The Police have no authority to initiate proceedings before a Magistrate against an offender under the Excise Ordinance.

Udagama and 2 others v. Chandra Fernando, IGP of Police and 5 others 

SUPREME COURT
TILAKAWARDENA, J.,
AMARATUNGA, J. AND
MARSOOF, J.
S.C. APPLICATION NO. FR 455/2005
JULY 21ST, 2011

Constitution -Article 12(1) - Right to equality - Articles 13(1) and 13(2)-Freedom from arbitrary arrest, detention and punishment - Article 14(g)-Freedom of speech, assembly, association, occupation, movement - Article 126 - Fundamental rights jurisdiction -Excise Ordinance -Section 33, 35, 37, 46(g), 47, 48(a), 48(c), 52(1)a

The 1st and 2nd Petitioners were the partners of Don Patrick Wine Shop situated in Pussellawa, that had a license issued under the Excise Ordinance to sell foreign liquor and locally made malt liquor, but not to be consumed on the premises.

On 10.10.2005 the 3rd Petitioner was a salesman of the Wine Shop. The 3rd and 4th Respondents were the Police Officers who arrested the 3rd Petitioner for allegedly selling arrack to a customer to be consumed in the premises. The 3rd Petitioner was taken to the Police Station where he was kept in Police custody for several hours before being released on Police bail. The 3rd Petitioner's position is that in any event, the sale of liquor for consumption in the premises is not an offence under the Excise Ordinance.

The Petitioners have contended that by the raid and the arrest of the 3rd Petitioner, the Respondent Police officers have violated the fundamental rights guaranteed to the 1st and 2nd Petitioners by Articles 12(1) and 14(g) of the Constitution and the 3rd Respondent's fundamental rights guaranteed by Articles 12(1), 13(1), 13(2) and 14(1) g of the Constitution.

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In terms of the Excise Notification No. 509. all Police officers have lawful power to perform the acts and duties set out in Sections 33, 35, 37 and 48 (a) of the Excise Ordinance.

Held:

(1) As a result of the combined effect of clause 1(11) of the Excise Notification 509 read with Sections 35 and 46 (g) of the Excise Ordinance, Police Officers have the power to detect the offence of selling an excisable article in contravention of the conditions of a license issued under the Excise Ordinance and to arrest the offender without a warrant.

(2) Although the Police have the power to detect and apprehend a person who had committed an offence under Section 46(g), in view of the provisions of Section 52(1) (a) of the Excise Ordinance, the Police have no authority to initiate proceedings before a Magistrate against an offender. Such offences, commonly called technical offences, have to be referred to an excise officer.

(3) When the Minister, by clause 1(11) of the Excise Notification, has appointed all officers of the Police Force to perform acts and duties mentioned in Section 35 of the Excise Ordinance. officers of all ranks of t he Police force have the power to arrest without a warrant any person found committing an offence, in any place other than a dwelling house, punishable under Section 46 or 47 of the Excise Ordinance.

APPLICATION under Article 126 of the Constitution

Ronald Herem with D. Johnthasan for Petitioners
Harshika de Silva, State Counsel for the Respondents

Cur.adv.vult

July 21th 2011

GAMINI AMARATUNGA J.

    The 1st and 2nd petitioners are partners of Don Patrick Wine Shop situated in Pussellawa. The 3rd petitioner is one of their salesmen. The said wine stores has a licence issued

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under the Excise Ordinance for the sale of foreign liquor including locally made malt liquor not to be consumed on the premises.

    According to their petition, on 10.10.2005 the 3rd and 4th respondents who were at that time police officers attached to the Pussellawa Police station arrested the 3rd petitioner for allegedly selling arrack to a customer (a decoy said to have been sent by the 3rd and 4th respondents) to be consumed on the premises. The 3rd petitioner was taken under arrest to the police station where he was detained for several hours before releasing him on police bail.

    The 3rd petitioner's position is that there was no such sale as alleged by the police. The petitioners' position is that in any event, the sale of liquor for consumption in the premises is not an offence for which the police officers are empowered by law to arrest any offender or to take any action under the Excise Ordinance. The petitioners have therefore contended that by the said raid and the arrest of the 3rd petitioner the respondent police officers have violated the fundamental rights guaranteed to the 1st and 2nd petitioners by Article 12(1) and 14(g) of the Constitution and the 3rd petitioner's fundamental rights guaranteed by Articles 12(1), 13(1), 13(2) and 14(1) (g) of the Constitution.

