1931 Present: Drieberg J.

KING v. MANIKAM et al.

51-55-D. C. (Crim.) Jaffna, 3,565.

Search warrant-Powers of search under the Opium Ordinance-Implied repeal of powers under the Police Ordinance, No. 16 of 1865, s. 59.

The enactment in section 22 of the Opium Ordinance, allowing the search for opium, bhang, and ganja only to Police Magistrates and police officers of a certain rank and prescribing the time within which such entry can be made,' must be regarded as limiting the powers conferred by section 59 of the Police Ordinance.

APPEAL from a conviction by the District Judge of Jaffna.

H. V. Perera, for the accused, appellants.

Pulle, C.C., for the Crown, respondent.

July 31, 1931. DRIEBERG J.-

The first and second appellants were convicted under section 323 of the Penal Code of causing hurt to a public officer to deter him from doing his duty and under section 183 of obstructing a public officer in the discharge of his duty.

These offences are said to have been committed when the police were executing a warrant issued by the Police Magistrate for the search for ganja, bhang, and opium in " the house and premises of Manikam of Thavady, Kokuvil". After the evidence had been led of Inspector Stewart and Police Sergeant Amsa, Counsel for the appellants said that he accepted the facts as stated by Inspector Stewart and wished to discuss the Jaw on which he based his defence that the resistance was justified. The learned District Judge then noted that it was not necessary to record further evidence. The statements of the appellants and the evidence of the doctor were read and the case for the prosecution closed. This was not satisfactory, for Counsel for the defence said nothing about the evidence of Police Sergeant Amsa. Though the charge of obstruction or resistance could be decided solely on the question whether the warrant was good, other questions arise in connection with the offence under section 223 of the Penal Code in which the evidence of Police Sergeant Amsa is necessary. The defence must be regarded as having accepted the evidence of Police Sergeant Amsa as well.

It was contended for the prosecution that the search was justified apart from the warrant, that the Inspector had authority to enter and search the premises without a warrant under section 22 of the Opium Ordinance. No. 5 of 1910; but that only authorizes entry between sunrise and sunset and there is no evidence of when Inspector Stewart entered.

Mr. Pulle also relied on section 59 of the Police Ordinance, No. 16 of 1865, which gives a police officer the power to enter and inspect any part of premises in which he has reason to believe a crime has been committed. It was held by Phear C.J. and Clarence J. in Michael v. Janis Appu 1[(1879) 2 S.C.C. 42.] that power could be exercised under this section only where causes manifest themselves to a police officer under such circumstances of urgency that it would not be reasonable for him to delay the search of the house for the purpose of previously arming himself with the necessary magisterial authority. Even if this is not the intention of this provision, the enactment in the later Ordinance, section 22 of No. 5 of 1910 allowing the search for opium, bhang, or ganja only to Police Magistrates and police officers of a certain rank and prescribing the time within which such entry can be made, must be regarded as qualifying and limiting the powers conferred by section 59 of Ordinance No. 16 of 1865.

Two objections are taken to the warrant; one is that it is uncertain which house was to be searched as the warrant mentioned two villages, Travady and Kokuvil; the other objection is that as the warrant does not give the name of Manikam's father it is not clear on the face of it against whom it is directed.

In the note made by the Judge of Counsel's argument there is nothing about the first ground. In his judgment he says the contenti