006-NLR-NLR-V-33-NICHOLAS-v.-FERNANDO-et-al.pdf
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QBIEBEBG J.—Nicholas v. Fernando.
1931
Present: Drieberg J.'
NICHOLAS v. FERNANDO et al.
291,292—P. C. Panadure, 7,750.
Search warrant—Failure to moke a list of things found—Not a fatal irregularity—Or atevidence admissible—Criminal Procedure Code, s. 75.
The failure of anExcise officer,makinga search under a search warrant
issued by a PoliceMagistrate, tomakea listof the articles found, in
accordance with section 75 of the Criminal Procedure Code, is not afatal irregularity ina convictionfor unlawfulpossession of liquor, pro-
vided oral evidence of what was found is satisfactory. It is the duty ofan officer executingsuch a warrant totakepossession of the things
found and bring them before the Court at the earliest opportunity.
^^PPEAL from a conviction by the Police Magistrate of Panadure.
Ranawake, for accused, appellants.
Pulle, G.C., for the Crown, respondent.
June 17; 1931. Drieberg J.—
The first accused appellant is the Secretary • of the Panadure LibertyLeague, the second accused is the Treasurer, and the third accusedappellant is the caretaker of the house occupied by the League.
They were charged with unlawfully selling arrack and with possessionof more than the permitted quantity of arrack. The second accused wasacquitted on both charges, and the first and third accused appellants wereconvicted on the charge of unlawful possession of thirteen bottles ofarrack.
DRIEBERG J.—Nicholas v. Fernando.
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The defence that this is a bona fide club and that even if this quantityof arrack was found there it would not be an offience under the Ordinance,but that as a matter of fact, what was found and taken by the Exciseofficers was not arrack but beer, the possession of which was not anoffence.
The first accused appellant is the organizing Secretary of the League,the objects of which are the establishment of a provident fund formembers, the election of a fitting member to represent the electoraldivision of Panadure in the State Council, and the promotion of theproduction and distribution of country liquor and the advancement ofinternal trade. It was also intended to start a money-lending*' bank,to open free schools for the children of members, &nd to provide a placewhere food and diinks would be supplied at cost price. It is describedas a mutual benefit club.
On December 30 last the League, which was formed in 1928, opened asocial club canteen, and it was announced that “ By sanction of Govern-ment authorities liquor and arrack will be available for the use ofmembers ”—P 2. The foundation for this was a letter (A 3) by theSuperintendent of Excise of December 19, 1930, informing the 1st ap-pellant that “ a licence was not necessary for the use of liquor in ordinarysocial clubs
The Excise officers seized and produced in Court the books andpapers found on the premises. The first appellant says that there wereother books which were not produced. The membership roll (P 20)shows that members were first enrolled on December 30 last, when thesocial club canteen was opened; one member was enrolled on the 30th,eighteen on the 31st, and members were admitted in increasing numbersuntil the search on January 30, 1931. The first appellant says there arenow between 800 and 1,000 members. Anyone resident within theelectoral division of Panadure and qualified as a voter is entitled to be a ■member; any qualified person is entitled on application, which has notto be supported by another member, to life membership on payment ofone sum of 25 cents. The first appellant says that among the membersare police officers, Kachcheri clerks, headmen, and that the club “ is aplace where most of the highest men meet ”; not one member has beencalled to support the first appellant and say .that, this is a bona fide club.
The first appellant has given a confused account of how liquor is suppliedto members; members, he says, get drinks on presenting coupons whichare either bought for cash or given on credit and so marked on the couponand its counterfoil. I take this to mean that liquor would be sold tomembers and the first appellant admitted that food and drinks weresupplied to members at cost price. If this was a bona fide club theappellants would be within the law in providing drink but the firstappellant has put forward an incredible story of his method;' he saidthat he never allowed more than the permitted quantity ,of two bottles ofarrack in the club at a time, and that if a member brought two bottles andthereafter another member brought two bottles with, him he would askthe latter to .take away his liquor and keep it elsewhere until the first twobottles had been consumed, and he would then be asked to bring in hisliquor. If this is so there could be no question of sale of arrack to
DRIEBERG 3.—Nicholas t. Fernando.
members or any necessity for cash or credit coupons, and so far as arrackwas concerned the only privilege a member enjoyed was to take twobottles to the club and consume it there himself or give it to othermembers. This was his endeavour to explain the documents P 25. Inhis statement at the commencement of the proceedings he said thathe had given instructions that only one bottle of arrack was to be keptat the bar and that drinks were not to be sold to other than members.The object of the Excise party was to obtain proof of sale to the decoyswho were not members. There are five documents marked P 25; eachis a declaration by a member that he has purchased two bottles of arrackon his own account and risk and that he retains possession of them withinthe club premises for his private use “or for the use of members ofthis club each paper is marked as approved by the first appellant asSecretary. These are all dated January 21. It has not been explainedhow liquor brought in by a member at his expense could be available forthe use of other members. I do not believe that the bottles of arrackwere'brought into the club by members as stated in P 25, but that thiswas a device by which he was able to lay in a stock of arrack by purchasingit in lots of two bottles in the names of different members.
I accept the finding of the learned Police Magistrate that this is not abona fide club and I believe the arrack was brought to the club for sale,membership of the club being merely a pretence; the small sum of25 cents was little payment to make for the convenience of obtainingliquor in what is called a dry area.
The charge of sale to the decoys has failed for reasons which I need notset out', but the verdict on that charge does not in any way affect thefinding of the Magistrate on the charge of unlawful possession.
