021-NLR-NLR-V-39-THE-KING-v.-GUNASEKERE.pdf
58
The King v. Gunasekere.
1937
Present: Soertsz J.
THE KING v. GUNASEKERE
16—D. C. (Crim.) Negombo, 4,281.
Arrest without warrant—Person found committing an offence—Rescuing fromlawful custody—Causing hurt to a public servant in order to prevent himfrom doing his duty—Excise Ordinance, No. 8 of 1912, s. 34—Penal Code,• s. 323.
The third accused, who was seen in the act of handing a cup of toddyto another man was arrested by an Excise Officer, and was rescued by thefirst anid second accused, who assaulted the Excise Officer in doing so.
.The first and second accused were charged with rescuing the thirdaccused from lawful custody, and under section 323 of the Penal Codewith causing hurt .to a public officer in order to prevent or deter himfrom doing his duty.
Held, that the arrest was illegal because it could not be said that atthe time of his arrest the third accused was found committing an offencewithin the meaning of section 34 of the Excise Ordinance.
Held further, that although the charge under section 323 of the PenalCode could not be sustained, the accused were guilty of the offence ofcausing hurt under section 314 of the Penal Code.
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SOERTSZ J.—The King v. Gunasekere.
A
PPEAXi from a conviction by the District Judge of Negombo. Thefirst and second accused were charged with causing hurt to a public
officer in order to prevent or deter him from doing his duty and withrescuing the third accused from lawful custody.
The third accused was charged with escaping from lawful custody.
V. Perera K.C. (with him Colvin R. de Silva, and G. E. Chitty), foraccused, appellants.—The third accused was neither committing anoffence nor doing any act which could even raise a reasonable suspicionthat an offence was being committed. Every one of his actions maywell have been those of a man acting lawfully. The arrest was clearlyillegal and the accused persons were entitled to act in defence in orderto prevent it. This would be so despite the limiting provisions ofsection 92 of the Ceylon Penal Code. See in this connection Canthapullai•Odaiar v. Murugesu* a case where the charge was brought under section183 of the Ceylon Penal Code.
In the present case the Excise Officer was not making a lawful arrestand resistance was justified (see Davis v. Lisle*).x
Pulle, C.C., for the Crown.-—The third accused in delivering the toddyto the person who ran away must be presumed, until the contrary wasproved by him, to have “sold” the toddy. Vide definition of “sale”in the Excise Ordinance, No. 8 of 1912, and the presumption arising undersection 50. The fact that the third accused was subsequently acquittedon a charge of sale of toddy does not show necessarily that he was notfound committing an offence.
Cur. adv. vult.
July 28, 1937. Soertsz J.—
Whatever view one takes of the ruling in the recent case of Ledwitk v.Roberts1 which called in question, and over-ruled the view taken in theearlier case of Hartley v. Elinor4 in regard to the powers of Police Officersto arrest without a warrant in certain circumstances, one readily acceptsthe observations made by Lords Justices Greer, Greene, and Scott to theeffect that those powers should be jealously scrutinized and that any actwhich is in excess of those powers should not be tolerated. Lord JusticeScott said : “ I should like respectfully, but earnestly, to express theopinion that powers of arrest without warrant should be expressed in quiteunambiguous and simple language, which any one can understand, andthat the occasion for reliance on the Constable’s discretion should bedefined in the case in any statutory provision conferring such a power ”.Their Lordships were in that case interpreting the meaning of the words“ suspected person ” in the Vagrancy Act of 1824, in relation to a PoliceOfficer’s power to arrest such a person without a warrant. But theobservation is apposite to the question that arises in the present case.In accordance with it, I have to consider the plain meaning of the . straight-forward language of section 34 of Ordinance No. 8 of 1912. Thatsection enacts as follows : “ Any officer of the Excise, Police or Customsor Revenue Departments …. and any' other person duly
■- i C. L. R. 90 {F. B. )3 Journal of Gr. Law, January, 1937, 135 et etq.
– 11936) A. E. R. 213,4 117 L. T. R. 30i.
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SOERTSZ J.—The King v. Gunasekere.
empowered, may .arrest without warrant any person found committing,in any place other than a dwelling house, any offence punishable undersection 43 and section 44”. It is not questioned that the officers withwhom we are concerned in this case have been duly empowered to arrestwithout warrant, but the contention for the defence is that they arelimited to arresting any person found committing in any place other thana dwelling house, an offence punishable under sections 43 and 44. Theadmitted facts in this case are that the third accused was arrested by theseofficers, when he gave to another man a cup full of toddy. That was allthat had taken place between the third accused and the other man at the'time the arrest was effected. The case for the Excise Officer was thatthird accused was arrested because they, took the view that the thirdaccused had sold the toddy to the other man and had by so doing com-mitted an offence under section 43 (b) of the Ordinance. Now, in myview, it is impossible to hold on the facts we have here that a sale hadtaken place. No consideration of any kind passed from the other manto the third accused. This is said to have happened at about 7.30 p.m.on a festival day in the Boralupitiya Church and it might well be thatthe third accused was treating a friend to a drink. To say the least, it.was an equivocal transaction, not an unambiguous sale and therefore, theoccasion contemplated by section 34 for an arrest without a-warrant hadnot arisen.
Mr. Pulle for the complainant-respondent maintains, however, that asale must be deemed to have taken place in view of section 50 of theOrdinance.
That section provides that “ in prosecutions under section 43, it shallbe presumed, until the contrary is proved, that the accused person hascommitted an offence under that section in respect of: (a) Any' excisablearticle ; or (b) ; (c) ; for the possession of which, or for his conduct inconnection with which, he is unable to account satisfactorily ”. In myopinion this section does not help Crown Counsel at all. The presumptionarises only when the prosecution stage is reached and it is a presumptiona Court is required to draw. The officers referred pa in section 34 are notempowered to act upon any presumption that an offence is being com-mitted. They are empowered to arrest in the one and only event of theirfinding a person actually committing an offence, and not merely doingsomething, which they have reason to believe is an offence, and which islater proved to be an offence. As a matter of fact in the present case, if-the matter is tested by the result of the case that arose from this incident,the third accused cannot be said, to have been committing an offence atthe time of his 'arrest, for tie was acquitted after trial. But, I wish to makeit clear that in my view, the result of the case is not necessarily decisiveof the question. I, therefore, reach the conclusion that the third accusedis not guilty of the charge preferred against him in the third count of theindictment, namely, escaping from the lawful custody of Excise GuardPerera. The custody was not lawful.
In regard to the first and second accused, they were charged: (1) Withcausing hurt to a public servant in order to prevent or deter him fromdoing his duty ; (2) with rescuing the third accused from lawful custody.It follows from the finding I have already reached in regard to the third
Tambiah v. Sangarajah.
6t
accused, that the second charge against the first and second accusednecessarily fails. So far as the other charge against these accused isconcerned, I do not think section 92 (1) of the Penal Code applies, for thereason that the act against which the right of private defence was beingexercised was an unlawful act not merely one that was not strictlyjustifiable by law. But I am of opinion, in the circumstances of thiscase, that it was not necessary for these accused to assault the ExciseOfficers to achieve their purpose. Therefore, although their, convictionsunder section 323 of the Penal Code cannot be sustained because it cannotbe said that the Excise Officers were acting in the lawful discharge of'their duty, see Davis v. Lisle none the less they are guilty of an offenceunder section 314 of the Penal Code. I vary their convictions accordinglyand sentence each of them to pay a fine of Rs. 50, in default six weeks’rigorous imprisonment. The third accused is acquitted and discharged.
Varied.