016-NLR-NLR-V-34-OSSEN-v.-EXCISE-INSPECTOR-PONNIAH.pdf
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Ossen v. Excise Inspector Ponniah.
[In Revision.]
1932Present: Dalton J.
OSSEN v. EXCISE INSPECTOR PONNIAH.
P. C. Puttalam, 15,206.
Revision—Appeal not sanctioned by Attorney-General—Powers of SupremeCourt—Miscarriage of justice—Excise Ordinance, 1912, ss. 33, 34,36—Powers of search—Reasonable cause to suspect.
Where jthe Attorney-General has refused to sanction an appeal,the Supreme Court will hear the case in revision, if the applicant makesout a strong case, amounting to a positive miscarriage of justice, inregard to either the law or the Judge’s appreciation of the facts.
A
PPLICATION to revise an order of acquittal by the Police Magistrateof Puttalam.
H. V. Perera (with him Gnanaprakasam and Marikar), for appellant.N. E. Weerasooriya, for respondents.
1 3 Leader Law Reports, p. 7.
DALTON J.—Ossen v. Excise Inspector Ponniah.
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May 4, 1932. Dalton J.—
This is an application in revision. The applicant is the complainant,the respondents being an Excise Inspector and two of his servants. Thelatter were charged by the complainant in the following words : —
“That you did on the 7th day of September, 1931, at Sellankandelwithin the division aforesaid obstruct the free passage of thecar of the Head Moorman by damaging the tyre of the car byputting some prickly spears on the road, and criminally restrainM. Ahamado Ossen and two others of Puttalam ”
thereby committing offences punishable under sections 276 and 332 ofthe Penal Code.
The accused were acquitted, and the complainant applied to theAttorney-General for leave to appeal. That leave being refused, heapplied to this Court in revision that tjie order of acquittal be set aside,and for such other order as this Court shall think fit.
The facts disclosed show that the first accused, the Excise Inspector,received information that arrack was going to be transported in a carnumbered R 129 along the road from Puttalam to Anuradhapura. Heaccordingly made arrangements to watch for it, going on the night inquestion about 9 p.m. to a point near the 6th milepost. He took withhim the other two accused and also an instrument in the form of a smallinverted harrow, two frames toothed with spikes, which had been madein accordance with the instructions of the Excise Commissioner for thepurpose of puncturing tyres. There were further instructions as to howand when it was to be used. The Inspector stood near the 6th milepost,and he sent the other two men some one hundred yards further up the roadnear a culvert with instructions to spread this frame of spikes across theroad, if they received a signal from him. This signal was to be given bydisplaying a red light.
The complainant came driving along the road in his master’s car, R 181.It was drizzling slightly at the time. The Inspector says he held his lightup to stop him. So vague seem to have been the instructions given bythe Inspector that his assistants may well have taken this as the signalto put the spikes across the road. Further, no precautions seem to havebeen taken to protect any traffic coming from the opposite direction.The driver of the car is then said by the Inspector to have slowed down,but when he approached the car to have speeded up again and passed him.
The complainant states he knew all the accused before, but at the timehis driver received the signal to stop the Inspector was not in uniformand he was alone. There was nothing to show who he was or what hewas doing there at that time of night. A red light by the roadside neednot necessarily mean a signal to stop at all, although it would beapproached with caution, whilst any driver whether it be in England orCeylon or anywhere else may, as experience has shown, reasonably besuspicious, when a solitary man seeks to get him to stop on a dark nighton a lonely road. There is a difference between the complainant and theInspector as to what exactly happened after the red light was held up,
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DALTON J.—Ossen v. Excise Inspector Ponniah.
but the Magistrate prefers to believe the Inspector. Taking his evidenceas correct when complainant drove on, the Inspector says he waved hislamp to his assistants and the result was that complainant’s car ran onto the spikes with one wheel, the tyre being punctured, and the car beingsuccessfully stopped. It seems clear he could not have been going veryfast, otherwise a bad accident would probably have resulted, especiallyas a place near a culvert was selected for this dangerous experiment.
