Wilbert V. Vanden Driesen

1960 Present : Weerasooriya, J.

WILBERT, Appellant, and VANDEN DRIESEN (Inspector of Police,
Crimes) Respondent

S. C. 575-J. M. O. Colombo, 16,097
 

Evidence-Confession made to an officer of the customs-Admissibility-customs Ordinance, s. 158 (I)-Evidence Ordinance, S8. 17 (2), 25 (1).

An officer of the Customs is not a police officer within the meaning of section 26 of the Evidence Ordinance. In a prosecution, therefore, for an offence punishable under section 158 (1) of the Customs Ordinance. a confession made by the accused person to au assistant preventive officer of the customs is admissible in evidence.

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

S. Sharvananda, for the Accused-Appellant.

R. Abeyesuriya, Crown Counsel, for the Attorney-General.

cur. adv. vult.

August 30, 1960. WEERASOORIYA, J.

The accused-appellant was charged with the commission of an offence punishable under Section 158 (1) of the Customs Ordinance in that he did have in his possession on the 29th March, 1959, a 12- volt motor car battery bearing No. E.N.F.O. 57 j206E valued at Rs. 175 j-, being property reasonably suspected to have been stolen from a ship, boat, quay, wharf or warehouse in the Port of Colombo. After trial he was convicted of this offence and sentenced to three months' rigorous imprisonment.

The evidence shows that the accused was driving a motor car which came out of the Delft Quay when it was halted by the Customs authorities at one of the exit gates and searched. Inside the bonnet was found the battery which forms the subject matter of the charge. It has been conclusively established that the battery came from one of six new lorries which had been unloaded from a ship on to the Delft Quay on the day of the alleged offence.

The accused was taken before an assistant preventive officer of the Customs to whom he made a statement which the prosecution produced at the trial through the officer who recorded it. The evidence of the officer that the accused made such a statement to him has been accepted by the Magistrate. In this statement the accused claimed to be the owner of the battery, that he had got it "rebuilt" and intended to recharge and use it as an extra battery. At the trial, however, he gave

evidence denying that he made such a statement. His defence was that he was a supplier of meals to ships calling at the Port of Colombo, that on the 29th March, 1959, he went to the Delft Quay in his car in order to ascertain whether a particular ship which he was expecting had arrived, and that when leaving the Quay his car was halted at the gate and searched and the battery, which he saw for the first time, was found inside the bonnet. He disclaimed all knowledge as to how the battery came to be there.

It seems to me that this defence was rightly rejected by the Magistrate, particularly in view of the accused's statement to the assistant preventive officer. But Mr. Sharvananda for the accused took objection to that statement on the ground that it amounted to a confession and was made to a "police officer" within the meaning of that term in Section 25 (1) of the Evidence Ordinance.

There is nothing in the proceedings to show what the duties of an assistant preventive officer are, but on an examination of the Customs Ordinance it would appear that he has certain limited power of stopping vessels or vehicles and searching them for smuggled goods and of arresting or searching persons suspected of being concerned in the commission of offences against the Customs Ordinance. I do not think that merely because he is vested with these powers he can be regarded as a "police officer" for the purposes of Section 25 (1) of the Evidence Ordinance. No express authority was cited by Mr. Sharvananda for the submission that an assistant preventive officer of the Customs should be so regarded. As observed by Fisher, C.J., in Rose v Fernando, [1

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