( 464 )
Present: Dalton J.
PERERA v. NAGOOR PITCHE.
40—P. C. Kurunegala, 8,146.
Excise Officer—Complaint by Police Sergeant—Authority to prosecute—Ordinance No. 8 of 1912, s. 46.
A Police Sergeant is an Excise Officer competent to institute aprosecution under section 43 of the Excise Ordinance.
PPEAL by the Solicitor-General from an order of the PoliceMagistrate of Kurunegala acquitting the accused.
Crosette Tambyah, C.C., in support.
January 28, 1929. Dalton J.— '
The Solicitor-General appeals in this case. The complainant, aSergeant of Police, brought a charge against the respondent withpossessing 4 ounces of ganja in contravention of section 16 of theExcise Ordinance.
( After evidence was led to support the charge and the case for theprosecution closed, the Proctor for the accused addressed the Courtafid contended that the Police could not prosecute in proceedingsunder the Excise Ordinance. He refeired to the case of Meerigamav. John Singho and another,x and also to a case which is not reported—S. C. No. 186 ; P. C. Kurunegala, No. 4,702—in which Schneider J.held that it had not been shown in that case that the Sub-Inspectorof Polifce was an excise officer within the terms of the ExciseOrdinance.
Following that last decision the Magistrate has stated he couldnot convict the accused, the Court having no jurisdiction to takecognizance of the offence, and the accused was therefore discharged.
Under section 49 the Magistrate has no power to take cognizanceof an offence punishable under section 43 and other sections exceptinter alia on the report of an Excise Officer. The expression“ Excise Officer ” is defined in section 3 (2) amongst other persons asan officer invested with powers under section 7 of the Ordinance.
From the Excise Notification published in Ceylon GovernmentGazette of December 13, 1912, officers of the Police Force not undexthe rank of Sergeant are authorised to perform certain duties undercertain sections, including section 7 of the Excise Ordinance.
It has previously been held in this Court, and I refer to the caseof Abeygunasekera v. Suwaris Appu,2 that an officer or other personappointed or invested with powers under section 7 of the Excise1 4T.L. R. 71.! 16 N. L. R. 510.
( 465 )
Ordinance is an excise officer under the terms of section 49 of theOrdinance. However limited his powers may be, it is competentfor such a person to institute prosecutions under section 43.
It is quite clear, therefore, that the complainant in this case,a Police Sergeant, has powers under the notification-to which I havereferred, and is an excise officer within the terras of section 49 ofthis Ordinance.
With regard to the case P. C. Kurunegala, No. 4,702, followedby the Magistrate, it is clear that the Court’s attention was notdrawn to the authority I have cited and the judgment of Pereira J.
With regard to the case cited by the Proctor in the lower Court,it would seem that Garvin J. did not deal with the objection raisedthat the prosecution had been instituted by a person who was notan excise officer. He stated he did not feel called upon to discussthe matter, although he pointed out that such an objection had beenupheld by de Sampayo.J. in Mishin v. Fernando.l A referenceto that shows that the proceedings were instituted' by a PoliceConstable.
I think I may take judicial notice of the fact that a Sub-Inspectoris higher in rank than a .Sergeant and a Police Constable is one whois lower than a Sergeant. A Police Sergeant comes within theappointments made by the Excise Notification of December 13,1912,a Police Constable does not. This appeal must, therefore, beallowed, and the order set aside and the case sent back for the offenceto be heard and for fresh adjudication to be made.
Per era v.NagoorPitcke
1 2C.A.R. 34.
PERERA v. NAGOOR PITCHE