Thurairatnam V. Mohideen Pichai

1938   Present : de Kretser J.

THURAIRATNAM v. MOHIDEEN PICHAI.

 144-P. C. Kalmunai, 22,360.

Search warrant-Affidavit by Excise Inspector-Credible information-Magistrate's authority to issue search warrant-Ordinance No. 17 of 1929. s. 73 (1)-Excise Ordinance, No. 8 of 1912, s. 35.

Where an Excise Inspector swore an affidavit that he had received credible information that a person was in unlawful possession of ganja and that he had verified the information and found it to be true,-

Held, that the affidavit contained sufficient material for the issue of a search warrant under section 73 (1) of Ordinance No. 17 of 1929.

Under section 73 (1) of Ordinance No. 17 of 1929 the Magistrate must be satisfied by information on oath that there is reason to suspect ; under section 35 of the Excise Ordinance he must have reason to believe after inquiry.

In both cases the information should furnish facts which should lead the Magistrate to find that a prima facie case exists for the issue of  a search warrant.

APPEAL from an acquittal by the Police Magistrate of Kalmunai.

E. H. T. Gunasekera, C. C, for complainant, appellant.

C. T. Olagasegram, for accused, respondent.

May 26, 1938. DE KRETSER J.-

An Excise Inspector swore an affidavit that he had received credible information that the man who is now the first accused was in possession of Ceylon-grown ganja in his house, and that he had verified the information and found it to be true.

He moved for and obtained a search warrant, which was made returnable on October 18, 1937.

The warrant was on a printed form and stated as follows : -

" Whereas information has been laid before me, and on due inquiry thereon I have been led to believe, &c."

Armed with this warrant the Inspector went to the house of the person named in the warrant on October 11, 1937, and found him at home. He demanded if the Inspector had a search warrant and the Inspector showed him the warrant and explained its purport. The accused told him he could search but if he failed to find ganja he would not let the Inspector get out.

Accordingly the Inspector's party began to search, the accused himself opening a box. Whilst a headman was searching this box the accused struck the headman's hand and asked the party to " clear out", and when the Inspector did not go the accused struck at him and later at an Excise guard who came up. The Excise party then attempted to search the accused's son's house and were resisted. The Inspector then charged four persons with obstructing him, a public servant, in the discharge of his duties, and with assault and criminal force, the charges being laid under sections 183, 186, and 344 of the Penal Code.

The learned Magistrate acquitted the accused at the conclusion of the Excise Inspector's evidence-in-chief on the ground that the search warrant had been irregularly issued, that the entry of the son's boutique was illegal, and there was a misjoinder of charges.

The Attorney-General appeals from the acquittal of the first accused, i.e., the person against whom the search warrant had been issued.

The question of misjoinder need not be considered seriously and was hardly referred to during the argument. The Magistrate seems to have forgotten that he was responsible for the framing of the charges, and if he found that he had made a mistake the remedy was quite simple.

The illegality of the entry into the son's boutique is not questioned. There remains only the case of the first accused.

The Magistrate thought that before the search warrant was issued the Magistrate who did issue it should have examined the person who gave information to the Inspector, The Inspector says he had the informant ready but the Magistrate did not call for him. The Magistrate says that the Inspector grossly failed in his duty because he did not request the Magistrate to record that evidence. I see no justification for this

stricture.

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