Schokman V. Sirisena Et Al.,

1944 Present: de Kretser J.

SCHOKMAN, Appellant, and SIRISENA et al. Respondents.

639-M. C. Anuradhapura, 10,520.

Search warrant-Written, information upon which the warrant issued-Deposition of witnesses-Evidence read over and explained-Gaming Ordinance, s. 5.

Where the written information upon which a search warrant was issued under section 5 of the Gaming Ordinance consisted of the depositions of witnesses which were signed by them and were read over and explained to them by the Magistrate.

Held, there was a sufficient compliance with the requirements of the section in order to raise a presumption of guilt.

APPEAL from an acquittal by the Magistrate of Anuradhapura.

J. Mervyn Fonseka, K.C., Solicitor-General, with E. H. T, Gunesekera, Crown Counsel, for the appellant.

L. A. Rajapakse, K.C. (with P. Navaratnarajah), for respondents.

Cur. adv. vult.

December 1, 1944. DE KRETSER J.-

Fourteen persons were charged with unlawful gaming. They had been arrested when a place was searched under a search warrant. The Magistrate held that the search warrant had" not been issued in the conditions mentioned in section 5 (formerly section 7) of the Gaming Ordinance. He found two of these persons guilty and acquitted the others. The appeals of the persons found guilty have been dismissed. The complainant appeals from the acquittal with the sanction of the Attorney-General. The learned Solicitor-General contended on his behalf that the cases relied on by the Magistrate do not apply in the circumstances of the case. He rather hinted that those decisions might well be reviewed. I was inclined to send this appeal before a fuller Bench but Mr. Rajapakse for the respondents strongly urged that I should not follow that course unless it were really needed.

Section 7 of the Gaming Ordinance raises a presumption of guilt and, as remarked by Bertram C.J. in Police Sergeant, Tangalla V. Porthenis 1[22 N. L. R. 163.] " the result of the issue of a search warrant is so drastic, that this Court

has come to the conclusion that special care should be taken to see that all the conditions attaching to the issue of a warrant are fully complied with ".

In a long series of cases, of which the one just referred to is only one, " the Courts have declared that the Magistrate must be satisfied upon sufficient prima facie evidence. It is not enough that general evidence should be given him that the informant has reason to believe that gaming is going on upon the premises ". The evidence must satisfy the Magistrate that there is good reason to believe that the place is kept or used as a common gaming place.

Up to the date of that case the written information referred to in section 5 had been in the form of an affidavit. The question considered always was the sufficiency of the evidence before the Magistrate.

A new matter, however, came up for consideration before Lyall Grant J. in Parson v. Kandiah 1[ (29 N. L. R. 94).]. There a, witness was taken before a Magistrate, who recorded his evidence on oath. The witness did not sign the deposition nor was there anything to show that his deposition had been read and explained to him. Lyall Grant J. said " No doubt it would have been sufficient if the information, which was given on affirmation, had been read over and explained to the informant and signed by him ". As there was no evidence this had been done he refused to draw the presumption created by section 7.

This case lays emphasis not on the information being insufficient but on the fact that the information was not " written information ".

The same question came up before Drieberg J. in Sub-Inspector of Police v. Jacolis Peiris2[ (30 N. L. R. 509).]. There the supporting witness put his mark to his deposition and his mark had been attested by the Magistrate. The written information had come in the form of an affidavit by a Police Sergeant. Drieberg J. considered the materi

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