SUB-INSPECTOR OF POLICE, ALUTGAMA v. FERNANDO

024-NLR-NLR-V-29-SUB-INSPECTOR-OF-POLICE,-ALUTGAMA-v.-FERNANDO.pdf

( 122 )
1927.
Present : Lyall Grant J.
SUB-INSPECTOR OF POLICE, ALUTGAMA v. FERNANDO.
98—P. C. Kalutara, 19,094.
ScQrch*icQrraui—Powersof policeofficer—Stolen property—Criminal
Procedure Code, s. 70.
I’nder the provisions of section 59 of the Police Ordinance apolice officer may enter without a warrant premises which hereasonably suspects to contain stolen property.
Such right is not affected by section 70 of the Criminal ProcedureCode nor confined to cases of just suspicion as do not reasonablyadmit of delay in the search.
.VisAin v. Dingiri Banda 1 followed.
A
PPEAL from a conviction by the Police Magistrate of Kalutara;The facts appear from the judgment.
M. T. dc S. AmcraficlerC’ for appellant.
Qbeyesekere, D.S.-G. (with Fonseha, (J.G.), for the Crown.
Julv 1, 1927. Lyam; Grant J.—
v 1
This case was argued before me on March 7, 1927, when Mr.Ameresekere appeared for appellant and there was no appearancefor the respondent.
The question which arose for- decision was whether a convictionon a charge of using criminal force to a police constable with intent-to prevent the discharge by him of his public duties could besustained.
The force complained was employed when the police constableyvas endeavouring to enter the house of the accused to search fox*stolen property.
‘ 4C.L. Rtc. 16G.
( J28 )
I then decided that ns the police constable had not obtained awarrant under section 70 of the Criminal Procedure Code to searchthe house he was not acting within the scope of his duty and thatthe conviction was bad. It has since been brought to my noticethat; by a decision of three Judges in the case of Mishin v. DingiriBanda (supra) the Supreme Court has decided that uuder the pro-vision of section 59 of the Police Ordinance, No./16 of 1885, a policeofficer may enter without a warrant any premises in which, interalia, he has just cause to believe that crime has been committedor is about to be committed or which contain stolen property, andthat such rights are not affected by section 70 of the CriminalProcedure Code nor confined to cases of just’ suspicion which donot reasonably admit of delay in the search. That decision over-ruled two previous decisions of this Court- delivered in 1879, namely,Michael v. Janis Appu 1 ahd Inspector Gooncralne v. Don Pout isAheyratner
Further argument was addressed to me by counsel for theappellant with a view to showing that the provisions of section 59did not apply to the search of any and all premises which the policeofficer suspects to contain stolen property.
If I may express mv own opinion, it appears to me that thereis great force in the argument advanced on behalf of the appellant.The point is, however, completely covered by the decision inMishin n. Dingiri Banda (supra), an authority by which I am bound.
In these circumstances I have no alternative but to rescind theorder as made per in curiam and to dismiss the appeal.
Appeal dismissed. *
*2S, C+C
* 2 8. C. C. 89.
1927.
Ii.VALL
Grant J.
Sub-Inspec-tor of Police.Abrtgama vFernando