016-NLR-NLR-V-52-DAVID-APPUHAMY-Appellant-and-WEERASOORIYA-Excise-Inspector-Respondent.pdf
A950Present : Nagalingam J.DAVID APPUHAMY. Appellant, and WEERASOORIYA(Excise Inspector), Respondent
S. C. 1104—ill. O. Matale, 15,611
-Excise Ordinance—Charge of possessing excisable article—Evidence of entry intodwelling house—Onus on prosecution to prove that such entry teas lawful—-Cap. 42, Section 36.
The accused – was convicted of possessing an excisable article, namely,fermented toddy in excess of the prescribed quantity. The Excise Inspectordid not give evidence of any facts showing that his entry into the dwellinghouse of the accused was lawful.*
Held, that in the absence of positive evidence that the search by the ExciseInspector was lawful, the conviction could not be sustained.
^^PPEAD from a judgment of the Magistrate’s Court, Matale.
T. B. Dissanayake, for accused appellant.
C. M. Ameer, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 30, 1950. Nagalingam J.—
The 2nd accused appeals from his conviction for having possessed anexcisable article, namely, fermented toddy in excess of the prescribed-quantity ; he has been sentenced to a term of three months’ rigorous,imprisonment. Several points were urged at the hearing of the appealbut as one of the points is decisive I shall deal with that only. Thepoint is that the conviction is based upon evidence which has beenobtained illegally.*
…b
The Excise Inspector did not give evidence of any facts showing thathis entry into the dwelling house of the accused person was lawful. Undercross-examination he admitted that he did not obtain a warrant. Nofurther evidence was given by the Excise Inspector suggesting that hehad complied with any provision of the law which would have enabledhim to have made a search without having in his possession a warrant.
The question whether evidence should be placed before a Court-establishing that the search was lawful came up for consideration beforea Bench of two Judges in the case of Zilwa v. Sinno In that case too,there was no evidence one way or the other as to the making of therecord by an Excise Inspector as required by section 36 of the ExciseOrdinance. The accused in that case was acquitted on the sole groundthat there was no evidence of the legality of the entry into the premises,of the accused. Pereira J. observed as follows :
“ It is that record (under section 36) that vests in an Excise Officerthe authority to search. Until he makes it he has no more authorityin that direction than any ordinary individual. I think that in everycase of search by an Excise Inspector compliance by him with therequirements of section 36 should be affirmatively established by himby evidence. ”
This case, then, is an authority for two propositions, (1) that there mustbe positive evidence placed before the Court that the search by theExcise Officer was lawful, and (2) in the absence of such evidence theconviction cannot be sustained. I have not been referred to any casein which this view has been doubted or dissented from.
The question, then, arises; how is it that no attempt is in fact madein Excise cases now to justify the lawfulness of the entry upon premisesfor the purpose of making search. I think the answer to that is furnishedby the case of JBa.ndaraioela v. Carolis Appu2 where the view was takenthat evidence obtained as a result of illegal entry into premises waslegally admissible and could form the foundation for basing a conviction.Once this principle wa's accepted, then it became immaterial whetherthere was evidence of the lawfulness of the entry or not.
In the case of Andiris v. Wanasinghe, Excise Inspector3 I have hadoccasion to consider whether a conviction could properly be based uponevidence illegally obtained, and I have ventured to express the view thatsuch a conviction cannot be upheld. If the true position is that evidence
(1974) 77 X. L. R. 473.*2 [1926) 27 N. L. R. 401.
3 [I960) 52 X. L. R. 83.
illegally obtained cannot be availed of by tbe prosecution, tben it followsthat the authority of the two-Judge case already referred to remainsunimpaired.
Tn this view of the matter, the evidence led against the appellantconsisting entirely of facts gleaned as a result of a search not shown tobe lawful cannot form the basis of a conviction. I therefore set asidethe conviction and acquit the accused. X find that the 1st accused hasalso been convicted upon similai^ evidence and, acting in revision, I setaside the conviction of the 1st accused as well.'
Appeal allowed.