095-NLR-NLR-V-57-MIHINDUKULASURIYAAppellant-and-L.-DAVID-S.-I.-Police-Respondent.pdf
3S2SAN'.SON'T, J.—yilhiiuhikuhtsiiriyn > Pnrid
1956Present : Sansoni, J.
MmiNDUKULASURlVA, Appellant, and L. DAVID (S. I. Police),
Respondent-
C. 1,471—M. ( Mntam, 41,R!H
llrttintj on Horse lindiuj Orilinmu-c (Cop. 36), a.t tunnuJrrl hp Ordinetnre -Vo. iin of.JfU-t—Hrosccntioi* ihcreuntlrr—Quantum of critlrnce— ” Instruments of tin-
htttfttl he It nC] *'—Sections 2, i (3), lit, 17—Snrspnprrs— Hr r</r,if iurtf Cuter oftheir contmts—Evidence Ordinance, s.S/.
The accused was charged with unlawful betting on u horse rare in breach ofsection 4 (3) of the Hotting on Horse Racing Ordinance. Jt was jiroved by thejtrosccul ion that a police oflicer arrested the accused and on searching himfound betting slips ami copies of three different newspapers each of whichcontained the race programme in Colombo for the day in question.
Held, that, although section SI of the Kvidence Ordinance created no pre-sumption that tbo contents of a newspaper or journal are true, the fact of publi-cation of tlio race programme containing the names of the horses mentionedin the Ijcl-ting slips could be considered in interpreting whether the betting slipswere records of unlawful betting on a horse race within the meaning of thedefinition of “instruments of unlawful belling ” in scetion 2 of the Hotting onHorse llncing Ordinance.
from a judgment of the Magistrate’s Court, Mntara.
Vernon Wijel tinge., for the accused appellant.
J)agn Pcrera, Crown Counsel, for the Af Inrnev-Cenornl.
Car. adv. vult.
February 27, 10.7G. Sansoxi. J.—
The accused-appellant was charged with having committed the olTenceof unlawful betting on a horse race in breach of s. 3 (3) of the Bettingon Horso Racing Ordinance (Cap. 3G), an offence punishable unders. 10 of the Ordinance. The prosecution evidence, which the learnedMagistrate accepted, showed that Sub-Inspector Abrahams, on receipt ofcertain information, noted down his reasons as to why a search warrantcould not be obtained to search a certain garage in Matara. He thenwent with some other Police officers in a Land Rover which was stoppedopposite the garage in question. Wien lie got down from it the- accusedrail away from tho garage. The Sub-Inspector arrested him and onsearching him found two betting slips, a cojiy of the “ Times of Ceylon ”containing the Colombo race programme for the day in question, a copy of“ Amps Sports News " and a copy of the “ Sporting News ”, both ofwhich contained the same race programme. Tho two betting slips had thenames of horses which, according to the published race programme, weredue to run in the Colombo races to be held on that clay, and the detailson those slips indicated that those horses had been backed for Wins andPlaces.
The accused gave evidence and called a witness in an attempt toshow that no such documents were found on him, but his Counsel didnot challenge the Magistrate’s findings of fact.
It- was urged, however, that the evidence led for the prosecution did notestablish that the horse races, in respect of which the accused was chargedwith unlawful betting, were in fact run or proposed to be run on that day.It was argued that, as tho only evidence which the Magistrate had beforehim on this point were the newspapers I have rcfcired to, there was noproof of an essential ingredient of the offence.
The question whether the production of a newspaper containing a raceprogramme is sufficient to prove that the particular races mentioned inthat programme were races which were proposed to be run was consideredbv Socrtsz, J., in Iyer v. Knrinierotne1. The learned Judge held thatthe production of “ The Racing Guide Sporting Xews ” which had beenregistered as a newspaper established a prima facie case that the racesappearing in its race programme were races proposed to be run. Heapplied the presumption which was said to arise under s. SI of the EvidenceOrdinance. Xow that Section requires the Court to presume the genuine-ness of every document purporting to be a newspaper or journal. Inother words, the newspaper or journal is admissible in evidence withoutformal proof. There is no presumption that the contents of the nows-paper or journal arc true, for, as l’forde, J., said in Baica Sarup Singh v.The. Crown “ the paper itself is not proof of its contents. 1't wouldmerely amount to an anonymous statement”.
Since the case of 1 per o. Karunarulne was decided, however, the Ordi-nance has been amended in certain respects by Ordinance Xo. 55 of 1943,and among other changes a new s. 17 has been added. That Sectionprovides that any person who is found in possession of an instrument ofunlawful betting on the occasion of his being searched under the Ordinanceshall be presumed, until the contrary is proved, to be guilty of tbc offenceof unlawful betting on a horse race. On the evidence of the prosecutionwitnesses tho accused, who was proved to be a person who had beensearched under the Ordinance, was clearly a person against whom thispresumption could be drawn if the hotting slips in question wereinstruments of unlawful betting
When we turn to s. 2 of the Ordinance, as amended, wo find that expres-sion defined as meaning :
“ any article or thing used or intended to be used as a subject ormeans of unlawful betting on a horse-rac-c, or any document used orintended to be used as a register or record or evidence of any unlawfulbetting on a horse-race. ”
The .Sub-Inspector in his evidence explained what tho betting slipsmeant, and on that evidence the learned Magistrate was entitled to holdthat those slips were documents used or intended to bo used as a record orevidence of unlawful betting. Tho prosecution had, liowovcr, to provethat such betting was on a horse-race. It sought to prove that by tho' (1011) 21 C.L. If. 123.- A.I.H. {1025) Lahore 200.
production of the three newspapers, all of them containing the racepromammo for .the day in question. The fact of publication of theracenrom-amme containing the names of the horses mentioned m the bettmgllins must bo considered in interpreting what those bettmg slips meant.The only possible interpretation, I think, is that those betting slips wererecords of unlawful betting on horse races. The use of the newspaper* forthis purpose docs not depend on the contents of the newspapers in regardto the race programme being true. One is entitled to attach somemeaning to what appeared in the newspapers in eider to throw some lighton the meaning of the betting slips.
The accused was not, of course, precluded from showing that the in-formation contained in the newspapers was quite false, in that no suchraces were scheduled to bo run, or that no such homes were entered forsuch races But the production of the betting slips and the pinna facieproof that thc-y were records of unlawful betting on horse races shiftedthe burden to the accused to prove his innocence.
Although the accused gave evidence he made no attempt to suggestthat the documents said to have been found on him had nothing to dowith betting on horse races. He contented himself with a completedenial that "any such slips of paper and newspapers wore found m hispossession. When the learned Magistrate rejected this evidence, thepresumption created by s. 17 remained unrebutted.
l-’or.these reasons the appeal is dismissed.
Appm l tlisutissi (I-