Present; Schneider J. ♦
WEERAKOON v. CUMABA ei nl.[
225—P. C. Nutoara Bliya, 5,593.
Unlawful gaming—Issue of search warrant—No -proof that plate teasused as a common gaming place—Presumption 'as to guilt of personfound in premises—Warrant to search one placi—Search ofanother place.
Where a search warrant was, issued without proof that the.premises in ' question were being • used as a common, gaming place,that is, a place to .wbich the public have access,-—
Held, that the presumption created by. section, $ of the. GamingOrdinance, 1889, of the guilt of the persons found,.in the premisesdoes not arise.
|J1 HE facts appear from the judgment.
A. St. V. J aye wardens, K-C. (with him Sunderam), for appellants. .May 25 , 1922. SchkexOkb J.
In this case fourteen persons.were charged With.having committedunlawful gaming by playing a game of cards, jtad thereby of havingcommitted an offence punishable under section 4 of the GainingOrdinance of 1889. It would appear that information was placedbefore the Police Magistrate by a police -constable to the effect thatgambling was going on in certain1 premises described as those of.William Perera of Queen's Cottage, that he saw a large number ofpeople seated round and heard bets being made, that these peoplewere playing cards for money, and that one man in a coat was seen tobe collecting thone. Upon these materials the constable made anapplication for a search warrant, which application was granted forthe search of the “housepremises of William .Perera, the
bungalow-keeper of Queen's Cottage." Under the authority of thiswarrant a Police Inspector and three police officers proceeded toQueen’s Cottage grounds and there arrested the fourteen persons,who were subsequently charged in this case. William Perera, theperson whose house and premises were to be searched, has givenevidence for – the defence. He says that he is in occupation, of ahouse consisting of three rooms in Queen's, Cottage grounds, .andthat the gambling had taken place in a. room which yras next to’ theroom occupied by the assistant bungalow-keeper, whose room wasbetween Perera's room and the room in which the gambling wastdnng place. Upon this evidence it is quite obvious that the entry
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of the place where the gambling was taking place was not under theOrdinance, because it wee hot an entry of the premises authorizedto be searched by the warrant which had been issued by»|he Magis-trate. There is another .reason '"why the presumption Rising, underthe Ordinance that the place raided was a common gaining placedoes hot arise in this case. It is this. The1 search warrant was
issued under the provisions of section 7 of the Ordinance. Thatsection requires that the Magistrate Should be *' satisfied that thereis good reason to believe that any, place is kept or used as a gamingplace." Now, the Ordinance defines a common gaming place asmeaning a place, kept or used for betting, or- the playing of games forstake, and J^'3*hich the public have access with or without payment.There.: is:: nothing in the information on oath given by the police,consltfi^le befo^ ;the j98ue of the search warrant which could havesatisfied the Magistrate that the premises of William Perera werebeing used ;asu 'common gaming place, that is, a place to which thepublic ha^'access. It would, therefore, seem that the search warrantcannot, v.b'e^fcegarded as having been rightly issued under the pro-visions of section 7, and, therefore, the presumption created bysection 9 of the Ordinance of guilt of persons found in such aplace does hot' arise in the circumstances of this case. But thelearned Magistrate appears to have considered that the evidence .atthe trial established the fact that-the room. in; which-, the gamblerswere found was- a odmmon gaming place. He * appears to .havethought this because he says that seven Outside persons were'amongst those who were charged in the case, and also from, theevidence' of the police constable that thone was .being collected frompersons who were in that room, It. seems to.,me that the evidencein the case fails to prove that the public had access to the placewhere the gambling took place.-: Itlis a room within the grounds ofQueen’s Cottage, and the evidence led on behalf of the prosecution1 proved that people of libe status of those who had been charged^inthis case have no right *of . access to those grounds, and that if found,there without any lawful excuse were liable to be prosecuted fortrespass, whatever that may mean, and that the two entrances areguarded by .police constables, who are stationed there constantly.The first accused, who gave evidence, sai(l. that of the fourteenpersons accused, seven were servants of' the establishment of His .Excellency the Governor, that three, were friends .of those sevenservants, ' that one wap a servant who had been employed inQueen’s Cottage before that date. As-.- regards the other three, hesaid that one was a trader from Batticaloa, and two others wereservants employed in Nuwara Eliya town. Upon these facts itseems to me that, the inference cannot legitimately be drawn thatthe public had access to the spot where the gambling was takingplace. In fact, if any inference may be drawn from these facts, it isthat the public did not have any access. The failure on the part of
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the prosecution to prove that the placewasa common gaming placeis fatal to the conviction, because gambling is not unlawful, unless ittakes, place in a common gaming place. I, therefore, set aside theconvictioon for the reasons given byme. .
For the same reasons, acting in revision, I would set aside theconviction of the fifth, eleventh, thirteenth, . and fourteenth accused,■who have not appealed. The fourth accused has been aqquitted.
The productions 'which have been confiscated, upon the order of theMagistrate should, I think, be restored to the owners thereof.
WEERAKOON v. CUMARA et al