1951  Present : Dias S.P.J., Gunasekara J. and Pulle J.

RAJAPAKSE (Excise Inspector), Appellant and

FERNANDO, Respondent

S. C. 16-M. C. Kegalle, 29,444

Evidence-Prosecution for illicit sale of arrack-Evidence obtained in course of un lawful search--Admissibility of such evidence-Excise Ordinance, s. 36-  Evidence Ordinance, s. 100-Evidence of agent provocateur-Public policy.

Where in a prosecution under the Excise Ordinance, an excise officer tendered evidence which was discovered by him in the course of an illegal or irregular search-

Held, that such evidence was admissible. Murin Perera v. Wijesinghe : (1950) 51 N. L, R. 377, Andiris v. Wanasinghe (1950) 52 N. L. R. 83,- and David Appuhamy v. Weerasooriya (1950) 52 N. L. R. 87 over-ruled.

Held, further, (i) that the Evidence Ordinance is a Statute which consolidates and amends the law of evidence. Therefore, the Courts are precluded from refusing to admit admissible evidence on grounds of public policy.. The Courts are not empowered to invent a new head of public policy.

(ii) that while it may be undesirable that agents provocateur and others should tempt or abet persons to commit offences, it is not open to a Court to acquit an accused person, where the offence charged is proved, on the sole ground that such evidence was procured by unfair means. Such considerations: may affect the credit of the witness, but such evidence is not inadmissible and therefore, when the offence charged has been proved on such evidence it is the duty of the trial judge to convict.

(iii) that the practice, which appeared to be prevalent, of excise officers making raids and searches without obtaining a search warrant or complying with the provisions of section 36 of the Evidence Ordinance was open to severe censure.

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

This case was referred to a Bench of three Judges, under section 48 of the Courts Ordinance, at the instance of Nagalingam J.

T. S. Fernando, Crown Counsel, with H. A. Wijemanne, Crown Counsel, for the Attorney-General.--The accused was charged with un-lawfully selling arrack without a licence in breach of section 17 of the Excise Ordinance. The question for decision is whether evidence obtained illegally in the course of a raid carried out by an excise inspector is evidence upon which a- conviction could be based. In Murin Perera v. Wijesinghe 1[1950) 51 N. L. R. 377], Andiris v. Wanasinghe 2[(1950) 52 N. L. R. 83.], and David Appuhamy v. Weera sooriya 3[(1950) 52 N. L. R. 87.], Nagalingam J. took the view that where an unlawful entry into a dwelling house is made by an excise officer, evidence obtained in consequence of such entry is inadmissible. These cases are in conflict with Karalina v. Excise Inspector, Matara4[ (1950) 52 N. L. R. 89.] and earlier decisions.

In David Appuhamy v. Weerasooriya 1[ (1950) 52 N. L. R. 87.], Nagalingam J. referred to Zilva v. Sinno 2[(1914) 17 N. L .R. 473.]. That case is distinguishable. It was a case where the charge was one of obstruction of a public officer in the discharge of his duties, an offence under the Penal Code, and the question of lawful discharge of duties was one of the matters which the prosecution had to establish. The present question arose in Silva v. Hendrick Appu 3[(1917) 4 C. W. R. 232. ] but the judgment of Wood Renton C.J. shows that there was independent evidence of the illicit sale in that case. The question was considered by Jayawardene J. in Bandarawella v. Garolis Appu 4[(1926) 27 N. L. R 401.]. That judgment refers to an Indian case, Emperor v. Ravalu Kesigadu 5[(1902)I.L.R. Madras 124.]. In Murin Perera v. Wijesingihe 6[(1950)51 N.L .R. 3.77], Nagalingam J. refers to this Indian case and says that it has not the effect that Jayawardene J. gave it. Bandarawella v. Carolis 4 was followed by Garvin J. in S. 1 of Police, Mirigama, v. John Singho 7[ (1926)4 Ceylon Times L. R. 71