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Present: Lyall Grant J.
TARSON r. KANDIAH et al.
P. C. Bandarawela, 80,553.
Search warrant—Unlawful gamut}—Issue of warrant—Written infor-mation not signed—Ordinance No. 17 of 1889, $. 7.
Where a search warrant wag issued under the GamingOrdinance upon information reduced to writing by the PoliceMagistrate but not signed by the informant,—
Held, that the issue of the search warrant was irregular.
PPLICATION to revise a conviction by the Police Magistrateof Bandarawela.
Croos DaBrera, for petitioner.
June 20, 1927. Lyall Grant J.—
This is an application in revision from a conviction for unlawfulgaming. A search warrant was issued for the search of a certainboutique, and when the boutique was searched the police found fourpersons playing cards. The Magistrate says that he was satisfiedthat the search warrant was rightly issued and that the first accused'sboutique was on the occasion of the raid a common gaming place andthat cards were being played for money.
The only evidence that cards were being played for money is thatof the Police Constable, who says that when he arrived at the boutiquehe heard the counting of coins, heard a man asking for “ buruah ”and heard two other voices taking the pack, and that when the Police
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entered they found a pack of cards in first accused’s hand andcigarette tin with 45 cents beside him. He says there was also othermoney, 55 cents, but he does not say where it was found.
Certain objections to this conviction have been taken in revision.It is submitted, in the first place, that the search warrant is a badone, inasmuch as the information upon which it is founded isnot written information in the sense of section 7 of the GamingOrdinance, 1889. Bertram C.J. said in the case of Police Sergeant,Tangalla v. Portlienis 1 that the result of the issue of a search warrantis so drastic under the Ordinance that this Court has come to theconclusion that special care should be taken to see that all conditionsattaching to the issue of a warrant are fully complied with. Thecertified copy of the information which is supplied to the Court inthis case show? that the information given was oral and not written.No doubt it would have been sufficient in order to convert this oralinformation into written information if the information, which wasgiven on affirmation, had been read over to the informant andsigned by him, but there is no record that this was done. I cannot,therefore, hold that the Court in issuing the search warrant pro-ceeded upon written information, and unless the case comes under' the exception mentioned in section 8 of the Ordinance, the issue ofthe warrant must be held to be irregular. Section 8 provides thatin certain cases where haste is required a Magistrate may dispensewith the delay necessary to reduce the information from writing,and may in such circumstances himself proceed to make the search.It is quite clear, however, that section 8 is not applicable to thepresent case. The Magistrate has not made the search, nor is thereanything to show that there was any need for haste. As the searchwarrant is irregular, it follows that the drastic provisions of section 9of the Ordinance do not apply to the present case, and accordinglythere is no evidence against any other accused except the firstaccused.
No specific act of betting is spoken of by the prosecution witnesses.The utmost, I think, that one can assume from the evidence is thatgambling was about to commence, and I am doubtful whether onthe evidence it is quite safe to assume this. Another point wasraised, viz., that the place where this game of cards took placewas not a public place. On this point the facts are very similarto those of the case of Sub-Inspector of Police, Dandagamuwa v.Gan-Arachchy.2 In that case the game of cards took place on theouter verandah of the first accused’s boutique. In the present casethe gambling took place either in the boutique itself or as is alleged bythe defence in the upper room of the boutique. On both occasionsthe gambling was after 7 p.m., in the evening, when in all probabilityno business was actually being carried on in the boutique. There is122 N. L. R. 163.* 1 Times of Ceylon L. R. 106
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really nothing to show that the persons engaged in playing cardswere not friends of the proprietor and that the game was not aprivate one. The only question which arises is whether the boutiqueon the occasion was a place to which the public has access. In thecase to which I have referred Mr. Justice Sampayo said that aboutique was not a public place on the ground that the proprietoror manager of the boutique could keep out any particular personwhom he wished. A similar conclusion was arrived at by Mr. JusticeShaw in the case of Wijeauriya v. Abeyaekera.1 In that case thequestion arose whether the accused was drunk in a public place, andit was held that no definition of a public place is given in the PenalCode or in any general Interpretation Ordinance. That case isprobably not so much in point as the one decided by Mr. JusticeSampayo, but the latter case seems to me to be on all fours with thepresent one, and on that authority I think the accused in thiscase ought to have been acquitted. The conviction is quashed. *
* 21 N. L. R. 159.
PARSON v. KANDIAH et al