[IN REVISION]

1933 Present: de Silva A.J.

COSTA v. PEIRIS.

P. C. Chilaw, 38,040.

Search warrant-Order respecting property seized-Powers of Police Magistrate-Right to restore property to person from whom it is taken -Criminal Procedure Code, ss. 413 and 419.

Under section 419 of the Criminal Procedure Code a Police Magistrate has power to order property seized on a search warrant to be restored to the person from whom it was taken. Before exercising his discretion under the section the Magistrate is bound to give notice to the adverse party.

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

Hayley, K.C. (with him Ranawake and R. H. E. de Silva), for the applicant.

H. V. Perera, for the respondent.

Cur. adv. vult.

May 22, 1933. DE SILVA A.J.-

On October 26, 1932, the complainant charged the accused with criminal misappropriation of certain property which included an iron safe said to contain about Rs. 1,300 in cash. On October 29, a search warrant was issued by the learned Police Magistrate of Chilaw directing a search for the property in the house of the accused. On October 31, a return was made and among the things produced was a sum of Rs. 3,230.92, the greater part, if not all of which, was found in the safe. Inquiry into the case was fixed for November 19, 1932. On November 1, the proctor for the accused moved that a sum of Rs. 1,300 be kept in Court and that the balance of the money produced be returned to the accused. The application was supported by an affidavit by the accused in which he claimed the entire sum of Rs. 3,230.92. The learned Magistrate without notice to the complainant allowed the accused to remove a sum of Rs. 1,500 of the money in Court on the accused giving a personal bond in Rs. 3,000 for its return if called upon so to do. The complainant moves in revision that the order of the learned Magistrate be set aside and that the accused be directed to bring back the money into Court.

It is argued for the complainant that the learned Magistrate had no power to make the order in question, and, even if he had the power, that the order should not have been made.

It is necessary to examine the powers of a Police Magistrate in respect of articles seized on a search warrant. Chapter 6 of the Criminal Procedure Code deals with process to compel the production of documents and other movable property, and part B (sections 68 to 71) of that chapter relates to search warrants. Sections 68 to 70 provide for the issue of search warrants and section 71 prescribes the procedure

for the production in Court of things seized. There is no section either in part B or in the rest of the chapter providing for the disposal of the articles so seized. The "disposal of property the subject of offences" is provided for in chapter 40.

It is argued for the complainant that section 413 of chapter 40 is the only section under which the Magistrate could shave acted, and that he had no power to act under the section till the trial was concluded. The section provides for the disposal of property (a) at the conclusion of the trial, (b) in respect of property produced before it, and (c) on the Court being satisfied that an offence has been committed regarding such property or that the property has been used for the commission of an offence. All these conditions must be satisfied before action can be taken under the section. Property seized on a search warrant may not conform to one or more of such conditions.

It is necessary that a Court issuing a search warrant should have a power of disposal over all the articles produced in Court, whether or not the conditions I have referred to are satisfied. Some articles produced may be utterly unnecessary for the proceedings. Unless it is altogether impossible, a view of the law ought to be taken giving a Court such a power. The only section on which such a power can be founded is section 419 and I w