Parmar v The Queen (Criminal Appeal No. 182 of 1956) [1956] EACA 23 (1 January 1956)

## APPELLATE CRIMINAL

#### Before RUDD, J.

# NARSHI VALJI PARMAR, Appellant

## THE QUEEN, Respondent

## Criminal Appeal No. 182 of 1956

Criminal law-Police-Enquiry into suspected offence-Right to enter and to remain on private shop premises—Assault and obstruction—Whether in execution of duty—Penal Code, section 248 (b)—Whether authority to remain -Shop Hours Ordinance, section 15 (2).

Two police officers, one a sergeant, believed that offence against the Shop Hours Ordinance, Cap. 114, had been committed in a shop in the Machakos District. They entered the shop and began to make enquiries. The owner of the shop objected to the presence of the police officers but the sergeant refused to leave until his enquiries were completed, whereupon the shopkeeper pushed him out of the shop. The shopkeeper was charged with the offence of obstructing a police officer in the execution of his duty contra section 248 (b) of the Penal Code and convicted. He appealed.

Held (18-8-56).—Even if the police officers were not wrong in entering the shop to make equiries, they became trespassers after the appellant had requested them to leave the<br>premises, because they had not the requisite authority from an officer in charge of a<br>police station required by section 15 (2) of the S sergeant, when assaulted, was, therefore, not acting in the execution of his duty, with the result that the appellant could not be convicted of obstructing him in the execution of his duty.

Cases referred to: Davis v. Lisle, (1936) 2 K. B. 434.

Nowrojee for the appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—The facts in this case are that two police officers believed that an offence against the Shop Hours Ordinance occurred and had taken place in a shop in Machakos. They entered the shop and began to make enquiries questioning an attendant and the alleged customer. While this was going on the accused who was the owner of the shop came there and objected to the presence of the police officers, a sergeant and a constable, in the shop. The sergeant refused to leave till his enquiries were completed and the accused then pushed him out of the shop. The accused was on these facts convicted of obstructing a police officer in the execution of his duty contra section 248 (b) of the Penal Code by pushing him outside the shop. Section 15 of the Shop Hours Ordinance provides the powers of the police; subsection puts a duty on the police to investigate and prosecute all offences under the Ordinance and subsection 2 gives a power of entry to any shop in any township area to which any police officer or constable "thereto authorized by any officer in charge of a police" station".

There was no evidence of any such authorization in this case. In fact the evidence suggested that although they were on duty neither of the police officers were authorized by an officer in charge of a police station to enter shops under section $22(2)$ .

In my opinion the case is similar to Davis v. Lisle, (1936) 2 K. B. 434. I don't say that the police were wrong in entering the shop. I think they were right to do so but in the absence of the authority specified in section 15 $(2)$ they were not right to remain in the shop when accused asked them to leave and therefore they were not thus in that regard acting in the course of their duty.

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The appeal is allowed herewith and sentence set aside.

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