Rex v Salim (Criminal Appeal No. 320 of 1946) [1946] EACA 55 (1 January 1946)

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J. and BARTLEY, J.

## REX, Respondent (Original Prosecutor) $\mathbf{v}$ .

## ATHMAN BIN SALIM, Appellant (Original Accused No. 1) Criminal Appeal No. 320 of 1946

Criminal law—Conveying suspected stolen property—S. 25 Criminal Procedure Code—S. 316 Penal Code.

A police officer, purporting to act under the powers conferred on the police by section 25 Criminal Procedure Code, stopped a lorry on a public road at 3 a.m. because although he had no idea what it was carrying he suspected that it might contain something unlawful. The appellant was on the lorry when it was stopped but he managed to run away and was not physically detained by the police officer at the time. He was, however, arrested within a few hours. The lorry contained 26 gunny bags loaded with unopened cartons of tea, 25 fourgallon tins of simsim oil and five gunny bags each containing two unopened boxes of 500 rounds of Government .303 Mark VII rifle ammunition. The appellant was convicted of an offence *contra* section 316 Penal Code. He appealed.

Held (27-8-46).—That as the police officer stopped the lorry because he suspected that it might contain something unlawful he was properly acting within the powers conferred upon him by section 25 Criminal Procedure Code.

Appeal dismissed.

Kelly for the Appellant.

Phillips, Judicial Adviser, for the Crown.

JUDGMENT.—The only question seriously argued on behalf of the appellant was that on a charge of being a person suspected of having or conveying stolen property contra section 316 P. C., he had not been detained as a result of the exercise of the powers conferred by section 25 of the Criminal Procedure Code which provides:-

"Any police officer may stop, search and detain any vessel, boat or vehicle in or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found and also any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained."

The trial Magistrate on this question expressed himself as follows: -

"The police officer purported to be acting under powers conferred on him by section 25 of the Criminal Procedure Code and although A. I. Peter quite honestly says that he had not suspected the lorry to contain what he actually found in it and even goes so far as to say 'I had not suspected it to be carrying anything unlawfully obtained' he continues 'I stopped the lorry because it was on a road where it shouldn't have been, and at a very peculiar time, so I was suspicious'. It would be straining the language of section 25 of the Criminal Procedure Code and abrogating common sense to suggest that the Police act was not in these circumstances, in conformity with it."

We take the following relevant passages from Assistant Inspector Peter's evidence:

"(1) At 2.30 on the Kenyozi Road I stopped a taxi No. T. 5994 intending to search it to see if it was containing contraband. The car stopped. In the car were accused 1 and two other passengers whom I don't know, and a driver. Having searched the taxi I permitted it to proceed. There was nothing suspicious in the car then. Later, on my patrol, I saw the same taxi again about twenty yards from where I was. It stopped for a minute and then started again. At about 3 a.m. I saw a car coming from Jethabhai Oil Mills Road. I signalled it to stop."

This was in examination in chief.

"(2) When I had first stopped the lorry I had not suspected what $I$ found it to contain."

This was also in examination in chief.

"(3) When I stopped the lorry I had not suspected it to be carrying anything unlawfully obtained."

This was in cross-examination.

(4) In answer to the Court, the witness said: "I stopped the lorry because it was on a road where it shouldn't have been and a very peculiar time, so I was suspicious".

$\xi_{\rm{in}}$ It seems to us that if these statements are looked at as a whole the Assistant Inspector stopped the lorry because he suspected that it might contain something unlawful, just as he had half an hour earlier stopped the motor car suspecting that it was conveying contraband. He must have been astonished at what he found the lorry to contain when he searched it and reading his answer in cross-examination in the context we think that it means nothing more than what he had just said in examination in chief. We agree, therefore, with the reasoning and finding of the Magistrate on this point. But we do not leave the matter there. We put to ourselves the following propositions. "If a vehicle is seen coming out by an earth road in the small hours of the morning and proceeding towards a main road, a policeman's suspicion may be reasonably aroused. He has not exactly formulated in his mind his suspicion as to what it may contain but having stopped and searched it, he finds it to contain goods reasonably suspected to having been stolen, should the policeman not detain it?" It seems to us to be contrary to common sense were he to do otherwise. Is it to be said that having stopped the lorry and searched it with the result that we have stated, he should leave the lorry, allow it to proceed a few paces on its way and then with the knowledge he has obtained "stop search and detain it", and thus comply with the section. When the matter it put that way it appears clear that we should be doing violence to section 25 were we to hold that there had not been a proper exercise of the power under the section in this case. The power given by this section is in identical terms with the power given in s. 66 of $2 & 3$ Vict. C. 47 the purpose of which was to enable police officers to arrest any person or vehicle suspected of conveying stolen goods and if necessary to stop, search and detain them. Prior to the enactment of this provision the police had no such authority under the Common Law. One can readily understand that in some cases it might be unnecessary to stop a vehicle, for instance, the policemen might see it outside a public house while the driver was having a drink. Could it with any show of reason be said in such a case that the power under the section had not been properly exercised? The answer is clearly no.

Mr. Kelly for the appellant further submitted that as the police had failed to find the owner of the property between the date of arrest, the 11th May, and the date of trial, the 14th June, that this tended to show that the property was not stolen. The answer to that submission is that on such a charge it is for the accused to give a satisfactory account of how he came by the goods.

We dismiss the appeal.