WEERASOORIYA, J.—Kiriya v. The Attorney-General1961Present: Weerasoorlya, J.
KIRIYA et ad., Appellants, and THE ATTORNEY-GENERAL,
J3. C. 638-639—M. C. Anuradhapura, 22817
Excise offence—Scope of power of police officer to search without a warrant—ExciseOrdinance (Cap. 42), ss. 34(1), 37—Police Ordinance (Cap. 43), s. 69—Criminal Procedure Code, ss. 121 (2), 124.
While the effect, of section 37 of the Exoias Ordinance may be to confer onany police officer investigating an offence under the Excise Ordinance thepowers conferred on an officer in charge of a police station by sections 121(2)and 124 of the Criminal Procedure Code in the investigation of a cognizableoffence, such powers cannot he exercised except where there is reasonable orprobable cause for doing so.
Accordingly, where a police officer enters a house without a search warrantand removes articles, without a reasonable or probable ground of suspicionthat an offence under the Excise Ordinance has been committed, resistanceto him does not constitute an offence of obstruction of a public servant in thedischarge of his duties-
.A.PPEAL from a judgment of the Magistrate’s Court, Anuradhapura.Colvin JR. de Silva, with Prins Rajasooriya, for accused-appellants.
J.A. D. de Silva, Crown Counsel, for Attorney-General.
Cur. adv. vult.
August 21, 1961. Weerasoobiya, J.—
The two accused-appellants have filed these appeals against theirconvictions on certain charges arising out of an incident which tookplace in the house of the 2nd accused-appellant on the 16th September,1960.
According to the case for the prosecution, when Police ConstableNallathamby was out on patrol duty with Police Constable Gunadasa,he received information that the 2nd accused was in possession of anunlicensed gun. The informant, one Seneviratne, and the two constablesthen proceeded to the house of the 2nd accused. There they metthe 3rd accused, who stated that the 2nd accused and his wife, the6th accused, had gone to Horawapotana. The only other personsin the house were the 6th and 7th accused, a daughter-in-law anddaughter, respectively, of the 2nd accused.
The search of the house, which Constable Nallathamby decided tomake despite the absence of the 2nd accused, and to which the 3rd,6th or 7th acoused raised no objection, did not, however, result in the
WEtTRASOOHIVA, J.-—Kiriya v. T7utfAttorney-General
discovery of any gun. In one of the rooms searched there were aboutfifteen bottles on a rack, and Constable Nallathamby said that fromthe smell and taste he was able to identify the contents of four of themas unlawfully manufactured arrack. These four bottles he took withhim. Three other bottles, which, though empty, he said were smelling“of the same.stuff”, he gave in charge of Constable Gunadasa, andboth of them came on to the verandah. At this stage the 1st accused,who is the Velvidane of the area, was seen approaching the house of the2nd accused. Constable Nallathamby requested his help towards afurther search of the house, which the 1st accused declined to give,remarking that the Police should have got in touch with him beforethey came to the 2nd accused’s house. TheJst accused then went away,but returned five minutes later with a crowd of about ten others amongwhom were the 2nd, 4th and 5th accused. The 2nd accused asked thetwo constables by whose authority they had entered his hoube, and heabused them and threatened to kill them. The 5th accused was armedwith an iron rod. She too joined in the abuse and threats. The bottleswere then snatched from the constables by others in the crowd. Cons-table Nallathamby said that he told the 2nd accused that some of thebottles contained unlawfully manufactured arrack and asked him tocome to the Police Station. The 2nd accused then went into the roomfrom where the bottles were taken and came out with a gun for which,it was later ascertained, he had a licence. Pointing the gun at the twoconstables the 2nd accused, along with the others, confined them in acorner of the verandah where they were forced to remain until some timelater, on information given at the Police Station by Seneviratne, apolice party came and rescued them.
On these facts which the prosecution set out to establish, no lessthan sixteen charges were preferred against each of the 1st to the 7thaccused at the trial, fourteen of which, including charges of unlawfulassembly, were based on the allegation of obstruction caused to Cons-tables Nallathamby and Gunadasa in the discharge of their publicfunctions. Seven of the fourteen charges related to the obstruction ofConstable Nallathamby, while seven other charges alleged the commissionof the same offences in respect of the obstruction of Constable Gunadasa.The remaining two charges were of wrongful confinement of Nallathambyand Gunadasa respectively.
