155-NLR-NLR-V-39-THURAIRATNAM-v.-MOHIDEEN-PICHAI.pdf
Thurairatnam v. Mohxdeen Pichai.
561
1938
Present: de Kretser J.
THURAIRATNAM v. MOHIDEEN PICHAI.
144—P. C. Kalmunai, 22,360.
Search warrant—Affidavit by Excise Inspectors—Credible information—Magis-trate’s authority to issue search warrant—Ordinance No. 17 of 1929.s. 73 (I)—Excise Ordinance, No. 8 of 1912, s. 35.
Where an Excise Inspector swore an affidavit that he. had receivedcredible information that a person was in unlawful possession of ganjaand that he had verified the information and found it to be true,—
Held, that the affidavit contained sufficient material for the issue of asearch warrant under section 73 (1) of Ordinance No. 17 of 1929.
Under section 73 (I) of Ordinance No. 17 of 1929 the Magistrate mustbe satisfied by information on oath that there is reason to suspect; undersection 35 of the Excise Ordinance he must have reason to believe afterinquiry.
In both cases- the information should furnish facts which should leadthe Magistrate to find that a prima facie case exists for the issue of a.search warrant.
' 18 N. L. R. 289.* 1 Brotme 75.
562De KRETSEB J.-^-Thurairatnam v. Mohideen Pichai.
^ EPEAL from an acquittal by the Police Magistrate of Kalmunai.
E. H. T. Gunasekera, C. C., for complainant, appellant.
C. T. Olagasegram, for accused, respondent.
May 26, 1938. De Kretser J.—
An Excise Inspector swore an affidavit that he had received credibleinformation that the man who is now the first accused was in posses-sion of Ceylon-grown ganja in his house, and that he had verified theinformation and found it to be true.
He moved for and obtained a search warrant, which was made returnableon October 18, 1937.
The warrant was on a printed form and stated as follows : —
“ Whereas information has been laid before me, and on due inquiry
thereon I have been led to believe, &c.”
Armed -with this warrant the Inspector went to the house of the personnamed in the warrant on October 11, 1937, and found him at home. Hedemanded if the Inspector had a search warrant and the Inspector showedhim the warrant and explained its purport. The accused told him hecould search but if he failed to find ganja he would not let the Inspectorget out.
Accordingly the Inspector’s party began to search, the accused himselfopening a box. Whilst a headman was searching this box the accusedstruck the. headman’s hand and asked the party to “ clear out ”, and whenthe Inspector did not go the accused struck at him and later at an Exciseguard who came up. The Excise party then attempted to search theaccused’s son’s houie and were resisted.
The Inspector then charged four persons with obstructing him, a publicservant, in the discharge of his duties, and with assault and criminal force,the charges being laid under sections 183, 186, and 344 of the Penal Code.
The learned Magistrate acquitted the accused at the conclusion of theExcise Inspector’s evidence-in-chief on the ground that the search warranthad been irregularly issued, that the entry of the son’s boutique wasillegal, and there was a misjoinder of charges. –
The Attorney-General appeals from the acquittal of the first accused, i.e.,the person against whom the search warrant had been issued.
The question of misjoinder need not be considered seriously and washardly referred to during the argument. The Magistrate seems to haveforgotten that he was responsible for the framing of the charges, and if hefound that he had made a mistake the remedy was quite simple.
The illegality of the entry into the son’s boutique is not questioned.There remains only the case of the 'first accused.
The Magistrate thought that before the search warrant was issued theMagistrate who did issue it should have examined the person who gaveinformation to the Inspector. The Inspector says he had the informantready but the Magistrate did not call for him. The Magistrate says thatthe Inspector grossly failed in his duty because he did not request theMagistrate to record that evidence. I see no justification for this
De KRETSER J.—Thurairatnam v. Mohideen Pichai.563
stricture. A prosecuting officer may suggest to a Magistrate that certain,evidence is desirable but he is under no obligation to instruct the Magis-trate as to his duty and it is scarcely fair to visit the omission of theMagistrate on the Inspector.
