086-NLR-NLR-V-39-HALALDEEN-v.-YOTHAN.pdf
SOERTSZ J.—Halaldeen v. Yothan.
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1937Present: Soertsz J.
HALALDEEN v. YOTHAN.332—P. C. Gampola, 41,359.
Search warrant—Description of premises to be searched—Sufficient descriptionnecessary—Evidence given at the trial to determine the sufficiency of.description—Gaming Ordinance, No. 17 of 1889, s. 7.
In an application for a search warrant under section 7 of the GamingOrdinance a sufficient description of the premises to be searched -wouldsatisfy the requirements of the Ordinance.
It is permissible to examine the evidence given before the issue of thesearch warrant and at the trial to determine whether there has been asufficient description of the place to be searched and also whether theplace searched was the place intended and whether that intention hasbeen adequately given effect to by the description given in the warrant.
Al.PPEAL from an acquittal by the Police .Magistrate of Gampola.
Illangakoon, K.C., Attorney-General (with him Pulle, C. C.), for com-plainant, appellant.
Colvin R. de Silva, for accused, respondent.
Cur. adv. vult.-
September 29, 1937. Soertsz J.—
In this case the learned Police Magistrate found that on the searchwarrant issued by him under section 7 (1) of Ordinance No. 17 of 1889,the Police raided the place in which according to the information givenon oath by the informants, unlawful gaming was being carried on habi-tually, but he nevertheless held that the presumption created by section 9 ofthe Ordinance did not arise because the-land on which this gaming tookplace was described in the search warrant as Jayakoddy estate aliasTuttirihena, whereas, in point of fact, the particular portion of landinvolved was lot D of Diulapitiya and, therefore the correct descriptionshould have been Jayakoddy estate alias Diulapitiya.
Assuming for the moment that the Magistrate’s finding is right thatthis portion of land is not known as Tuttirihena, I am unable to agreewith the Magistrate that that fact invalidated the search warrant in this
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SOERTSZ J.—Halaldeen v. Yothan.
case to the extent of avoiding the presumption created by section 9. Theland to be searched is described in the warrant not only as “ Jayakoddyestate alias Tuttirihena and in a shed on the said estate ”, but also assituated in the village of Balagalla and on the border of Wewagederaand as owned by Lionel Jayakoddy. It is beyond question that theportion of land raided is a portion of Jayakoddy estate situatedin Balagalla and on the border of Wewagedera and belongs to LionelJayakoddy.
In my view, therefore, although on the finding of the Magistrate theuse of the name Tuttirihena as an alias for this piece of land is inaccurateit is nothing more than innocuous falsa descriptio and the land of whichthe warrant authorised a search is sufficiently identified by the otherparticulars contained in the warrant. Section 7 provides that the warrantshould be in the form A given in the schedule to the Ordinance. Anexamination of that form shows that no stereotyped description of theplace to be searched is required. All that appears necessary is a sufficientdescription. I am of opinion that when this question whether there hasbeen a sufficient description of the place arises, it is permissible to examinethe evidence given before the issue of the search warrant and at the trialin order to answer that question and the other question, namely, whetherthe place searched has been adequately given effect to by the descriptiongiven of the place in the warrant. Of course the mere intention that thesearch should be of a certain place will not suffice, if, in fact, the descriptionemployed is erroneous in that it clearly applies to some other place, andnot to the place intended, or does not apply with reasonable certainty tothe place intended.
In this case the evidence given before the Magistrate directed a searchwarrant to issue as well as the evidence at the trial clearly establishes, in myview, that the place sought to be searched has been sufficiently describeddespite the use of the alternative name of Tuttirihena and that it was theplace described in the warrant that was searched. So far I have dealtwith this question on the assumption that the Magistrate’s finding iscorrect that this portion of land is not correctly described as Tuttirihena.But, on the evidence, I am satisfied that although this portion of land wasoriginally Diulapitiya, after it was acquired by the owners of Tuttirihena,it became incorporated in Tuttirihena, and was itself, generally, referredto as Tuttirihena. In that view of the matter, there is not even a falsadescription when the words alias Tuttirihena are used as an alternativedescription.
On this finding by me on this question, it does not become necessaryfor me to consider the other question raised, namely, whether the Magis-trate was right when he found on the evidence before him, that there wasno proof of specific acts of gambling against the accused or any of them.
I set aside the order of the Magistrate and remit the case to him so thathe may examine the evidence and record his findings on the basis thatthe presumption created by section 9 of the Ordinance arose.
The parties may lead any further evidence they desire in proof or inrefutation of the charge.
Sent back.