Simon Appuhamy V. The Queen

1961 Present: Sansoni, J., and T. S. Fernando, J.

SIMON APPUHAMY et al, Appellant, and
 THE QUEEN, Respondent

S. C . 59-60-D. C. (Crim.) Kegalle, 2820

Explosives Act-Section 25-Inspector of explosives-Power to search a house for explosives-Legal position of constables who accompany the inspector-Penal Code, ss. 32, 92 (2), 323, 324-Police Ordinance, s. 68-Criminal Procedure Code, s. 32.

Although a Sub-Inspector of Police, in his capacity as an inspector of explosives, is entitled under section 25 of the Explosives Act to enter and search a house for explosives, neither that Act nor section 68 of the Police Ordinance authorises him to take police constables to assist him in his entry and search. The constables who so assist him would not be acting in the discharge of their duty as public servants within the meaning of section 323 or section 324 of the Penal Code. However, if the Sub-Inspector is attacked by occupants of the house, the constables are entitled to arrest them under the powers arising from section 32 of the Criminal Procedure Code.

APPEAL from a judgment of the District Court, Kegalle.

                     Colvin R. de Silva, with K. Sivasubramaniam, for the Accused-Appellants.

                    Shiva Pasupati, Crown Counsel, for the Crown.

Cur. adv. vult.

November 2, 1961. SANSONI, J.-

The two accused in this case have been convicted of voluntarily causing grievous hurt to Sub-Inspector Fernando, a public servant, while in the discharge of his duty, an offence punishable under section 324 read with section 32 of the Penal Code. They have also been convicted of voluntarily causing hurt to the Sub-Inspector and to police constables Gajanayake, Rajapakse and Peter while in the discharge of their duty as public servants, offences punishable under section 323 read with section 32 of the Penal Code.

The case for the prosecution was that at 9.25 a.m. on the day in question one Noris Singho informed S. I. Fernando that he had a short while previously been to the boutique of the 1st accused, where he heard the 1st accused asking another man to take away some hand bombs. The information, which was recorded by S. I. Fernando, was also to the effect that if the Police were to go there immediately the bombs could be

detected. Accordingly S. I. Fernando went to the 1st accused's boutique along with police constables Gajanayake, Rajapakse and Peter in a jeep, reaching the boutique at 9.45 a.m. The 1st accused was said to be sitting at a counter when Fernando went inside and explained the purpose of his visit and the information he had received. According to Fernando, the 1st accused consented to his searching the boutique, and he accordingly ordered the three constables to search it, while Fernando stood near the counter.

Fernando said that the 1st accused then stretched his arm and tried to take a cardboard box which was on the counter; he held the 1st accused's hand to prevent him touching the box. At that stage he was hit on his head by the 2nd accused, who is a son of the 1st accused, with a club. The medical evidence showed that this blow caused a fracture. Fernando lost his grip on the 1st accused as a result of the blow. Gajanayake and Rajapakse came up to the 2nd accused and tried to disarm him. The 1st accused then hit Gajanayake on his head, and when Fernando seized the 1st accused the latter bit him on his forearms. Peter then struck the 1st accused who bit Peter and hit him with a club, while the 2nd accused hit Rajapakse with a club. The accused are said to have run away at this stage and the Police party returned to Alawwa Police Station, with the cardboard box. It had four hand-made bombs in it. The medical evidence shows that the three constables and both accused had also received injuries.

The 1st accused in giving evidence said that he was standing outside the entrance to the boutique when the Sub-Inspector came with

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