024-NLR-NLR-V-53-WILLIAM-et-al.-Petitioners-and-WEERAKOON-Inspector-of-Police-Respondent.pdf
GRATIAEN JWilliam v. Weerakoon
141
1951Present : Gratiaen J.
WILXiIAM et al., Petitioners, and WEERAKOON (Inspector of Police),
Respondent
S. C. 255—Application in revision in M. C. Kurunegala, 1,351
Unlawful gaming—Search warrant—Presumption that a place is a common gamingplace—Quantum of evidence necessary to bring such presumption intooperation—Oaming Ordinance {Cap. 88), ss. 6, 7 and 8.
A Court should not draw the presumptions sanctioned by Sections 7 and 8of the Gaming Ordinance when suspected premises have been raided on theauthority of a search warrant under Section 5 unless the evidence led at thetrial proves that the strict requirements of Section 5 had been duly compliedwith before the warrant issued.
per Gbatiabk J.—“ It is not legitimate to assume that a search warrant-had been regularly issued upon proper material, and to proceed from a presump-tion of regularity to apply the further statutory presumptions which the GamingOrdinance creates under Sections 7 and 8 ”,
T
HIS was an application to revise a judgment of the Magistrate’sCourt, Kurunegala.
H. V. Perera, K.G., with S. Saravanamuttu and S. Sharvananda forthe petitioners.
V. G. B. Perera, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
October 9, 1951. Gbatiaen J.—
The petitioners have been convicted of offences of unlawful gainingpunishable under Section 2 of the Gaining Ordinance. It is commonground that on December 28, 1950, they were playing a card gamecalled “ Baby ” for stakes at an institution known as the “ Rock ViewClub” in Kurunegala. This place was raided by Police InspectorWeerakoon on the authority of a search warrant purporting to havebeen issued earlier in the day by the Magistrate in terms of Section 5of the Ordinance. – It is not denied that the accused were engaged inplaying “ Baby ” for stakes at the time of the raid. Their guilt thereforedepends on whether the learned Magistrate was justified' in holding upon{he evidence that the so-called Club was on this occasion a “ commongaming place-” within the meaning of the Ordinance.
The evidence led at the trial against the petitioners was admittedlyinsufficient by itself to establish that the Club was a common gainingplace. In that state .of things; the convictions could only be justifiedif the statutory presumption created by the Ordinance applies to. thecase.
The search warrant upon the authority of which the inspector raidedthe premises was produced at the trial, but it seems to me that beforea Court can decide that the presumption created by section 7 applied.
142
BASNAYAKE J.—Kulanthavelu v- Muthuxamy Aiyar
the preliminary proceedings leading up to the issue of the warrant shouldalso have been produced and scrutinised. Section 7 gives rise to a pre-sumption that a place is a common gaming place only if it has been " enteredunder the Ordinance ”—i.e., if the strict requirements of section 5 havebeen duly complied with. I do not regard it as legitimate for a Courtto assume that the search warrant had been regularly issued upon propermaterial, and to proceed from a presumption of regularity to applythe further statutory presumptions which the Ordinance creates underSections 7 and 8. The learned Magistrate states in his judgment thatthe validity of the search warrant was not questioned by the defencein the lower Court. That might well be so, but this circumstance didnot absolve the prosecution from its obligation to lead such evidenceas was sufficient to bring the presumption, if relied on, into operation.I therefore quash the convictions and make order acquitting thepetitioners.
Application allowed.