Inspector Of Police, Kalutara V. Arasecularatne Et Al.,

Present: Jayewardene A.J. 1923.

INSPECTOR OF POLICE, KALUTARA,
v.
 ARASECULARATNE et al.

407-P. C. Kalutara, 3,213.

Unlawful gaming-Prosecuting inspector refusing to disclose name of informant-Adverse inference drawn by Magistrate.

The information on which the search warrant under section 6 of the Gaming Ordinance, 1889, is issued forms part of the record of the case, and ought to be available to the defence, for, it is open to the accused persons to refer to the information on which the search warrant was issued, and contend that the information did not justify the issue of a warrant, and that the case against them should be treated as if the presumptions created by the entry under the warrant were non-existent.

The prosecuting inspector in- his evidence in cross-examination refused to disclose the name of the informant; and the Magistrate drew an adverse inference against the prosecution from the refusal.

Held, " If the informant to the police had not given any information to the Magistrate, or if counsel for the accused was referring to some other informant, then the witness would have been justified in refusing to give his name, and his refusal cannot be made the subject of adverse comment-legitimately-by counsel for the defence or of adverse inferences by the Judge."

" Though the section does not in express terms prohibit the witness, if he be willing, from saying whence he got his information, both the English authorities from which the rule is taken and a consideration of the foundation of the rule show that the protection should not be made to depend upon a claim of privilege being put forward, but that it is the duty of the Judge apart from objection taken to exclude the evidence. A fortiori if objection is taken, it cannot, since the law allows it, be made the ground of adverse inferences against the witness."

Weston v. Peary Mohun Das  [ 1 (1912) 40 Cal. 898, at p. 920.] followed.

THE facts are set out in the judgment.

Akbar, Acting S.-G. (with him Dias, C.C.), for the complainant appellant.

Hayley, for accused, respondents

August 28, 1923. JAYEWARDENE A.J.-

This is an appeal by the Solicitor-General against the acquittal of the seven respondents who, with two others, were charged with unlawful gaming under section 4 of the Gaming Ordinance of 1889.

The house of the first accused was entered under a search warrant duly issued under section 6 of the Ordinance, and on the occasion of the entry the respondents were found in a room playing a game

of cards called " bebi " for stakes. The first six respondents were arrested but the seventh and two others succeeded in running away. The strong presumption created by section 10 of the Ordinance that the accused were engaged in unlawful gaming applies to the Police, accused, but the Magistrate has found that in spite of the presumption arising under section 7 of the Ordinance he would not be justified in holding that the public had access to the house on the occasion of the gambling in question. It is not the policy of this Court to interfere lightly, with acquittals when they are based on questions of fact, but, after carefully considering all the evidence, I feel constrained to set aside the acquittals in this case, as it strikes me that the judgment of the Court has been affected by the wrong conclusions and inferences it has drawn from various irrelevant matters. In the course of his judgment the learned Magistrate says that the prosecution refused, and rightly refused (see Evidence Ordinance, section 125), to give the name of the informant, and that the defence rightly commented upon the refusal. The informant whose name was withheld was one of the persons on whose sworn statement the search warrant under section 6 was issued. The information on which the warrant was issued forms part of the record of the case, and is, or ought to be, available to th

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