    This Court has granted leave to proceed for the alleged violation of the petitioners fundamental rights guaranteed by Articles 12(1),13(1),13(2) and 14(1) (g)of the Constitution. In this application the task of this Court is not to decide whether the detection of the alleged offence was a result of a genuine raid or whether it is a fabrication of the police. The question to be decided by this Court is whether the police officers have lawful power or authority under the provisions of the Excise Ordinance to detect and arrest a person for the alleged

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violation of a condition of the license by selling liquor to be consumed in the premises: In order to decide this question it is necessary to examine the provisions of the Excise Ordinance and Excise Notifications issued thereunder.

    The position of the petitioners is that police officers do not have power or authority to detect violations of the conditions of the licence issued under the Excise Ordinance. In view of the position taken by the petitioner, what this Court has to decide is whether police officers have powers to detect violations of the conditions of a licence issued under the Excise Ordinance.

    Section 8(b) of the Excise Ordinance (Cap 52 C. L.E. 1956 Revision) provides that the Minister may by Notification "appoint officers or persons to perform the acts and duties mentioned in sections 33, 35 and 48(a)."

    In pursuance of the power vested in the Minister by the aforesaid section 8(b), Excise Notification No. 509 dated 9.2.1963 had been issued by the Minister and published in the Government Gazette of 22.02.1963. By clause 1(ii) of the said Notification, the Minister had appointed "all officers of the Police Force to perform the acts and duties mentioned in sections 33, 35 and 48(a) of the Excise Ordinance throughout the Island." By clause 8(i) of the same Notification, the Minister had ordered that the powers and duties of an Inspector of the Excise Department under section 37 of the Excise Ordinance shall be exercised by "all officers of the Police Force throughout the Island."    

    Thus the aforementioned Excise Notification No. 509 appoints all officers of the Police Force to perform all acts and duties mentioned in sections 33, 35 and 48(a) of the Excise Ordinance throughout the Island and orders that the powers

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and duties of an Inspector of the Excise Department under section 37 of the Excise Ordinance shall be exercised by all officers of the Police Force throughout the Island.

    In terms of the Excise Notification No. 509 referred to above all police officers have lawful power to perform the acts and duties mentioned in sections 33, 35, 37 and 48(a) of the Excise Ordinance. In order to decide the question to be decided in this application, it is necessary to examine the legal position arising from the operation of the aforesaid provisions of the Excise Ordinance in combination.

    Section 48(a) of the Excise Ordinance deals with the offence of the failure of the licence holder or any person acting on his behalf to produce the licence when a demand for its production has been made by a person who is duly empowered to make such demand. In this case there is no allegation that the salesman present at the time of the raid failed to produce the licence on demand made by the police. Accordingly section 48(1) has no relevance to this application.

    Section 33 of the Excise Ordinance empowers the Excise Commissioner or a Government Agent or any excise officer not below such rank as the Minister may prescribe, or any police officer duly empowered in that behalf to enter and inspect places of manufacture, bottling and sale of any excisable article. In view of the Excise Notification No. 509 the police officers are entitled to inspect a place where an excisable article is sold. This is a general power of inspection. In the present case according to the respondent, their raid had been carried out not as general inspection but for the specific purpose of detecting a violation of a condition of the licence. Accordingly section 33 is not relevant to the present application.

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    Section 35 of the Excise Ordinance provides that "Any officer of the Excise, Police, Customs or Revenue Departments, not below such rank and subject to such restrictions as the Minister may prescribe, and any other person duly empowered, may arrest without warrant any person found committing in any place other than a dwelling house, an offence punishable under section 46 or 47; and may seize and detain any. excisable or other article which he has reason to believe to be liable to confiscation under this Ordinance or other law for the time being in force relating to excise revenue; . . . .. " (emphasis added).

    This section gives powers of arrest of any person found committing an offence under section 46 or 47 and the power to seize any excisable or other article liable to confiscation under the Excise Ordinance or other law in force relating to excise revenue. While the first part of this section gives powers of arrest of offenders committing offences under section 46 or 47, the second part gives powers of seizure of contraband b liable to forfeiture under laws relating to excise revenue.

