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BANDARAWELLA v. CAROLIS APPU
NLR27V401
1926 Present:
Jayewardene A. J.
BANDARAWELLA .v. CAROLIS APPU.
78-P. C. Badulla-Haldummulla, 19,311.
Excise
Ordinance-Search by Inspector without warrant-Failure to note grounds of
belief-Ordinance No. 8 of 1912, s. 36.
Where an Excise Inspector, who had not complied with the requirements of section
36 of the Excise Ordinance, in effecting a search without a warrant, was allowed
to enter a house without hindrance.
Held, that the evidence obtained under such entry was admissible.
APPEAL
from a conviction by the Police Magistrate of
Badulla-Haldummulla. The accused was convicted under section 43 (a) of Excise
Ordinance of being in possession of fermented toddy beyond the prescribed
quantity. The evidence for the prosecution consisted of that of the Excise
Inspector who entered and searched the house of the accused without a warrant
and found the toddy. It was admitted that the Inspector had not in effecting
the search complied with the
requirement of section 36 of the Ordinance in recording his grounds of belief as
to the necessity of a search. The learned Police Magistrate held that the entry
was regularly made.
Rajapakse, for accused, appellant.
J. E. M. Obeyesekere, C. C, for complainant, respondent.
March 31, 1926. JAYEWARDENE A.J.-
In this case the appeal is founded on an objection to the admissibility of
the evidence on which the conviction is based. The accused has been convicted of
being in possession of fermented toddy over the prescribed quantity, an offence
punishable under section 43 (a) of the Excise Ordinance, 1912. The evidence for
the prosecution consisted of that of the Excise Inspector who stated that he
entered and searched the house of the accused and found the toddy referred to in
the plaint. The search, it was alleged, was under section 36 of the Excise
Ordinance, which empowers an Excise Officer who has reason to believe that an
offence under section 43 or 44 of the Excise Ordinance has been, is being, or is
likely to be committed, and that a search warrant cannot be obtained without
affording the offender an opportunity of escape or of concealing evidence of the
offence after recording the grounds of his belief to enter and search any place,
&c. It was contended in the Court below, and it is contended before me, that the
entry and search cannot be regarded as made under that section, because the
Inspector had not complied with its requirements. The learned Magistrate held
that the search was regularly made. In view however, of the admission of the
Inspector, that he had not recorded " the grounds of his belief," I do not think
that the entry can be regarded as one under section 36. The recording of " the
grounds of his belief " is a condition precedent to the exercise of the right of
entry and search conferred by that section: Zilva v. Sinno.1 I would, therefore,
hold that the requirements of section 36 have not been complied with, and the
entry cannot be justified under that section. Then the question arises whether
the evidence obtained by such an entry is admissible in law. The object of
section 36 is to give Excise Officers power to enter and search houses without a
warrant in circumstances of urgency. It protects them against resistance and
obstruction in so doing if they comply with its requirements. If an officer
enters without such compliance and is resisted or obstructed, he is without
remedy as his entry is illegal, but if he is allowed to enter and search without
objection can it be said that his evidence of what he heard, saw, or,
found is admissible ? Section 36
itself does not exclude evidence obtained under such circumstances, and I know
of no provision of the law requiring its exclusion. A similar objection was
taken in Silva v. Hendrick Appu,1 but the point was not decided as there was
other evidence to support the conviction, and Wood Renton C. J. said : " I am
clearly of opinion, however,
