050-NLR-NLR-V-57-A.-S.-SILVA-et-al-Appellant-and-L.B.-WARNASURIYA-Respondent.pdf
1955Present : Gunasekara, J.
A. S. SILVA el al., Appellants, and L. B. WARNASURIYA, Respondent.S'. C. 337-338—31. C. Colombo, JS.032/B
Bcttiny on Horsc-mctnj Ordinance (Cap. -JO)—Section 3A (!) (b), read with ■?. 1C—'‘Occupier”,'
In a prosecution of two or more persons for iiiil.iuJ'iil betting in Preach ofsection 3A (!) (i), read with section 1 0, of the licit ii)g on Korsc-racing Ordinancetho fact that one of tho accused was “ working ” in tho premises where thohotting took place, without any evidence us to llio nature of his work, doesnot necessarily mean that ho was an “ occupier” of tho premises .within thomeaning of that expression in section 2 of tho Ordinance.
PPEAL from a judgment of the ^Magistrate’s Court, Colombo.
Colvin /?. de Silva, with A. IF. If. Guneicarilene, for accused-appellant.
H. C. Jayatileke, Crown Counsel, for the Attorney-General.
Cur. ado. unit. ;
January 17, 1955. Gunaskraea, J.—.
TIicsc are appeals from a conviction of the two appellants on a chargelaid against them jointly of an offence punishable under section 10 ofthe Betting on Horse-racing Ordinance (Gap. 36).
The- charge alleges .that they committed a breach of section 3A (1){b) of the Ordinance in that they did “ on 9.1.54. being the occupier ofpremises No.. 556, Dematagoda Road, Dematagoda, use the said premisesfor the purpose of unlawful betting on Horse Races to be run or proposedto be. run at the Boosa Race Course on 9th January, 1954”. It alsocites section 16 of the Ordinance, which is in these terms :
Where any premises are entered under the authority of a searchwarrant issued by a Magistrate under section 15 (1) upon the Magistratebeing satisfied that there is reason to suspect that an ofTence againstsection 3 (3) or section 3A is being or has been committed in thosepremises, then,—
(«) if any instrument of unlawful betting is found in those premises' or upon any person found therein, or
if persons are seen or heard to escajje therefrom on the approachor entry of any person authorised under such warrant to enterand search such premises, or
(r.) if any person so aut horised is unlawfully prevented or obstructedor delayed in entering or approaching such premises—'
it shall be presumed, until the contrary is proved, that such premisesare kept, or used for the purpose of unlawful betting on a horse-raceand arc so kept or used by the occupier thereof. ”
The conviction of c-aeh of the appellants is based upon a finding that beis an occupier of the premises, that facts giving rise to the presumptioncreated by this section have been proved and that the presumption hasnot been rebutted.
It has been proved by uneontradicted evidence which has been acceptedi»y the learned magistrate that shortly after 10.30 a.m., on the 9thJanuary, 1954, a parts- of police officers entered these? premises underthe authority of a search warrant such as is referred to in section 16,that on their entry about four men were seen to run out- of the premisesand that the police officers found in the premises and upon three personswho were there various documents and other things which the learnedmagistrate holds are instruments of unlawful betting. There is noground for disturbing these findings, and they lead to the presumptionthat the premises were kept or used for the purpose of unlawful bettingon a horse-race and were so kept or used by their occupier.
It has also been proved, by evidence that has not been contradictedor even challenged in cross-examination, that the 1st appellant Sangadasawas in occupation of the premises on the day in question, having takenthem on rent from their owner some 4 or 5 years-previously, and hada shop there in which he was carrying on a business in electrical goods.In terms of section 2 of the Ordinance, “ ‘ occupier ’, in relation to any
promises, includes any person having the use temporarily or otherwiseof the premises and any agent of any such person It has been clearlyproved that the 1st ai»pellant was an occupier of the premises, for heundoubtedly had the use of them, at the material time.
The learned magistrate’s conclusion that the 2nd appellant too wasan occupier is based entirely upon a finding that he “ works at No. 55Gand he was in fact present during the raid This finding is supportedby the evidence but is insufficient, in my opinion, to justify the conclusionthat the 2nd appellant was an occupier of the premises. The magistratecites the definition of “ occupier, ” implying that the fact of tho 2ndappellant's working in the premises proves that he had the use of themor that he was an agent of the 1st appellant. While there is evidencefrom a prosecution witness that the 2nd appellant “ works ” in the 1stappellant’s shop that is housed in these premises there is no evidence(and, of course, no finding) as to the nature of his work. In the absenceof such evidence it does not seem to be possible to say that he was the1st appellant’s agent for any purjjose or even that he had the use of thepremises. I am unable to accept a contention of the learned crowncounsel that working in the shop would necessarily involve a use of thepremises; for there can be work, such as sweeping the premises orguarding them, that does not necessarily imply a use of the premises.
Evidence was given by a police officer to the cfFect- that at the timeof the raid the 2nd appellant was seated at a table upon which and inthe drawers of which some of the “instruments of unlawful betting”were found ; and by a man whom the police had employed as a decoyon this occasion that he had on previous occasions (though not on this)placed bets with each of the appellants in these premises. The learnedcrown counsel sought to rely on this evidence for an argument in supportof the conviction of the appellants. It is not necessary to discuss theargument, however, for the learned magistrate lias based no findingon this evidence and it does not appear from his judgment that any partof it has been accepted by him. Indeed he has expressly left the decoy’sevidence out- of consideration as evidence thatdocs not touch the ease ”.
The evidence that has been accepted by the learned magistrate isinsufficient to prove that the second appellant was an occupier, and theconviction of this appellant, which depends solely on this finding, musttherefore be set aside.
It is contended for the appellants that although they are accused ofjointly committing the same offence section 16 of the Ordinance docsnot provide for a presumption that the offence was committed jointlyby all the occupiers of the premises, and it is argued that therefore theconviction of the 1st appellant too must be set-aside. The effect ofthe construction of section 16 that is contended for by learned counselfor the appellants would, as I understand it, be that the prosecutioncould rely on the presumption for proof that the offence described in thecharge was committed by each occupier of the premises but not for proofthat it was committed by all of them jointly. A failure to provo thatthe offence was committed by the 1st appellant jointly with the 2nd,however, is not necessarily fatal to the coilvictiou of the 1st, for the only
effect of the' accusation that they jointly committed the same offenceis that they could, in terms of section 184 of the Criminal ProcedureCode, bo charged and tried together or separately as the trial courtthought lit. What gives the court this discretion is the fact that theaccusation is made and not proof of its truth. In my opinion there isno justification for an order cpiashing the trial of the 1st appellant on theground that the magistrate has erred in the exercise of his discretion totry the two appellants jointly or separately. Indeed no applicationwas made to him for separate trials.
No evidence was called on behalf of the defence. According to thecase for the prosecution the 1st appellant was not present in the shopat the time of the raid. The learned magistrate has considered thequestion whether this circumstance is sufficient to rebut the presumptionthat the offence charged was committed by the 1st appellant, and I amunable to say that his finding on this question is wrong.
I dismiss the appeal of the 1st appellant Sangadasa, and I set aside theconviction of the 2nd appellant Prcmaratnc- and the sentence passed onhim and I acquit him.
Appeal of 1st Appellant dismissed. '
Appeal of 2nd Appellant allowed.