Crown Counsel argues that the authorities relied on by the Magistratedo not apply as the Excise Inspector was acting under Ordinance No. 17of 1929, which does not require a Magistrate to believe that an offencehas been committed before he issues a search warrant but allows him todo so on receiving information which raises a suspicion in his mind thatan offence has been committed, whereas in the case of Dewasundera v.Sinnathane', on which the Magistrate relies, the search warrant was issuedunder section 35 of the Excise Ordinance, No. 8 of 1912, which requiresthat the Magistrate should have reason to believe that an offence has beencommitted before he issues a search warrant. Counsel for the accusedadmits the distinction but contends that in both cases the Magistrateshould first have information before him in a form required by law andsufficient to justify his suspicion or belief.
I dm not convinced that there is much substance in the argument basedon the difference in phraseology and find it difficult to believe that the.Legislature intended to authorize the issue of a search warrant more easilyin the one case than in the other. In both cases the information shouldfurnish facts which lead the Magistrate to find that a prima facie caseexists for the issue of a warrant. Under section 73 (1) of the OrdinanceNo. 17 of 1929 he must be satisfied by information on oath that there isreason to suspect. Under section 35 of the Excise Ordinance he musthave reason to believe after such inquiry as he thinks necessary. In theformer Ordinance he acts upon information on oath : in the latter uponinformation which need not be on oath and after such inquiry as he thinksnecessary. The former Ordinance having prescribed that the informationshould be on oath does not insist on further inquiry for the simple reasonthat at an inquiry the information will be given on oath. Any evidenceon oath must comply with the rules of evidence. The important pointto remember is that in both cases it is the Magistrate who has to besatisfied, and while one may condemn a Magistrate who is too easilysatisfied I fail to see how it can be said that he was not satisfied and thatthe issue of the search warrant was illegal, so illegal as to make it of noeffect. In- the case of Dewasundera v. Sinnathane (supra) Akbar J. em-phasized what the Magistrate ought to have done but he did not proceedto acquit the accused purely on the ground of the search warrant beingillegal. He went on to consider other matters and ended by acquittingthe accused “ in the circumstances ”. The case is reported only asindicating what a Magistrate should do and not as an authority for theproposition that the obstruction was justified because the warrant wasillegally issued.
The case of Goonesekera v. Appuhamy *, relied upon by th'e Magistratedoes not deal, with the case of a search warrant and the facts of that caseare quite different.
All the Inspector had to prove was that he was acting in the lawfuldischarge of his duty and he did that when, he proved that a Magistrate,
} 31 N. L. B. 493.
» 37 N. L. R. 11.
S64
Mohamed Bhai v. Diyaiva.
the authority constituted by the Ordinance, issued a search warrant underwhich he was justified in acting as he did. It would be an extraordinarysituation if an Excise Inspector had to instruct a Magistrate as.to whathe should do or if he were to refuse to execute a search warrant becausehe believed it ought not to have been issued. It would also be strange ifan accused person who knew nothing of the alleged defects could obstructa public officer with criminal intent and then justify what he did byclaiming to be acting in the exercise of lawful rights.
Undoubtedly the subject must be protected against invasion of hishouse unlawfully, and clearly Inspectors and Magistrates must not beencouraged to act carelessly or arbitrarily but, equally, high-handedopposition to pubic – officers must not be condoned and technicality sostretched as to enable offenders to escape punishment.
.Now, in the case before us the Magistrate did have information uponoath and that information might raise a suspicion in his mind sufficientto justify him in issuing a search warrant. If the Excise Inspector onlyconveyed what another had told him the Magistrate would properlysatisfy himself about that information but here the Inspector went on tostate that he he'd verified the information and found it to be true. That isthe same as the Inspector speaking to facts within his own knowledge.He swore to these facts. Why should the Magistrate not be satisfied ?This bit of evidence has been overlooked by the Magistrate. It wasoverlooked by Counsel in this case, possibly because the Magistrate didnot send up the proceedings on which the search warrant had been issued.They had to be called for.
The very foundation of the acquittal therefore fails. But there is more.If the search warrant had been illegally issued and if resistance to it wouldbe justified on that ground then perhaps' the acquittal might stand, butthe evidence is that the accused did not resist search but invited itcoupling it with a threat. Having then accepted the legality of thesearch he should at least explain what made him change his mind andwhy without any intimation of a change of mind he should assault thesearching party.
The trial was abruptly stopped and it is undesirable to se.y more as thecase must go back for the trial to proceed.
The acquittal of the first acused is set aside and the Magistrate directedto proceed with the trial.
Sent back.