On the 16th November, 1960, a report in terms of section 148 (1) (6)of the Criminal Procedure Code containing these sixteen charges wasfiled in Court; and on the 28th December, 1960, the Magistrate, afterrecording in a very condensed form the evidence of Constable Nallathamby,decided to assume jurisdiction under section 152 (3) of the CriminalProcedure Code as he was satisfied that no complicated points of lawor facts arose in the case. This conclusion he appears to have arrivedat regardless of the formidable array of charges set out in the report.After a lengthy trial all the accused except the 6th were found guiltyon charges 1, 3 and 5—9 as set out in the charge sheet. The 1st and
WiSEHASOOHIYA, 3.-—KiHya v. 'Ph'e Attorney-General
2nd accused were sentenced to terms of imprisonment. The 3rd, 4th,5th and 7th accused, who have not appealed, were each ordered to enterinto a bond to be of good behaviour and to pay Rs. 25 as Grown costs.
As stated earlier, fourteen of the charges were based on the allegedobstruction of either Constable Nallathamby or Constable Gunadasa inthe discharge of his public functions. These public functions are specifiedin the charges as “ apprehending an accused and productions in anexcisable offence The reference to an accused whose apprehensionwas obstructed could be to no other than the 2nd accused. There isnot a word of evidence, however, that either of the constables intendedor attempted to take the 2nd accused into custody. The only evidencewhich has any bearing on this point is the following evidence of ConstableNallathamby : " I asked the 2nd accused to go to the Police Station asI; had detected some bottles of U. M. A. in his house. The 2nd accusedsaid that he could not allow us to go away.” This evidence is, in myopinion, quite inadequate to sustain the allegation that any obstructionwas caused to the police officers in the apprehension of the 2nd accused.
As regards the allegation of obstruction caused to them in “ appre-hending …. productions in an excisable offence ”, this wouldappear to refer to the forcible removal of the seven bottles from theircustody. The evidence of Constables Nallathamby and Gunadasa,which the Magistrate accepted, establishes that the bottles were snatchedfrom their hands by some of the accused and others in the crowd. Thequestion that arises is whether the constables were acting within thelaw when they took the bottles into their custody in the first instance.Their action in removing these articles from the 2nd accused’s housewithout a warrant cannot for a moment be countenanced in the absenceof any express legal provision conferring power to do so. Neithersection 34 (1) of the Excise Ordinance (Cap. 42) nor section 69 of thePolice Ordinance (Cap. 43) confers such a power. Section 37 of theExqise Ordinance provides that the provisions of the Criminal ProcedureCode relating inter alia to the investigation of offences shall beapplicable to action taken in that respect under the Excise Ordinance.Section 121 (2) of the Criminal Procedure Code empowers an officer ineharge of a police station, in the investigation of a cognizable offence,to take such measures as may be necessary for the discovery and arrestof the offender. The power conferred by section 121 (.2) would, byimplication, include a power to take into custody any article whichfurnishes evidence of the commission of the offence which is the subjectof investigation. See also section 124 of the Criminal Procedure Code;While the effect of section 37 of the Excise Ordinance may be to conferon any police officer investigating an offence under the Excise Ordinance,the powers conferred on an officer in charge of a police station by sections121 (2) and 124 of the Criminal Procedure Code in the investigation ofa .cognizable offence, it is clear that such powers cannot be exercised'except where the*:® is reasonable or probable cause for doing so,. _
WEERASOORFYA, J.—Kiriya v. The Attorney-General
According to Constable Nallathamby, lie decided to take the sevenbottles into his custody as he identified unlawfully manufactured arrackin four of them and also as the other three bottles, though empty, smelt“of the same stuff”. The only qualification claimed by him for hispurported ability to identify unlawfully manufactured arrack is thatduring his sixteen years of service in the police force he had “ detectedover ten cases of unlawfully manufactured liquor * What he meantby the use of the word “detected ” in that context is by no means clear.I do net see how on this vague statement he can be regarded as in anyway competent to express an opinion that the bottles containedunlawfully manufactured arrack.
It is to be noted that according to Sub-Inspector JNavaratuarajah,when he learnt that the two constables were confined in the house ofthe 2nd accused and he went there with a police party, ConstableNallathamby complained that in tne course of a search of the 2ndaccused’s house in order to check up on ioformation regarding an un-licensed gun, “ he recovered some unlawfully manufactured distilledspirits and that he was obstructed”. Even on the 28th December, I960,when the Magistrate recorded evidence in order to decide whether heshould assume jurisdiction to try the case summarily, the position ofConstable Nallathamby continued to be that the four bottles containedunlawfully distilled spirits. But after the trial commenced on the 29thMaroh, 1961, the contents seem to have undergone a change, for ConstableNallathamby, in giving evidence on that day, described them as unlawfullymanufactured arrack. Even ? bottle referred to in the list of productionsin the report to Court filed on 16th November, 1960, as containingunlawfully distilled spirits became, when produced in evidence at> P6,a bottle of unlawfully manufactured arrack which Sub-InspectorSamar as ingne said he found in the rear compound of the 2nd accused’shouse.
