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Present : Lyall Grant J.
HOLSINGEK u. JOSEPH.*563—P. 0. Colombo, 3,493.
Excise Ordinance—Charge of possessing ganja—Tin of legium found inpremises of accused*—Sealing of tin after seizure—Production inevidence.
Where in a search uuder the Excise Ordinance, a tin of legimn‘ alleged to* contain ganja was found in the premises of the accusedby an Excise Inspector, who removed the tin to the Police Stationand had it sealed, before it was sent- to the Public Analyst forexamination,—<
Held,, that it was duty of the Excise Inspector to have the-'.tinsealed in the presence of the accused immediately -after seizure.
^^PPEAIj from a conviction by the Police Magistrate of Colombo.
Talaiasingham, for appellant.
September 27, 1929. Lyall Grant J.—
The accused in this case was convicted of selling an excisablearticle, ganja, in breach of section 17 of the Excise Ordinance, No. 8of 1912, read with Excise Notification No. .46 published in the CeylonGovermtient Gazette No. 6,712 of May, 1915. and also of at the sametime and place possessing an excisable article, to wit,' ganja,' inbreach of section 16 of the said Ordinance read with NotificationNo. 26 published in the Ceylon Government Gazette No. 6,606of February, 1914, and of thereby having committed offencespunishable under section 43 (h) and 48 (a) of the Excise Ordinance,No. 8 of 1912.
The case for the prosecution was that on the Excise Inspectorreceiving information that ganja was being sold in a certain streethe sent a person with a marked 25 cents coin to buy ganja from theplace to be pointed out. When the Excise Inspector followed, thedecoy gave him legium wrapped in a plantain leaf and told him thatthe accused had sold it to*him. The Inspector goes on to say .thathe searched and found a tin containing legium under the counterand he found the 25, cents in the accused’s money drawer. Theaccused was a boutique-keeper, and the legium was sent to theGovernment Analyst and found to contain ganja. The decoy wasalso called but denied the whole story. The Excise guard, wascalled and corroborated the Inspector’s evidence. The accusedwas convicted and fined Es. 150 or in default to undergo 6 weeks’rigorous imprisonment.
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Objection hag been taken that the procedure adopted by the 192&*Excise Inspector is wrong inasmuch as he entered and searched Lyallthe boutique and arrested the accused illegally. It is urged that GbamtJ.the powers of search and of arrest were given to him under section 36 Holsinges v.•of the Excise Ordinance, and that section 36 only conferred those Josephpowers on an officer who had previously recorded the grounds ofhis belief that an offence had been committed before proceedingto make the search, seizure, and arrest. In this case the ExciseInspector has admitted that he made the entry in his book after thearrest and that he had no search warrant. In Zilva v. Sinno 1it- was held by a Bench of two Judges that the powers of an ExciseInspector to search a house for excisable articles is dependent uponJus having made a record of the grounds of his belief as to thenecessity of a search, as is provided by section 36 of the Ordinance.
The circumstances of that case were that the Excise Inspector wasobstructed and a prosecution was brought for obstruction, and thedecision was that the obstruction was not an offence because theact of search was not an official act. It seems to me that theremark made by Mr. Justice Pereira inthatcase are applicableto
this case. Mr. Justice Pereira says that "CrownCounsel argued
that under section 114 of the Evidence Ordinance the Court shouldpresume that such a record was made, because that section enactsthat the Court may presume that judicial and official acts have beenregularly performed. This, if I mightsayso, istantamountto
begging the question. It assumes thattheact ofsearch wasan
official act. It does not become so until the record referred to hasbeen made. It is that record that vests in an excise officer theauthority to search. Until he makes that, he has no more authorityin that direction than any ordinary individual/* It is clear, there-fore, that the Excise Inspector had no authority to search or seizethe article, but it does not follow that a conviction cannot be basedupon, evidence admittedly the result of an illegal procedure. Butanother objection has been taken to the conviction on a groundwhich has also been decided by this Court. The Inspector admitsthat the tin which he alleged he found in the boutique containinglegium was not sealed until he reached the Police Station. Asimilar case was decided by my brother Jayawardene on September14. 1926.* 1^ that case my brother said : “ I do not say that inthis case the Excise Inspector had introduced the ganja into themedicine that was found in the accused's dispensary, but it waspossible; for such an introduction to have taken place, and in cases ofthis-kind we have to see that whatever is found in the accused’spossession is .not tampered with before – it is analysed by theGovernment Analyst. The stuff containing ganja wa$ taken fromthe accused's house to the Police Station, and at. the Police Station:K-i7N. L. n. 473.
a. No. ')80, P. C. Col 22,098, vide *V. ( Minutes of September 14, 1926.
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the tins were sealed—(that is the case in this case also)—I do notthink that the procedure is satisfactory. They should have been.• sealed, and sealed as soon as they were seized by the Excise Inspector.„ I think the failure to seal them entitles the accused to take theobjection that the ganja might have been introduced between theseizure in the dispensary and its sealing at the Police Station. Ihave had to deal with the question of sealing of articles found in thepossession of the accused persons before, and I think it is necessary todeal with this case in the way I am dealiug with it in order to compelExcise Inspectors to see that the stuff seized is. sealed in the presenceof the accused and before it is removed.' ’
In that case the appeal was allowed, and I think I ought to followthe line taken by this Court and to quash the conviction in this casecm this ground.
The appeal is allowed and the accused acquitted.
HOLSINGER v. JOSEPH