068-NLR-NLR-V-62-WIBERT-Appellant-and-VANDEN-DRIESEN-Inspector-of-Police-Crimes-Responden.pdf
WEERASOORIYA, J.—Wilbert v. Vanden Driesen
381
Present: Weerasooriya, J.WILBERT, Appellant, and VANDEN DRIESEN (Inspector of Police,
Crimes), Respondent
S. C. 575—J. M. C. Colombo, 16,097
Evidence—Confession made to an officer of the Customs—Admissibility—CustomsOrdinance, s. 158 (1)—Evidence Ordinance, ss. 17 (j^J, 25 {1).
An officer of the Customs is not a police officer within the,meaning of section25 of the Evidence Ordinance. In a prosecution, therefore, for an offencepunishable under section 158 (1) of the Customs Ordinance, a confession madeby tho accused person to on assistant preventive officer of the Customs isadmissible in evidence.
A
IlPPEAL from a judgment of the Joint Magistrate’s Court, Colombo.
S. Sharvananda, for the Accused-Appellant.
R.Abeyesuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 30, 1960. Weerasooriya, J.—
The accused-appellant was charged with the commission of an offencepunishable under Section 158 (1) of the Customs Ordinance in that hedid have in his possession on the 29th March, 1959, a 12-volt motor carbattery bearing No. E.N.E.O. 57/206E valued atRs. 175/-, being propertyreasonably suspected to have been stolen from a ship, boat, quay, wharfor warehouse in the Port of Colombo. After trial he was convicted ofthis offence and sentenced to three months’ rigorous imprisonment.
The evidence shows that the accused was driving a motor car whichcame out of the Delft Quay when it was halted by the Customs autho-rities at one of the exit gates and searched. Inside the bonnet wasfound the battery which forms the subject matter of the charge. Ithas been conclusively established that the battery came from one ofsix new lorries which had been unloaded from a ship on to the DelftQuay on tho day of the aLleged offence.
Tho accused was taken before an assistant preventive officer of theCustoms to whom he made a statement which the prosecution producedat the trial through the officer who recorded it. Tho evidence of theofficer that the accused made such a statement to him has been acceptedby the Magistrate. In this statement the accused claimed to be theowner of the battery, that he had got it “ rebuilt ” and intended to re-charge and use it as an extra battery. At the trial, however, he gave
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WEERASOORIYA, J.—Wilbert v. Vanden Driesen
evidence denying that he made such a statement. His defence was thathe was a supplier of meals to ships calling at the Port of Colombo, thaton the 29th March, 1959, he went to the Delft Quay in his car in orderto ascertain whether a particular ship which he was expecting had arrived,and that when leaving the Quay his car was halted at the gate andsearched and the battery, which he saw for the first time, was foundinside the bonnet. He disclaimed all knowledge as to how the batterycame to be there.
It seems to me that this defence was rightly rejected by the Magistrate,particularly in view of the accused’s statement to the assistant preventiveofficer. But Mr. Sharvananda for the accused took objection to thatstatement on the ground that it amounted to a confession and wasmade to a “ police officer ” within the meaning of that term in Section.25 (1) of the Evidence Ordinance.
There is nothing in the proceedings to show what the duties of anassistant preventive officer are, but on an examination of the CustomsOrdinance it would appear that he has certain limited powers of stoppingvessels or vehicles and searching them for smuggled goods and ofarresting or searching persons suspected of being concerned in the com-mission of offences against the Customs Ordinance. I do not think thatmerely because he is vested with these powers he can be regarded as a
police officer” for the purposes of Section 25 (1) of the EvidenceOrdinance. No express authority was cited by Mr. Sharvananda for thesubmission that an assistant preventive officer of the Customs shouldbe so regarded. As observed by Fisher, C.J., in Rose v Fernando,1the ** established practice of the Courts based on the opinion of manylearned Judges has been to construe the section (Section 25 as it then was)as applying to statements made to those who are authorised to exercisepowers which constitute them police officers in all but in name, suchpersons for instance, as Police Headmen, who are directly authorisedand required to concern themselves with the same range of crimesas that with which the police force themselves are concerned.” Inthat case, which is a decision of a Divisional Bench of this Court, anExcise Inspector was held not to be a police officer within the meaningof Section 25 of the Evidence Ordinance even though in respect of offencesunder the Excise Ordinance he i3 vested with certain powers correspond-ing to those of a police officer.
It was after this decision that the Legislature took action to amendSection 25 of the Evidence Ordinance by the addition of the presentsub-section (2) which provides that no confession made to a forest officerwith respect to an act made punishable under the Forest Ordinance,or to an excise officer with respect to an act made punishable under theExcise Ordinance shall be proved as against any person making suchconfession. In consequence of this amendment the position with regardto a confession to an excise officer has changed from that stated in
1 (1927) 29 JV. L. JR. 46.
H. N. G. FERNANDO, J.—Perera v. Chairman, Urban Council, Dehiwela- 383
All. Lavinia
Rose v. Fernando {supra), but the ratio decidendi of that case wouldapply to the question whether an officer of the Customs is a ‘‘policeofficer’* for the purposes of Section 25 (1) of the Evidence Ordinance.That question I would, therefore, answer in the negative. In viewof this answer it is unnecessary to decide the further point whether thestatement made by the accused to the assistant preventive officer amountsto a confession as defined in Section 17 (2) of the Evidence Ordinance.Even if the statement amounts to a confession the reception of it inevidence is not contrary to the provisions of Section 25 (1) of theEvidence Ordinance.
The conviction of the accused and the sentence passed on him areaffirmed and the appeal is dismissed.
Appeal dismissed.