MACDONEUL CJ.—Perumal v. Ahamadu.
1934Present: Macdonell C.J.
PERUM AL v. AHAMADU et al.
590-2—P. C. Ratnapura, 2,949.
Excise Ordinance—Unlawful possession of ganja—Power of Excise Inspector toarrest offender—No compliance with section 36—Separate authority—Ordinance No. 8 of 1912, ss. 34 and 36.
Under section 34 of the Excise Ordinance, an Excise Inspector haspower to arrest a person found in unlawful possession of ganja andto search him, although he has failed to comply with the requirementsof section 36 with regard to search.
A tea boutique is not a “dwelling house** within the meaning ofsection 34 of the Ordinance.
^^PPEAL from a conviction of the Police Magistrate of Ratnapura.
Amarasekere (with him T. S. Fernando), for the appellants.
Pttlle, C. C., for Crown, respondent.
October 22, 1934. MacdoneliTC.J.—
In this case the facts were that an Excise Inspector, having thepowers of section 34 cxf Ordinance No. 8 of 1912 given to him, found oneAbdul Samad in possession of ganja, and that person explained that he
MACDONELL. CJ.—Perumal v. Ahamadtu
had got the ganja from the first accused, at the same time pointing outthe first accused to the Inspector. The Inspector saw the first accusedwalking into a tea boutique and followed him in. He held the accused bythe waist and found a packet of ganja in the accused's waist. When theInspector tried to search the accused’s person further the accused resistedand struck at him. He is charged under section 220a of the Penal Codewith obstructing the Inspector in the discharge of his duties.
It was argued that he could not be convicted because the Inspector didnot take any of the'steps required by section 36, that is, did not, sincethere was no time to' obtain a search warrant, make the required entry inhis diary. Section 34 says that an Excise Inspector “ may arrest withoutwarrant any person found committing in any place other than a dwellinghouse an offence punishable under section 43 or section 44"—possessionof ganja is an offence under section 44. Section 34 also says that anExcise Inspector “ may seize and detain any excisable or other articlewhich he has reason to believe to be liable to confiscation under thisOrdinance …. and may search any person upon whom ….he may have reasonable cause to suspect any such article to be."
Now a boutique is clearly not a dwelling house. The Excise Inspectortherefore was arresting inside a place other than a dwelling house a manfound committing an offence, because ganja was found upon him, and hesearched that man because the finding of some ganja on him affordedreasonable belief that there might be more. The action of the ExciseInspector was therefore entirely inside section 34 and the convictionwas right.
It was pressed both in argument below and here that the ExciseInspector not having acted under section 36 had no power either to arrestthe accused or to search him. The effect of section 36 is to give a personwho had complied with its requirements protection from the start foranything that he may do by way of search. If he has complied withthe requirements of that section, he may search any place and seize anythings which he has reason to believe are liable to confiscation. Thesection goes on to give him power to search and arrest any person whomhe has reason to believe is guilty of an offence against the Ordinance. Itis indifferent that nothing liable to confiscation is found and that theperson arrested was not committing any offence against the Ordinance.
Now the difference between that section and section 34 is very marked.Section 36 deals mainly with the power to search a place, section 34 with thepower to arrest a person. Normally, to search a place, a search warrant isnecessary : Section 34 allows arrest to be made without a warrant if theperson arrested is found committing an offence against section 43 orsection 44. The power is limited; the man arrested must be foundcommitting an offence; if he is not and if the person arresting has made amistake, then section 34 does not authorize what he has done. But thescope and even the subject-matter of the two sections is entirely different.Here the accused was found committing an offence and section 34authorized the acts of the Inspector.
The appeals must be dismissed and the convictions and sentences mustbe affirmed.
PERUMAL v. AHAMADU et al