008-NLR-NLR-V-41-MARIMUTTU-v.-DISSANAYAKE.pdf
WIJEYEWARDENE J.—Marimuttu v. Dissanayake.
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1939Present: Wijeyewardene J.
MARIMUTTU v. DISSANAYAKE.535—M. C. Chavakachcheri, 16,616.
Excise Ordinance—Obstruction to Excise Inspectors search—Excise article.liable to confiscation—No evidence of reason to suspect possession—
Fatal irregularity—Excise Ordinance, No. 8 of 1912, s. 34, Cap. 42.On a charge of voluntarily obstructing an Excise Inspector in searchingthe accused for carrying an excisable article liable to confiscation,the absence of any evidence to the effect that the Inspector had causeto suspect that there was an excisable article on the person of theaccused is fatal to the prosecution.
The right of private defence is not open to an accused person chargedwith assaulting the Excise Inspector in such circumstances unless therewas reasonable apprehension of death or grievous hurt.
Van Cuylenburg v. Fernando {32 N. L. R. 45) followed.
In a charge of insult under section 484 of the Penal Code the insultingwords must be set out and there must be proof that the accused intendedor knew that the abuse was likely to provoke the complainant to commita breach of the peace.
^ PPEAL, from a conviction by the Magistrate of Chavakachcheri
S.Nadesan, for accused, appellant.
D. Jansze, C.C., for respondent.
Cur. adv. vult.
October 16, 1939. Wijeyewardene J.—
The accused-appellant was charged on the following counts punishablenmder sections 344, 183, 314, and 484 of the Penal Code: —
Assaulting or using criminal force to Excise Inspector De Mel in
the execution of his duties as a Public Servant.
Voluntarily obstructing Excise Inspector De Mel in the discharge
of his public functions.
Voluntarily causing hurt to Excise Inspector De Mel.
Voluntarily insulting Exise Inspector De Mel and thereby giving
provocation to him intending or knowing it to be likely that suchprovocation will cause him to break the public peace.
The Magistrate convicted the accused on all the counts and passedon each count a sentence of six months’ rigorous imprisonment, butordered that the sentences should run concurrently. The learnedMagistrate has overlooked the fact that the maximum term of imprison-ment under section 183 of the Penal Code is three months.
According to the prosecution the Excise Inspector who was in uniform»as on duty at Elephant Pass when he saw the accused travelling in an
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W1JEYEWARDENE J.—Marimuttu v. Dissanayake.
omnibus from Jaffna towards Trincomalee. The Inspector stopped the■vehicle, and all the passengers about 15 in number got down. TheInspector and his guards then proceeded to search the passengers beforesearching the vehicle. The accused alone “did not allow (the Inspector)to search him for any excisable article ”. The accused pushed theInspector away abusing him in foul language and when the Inspectorheld him by the hand, the accused struck him on the face. The accusedthen tried to get into the omnibus and go away when the Inspector“held him and told him that he was under arrest for obstruction andassault ”. The accused attempted to strike the Inspector again but thelatter warded off the blow and struck the accused on his face. Noexcisable article was in fact found on the person of the accused or any ofthe other passengers or in the vehicle itself.
The accused denied that he assaulted or abused the Inspector andstated that he was the victim of an unprovoked assault by the Inspector,who, he alleged, was displeased with him owing to an earlier Excise case.
In appeal, the Counsel for the accused contended that on the evidencelor the prosecution the search of the accused was illegal and he shouldnot therefore be. convicted on the first three counts. Under section 34of the Excise Ordinance (vide Legislative Enactments, Volume 1,Chapter 42) an Excise Inspector “ may search any person whom he hasreasonable cause to suspect, carries any excisable or other article whichhe has reason to believe to be liable to confiscation under the ExciseOrdinance or any other law relating to Excise revenue ”. In the presentease the Inspector has stated in express terms that he searched theaccused for an excisable article. Now an excisable article is definedin the Ordinance to mean and include “ any liquor defined as by theOrdinance ”. The liquor for which a search was made must have beenarrack or toddy and it is difficult, in the absence of any evidence on thepoint, to appreciate the reasons which led the Excise Inspector to searchthe person of the accused for bottles of arrack and toddy. The Inspectorhas not stated or even suggested in his evidence that he had cause tosuspect that there was an excisable article on the person of the accused.I hold that the search of the accused by the Inspector was unlawfuland that the accused cannot be convicted on the second count forvoluntarily obstructing a public servant in the discharge of his publicfunctions.
With regard to the first count the only defence open to the accusedis that he acted in the exercise of the right of private defence. Such a pleahas to be considered, however, in the light of section 92 of the Penal Codewhich enacts :“ There is no right of private defence against an act which
does not reasonably cause the apprehension of death or of grievous hurt,if done or attempted to be done, by a public servant acting in good faithunder colour of his office, though that act may not be strictly justifiableby law ”.
The Excise Inspector was in uniform. Nothing that was done by theInspector when he began to search the accused could have caused himany apprehension of death or grievous hurt. The accused himself didnot question the Inspector whether the Inspector had any reasonablesuspicion that he carried any excisable article. It appears to have been
de Mel v. Gunasekera.
33
taken for granted at the time and even in the Police Court that theInspector acted lawfully in searching the passengers. In view of thesefacts I do not think the accused was justified in assaulting the Inspector.
There are certain dicta in the judgments of Burnside C.J. and ClarenceJ. in Canthapillai Odyiar v. Murugesu1 which support the view that aperson charged- with assaulting a public servant in circumstances similarto those arising in the present case cannot plead the right of privatedefence. The same view has been taken by Akbar J. in Van Cuylenburgv. Fernando ’. In that case a constable stopped an omnibus for com-mitting an offence under the Motor Car Ordinance. After taking downthe number of the vehicle, the constable insisted on taking the omnibusto the Police Station, got on to the front seat and asked the driver todrive it to the Police Station. The driver did not drive to the PoliceStation but took the omnibus to some other place and pulled theconstable off his seat. Akbar J. held that the constable acted wrongfullyin insisting on the vehicle being driven to the Police Station but held thatit was not open to the driver to plead the right of private defence andconvicted the driver under section 343 of the Ceylon Penal Code.
With regard to the fourth count I am not prepared to hold that a casehas been made against the accused. I do not think the accused intendedor knew that the abuse was likely to provoke the Excise Inspector tocommit a breach of the peace. (Vide Sub-Inspector of Police v.Wijesekera5). Moreover the charge against the accused did not set outthe insulting words.
I acquit the accused on the second and fourth counts. I alter theconviction on the first count to a conviction under section 343 of thePenal Code and sentence him to one month’s rigorous imprisonment.I affirm the conviction on the third count and sentence the accused totwo weeks’ rigorous imprisonment to run concurrently with the sentenceof one month’s rigorous imprisonment.
Varied.