Unlawfully manufactured arrack is, no doubt, a species of unlawfullydistilled spirits. Nevertheless, I am unable to regard this change inthe description of the contents of the bottles as of no significance. Itmust have been obvious to those in charge of the prosecution that hadthe trial proceeded on the basis that the bottles contained unlawfullydistilled spirits, the case against the accused was as good as lost withouta report from a competent scientific expert as to the precise nature ofthose spirits. Hence it became necessary for Constable Nallathamby tofill the breach by stating that the bottles contained unlawfully manu-factured arrack. No explanation has been offered as to why, if on firstcontact with the four bottles he identified unlawfully manufacturedarrack in them, the contents were not so described originally. Norhas any explanation been given as to why, during the several monthsthat elapsed between the 16th September, 1960, and the 29th March,1961, when the trial commenced, the bcttle P6 was not sent to theGovernment Analyst’s Department for a report as to its contents.
vVisERASOORIYA, J.—Kirxya v. The Attorney-General
The learned Magistrate has failed to consider the vital question whetherthe action of Constables Nallathamby and Gunadasa, in attempting toremove the bottles from the house cf the 2nd accused, was lawful or not,or even Constable Nallathamby’s competence to identify the contentsof four of the bottles as unlawfully manufactured arrack. The barestatement in the judgment that the Magistrate accepted the evidenceof the two constables is, therefore, of little assistance to this Court.The evidence relating to the finding of four bottles of unlawfully manu-factured arrack in the 2nd accused’s house is so unconvincing that, inmy opinion, it cannot safely be acted upon as constituting a reasonableor probable ground of suspicion that an offence under the Excise Ordinancebad been committed which called for investigation by Constable Nalla-thamby. In the result, the prosecution has failed to show that heand Constable Gunadasa were acting lawfully when they attempted toremove the bottles from the house of the 2nd accused, or that anyobstruction caused to them in their attempt to do so was with intentto prevent or deter them from discharging their duties as public servants.Charges 1, 3 and 5-9, in respect of which all tae accused except the 6thaccused were found guilty have, therefore, not been established.
Charges 7 and 8 allege that in prosecutr n of the common object ofthe unlawful assembly the offences of wrongful confinement of ConstablesNallathamby and Gunadasa, respectively, were committed by one ormore members c>f the unlawful assembly. Learned Crown Counselsubmitted that even on the view that the two constables were notacting within the law in attempting to remove the bottles from thehouse of the 2nd accused, the evidence disclosed the commission by theappellants of the offences of wrongful confinement of the constables,and that they should be convicted of those offences. I do not thinkthat there is any clear evidence implicating the 1st accused in thecommission of those offences. As against the 2nd accused, however, thereis specific evidence that he took a leading part in the confinement of thetwo constables. Even if the unwarranted behaviour of the two constablesgave rise to a limited right of private defence of property, in the exerciseof which the 2nd accused may claim to have acted, there can be nodoubt that the confinement of the constables went far beyond the needsof the situation. There is evidence, therefore, on which he could havebeen convicted cf the offences of having wrongfully confined them. Butthese same offences were set out in charges 13 and 14, and the 2nd accusedwas acquitted of them by the Magistrate. No appeal having been filedagainst the verdict of acquittal, I do not think that I have the powerat the hearing of the present appeal to reverse that verdict, which iswhat I should virtually be doing even if I purported to convict the2nd accused, under charges 7 and 8, of the minor offences (in relationto the offences set out in those charges) of wrongful confinement ofConstables Nallathambv and Gunadasa.
The appeals of the 1st and 2nd accused are allowed. Their convictionsand sentences are set aside and they are acquitted. Acting in revisionI set aside the orders calling upon each cf the 3rd, 4tb, 5th and 7th
– HERAT, 3‘—Peiris v. Ghinasvkertr' –
accused to eater into a bond to be of good behaviour and to pay a sumof Its. 25 as Crown costs, and I acquit those accused as well. Any.bond already entered into in terms of the Magistrate’s order will bedeclared cancelled, and the sum of Rs. 25 if paid will be refunded.
KIRIYA et al., Appellants, and THE ATTORNEY-GENERAL, Respondent