Buhagiar J:

The facts and arguments appear sufficiently from

This is an appeal by the Public Prosecutor against the decision of the learned President of the Sessions Court acquitting and discharging the respondent on two charges for offences under s. 62 of the Post Office Ordinance, 1947 (No. 34 of 1947).

For the purposes of this appeal it is sufficient if I summarize the facts as follows:

The respondent is an officer of the Postal Services Department, that is, a packer.In September 1953 the Assistant Controller of Posts, Perak, received two written complaints about two registered letters not having been delivered.On receipt of these two complaints he started making certain inquiries.On the 7 October 1953, he sent for the respondent who came to his office at about 11 a.m. The respondent made a statement.Evidence was given to show the circumstances under which this statement was made.After this statement was made the Assistant Controller of Posts, Perak, proposed to make a report to the Police and at 2 p.m. went with the respondent to the Central Police Station; there he was referred to Inspector Petrus, whom he contacted at 3.30 p.m. and to whom he explained the whole matter, made a report, and handed the respondent.Inspector Petrus interrogated the respondent and at about 4 p.m. took him to see Captain Salleh, the Magistrate, who was then sitting in Court.Inspector Petrus saw the Magistrate at about 4.40 p.m. he told him that the respondent wanted to make a confession and left the respondent with the Magistrate.The Magistrate recorded a statement made by the respondent under s. 115 of the Criminal Procedure Code.

At the trial the prosecution did not at once tender the alleged confession made to the Magistrate and asked the Court, under s. 80 of the Evidence Ordinance, 1950, to apply the presumptions contained in that section; instead the prosecution produced the Magistrate as a witness to give evidence as to what he had recorded in the way of a confession.Counsel for the respondent objected to the admissibility of the statements made to the Assistant Controller of Posts, Perak, and to the Magistrate, and after hearing the evidence the learned President held both those statements were inadmissible.The learned President was not satisfied with the other evidence adduced by the prosecution and acquitted and discharged the respondent.

From this decision the Public Prosecutor appealed on the following grounds: -

(a) That the learned President was in error in holding that the evidence of Prosecution Witness No. 1 (the Magistrate) shewed that the statement was not "duly made by the Respondent;

(b) That the learned President was in error in holding that s. 80 of the Evidence Ordinance did not apply to this case;

(c) That the learned President should have held that the alleged Irregularity in conforming to s. 115(iii) of the Criminal Procedure Code was not a ground for excluding the statement in view of s. 420 of the Criminal Procedure Codes.

The learned President declined to admit the statement made by the respondent to the Magistrate on the following grounds as he gave them in his grounds of judgment:

In the result I declined to admit under s. 80 Evidence Ordinance the statement recorded by the Magistrate as I could not consider it had been recorded "in accordance with law": and having taken evidence under s. 420 Criminal Procedure Code I was not satisfied that the statement recorded had been "duly made" by the accused.In my opinion the effect of the inducement offered in the morning by PW2 bad not been shown to have been removed by the late afternoon: and finally the method of recording the statement in the late afternoon was defective and prejudicial to accused.

The relevant provisions of law for consideration are ss. 115 and 420 of the Criminal Procedure Code and ss. 80 and 24 Of the Evidence Ordinance, 1950 (No. II Of 1950).

The presumption under s. 80 of the Evidence Ordinance, 1950, arises when "a statement or confession