The Inspector admits that when the car slowed down, he saw it wasnot car K 129 for which he was on the lookout; but he is frank enough toadmit he Would have stopped every car going from Puttalam to Anuradha-pura that night in this way. The reason he gives for this is that falsenumbers are used and sometimes the arrack is brought in other cars.
The complainant, it is admitted, had no arrack in his car. He wasusing the road, as he was entitled to do, on a perfectly innocent errand,in the course of his work taking foodstuffs in the car for some carters-inhis master’s employment on the road. He admitted he saw the obstruc-tion when he was about a fathom from it, but of course there was no timeto stop before the car was on it. In the dark the obstruction is stated bythe driver to have “ looked like a crocodile ”.
On the evidence the Magistrate finds the Inspector had reasonablecause to suspect the transport of arrack in car R 129. He further findsit was necessary to stop cars to ascertain their number. Although theInspector found that the car to which he signalled was not the car hesuspected, as his signal to stop was not obeyed, and as “ he had amplereason to suspect this car to be carrying arrack ”, he was entitled to stopit by the method he used. The Magistrate in my opinion has clearlyread into the Inspector’s evidence considerably more than the witnessstates or the evidence justifies. He has given no reasonable ground forany suspicion against this car at all. All he says is that false numbersare used, that suspected articles are sometimes brought in other carsand he was prepared to stop every car that came along the road that•night. The statement that he knew the owner- of the car R 181 andsuspected him also is, I have no doubt an afterthought, as he had toadmit he had never recorded any information he was alleged to havereceived about this owner and then went on to justify his act by sayinghe would stop every car that came along. It seems to me, he has entirelyfailed to show he had any reasonable suspicion against the complainantand his act was entirely unjustified. The facts further do not justify afinding that complainant had any idea anyone was seeking to arrest him.
It was urged that this Court should not deal with a matter in revision,when leave to appeal had been refused by the Attorney-General. Thenature of the onus that rests upon the applicant who comes before thisCourt for the purpose of inviting it in effect to override the deliberaterefusal of the Attorney-General to sanction an appeal is referred to by'Wood Renton J. in King v. Noordeen If, however, he makes out astrong case amounting to a positive miscarriage of justice in regard to.either the law or to the Judge’s appreciation of the facts, this Court willdeal with the matter. He has clearly made out such a case here, for thereasons I have set out above. Why leave to appeal was refused I do not
> 13 N. L. R. 115i,
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know, and, therefore, I make no comment on that refusal. The respond-ent’s case was not argued before me by Crown Counsel, as one might haveexpected under the circumstances, but his case has not suffered on thatground, for he had the benefit of experienced counsel appearing on hisbehalf, who was unable of course to say why leave to appeal was refused.
The acts set out in the charge having been proved against the accused,and the accused having failed in their defence that they had reasonablecause to suspect the complainant, or that complainant was resistingarrest, it is not necessary to consider the further questions raised on theappeal, as to whether the Inspector had exceeded his instructions, whethereven if he had reasonable cause to suspect the complainant was committingan offence he was entitled to obstruct the highway as was done here, orwhat is meant by the words all means necessary” in section 23 (2) ofthe Criminal Procedure Code. In the interests, however, of the ExciseDepartment itself, to forget for the moment the interests of everyone else,I would strongly advise that this dangerous implement, used I understandfor the first time on this occasion with such unfortunate results, berelegated to the Police Museum, before further and more serious injurybe caused to innocent users of the road. The roads are quite dangerousenough without having to face this kind of thing in the hands of irrespon-sible officers, as the evidence discloses here.
The application must be allowed and the case be sent back to thePolice Magistrate to record a conviction against the accused and to passsentence. He will, of course, in passing sentence bear in mind to whatextent the first accused has carried out the instructions given him by hisdepartment, with which the responsibility for the use of this implementmust lie, and to what extent the second and third accused were carryingout the orders of the first accused. The Magistrate will doubtless beaware also whether any civil proceedings are pending for the damagedone or whether any compensation has been paid to the owner of the car.
Set aside.