1950 Present : Nagalingam J.

ANDIRIS, Appellant, and WANASINGHE (Excise Inspector),
Respondent

S. C. 999-M. C. Anuradhapura, 4,542

Excise Ordinance-Search without warrant-Non-compliance with provisions of Section 36-Inadmissibility of evidence thus obtained-Cap. 42, ss. 33, 34, 36.

Evidence obtained as a result of an illegal search in contravention of the provisions of section 36 of the Excise Ordinance cannot be availed of by the prosecution in order to sustain a charge of unlawful sale of arrack.

APPEAL from a judgment of the Magistrate's Court, Anuradhapura.

M. M. Kumarakulasingham, with C. Jayawickreme, for accused appellant.

A. Mahendrarajah, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

November 20, 1950. NAGALINGAM J.-

The appellant, a cook in what is described as a Railway Running" Bungalow at Anuradhapura, appeals from his conviction, under section. 43 (g) of the Excise Ordinance (Cap. 42) on a charge of his having sold arrack without a licence from the Government Agent.

A point of law is raised against the validity of the conviction. The facts, so far as they are relevant for the purpose of determining the question raised are: The Excise Inspector, on receipt of information from a person designated in the course of these proceedings as the bogus customer, that sale of arrack was taking place at the Railway Running Bungalow, made an entry in his notebook, entered the premises and took into custody certain bottles of arrack and glasses. It is urged that the entry of the Excise Inspector into the premises was unlawful and that any evidence obtained in consequence cannot be led in Court' so as to afford a foundation for the charge.

The Excise Inspector in giving evidence-in-chief did not testify to any circumstances establishing the legality of the entry into the premises. He spoke to the bare fact that he did enter the premises. The defence, however, pursued the question in cross examination and elicited the information that the Inspector had purported to act under section 36 of the Excise Ordinance by making an entry in his notebook before he set out from the station. Further interrogation revealed that the reason for his not having obtained a search warrant from the Court was that) " the bogus customer was in a hurry to get back to Trincomalee ".

Now, the question is whether the entry made by the Excise Inspector in his notebook in these circumstances afford a justification for his entry. Section 36 of the Ordinance requires that before an Excise Inspector can exercise the power vested in him under that section of entering and searching premises he, must record the grounds for his belief in regard

to two circumstances, (a) that an offence under section 43 or 44 has been, is being or is likely to be committed, (b) that a search warrant cannot be obtained without affording the offender an opportunity either (i) of escape or (ii) of concealing evidence of the offence. The fact that the bogus customer was in a hurry to get away from Anuradhapura cannot therefore be regarded as a factor that confers Oil an Excise Inspector the necessary authority entitling him to make an entry in his notebook in order to enter the premises is clear. The entry, therefore, of the Excise Inspector into the premises was unlawful and was not justified by the provisions of the law.

This leads to the main question in the case as to whether evidence obtained as a result of illegal entry into premises can be legitimately placed before Court and a conviction based upon such evidence. I have had occasion in the case of Murin Perera v. Wijesinghe1[(1950) 51 N. L. R. 377.] to express the view that evidence obtained in such circumstances is inadmissible and I have referred therein to the local cases where a contrary view had been taken. Learned Crown Counsel referred to two other cases as having been decided anterior to the first of these cases, namely, th