-Full Court begs to differ, orders retrial
IN 1960, a magistrate dismissed two bush-rum charges against a husband and wife – Bissessar and Ramdai — for being  in unlawful possession of spirits, after taking into account allegations of invalid search warrants and analyst certificate, etc.
But on appeal, the Full Court — constituted by Chief Justice Luckhoo and Justice Jailall — set aside the Magistrate’s decision, and remitted the matters to the magistrate to be reheard and determined.
The facts of the case disclosed that Ramdai resided with her husband,  Bissessar,  in their house  at No. 62 Village, