093-NLR-NLR-V-51-MURIN-PERERA-Appellant-and-WIJESINGHE-Excise-Inspector-Kesbewa-Respondent.pdf
NAGALINGAM J.—Atwin Perera v. Wijesinghe
377
1950Present: Nagalingam J.MURIN PERERA, Appellant, and WLTESINGHE (Excise Inspector,Kesbewa), Respondent
S. 0. 119—M. C. Panadure, 7,797
.Excise Ordinance—Search without warrant—Inadmissibility of evidence thus obtained—Excise officer’s powers of arrest—Cap. 42, sections 34, 35, 36,
Where an unlawful entry into a dwelling-house is made by an excise officer,ovidence obtained in consequents of such entry is inadmissible.
Bandarawela v. Carolis Appu {1926) 27 N.L.R, 401 not followed.
Obiter : The powers of arrest given to an Excise Officer under section34 of the Excise Ordinance are limited to a case where he finds a person com-mitting an offence in his prosenoo, This section doos not oovor a case where adecoy is omployed for the purpose of obtaining evidence of the commission ofan offenco.
AlPPEAL from a judgment of the Magistrate’s Court, Panadura.
B. Perera, with R. S. Wanasundera, for accused appellant.
S. S. Wijesinha, Crown Counsel, for the Attorney-General.
Cur. d£v. vuU.
June 1,1950. Nagalingam J.—
The appellant in this case was charged with and convicted of having•sold arrack without a permit and sentenced to pay a fine of Rs. 760 inaddition to imprisonment till the rising of Court.
The case for the prosecution may be said to be a simple and straight-forward one. That case is that a decoy was after search sent by theExcise Inspector with a marked rupee note to make purchase of arrackat the premises of the accused and to continue to sip it till the Inspector’sarrival. The decoy says that he carried out the instructions, that whileyet he was sipping arrack the Inspector and his men wont up in a car,got down, took charge of the glass from which he was imbibing the liquorand questioned him, when he admitted that he had been sold liquor bythe accused.
There is a discrepancy in the prosecution evidence which has not beenexplained as to how the Inspector recovered the marked rupee note.According to the Inspector and the decoy, the accused it was who reluc-tantly gave the rupee note to the Inspector ; but the Excise guard defi-nitely states that when the accused was questioned the accused saidthat she did not have the money but dropped the money on the floorfrom where it was retrieved by the Excise Inspector. Now, it is impossibleto disregard this discrepancy, especially where the defence denies that anymoney was taken from or dropped by the accused but states that itwas the accused’s sister, a young girl, who had received the money
378
NAGALINOAM J.—Mur in I'crera v. Wijesinghe
from the decoy in payment of the sale to him of biscuits and that as shebad no change the rupee note was handed to a textile dealer, fromwhom the Excise Inspector obtained it. The accused and her sisterboth gave evidence and their story was supported by the textilo dealer,who was called ; the latter affirmatively testified to the decoy havingbeen sold biscuits by the sister of the accused and that the decoy hadmade payment by tendering the rupee note and that it was the sister ofthe accused who gave him the rupee note for change, which he did, andthat the Inspector subsequently obtained the note from him. Thelearned Magistrate dismissed the evidence of the textile dealer with theobservation that such evidence is easily procurable. But this observa-tion does not grapple with the difficulty presented by the conflict oftestimony on the point given by the prosecution witnesses themselves.Nor has the learned Magistrate in his judgment discussed this contradiction*and I am quite unable to say that the prosecution evidence should inthese circumstances receive all the credit which it otherwise might havereceived.
There is another circumstance to which I must allude, and that isthat the Inspector says that when he smelt the mouth of the decoybefore he sent him out on his errand, the decoy was smelling slightly ofliquor. He, no doubt, goes on to say that after he entered the premisesof the accused he found the decoy smelling strongly of arrack. If adeooy is already smelling of liquor, belching may produce a far greatersmell at a later stage, and this would by itself be no proof that he hadconsumed any further quantity of liquor.
There is a more fatal objection to the conviction in this case, and thatis that inadmissible evidence prejudicial to the accused has been admittedby the learned Magistrate. The decoy in giving evidence testified to thefact that he had taken arrack that day at about 10 a.m. from theboutique which had been shown to him by Excise Guard Fernando,meaning thereby that it was the boutique of the accused, from wherehe had purchased, earlier that day, arrack. He went on to say further'that he had drunk arrack for fifty cents in the morning in the samepremises. It is true that this evidence was given in cross-examinationbut nevertheless it is inadmissible evidence reflecting as it does badcharacter insofar as it shows that the accused had committed a similaroffence earlier in the day. The Excise Guard, however, when he gaveevidence in chief, himself said that the Inspector asked the bogus customerto go to the place where he (the bogus customer) drank arrack earlierthat day. This evidence, too, was clearly inadmissible. There can belittle doubt that this evidence too must have influenced the Magistrateto take a view adverse to the accused in this case.
The prosecution becomes far more intriguing when one addresses one’smind to a circumstance of no little import. There was sworn testimonythat the husband of the accused had been charged with having assaultedan Excise guard called Cooray and there was also evidence given by theExcise Inspector himself that guard Cooray also accompanied him onthis raid. The case against the husband of the accused was yet pending.Now, the suggestion on behalf of the defence was that while no special
NAGALINGAM J.—Afurin Perera v. Wijesirtghe
37*
eason could be given by the acoused, so far as she was concerned, for»eing made the target of a prosecution, there was ample material suggestinghat the prosecution against the wife was in retaliation for somethinglone by the husband. Tn the light of this suggestion, the conduct of:he Excise party undoubtedly lends itself to the very severe criticismit has been subjected to in Court, suggesting that the whole case is afabrication to support which, breaches of the provisions of the Ordinancehave been committed by the Excise party.
It is conceded on behalf of the prosecution that there was no warrantin the possession of the Excise Inspector before he raided the premisesof the accused. He, however, sought to justify his action by a referenceto section 34 of the Ordinance which empowers a place other than adwelling house to be searched without a warrant, and as the place hesearched was a boutique, ho was lawfully entitled to make a searchwithout a warrant. In the first place, the evidence shows that onthe verandah of the building is a glass show case in which biscuits andsweets were exposed for sale. This seems to be the only indicia fortreating the verandah as a boutique, and this may be sufficient, but thereis other evidence in the case which shows that the rest of the buildingis used for human habitation and that in the strict sense of the term it is adwelling house. Had the Inspector made a search of the verandahalone, one might have agreed with him, but when he says he made a searchof the room behind the verandah and found something under a bed,one certainly fails to appreciate his explanation.
Apart from this attempted justification, there is a far more seriousobjection to the conduct of the Excise party in this case. Section 34of the Ordinance does not enable an Excise officer to arrest withouta warrant a person who had already committed an offence and of thecommission of which offence information may have been received orbelieved in by the officer. The powers of arrest given to an officer underthis section, that is to say, power to arrest without first being armedwith a warrant as required by section 35 or without first recording thegrounds of his belief in regard to the commission of an offence as requiredby section 36, are conferred on him only in the exceptional circumstancewhere he finds a person committing an offence, that is to say, in his presence.To my mind,this section does not cover a case where a decoy is employedfor the purpose of obtaining evidence of the commission of an offence, butI do not think I need express any final view in regard to this question ;it is sufficient to say that in this case the evidence discloses at best thatthe decoy was sipping arrack from a glass. The Inspector did nothimself see the commission of the offence which is alleged to be the saleof arrack by the accused. Section 34 cannot therefore be availed of bythe prosecution to justify the various acts committed or performed bythe Excise party. It is not without interest to note that this sectionconfers primarily a power of arrest of the person found committing theoffence, and then it goes on to provide that the officer may search “ anyperson upon whom, and any vessel, vehicle, animal, package, receptacleor covering in or upon which he may have reasonable cause to suspectany such article (exoisable article) to be ”. The omission of words such
380
NAGALINGAM J.—Murin Perera v. WijtJ<v>‘jU,
as ‘‘ building ” or ‘‘ premisesM is significant. It seems to me that thesearch of at any rate a part of the building which was used solely forpurposes of habitation was not authorised by section 34 of the Ordinance.
