17. Once it is established that heis a person to whom that section applies, he is presumed to be guilty ofthe offence of unlawful betting until he proves the contrary.
The appeal is allowed and the conviction is set aside.
Appeal allowed.
! Section 2, Betting on Horse-Racing Ordinance.