Chettiar, N.R.M. V. Darley Butler & Co

1932 Present : Akbar J.

N. R. M. CHETTIAR v. DARLEY, BUTLER & CO.

In revision, P. C. Colombo, 39,029 and 39,030.

Search warrant-Powers of Police Magistrate to issue for investigation of offence-Prima facie proof of offence-Criminal Procedure Code, s. 68.

The powers of a Police Magistrate to issue a search warrant for the investigation of an offence can be exercised only when the offence has been disclosed prima facie by legal evidence on record.

APPLICATION to revise an order made by the Police Magistrate of Colombo.

The petitioner indented for 2,800 bags of rice of the value of Rs. 22,450 from respondents, Darley, Butler & Co., " on a promissory note of 12th April, 1932. on the usual 45 days' credit, " and "bills of lading were handed to petitioner to enable him to take possession". Meanwhile respondent learned that petitioner had decamped and that his firm was in a bad way financially. Respondent sought to obtain recovery of the rice by a search warrant, duly issued by the Police Magistrate.

In P. C. 39,030 respondent deposed to criminal breach of trust by petitioner in that latter had been given a number of bags of rice for storage as respondent's agent. Part of the contract was that petitioner was to pay Customs and other landing dues, which the petitioner was at liberty to recover from respondent subsequently.

H. V. Per era (with him Canakeratne and Nadarajah.), for petitioner.-

There is insufficient material to authorize a search warrant in any circumstances; search-warrant mode of process is incidental to a criminal trial; a search warrant cannot be given to enable persons to recover movables in possession of another.

The form of warrant is questionable, see Criminal Procedure Code, section 413. The law does not authorize a person to go into a Police Court and get a search warrant on an ex parte application. Complainant swears to certain facts in Police Court, a good deal of which is hearsay. After conviction, Police Magistrate has right to deal with productions as he thinks fit. Custody is always temporary, pending investigation of some matter as to whom property is to go (Silva v. Hamid [1 20 N. L . R. 414. ] ). Police Magistrate cannot take ownership from one man and give it to another. His jurisdiction is normally criminal; any other jurisdiction is under section 413, of Criminal Procedure Code. Only other jurisdiction, not coming under section 413, is to restore the status quo. The evidence led also shows a civil liability on a promissory note. It is for Police Magistrate to judge whether there has been cheating prior to transaction re movables ; in such case there must be the elements of cheating. A Court has no right to act on hearsay evidence even in an ex parte , application {Police Sergeant, Tangalla v. Porthenis [2 22 N. L. R. 163.] ).

The law applicable is same as in 39,029. There is hearsay evidence here also. Customs dues and landing charges were paid by petitioner. The guarantee broker was in fact agent between respondent and petitioner. Petitioner submits there was a bona fide sale of rice bags.

The matter reached finality in the Police Court when Police Magistrate made order and proctor made his statement. No complaint under section 148 at all. Complaint must be on oath and signed: section 149. Section 150 requires writing. If section 68 applies it does so only with regard to something required for investigation ; here the rice has no bearing on the case. The section applies where thing itself is evidence. The function of Police Magistrate is to find if an offence has been committed. This follows logically from section 66, as it deals primarily with documents. Section 70 applies to a place used for keeping stolen property. No order under section 70 can be made unless Police Magistrate has certain evidence before him.

A search warrant is permissable only when a thing cannot and will not be produced

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