034-NLR-NLR-V-03-KEEGEL-v.-JAMES-APPU-et-al.pdf
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1897.
November 26.
KEEGEL v. JAMES APPU el al.P. C., Matara, 699.
Gaming—Keeping a common gaming place—Presumption under s. 10 ojOrdinance No. 17 of 1889—Entry under the Ordinance—Searchwarrant issued on insufficient material.
The presumption under section 10 of Ordinance No. 17 of 1889 asto a place being a common gaming place arises only when suchplace is entered under the Ordinance. An entry by a personarmed with a warrant issued by a Police Magistrate, withoutsufficient material to justify such issue, is not an entry under theOrdinance.
^JpHE facts of the case sufficiently appear in the judgment.
Dornhorst, for appellant.
Templet, C.C., for respondent.
25th November, 1897. Lawrie, A.C.J.—
The first accused, James Appu, has been convicted of keeping acommon gaming place and has been sentenced to six months’rigorous imprisonment and to pay a fine of Rs. 100. The otheraccused have been convicted of unlawful gaming and have beensentenced each to a fine of Rs. 25, in default one month’s rigorousimprisonment. Their appeal succeeds on a point of law.
In my opinion there is no evidence that James Appu’s housewas kept by him as a common gaming place. The convictionrests on the presumption created by the lGth section. Was thenthis house of James Appu entered in conformity with the provi- ,sions of Ordinance No. 17 of 1889 ? I think it was not, becausethe Magistrate could lawfully issue the warrant A only on beingsatisfied upon written information on oath and after such furtherinquiry as he might think necessary that there was good reason tobelieve that the place was used as a common gaming place.
The warrant must proceed on some testimony which there isgood reason to believe. Some of the respectable inhabitants ofCeylon habitually play whist, but the issue by a Magistrate of awarrant to search their houses, and proof that there were foundin their houses packs of cards, would not give rise to the presumptionthat their houses were common gaming places.
Turning to the affidavit of the sergeant of police on which thewarrant issued, it is clear that there were not before the Magis-trate materials from which he could believe that the house of
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James Appu was a common gaming place. The sergeant said in theaffidavit that he was credibly informed, but of what faots, or bywhom informed, he does not say. What he says he heard was that“ seven men named are using or keeping as a common gaming“ place by the above-named person, and pray for warrant to search" the said houses and premises of the said above-named persons,”&c.
In my opinion this was unintelligible, and it was insufficient.The fact proved was that the police officer went to Jame3 Appu’shouse and found him and others playing a game for a stake andwere betting, but they had right to do that in a private house;and until it was proved that James Appu’s house was a commongaming house, those who played there were innocent of any offenceagainst the law.
The interference of the police with people in their private housesseems to me altogether intolerable aud unwarranted by the Ordi-nance.
I set aside and acquit them all.
♦
1897.
November 25,
La.warn,A.O.J.