036-NLR-NLR-V-33-KING-v.-MANIKAM-et-al.pdf
DBIEBERG J.—King v. Manikam.
152
1931Present: Drieberg J.KING v. MANIKAM el al.
51-55—D. C. (Grim.) Jaffna, 3,565.
Search warrant—Powersof search undertheOpiumOrdinance—Implied repeal
of powers under the Police Ordinance, No. 16 of 2865, ». 59.
The enactment insection22 oftheOpiumOrdinance, alllowing. the
search lor opium, bhang, andganjaonlyto Police Magistrates and police
officers of a certain rank and prescribing the time within which suchentry can be made,must beregarded aslimitingthe powers conferred by
section 59 of the Police Ordinance.
^^PPEAL from a conviction by the District Judge of Jaffna.
H. 1'. Perera, for the accused, appellants.
Pulle, C.C., for the Crown, respondent.
July 31. 1931. Drieberg J.—
The first and second appellants were convicted under section 323 of .thePenal Code of causing hurt to a public officer to deter him from doing hisduty and under section 183 of obstructing a public officer in the dischargeof his duty.
1 (1863-1868) Ram. S3.* 25 N. L. R. 129.3 6 C. L. ft. 111.
DRIEBERG J.—King e. Manikam.
153
These offences are said to have been committed when the police were*executing a warrant issued by .the Police Magistrate for the search forganja, bhang, and opium in “ the house and premises of Manikam ofThavady, Kokuvil”. After the evidence had been led of Inspector Stewartand Police Sergeant Amsa, Counsel for the appellants said that heaccepted the facts as stated by Inspector Stewart and wished to discussthe law on which he based his defence that the resistance was justified.The learned District Judge then noted that it was not necessary to recordfurther evidence. The statements of the appellants and the evidence ofthe doctor were read and the case for the prosecution closed. This wasnot satisfactory, for Counsel for the defence said nothing about theevidence of Police Sergeant Amsa. Though the charge of obstruction orresistance could be decided solely on the question whether the warrantwas good, other questions arise in connection with the offence undersection 223 of the Penal Code in which the evidence of Police SergeantAmsa is necessary. The defence must be regarded as having acceptedthe evidence of Police Sergeant Amsa as well.
It was contended for the prosecution that the search was justifiedapart from the warrant, that the Inspector had authority to enter andsearch the premises without a warrant under section 22 of the Opium-Ordinance. No. 5 of 1910; but that only authorizes entry betweensunrise and sunset and there is no evidence of when Inspector Stewartentered.
Mr. Pulle also relied on section 59 of the Police Ordinance, No. 16 of1865, which gives a police officer the power to enter and inspect any partof premises in which he has reason to believe a crime has been committed.It was held by Phear C.J. and Clarence J. in Michael v. Janie Appu1that power could be exercised' under this section only where causes'manifest themselves to a police officer under such circumstances ofurgency that it would not be reasonable for him to delay the search ofthe house for the purpose of previously arming himself with the neces-sary magisterial authority. Even if this is not the intention of thisprovision, the enactment in the later Ordinance, section 22 of No. 5 of1910 allowing the search for opium, bhang, or ganja only to PoliceMagistrates and police officers of a certain rank and prescribing the timewithin which sucli entry can be made, must be regarded as qualifying andlimiting the powers conferred by section 59 of Ordinance No. 16 of 1865.
Two objections are taken to the warrant; one is that it is uncertain-which house was to be searched as the warrant mentioned two villages,Travady and Kokuvil; the other objection is that as the warrant doesnot give the name of Manikam’s father it is not clear on the face of itagainst whom it is directed.
In the note made by .the Judge of Counsel’s argument there is nothingabout the first ground. In his judgment he says the contention was thatthe warrant was defective as the reference to the Police Vidahn’s division.
" Kokuvil ” was wrong and that it should have been “ Inuvil ”. In thepetition of appeal it is stated that Thavady- and Kokuvil are distinctvillages situated in separate headman’s divisions. There is no proofof this. Police Sergeant Amsa was asked in cross-examination whether
1 (1879) 2 S. O. C. 42.
154
AKBAB J.—De Silva v. Abeytileke.
Thavady and Kokuvil were different villages and he said he did notknow. So far as I can see the view taken by the trial Judge was thatKokuvil was mentioned as the headman’s division within which Thavadylies, whereas it was within the headman’s division of Inuvil. If there isonly one village called Thavady the, wrong statement of the division towhich it belonged would give rise to no uncertainty; it is not said thatthere is another village of that name within the Kokuvil division. Thisobjection must fail.
As regards the omission to give the full name of Manikam by prefixinghis father’s name or describing him as the son of a named person, it canbe urged that the person against whom the warrant was issued was notproperly named; but Police Sergeant Amsa who had applied for thewarrant says he did not know whose son Manikarn was. It was said byCounsel that it is a common name. This may be so, but there is noevidence that .there is any other person of that name in Thavady, and inthe absence of such evidence I cannot hold that there was any doubt as tothe identity of the person named in the warrant as Manikam of Thavady.
I heard argument on the question whether if the warrant failed todescribe the person with sufficient certainty it would not be merelyirregular but wholly void, in which case the question would arise whetherthe officer executing it would be entitled to the protection afforded by thefirst part of section 92 of the Penal Code; this protection is given to apublic servant who acting in good faith under the colour of his office doesan act which may not be strictly justifiable by law. It was contendedthat ibis does not apply to a case where the warrant is wholly void foruncertainty—Rex v. Hood 1—and that further an officer who undertakesthe execution of such a warrant does no.t act in good faith for he actswithout due care and attention. This point has not attracted attentionin the local cases cited to me. In view of my finding that the warrant isnot defective it is not necessary to decide this point.
The appeals are dismissed.
Appeal dismissed.
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