(CRIMINAL REVISION)

SUDAN GOVERNMENT V. BABIKER MOHAMED BABIKER AND ANOTHER

AC-CR-REV-1966

 Principles

·  Criminal Procedure—Searches—When the offence is under the Penal Code, searches must be made accard to the provisions of the Code of   criminal Procedure

·  Criminal Procedure—Searches—Search in respect of an offence under Penal Code made by public Health Officials without following the provisions of the Code of Criminal Procedure is illegal—Conviction based on illegal search is wrong

Searches In respect of offences under the Penal Code must be made in accocdance with the provisions of the Code of Criminal Procedure. Therefore, search which is made by Public Health Officials in respect of an offence under Penal Code, without following the provisions of the Code of Criminal Procedure as regards iearches; is illegal. Accordingly, conviction, which is based on illegal search, is wrong.

Searches In respect of offences under the Penal Code must be made in accocdance with the provisions of the Code of Criminal Procedure. Therefore, search which is made by Public Health Officials in respect of an offence under Penal Code, without following the provisions of the Code of Criminal Procedure as regards iearches; is illegal. Accordingly, conviction, which is based on illegal search, is wrong.

Judgment

Advocates Ahmed Zein El Abdein              for first accused

Ali Mahmoud Hassanein                             for second accused

Osman El Tayeb J. April 7, 1966: —These two persons were, with a third one, tried before Police Magistrate Omdurman on March 1, 1966, on a charge which was badly drafted, stating that the Public Health Officer and the Inspector of Health Omdurman seized specimens that, th report of the Stack Research Laboratory has shown to have been mixed with red lime and that they were untit for human consumption, and that they committed an offence under Sudan Penal Code, S. 217. They were convicted and each one of them was sentenced to imprisonment for three months.

It happened that the Public Health Officer and Public Health Inspector of Omdurman received reports that the shatta made in packets and sold in the markets was mixed with extraneous material. Accordingly they entered the premises of accused (each one of accused is managing his own separate premises for grinding and packeting shatta) they took specimens from the shatta found in each place and sent it with a letter dated August 26,1965 to the Government Analyst. The latter replied by his letter dated September 8, I965 testifying to the presence of prohibited dye in those samples and added that they were unfit for human consumption.

On September i the Public Health Officer lodged information against the accused under Sudan Penal Code, s. 217. During the investigation Babiker Mohamed Babiker, but not the others, denied having any mixed shatta in his premises, and so the investigation obtained a warrant of search from the magistrate and entered the premises of Babiker and seized samples that were sent to the Government Analyst, who replied that they contained no injurious material.

In the trial the learned Magistrate relied mainly for the conviction on the result of the inspection made by the Public Health Officer and his colleague. As to Babiker, it was the only evidence against him, but for the other accused, there was in addition his admission of mixing his shatta with a colour.

For accused Babiker, his counsel submitted, inter alia, that the search or inspection made by the Public Health Officials was an illegal one; it was not made in accordance with the provisions of the Code of Criminal Procedure relating to searches. And as his conviction was based only on the result of that search, it was bad. We find ourselves in full agreement with this submission and we have to accede to it.

Whether the Public Health Officials have authority under the Local Government Ordinance, Orders or Regulations made thereunder to enter premises of the kind in this case, make inspection and take samples of the material therein prepared was not explained to us, and especially the extent of that authority and its effect on criminal proceedings The knowledge of that may be important if the proceedings were in respect of an offence under those same Orders or Regulations. But since the prosecution was in respect of an offence under the Penal Code, we think that the provisions relating to search in the Code of Criminal Procedure must be strictly complied with. A search is a process that can only be taken after the start of the police investigation, and for the purpose of furtherance of that investigation, inquiry or trial. The search must be conducted in pursuance of a search warrant signed by a magistrate, authorising the person therein named so to conduct it, see Code of Criminal Procedure, s. 69. The search must as far as possible be made in the presence of the occupier and two witnesses and that a list of all the articles seized with all the relevant description is prepared and signed, see Code of Criminal Procedure, s. 73.

The issuance of a search warrant is a judicial act, and so the magis trate has to satisfy himself on the information before him of the necessity of issuing one for the purpose of the investigation, inquiry or trial. A warrant improperly issued or drafted may be described as illegal but we do not want, as we are not concerned, to comment here on the effect of the result of the search thereby conducted on the proceedings before the magistrate. But we think that a search or inspection, made without a warrant (except in searches during pursuit: Code of Criminal Procedure, S. 67, or under the like provisions), is not only illegal, but the result of such a search or inspection should have no effect on the proceedings before the magistrate. In the least in a case like the present there is doubt as to the propriety of the search and the arrangement of the samples taken. It is important to safeguard that no mistake was made, and if any it should be explained. For these reasons we have to acquit accused Babiker and order his release.

As for the other accused, though the question of the illegality of the result of the search applied in his case, he admitted that he had mixed his shatta with something which rendered it noxious as an article of food or drink. On this evidence he was, we think, rightly convicted under Penal Code, s. 217, and we have to confirm the finding of guilty in respect of him.

We do not find in the points raised by advocate for second defendant anything of value to discuss.

We think that the sentence of three months’ imprisonment inflicted on accused Mohamed Beshir El Sammani is a little too high; we think that the period he spent from the date of his trial up to April 16. 1966, when he was provisionally released on bail is an adequate sentence, and so we alter his sentence accordingly.