017-NLR-NLR-V-52-KARALINA-Appellant-and-EXCISE-INSPECTOR-MATARA-Respondent.pdf
1950Present : Gratiaen J.
KARALINA, Appellant, and EXCISE INSPECTOR, MATARA,
Respondent
S. G. 995—M. G. Matara, 19,479
Excise Ordinance—Search without warrant—Admissibility of evidence thus obtained—Cap. 42, section 3G.
Evidence obtained without the authority of a search warrant and in contra-vention of the provisions of section 86 of the Excise Ordinance is not inadmissiblefor the purpose of securing a conviction under the Excise Ordinance.
A PPEAL from a judgment of the Magistrate’s Court, Matara.
Vernon Wijetunge, for accused appellant.•
E. H. G. Jayetilelce, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 4, 1950. Gratiaex J.—
This is an appeal against a conviction under the Excise Ordinance.According to the evidence of Inspector Weerasinghe, whose veracity wasnot challenged by the defence, the. accused’s house was raided in herpresence by a party of excise officers. In the .kitchen they found aquantity of toddy which admittedly was far in excess of the amountpermitted by law, and in the absence of some satisfactory explanationfrom the accused who was the chief occupant of the premises, the commis-sion by her of an offence punishable under section 43 (a) of the Ordinancewas clearly established.
The conviction has been attacked on the ground that the Inspector’s•evidence is legally inadmissible because the facts to which he testifieswere discovered on an occasion when the accused’s premises had been
illegally raided without the authority of a search warrant and in contra-vention of the provisions of section 36 of the Excise Ordinance. I shallassume—although I do not hold—that the raid was not authorized by law*but I really do not see how, in the present case, this circumstance canvitiate the conviction.
There is no provision in the Evidence Ordinance which renders a rele-vant fact (such as the detection of an offence) inadmissible merely becausethe fact has been discovered in the course of an illegal search, and asfar as offences punishable under the "Excise Ordinance are concerned,there is no other express statutory prohibition against the admission ofsuch evidence. An abuse of official,, power may, of course, expose theoffender to a claim for damages, to certain penal consequences, and, Xtrust, to stern disciplinary action; moreover in an appropriate case itwould doubtless justify a Court of Law in viewing the evidence tenderedwith suspicion. But I do not see how, in the present state of the law,x-elevant evidence can be ruled out ab initio on the ground that it was-obtained by improper means. This has been laid down in a long line ofdecisions of this Court. In Bandaratvela v. Garolis Appu1, JayewardeneA.J. held that there was no rule of law requiring the rejection of suchevidence. In S. I. Mirigama v. John Singhoz and in Silva v. Menihrala3Garvin J. held that “ evidence which is legally admissible does notcease to be admissible merely because that evidence was discovered by anExcise Officer who did not comply with the requirements of section 36-of the Ordinance when searching premises without a warrant ”. InAlmeida v. Maidalihamy'1, Lyall-Grant J. took the same view, and so-did Drieberg J. in Attorney-General v. Hartheivyeh5. These decisions were-recently followed by Basnayake J. in Peter Singho v. Inspector of Police,V eyangoda6.
The fallacy in the appellant’s submission seems to lie in some confusionbetween the admissibility of the evidence tendered and the weight whichshould be attached to such evidence when its accuracy is disputed-Mr. Wijetunge claims that the decision in Murin Perera v. Wijesinghe7supports his contention. I do not agree. As I understand the judgmentin that case, the conviction was quashed by my brother Nagalingam on aquestion of fact, and in assessing the evidence for the prosecution, thelearned Judge very properly, if I may say so, took into consideration,apart from other circumstances, the fact that in his opinion the raidconducted by certain Excise officers was in contravention of section 36.It is correct that Xagalingam J. considered that the soundness of the-views laid in three of the cases which I have cited “ may have to be re–considered in an appropriate case. ” I do not understand his judgmentto suggest, however, that the earlier rulings of this Court should not beregarded as binding authority unless they are over-ruled or set at noughtby legislation.'
I have not been able to discover any decisions of the English eourts-expressly touching this question but I find that in Scotland the Court.
1926) 27 N. L. JR. 401.f4 (1929) 7 Times 54.
(1926) 4 Times 71.6 (1932) 1 G. L. W. 280.
(1950) 51 N. L. R. 377.
(1928) 9 Law Recorder 7S.6 (1949) 42 C. L. W. 15.
•of Sessions (Vide Lawrie v. Muir, ■53 Journal of Criminal Law 81) adopted“the view that “ an irregularity in the obtaining of evidence does notnecessarily make that evidence inadmissible Lord Cooper said ‘ theJaw must strive to reconcile two highly important interests which areliable to come into conflict—-(a) the interest of the citizen to be protectedfrom illegal or irregular invasions of his liberties by the authorities, and (b)the interest of the State to secure that evidence bearing upon the commis-sion of crime and necessary to enable justice to be done shall not be■withheld from Courts of law on any formal cir technical ground”. The fulltext of the judgment is not available to me, but the Scottish Courts nowseem to favour the admission of evidence, however improperly obtainedin cases of serious crime, and its rejection in eases of minor statutoryoffences. (Vide also Me Govern v. King’s Advocate, 55 Journal of CriminalLaw 303). However that may be, it is important to remember that in-this country questions affecting the admissibility of evidence are regulatedby statute, and that it is for the legislature alone to decide whether inthe interests of the community the admissibility of evidence improperlyobtained shoidd be curtailed.How the problem should be solved, it
is not for me to determine. ‘‘ On the one side ”, said Mr. Justice Cardozoof America, “ is the social need that crime should be suppressed. Onthe other, the social need that law shall not be flouted by the insolence ofoffice. There are danigers in any choice ”. {People v. Before 242 NewYork Reports 13).
In regard to the present appeal the evidence of the prosecuting officeris clearly admissible, and as it has not been challenged as untrue or un-reliable the allegedly illegal entry and search have no bearing on the ease-J dismiss the appeal.
Appeal dismissed.