063-NLR-NLR-V-17-THE-ATTONEY—GENERAL-v.-SILVA.pdf
( 103
■ Present: Pereira J.
1814.
THE ATTOBNET-GENEBAL »■ SILVA
153—P. C. Badulla, 531.
Solicitor-General empowered by Attorney-General to exercise the powerof appeal on the Attorney-General by s. 336 of theCriminal Procedure Code—Petition of appeal should run in thename of theSolicitor-General—CriminalProcedure Code, t.
393—Peonin the ExciseDepartment—Public servant—Penal
Code, s. 19—Is it duty of peon to help Excise Inspector to searcha dwelling-house for excisable articles !
Where, under section 393 of the Criminal Procedure Code, theSolicitor-General is given by the Attorney-General- a- direction,general' or special, to exercise the power of appeal conferred on theAttorney-General by section 336, the petition of appeal in a case inwhich this power is exercised by the Solicitor-General should runin the name of the Solicitor-General and be signed by him as such.It is irregular that the petition should be in the name of theAttorney-General and signed by the Solicitor-General for theAttorney-General.
A peon of the Excise Department is a public servant within themeaning of section 19 of the Penal Code.
It is no part of the duties imposed by law on an Excise peon tohelp ’ an Excise Inspector to search a dwelling-house for excisabloarticles.
van Langenberg, S.-G., K.C., in support of appeal.Dc Silva, for accused, respondent.
Cur. adv. vult.
March 15, 1914. Pereira J.—
I have already indicated my opinion on two points involved inthis case. The first is that the petition of appeal'has not been dulysigned. It runs in the name of the Attorney-General, but it hasbeen signed by the Solicitor-General. I assume that the Solicitor-General has, under section 393 of the Criminal Procedure Code,a direction, general or special, to exercise the power of appealconferred on the A.ttomev-General by section 336' of the CriminalProcedure Code. If I am right in the assumption, the Solicitor-General should in the petition of appeal have recited the fact of thedirection mentioned above, and appealed as Solicitor-General. I
7-J. N. B 18828 (7/52)
( 194 )
1914.
P&BBIBA J.
Attorney-
General v.Silva.
do not think that the signing by him of a petition of appeal that ranin the name of the Attorney-General was in order. The Solicitor-General was inclined to agree with me in this view; but, as Iunderstand, the usual practice has been followed in this case, I shallnot reject the appeal altogether, but deal with the case by way ofrevision.
The second question referred to above is whether an Excise peoncan be said to be a public servant in terms of section 19 of the PenalCode. Under sub-section (9) of that section every officer of Govern-ment whose duty it is, as such officer, to give information of offencesis a “ public servant. M Now, under section 3 (2) of the ExciseOrdinance, No* 8 of 1912, any officer or other person invested withpowers under section 7 is an " Excise officer. M Section 7 providesthat the Governor may appoint officers or persons to perform theacts and duties mentioned in sections 32, 34, and 45 (a) of the Ordi-nance, and by Proclamation of December 13, 1912, His Excellencyhas directed that petty officers and peons of the Excise Departmenton duty should be “ Excise officers ” for the purposes of sections 34and 45 (a) of the Ordinance. Excise peons are therefore Exciseofficers, and, inasmuch as the provision of section 49 (1) (a) of theOrdinance in effec.t vests a duty in Excise officers to give informationof offences under sections 43, 44, and 47 of the Ordinance, I thinkthat an Excise peon is a “ public servant ” in terms of section 19 (9).of the Penal Code.
The next question in the case is whether, when .the alleged assaultwas committed by the accused on the peon Charles, the latterwas .in the act of discharging any duty devolving on him as a publicservant. He was at the .time helping the Excise Inspector to searcha dwelling-house for excisable articles. As pointed out by theaccused's counsel, there is nothing to show that the search by theExcise Inspector was legal. He had no search warrant, and therecord does not show that the provisions of section 36 of the Ordi-nance were observed to justify search* without a warrant. Howeverthat may be, no authority has been cited to show that it is any partof the duty of an Excise peon to aid an Excise Inspector in makinga search without a warrant. The 'Solicitor-General, who argued thecase with some diffidence.^ cited section 37 of the Ordinance, whichmade the provisions of the Criminal Procedure Code relating toarrests, .searches, search warrants, &c., applicable to all actions" taken in these respects under the Ordinance. ” The words “ inthese respects ” are significant. They clearly mean that to arrests,searches, and search warrants under the Ordinance the provisionsof the Criminal- .Procedure Code relating to the correspondingmatters provided for in that Code should apply, but it has not beenshown that under the Criminal Procedure Code it is the duty of anyperson to help another when the latter is engaged in making a searchwithout a search warrant.
Then section 84 of the -Ordinance has been cited. That sectionhas no application, because it refers to the seizure and detention ofexcisable or other articles found in a place other than a dwelling-house ; but here the peon, Charles, was engaged in seizing thingsin a dwelling-house.
1914b
PKRBIBA J.
Attorney-Qeneral to
Siha.'
j agree with the Magistrate that the prosecution has made outno case against the accused, Nand I affirm, his order discharging theaccused.
Affirmed.