    By clause 1 (ii) of the Excise Notification No. 509, the Minister has appointed all officers of the Police Force to perform the acts and duties mentioned in section 35 of the Excise Ordinance throughout the Island. In the written submissions filed for the petitioners, the learned counsel quoting the words of section 35 that "Any officer of the Excise, Police, Customs or Revenue Departments, not below such ranks and subject to such restrictions as the Minister may prescribed has submitted that since in clause 1(ii) the Minister has not specified the rank of the police officers who could perform the acts and duties mentioned in section 35, the police officers cannot act under section 35 of the

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Excise Ordinance. This submission does not appeal to me at all. When the Minister by the said clause 1(ii) of the Excise Notification has appointed all officers of the Police Force to perform the acts and the duties mentioned in section 35 of the Excise Ordinance, that is an appointment of officers of all ranks of the Police Force to perform the acts and duties under section 35. I therefore reject the aforementioned submission and hold that officers of all ranks of the Police Force have powers to perform the acts and duties mentioned in section 35. As such all police officers have powers to arrest without a warrant any person found committing in any place other than a dwelling house an offence punishable under section 46 or 47 of the Excise Ordinance.

    Section 46 of the Excise Ordinance in Paragraphs (a) to (h) of that section sets out offences committed in contravention of the Excise Ordinance, or of any rule or order made there under or of any licence, permit or pass obtained under it. In terms of paragraph 46(g) whoever in contravention of any licence granted under the Ordinance "sells or keeps or exposes for sale any excisable article shall be guilty of an offence." In view of this provision sale of arrack at a wine stores in contravention of a condition of the licence issued to such wine stores is an offence under section 46 of the Excise Ordinance and as such a member of the Police Force, empowered by Excise Notification No. 509 to perform the acts and duties mentioned in section 35 of the Excise Ordinance has power to arrest without a warrant any person found selling any excisable article in contravention of a licence issued under the Excise Ordinance.

    The learned counsel for the petitioners, in his written submissions has submitted that any violation or breach of

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any condition of the licence can be dealt with only under section 48(c) of the Excise Ordinance and as the Excise Notification No, 509 does not empower a police officer to act in terms of section 48 (C) the police officers do not have the power to detect sales of excisable articles in contravention of the conditions of a licence, However section 48(c) deals with acts or omissions in breach of any condition of a licence not otherwise provided by the Excise Ordinance. Section 46(g) specifically states that the sale of any excisable article in contravention of a condition of the license is an offence. Therefore sales of excisable articles in contravention of a condition of a licence falls within section 46(g) and not under Section 48(e). For the reason set out above I am unable to accept the submission referred to above.

    For the reasons set out above I am unable to accept the proposition put forward by the petitioners that police officers do not have power to detect sales of excisable article in contravention of the conditions of a license issued under the Excise Ordinance. As I have already stated in this judgment, as a result of the combined effect of clause 1(1) of the Excise Notification 509 read with sections 35 and 46(g) of the Excise Ordinance, police officers have the power to detect the offence of selling an excisable article in contravention of a condition of the licence issued to a wine stores.

    However in terms of section 52 (1)(a) of the Excise Ordinance, no Magistrate shall take cognizance of an offence punishable under section 46, 47 or 50 except on his own knowledge or suspicion or on the complaint or report of an excise officer. Although the police have the power to detect and apprehend a person who has committed an offence under section 46(g), in view of the provisions of section 52(1)(a),

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the police have no authority to initiate proceedings before a Magistrate against the offender. Such offences, commonly called technical offences, have to be referred to an excise officer for appropriate action.

    The 1st and 2nd petitioners' assertion that the detection made by the 3rd and 4th respondents at the petitioners wine shop on 10.10.2005 was illegal is based on their contention that police officers do not have power and authority under the Excise Ordinance to detect violations of the conditions of their licence. In this judgment I have already held that in terms of Clause 1 (ii) of the Excise Notification No. 509 read with section 35 and 46(g) of the Excise Ordinance police officers have the power to detect the offence of selling an excisable article in contravention of a condition of a licence granted under the Excise Ordinance and to arrest the offender without a warrant. In view of that finding the 1st and the 2nd petitioners' assertion that the respondents have violated their fundamental rights guaranteed by Articles 12(1) and 14(1) (g) fails.

    For the same reason the 3rd petitioner's claim that the respondents have violated his fundamental rights guaranteed by Articles 12(1), 13(1), 13(2) and. 14(1) (g) also fails. This application is therefore dismissed without costs.

TILAKAWARDENA J. - I agree.
MARSOOF J. - I agree.

Application dismissed.