1949     Present: Cannon J.

POULIER v. ABEYGUNAWARDENE.

806-M. C. Galle, 23,242. 

Confession-Statement made to Assistant Government Agent-Accused brought in custody of Police-Confession inadmissible-Evidence Ordinance, ss. 26 and 167 (Cap. 11).

The accused was produced by an Inspector of Police before an Assistant Government Agent in his office. The latter sent the Inspector outside and asked one of the officers at the Kachcheri and another person to be present. The Assistant Government Agent then asked the accused if he wished to make a statement, pointing out that there was no need to make a statement and there was no offer, threat or inducement made to him. The accused then made a confession. The accused was thereupon handed back to the custody of the Police.

Held, that the confession was inadmissible under section 26 of the Evidence Ordinance.

APPEAL from a conviction by the Magistrate of Galle.

N. E. Weerasooria, K.C. (with him E. B. Wickramanayake), for accused, appellant.

E. H. T. Gunasekera, Crown Counsel, for the Attorney-General.

April 23, 1940. CANNON J.-

Section 26 of the Evidence Ordinance provides as follows:-"No confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against the person." In the case before the Court a confession of guilt (P 14) by the accused was admitted as evidence and he appeals under that section on the ground that the confession was made whilst he was in the custody of the Police. There was no Magistrate present acting as Magistrate and that point does not arise.

The first question then to consider was whether this accused was in the custody of the Police at the time he made his confession. Mr. Weera­sooria for the appellant has submitted that he was and it is a necessary submission, being the basis of the appeal, and Mr. Gunasekera for the Attorney-General contends that he was not. To decide whether he was in custody or not, one must look at the record. Two days before this submission was made, according to the evidence for the prosecution, the accused wrote a letter to the President of the Village Tribunal in which he admitted his guilt (P 3). The President's evidence at marginal page 12 of the record reads as follows : -

"The Government Agent questioned me about the defalcation. I showed him the letter P 3 and the other papers and explained to him what had happened. He took the papers into custody and asked the Galle Police through the Nagoda Police to take steps in the matter. "

The Government Agent's evidence at page 19 of the record reads : -

" I handed the file to Mr. Hingley, Assistant Government Agent The Police arrested the accused, and Mr. Hingley recorded the statement of the accused."

At page 22 of the record Mr. Hingley says this : -

" Mr. Rogerson held an inquiry into a suspected case of defalcation at the Nagoda Village Tribunal. This accused was produced before the same day by the Inspector of Police in my office. I sent the Inspector outside and I asked one of the