The defence asserts that the Inspector did carry away a scaled bottleof Government arrack from a box where it had been kept and which hadbeen brought to the house for the confinement of the accused. But itdenies that any empty bottle or a bottle having liquor partially wasremoved from the premises. A difficult quostion arises as to what isthe weight to be attached to the evidence given by the Inspector withregard to his search and discovery of the bottles in the house of theaccused.
In considering the provisions of section 36, it has been held by thisCourt in the case of Bandarawela v. Carolis Appu1 that though an ExciseInspector had not complied with the requirements of section 36, neverthe-less the evidence obtained by him as a result of such unlawful entry wouldbe legally admissible. This case has been followed in two later cases—Silva v. Menikrala 8 and Almeida v. Mudalihamy8.
The first of these cases was decided by Jayawardene A.J. who wasinfluenced in his view by the Indian case oi Emperor v. Ravalu Kesigadu*.That was a case decided under section 34 of tbe Madras Akbari Act,No. 1 of 1886, which corresponds to section 34 of our Ordinance. TheIndian provision, however, is that the officer “ may arrest withoutwarrant in any public thoroughfare or open place other than a dwellinghouse any person found committing an offence The facts were thatan assistant Inspector found the accused in the vicinity of a still—anoffence in respect of which arrest without warrant was permitted bysection 34 of the Indian Act. The objection there taken was that by agovernment notification the jurisdiction of the assistant Inspector hadbeen restricted to a certain area and that the arrest was affected by theofficer outside the limits of his jurisdiction. The judgment of the Courtconsisting of Sir Arnold Wright C.J. and Benson J. shows clearly thatthey did not regard the arrest effected by the assistant Inspector to havebeen beyond his powers, but what they did hold was, to use the languageof the learned Judges, “ the notification in question did not and could notoperate so as to limit the power conferred upon officers by section 34of the Act ”, Therefore, it will be apparent that what they did boldwas that the officer acted within the scope of the powers conferred onhim by section 34, and they had no occasion to consider the questionwhether if the officer had exceeded his powers and effected an arrest ormade search evidence obtained in consequence thereof would have beenadmissible or not.
The local cases above cited are all based upon this Indian decision andthe soundness of the views laid down in these cases may have to be re-considered in an appropriate case. Jn the case of Bamlaratcela v. CarolisAppu1 I notice it was urged that the provisions of that section (36)would be reduced to a nullity, particularly in view of the fact that as
{1926) 27 S.L.H. 401.(1928) 9 C.L. liec. 78.
*(1929) 7 Tinies 5/.
♦ 1. L. R. 1902, 26 Mad. 124.
BASNAYAKE J.—Yooauj v. Sutoaria
681
a general rale the villager here does not dare to oppose a uniformed officereven when he attempts to enter a house for the purpose of search. Butthis contention was rejected by the learned Judge with the remark thathe was not prepared to say that villagers, especially those engaged incommitting an Excise offence, are “so docile as to allow their housesto be searched without protest ”, To say the least, this reasoning doesnot take into account at least that class of villagers against whom nopresumption of being engaged in committing excise offences could bedrawn. In my opinion, where an unlawful entry is made by an exciseofficer, it will be setting at nought the salutary provisions of the ExciseOrdinance framed in that behalf to invest with legality that evidence.
Having regard to all these circumstances, I think the conviction cannotbe sustained,which I therefore Bet aside and acquit the accused.
Appeal allowed.