122-NLR-NLR-V-49-SABAPATHY-Appellant-and-RICHARD-Inspector-of-Police-Respondent.pdf
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Sabapathy v. Richard.
1948Present: Gratiaen J.
SABAPATHY, Appellant, and RICHARD (Inspector of Police,)Respondent.
S. C. 312—M. C. Kandy, 30,992.
Betting—Possessing instruments of unlawful betting—Search without authority—Presumption—Betting on Horse Racing Ordinance (Chapter 36)—- Section 17. •
The possession of instruments of unlawful betting is not in itself an offence.It merely raises a presumption that the person in possession is guilty of theoffence of unlawful betting on a race horse. Even this presumption does notarise unless such person was searched in accordance with the provisions of theOrdinance.
^^PPEAJL from a judgment of the Magistrate, Kandy.
N. M. de Silva, with E. A. O. de Silva, for the accused, appellant.
R.A. Kannangara. Crown Counsel, for the Attorney-General.
Cur. adv. vult.
(1946) A. I. R. Bombay 346.
GRATIAEN J.—Sabapathy o. Richard
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May 28, 1948. Gbatiaen J.—
There were two accused in this case. The 1st accused appeals froma conviction entered against him on the following charge which wasframed against both accused :—
“ That they did at King’s Street, Kandy, on January 3, 1948, inbreach of section 3 (3) (6) of Ordinance No. 55 of 1943, have in theirpossession instruments of unlawful betting, to wit, 2 envelopes contain-ing 8 betting slips with names of horses proposed to be run in Indiaon January 3, 1948, and thereby committed an offence punishableunder section 10, Chapter 36, as amended by section 6 (3) (2) (a) ofOrdinance No. 55 of 1943.”
The 2nd accused was also convicted, but has not appealed from hisconviction.
The evidence led by the prosecution proves beyond doubt that on theday in question Sub-Inspector Richard who was attached to the KandyPolice arrested both accused on suspicion near a hotel in Kong’s Street.The second accused was searched and on his person were discovered8 betting slips with the names of horses entered to run in a race-meetin India. The appellant was also searched, and on his person werediscovered a racing newspaper and a cash account.
The first question which arises for consideration is whether the merepossession of these documents constituted what the charge describesas the offence of “ possessing instruments of unlawful betting Thesubstantial amendments introduced by Ordinance No. 55 of 1943 to theoriginal Betting on Horse Racing Ordinance, Chapter 36, are somewhatconfusing because no re-print of the entire Ordinance, as amended, isyet available.
The original Ordinance introduced pertain statutory offences, to thelist of which the amending Ordinance added other offences includingthe offence of “ unlawful betting on a horse race.” This has been definedas “ making, placing, receiving, or negotiating a bet on a horse-raceother than a taxable bet.” Section 9 of the amending Ordinance proyidesinter alia, that a new section numbered 17 shall be added to the originalOrdinance to read as follows :—
“ Any person who is found :
in any premises kept or used for the purpose of unlawful
betting on a horse-race ; or
in possession of an instrument of unlawful betting on the
occasion of his being searched under this Ordinance,
shall be presumed, until the contrary is proved, to be guilty of theoffence of unlawful betting on a horse-race.”
The term ‘‘instrument of unlawful betting” is also defined by theamending Ordinance and clearly includes documents such as the 2ndaccused was proved to have been in possession of at the relevantdate.
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GRATIAEN J.—Sabapathy v. Richard
An examination of the sections to which I have referred makes it clearthat the possession of “ instruments of unlawful betting ” is not an offenceof any kind, but that such possession may in certain circumstancesraise the rebuttable statutory presumption that the offence of “ unlawfulbetting on a horse-race ” has been committed. It is evidence of anoffence but not an offence in itself. It follows that the only offencewith which the accused could have been charged was “ unlawful bettingon a horse-race.” The charge framed against the accused in this casewas therefore defective in that it alleges the commission of an act whichdoes not constitute an offence against the law.
It is unnecessary to consider whether the case should be sent backfor the appellant to be retried on a proper charge because I have cometo the conclusion that the evidence led by the prosecution does notestablish the commission of the offence of “ unlawful betting on a horse-race. ” The prosecution has not suggested that any documents discoveredduring the search were “ instruments of unlawful betting ” apart from thebetting slips all of which were found in the possession of the 2nd accused.Moreover, the prosecution must fail for a more fundamental reason.The mere possession of “ instruments of unlawful betting ” by an accusedperson does not per se raise a presumption of guilt unless one or otherof the circumstances laid down in section 17 which I have quoted abovehas been established. Section 17 (a.) admittedly does not apply.Section 17 (£>) would only apply if the incriminating documents had beendiscovered on an accused person “ on the occasion of his being searchedunder the Ordinance.” In other words, it lies upon the prosecutionto establish that the search was authorised by the provisions of theOrdinance before it can invite the Court to draw the statutory presumptioncreated by section 17 (6). Evidence of the discovery of such documentsin the course of an unauthorized search may of course be admissibleat the trial, but is not sufficient, unless other evidence is also forthcoming,to prove “ unlawful betting ”.
The right of search in cases of this nature is laid down by section 15of the original Ordinance (Chapter 36) as amended by section 8 of Ordi-nance No. 55 of 1943. Sub-section 1 permits a search only on the autho-rity of a Magistrate, and Inspector Richard does not claim to have hadany such authority. Sub-section 2, as amended, authorizes “ a policeofficer of or above the rank of Sergeant in charge of a Police Station ”and no other person to exercise similar powers of search, but only aftercertain specified conditions have first been satisfied. Not only hasInspecor Richard not satisfied those conditions but he has franklyadmitted that he was not in charge of a Police Station at the relevantdate. Police officers should realise that searching a person on the publichighway involves a serious interference, with the liberty of the subjectand should not be resorted to unless it has the clear sanction of the law.In this case the search was unauthorized by the Ordinance and section17 can have no application. I therefore make order setting aside theconviction of the appellant and I acquit him. I also quash the convic-tion of the 2nd accused in the exercise of my revisionary powers.
Accused acquitted.