1929. Present : Lyall Grant J.

HOLSINGER v. JOSEPH.

563- P. C. Colombo, 3,493.

Excise Ordinance-Charge- of possessing ganja-Tin of legium found in premises of accused-Sealing of tin after seizure-Production in evidence.

Where in a search under the Excise Ordinance, a tin of legium alleged to contain ganja was found in the premises of the accused by an Excise Inspector, who removed the tin to the Police Station and had it sealed, before it was sent to the Public Analyst for examination,- ,

Held, that it was duty of the Excise Inspector to have the tin sealed in the presence of the accused immediately after seizure.

APPEAL from a conviction by the Police Magistrate of Colombo

Talaiasingham, for appellant.

September 27, 1929. LYALL GRANT J.-

The accused in this case was convicted of selling an excisable article, ganja, in breach of section 17 of the Excise Ordinance, No. 8 of 1912, read with Excise Notification No. 46 published in the Ceylon Government Gazette No. 6,712 of May, 1915, and also of at the same-time and place possessing an excisable article, to wit, ganja, in breach of section 16 of the said Ordinance read with Notification No. 26 published in the Ceylon Government Gazette No. 6,606 of February, 1914, and of thereby having committed offences punishable under section 43 (h) and 43 (a) of the Excise Ordinance, No. 8 of 1912.

The case for the prosecution was that on the Excise Inspector receiving information that ganja was being sold in a certain street he sent a person with a marked 25 cents coin to buy ganja from the place to be pointed out. When the Excise Inspector followed, the decoy gave him legium wrapped in a plantain leaf and told him that the accused had sold it to "him. The Inspector goes on to say .that he searched and found a tin containing legium under the counter and he found the 25. cents in the accused's money drawer. The accused was a boutique-keeper, and the legium was sent to the Government Analyst and found to contain ganja. The decoy was also called but denied the whole story. The Excise guard was called and corroborated the Inspector's evidence. The accused was convicted and fined Rs. 150 or in default to undergo 6 weeks' rigorous imprisonment.

Objection has been taken that the procedure adopted by the 1929. Excise Inspector is wrong inasmuch as he entered and searched the boutique and arrested the accused illegally. It is urged that . the powers of search and of arrest were given to him under section 36 of the Excise Ordinance, and that section 36 only conferred those Joseph powers on an officer who had previously recorded the grounds of his belief that an offence had been committed before proceeding to make the search, seizure, and arrest. In this case the Excise Inspector has admitted that he made the entry in his book after the arrest and that he had no search warrant. In Zilva v. Sinno [1 17 N.L.R. 473.] it was held by a Bench of two Judges that the powers of an Excise Inspector to search a house for excisable articles is dependent upon his having made a record of the grounds of his belief as to the necessity of a search, as is provided by section 36 of the Ordinance.

The circumstances of that case were that the Excise Inspector was obstructed and a prosecution was brought for obstruction, and the decision was that the obstruction was not an offence because the act of search was not an official act. It seems to me that the remark made by Mr. Justice Pereira in that case are applicable to this case. Mr. Justice Pereira says that " Crown Counsel argued that under section 114 of the Evidence Ordinance the Court should presume that such a record was made, because that section enacts that the Court may presume that judicial and official acts have been regularly performed. This, if I might say so, is tantamount to begging the question. It assumes that the act of search was an official act. It does not become so unt