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Present: Garvin J.
WEERAKOON v. FERNANDO.750—P. C. Kurunegala, 3,289.
Search warrant—-Execution without delay—Endorsement of da te—Meaningof the word “forthwith —Ordinance No. 17 of 1889. s. 7.
A search warrant issued under section . 7 of the Gaming Ordinancemust be executed forthwith, i.e., within a period reasonable underthe circumstances, and without any delay that can be reasonablyavoided.
It is not within the power of a Magistrate to attach a specialmeaning to the word “ forthwith ” by means of an endorsement-making the warrant returnable on a particular day.
Gunasekere v. Arsecularatne 1 not followed.
A PPEAL from a conviction by the Police Magistrate ofKurunegala.
H. T. Perera, for appellant.
IUangakoon, C.C., for the Crown.
February 15, 1928. Garvin J.—
This is an appeal by a number of persons who have been convictedof the offence of unlawful gaming. It is alleged that they werefound in certain premises which had been entered by the Police,who in making that entry purported to act under a search warrantissued by the Police Magistrate. It is urged that the evidence inthis case, regarded entirely apart from the special presumptionswhich the law permits the Court to draw in a case in which a commongaming place has been entered in pursuance of a search warrantunder section 7, does not establish as against each of these accusedthat they did such act or acts as would justify the inference that theyindividually were committing the offence of unlawful gaming.This contention, I think, must be admitted. But if the presump-tions to which I have referred can be called in aid, then it is equallyclear that the judgment of conviction entered in this case must besustained. It is urged, however, that in the circumstances of thiscase, these presumptions do not arise. In short, the contention ofCounsel is that this search was not effected “ forthwith ” as d:rectedin the warrant, and cannot therefore be regarded as an entryauthorized by a warrant issued under the provisions of section 7 of1 (1924) 26 N. L. R, 67.
the Gaming Ordinance. The warrant under which this entrypurports to have been made was issued on September 16. It isin all respects in accordance with the form A referred to in section 7,save only that there is entered in the margin the word “ returnable ”and underneath the date September 26, 1927. On the back of thewarrant there is an endorsement “ warrant not executed, beg foran extension till October 6,1927. ” This*endorsement is signed bythe Inspector of Police, to whom the warrant was issued, and isdated September 26,1927. This application was evidently granted,,for we find upon the face of the warrant the entry “ extended toOctober, .1927, ” signed by the Police Magistrate and dated Septem-ber 26,1927. A warrant issued by a Court ordinarily ceases to be of.force when it is executed or when the time fixed by the Court forits execution has elapsed or when it is cancelled by the Court. Thepractice of endorsing upon warrants issued under the provisionsof section 7 a date within which a return is to be made has doubtlesshad its origin in the practice which obtains in regard to otherwarrants issued under the provisions, of the Criminal -ProcedureCode. But a warrant issued under section 7 stands on a differentfooting, for the form prescribed by the law in which it is to be issuedexpressly states that the person to whom it is issued is “ authorizedand required forthwith to enter and search, Ac. ” There is ampleauthority for the proposition that the word “ forthwith ” should beordinarily construed as meaning as soon as is reasonably possibleor without any delay which can possibly be avoided. The policyand intention of the law as manifested in section 7 and the kindredsections of Ordinance No. 17 of 1889 is that a warrant should be onlyissued when the Court is satisfied that a place “ is kept or used as acommon gaming place ” and when issued must be acted on as soon asis reasonably possible. The authority is to enter forthwith a placebelieved to be kept or used as a common gaming place. It would 'be contrary to the policy and intention of the Legislature to permitsuch a warrant to be treated as an authority to enter a place atleisure, search it and all persons found there, and generally toexercise the large and inquisitorial powers conferrred therebybecause at the date of the issue of the warrant the place was believedto be a common gaming place. The whole character of the placemay have changed in the interval. It may have passed into theoccupation of others, who may at the time be using it in a perfectlylegitimate way.
Nor can this warrant be treated as a fresh warrant issued on thedate on which the Magistrate purported to “ extend ” it. On thatdate it was already ten days old, and no evidence was placed beforethe Magistrate to prove that the place was then being kept or used,as a common gaming place.
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Now, there is nothing in the circumstances of this case to showthat there was any reason why this warrant which was executedas far back as September 26,1927, should have been left unexecutedtill October 6. It is difficult under these circumstances to say thatthe warrant in this case has been executed “ forthwith In thecase of Ounaaekere' v. Arsekularatne1 the suggestion was made andaocepted that the act of the Magistrate in fixing a returnable datemust be regarded as an indication that it was the view of theMagistrate that if the warrant was executed within any time within-that period it must be taken to have been executed forthwith.I do not agree with, and am not prepared to follow, that ruling.In the first place, there is nothing in the endorsement making thewarrant returnable on a particular day to show that it was donedeliberately by the Police Magistrate with due regard to the pro-visions of seotion 7 and with the intention of giving a special inter-pretation to the word forthwith ”. In the next place, it is notwithin the power of the Magistrate to attach in advance by such anendorsement a special meaning to the word “ forthwith, ” i.e., withina period reasonable under the circumstances, but without any delaythat can possibly be avoided. * For these reasons* I think that inthis case the warrant cannot be regarded as executed forthwith.It must, therefore, be treated as a warrant that had expired, and theprosecution cannot claim the benefit of the special presumptionscreated by section 9.
The appeal is allowed and the accused acquitted.
[1924) 26 N. L. R. 67.
WEERAKOON v. FERNANDO