. The question whether the arrack was in the possession of the appellantswas debated at some length in the Police Court. I am unable to see howthere was room for argument, for in the room where the arrack was foundthere was a notice, P 28, in English and Sinhalese signed by the firstappellant, that he had authorized the second appellant to “ retain in hischarge all liquor and arrack belonging to this club and . distribute themamong the members in exchange for tickets ”. It was not possible forthe appellants in the face of this notice to deny that the arrack was intheir possession. This notice further shows that arrack was held by theappellants and given to members in exchange for “ tickets ”, as thecoupons are called, these coupons being given for cash received or oncredit for later payment.
But the first appellant says that the 13 bottles were beer of the BarrelBrand with crown corks. The bottles produced by the Excise officersare labelled arrack and have ordinary corks with the distillery seal.The first appellant says that having information of the intended searchby the Excise officers he thought of’what he^says was a ruse; he wantedto. play a practical joke on the Excise officers so' he put up the beer inpaper parcels each containing two bottles; two bottles being thepermitted quantity he thought the officers would assume that theycontained arrack and take them away without examining the contents.He says that the Excise officers did not open any of the parcels. Hemust have known that the Excise officers had taken the parcels to the
DRIEBERG- J.—Nicholas c. Fernando.
37
Police Station for he says that he went there the next morning to tellthem of his ruse, but that as the parcels were not there he did not tell thePolice anything as he thought that no case would be hied against him.But the Magistrate has accepted the evidence of Mr. Nicholas, theSuperintendent of Excise, and of Inspector Ekanayake that betweenthem they examined every parcel on the premises and noted the bottlesas arrack and I find it impossible to believe that they would not have(done so.
I think it necessary to draw attention to the disregard by the Excise-officers of the requirements of the law' regarding searches. The entryin this ease was under a warrant issued by a Police Magistrate and theprovisions of the Criminal Procedure Code are applicable to it. Section75 of the Code requires the person executing a search warrant to make alist of all things seized in the course of the search and of the places in which•they are respectively found and to sign the list. The search was made•at about 7 p.m, on Friday, January 30, and the written complaint wasmade to Court on the Monday following, February 2; in it is stated that alist of the productions is annexed. There is a list of productions filed inthe record but it is not signed by anyone; it is entitled c‘ List of articlesseized ” and contains no reference to its connection with a search warrant;it bears no date. Mr. Nicholas says he made a list of the articles foundand gave a copy of it to the first appellant. Inspector Soyza too speaksto Mr. Nicholas making a list and Inspector Attapattu making a copyof it, but no one has identified the list in the record as the list made at thetime of search.
The premises of the League consist of a large room as one enters, thenanother room running, like the first, the whole wddth of the house' andbehind it two rooms. No note was made on this list as required bysection 75 of- the place where the articles were found.
It was held»by Jayewardene J. in Excise Inspector, Point Pedro v.Thankamma 1 that the requirements of section 75 are imperative andit was contended that the failure to observe them in this case is fatalto the prosecution; but Jayewardene J. did not base his judgmenton that reason but on the ground that the grave irregularities in theconduct of the search seriously affected the credit to be attached to theevidence of the discoveries. In this case I see no reason to doubt theevidence of Mr. Nicholas and the other officers that the 13 bottles .produced in Court were found by them in the Liberty League roomsend I cannot acquit the appellants merely on the ground of thisirregularity.
Mr. Pulle has drawn my attention to Indian cases where oral evidencehas been allowed of the finding of articles not entered in the list{Elamanathan v. Emperor2 and Soldi Naik v. Emperor3) and thatoral evidence can be given of the articles found though the search wa3not conducted and the list made as required by law (Public Prosecutorv. Sarabu Ghennaya4).
There are two other matters which call for comment. The warrantdirected the officer executing it ±o take possession of any excisable articlesor any papers relating thereto and to take into custody any person found
1 {1925) 26 N. L. R. 307.3 {1920) 34 Madras 349.
1 (1910) 33 Madras 416.4 {1899) 33 Madras 413.
$8 LOED BUSSELL OF KILLOWEN.—Goonewardene v. Gocnetcardene.
guilty of certain offences and forthwith to bring before the Court thethings taken possession of, returning the warrant with an endorsementcertifying what had been done under it immediately upon its execution.It was the duty of the officer to have- made his return to Court on theearliest opportunity thereafter, which was Saturday morning. Insteadof doing this he took a bail bond from the appellants to appear in Courton Monday, the 2nd, and hied his complaint in Court on the 2nd. Hedid not return the warrant with the endorsement until the 4th. Fromthe time of their removal until the 2nd the articles were kept at theWadduwa Excise Station a few miles away. It is said that the appellantssaid that Saturday would not be convenient for them but I do not thinkthat this was any reason for the officers not making their return on theSaturday..
The other point is that the Excise officers did not, as they mighteasily have done, immediately take the appellants with the productionsto the Police Station and have them examined. The Police Stationwas close by, and in fact Mr. Nicholas went there with the intention ofleaving the production there, but he says the officer in charge wasbusy recording a complaint, so he went to the Wadduwa Excise Stationand left them there. I do not think this satisfactory. I have had toobserve before this that Excise officers should whenever possible havecorroborative evidence from others than members of their own depart-ment. If they had immediately taken the appellants to the PoliceStation and had the parcels examined and left there, we should probablynever have heard this defence of the beer bottles which has taken so muchtime in the lower Court. By not leaving the bottles at the Police Stationand keeping them in the custody of the Excise officer at WadduwaMr. Nicholas at once left himself and his officers open to the charge thatthey substituted arrack for beer.
The appeals are dismissed.
Appeals dismissed.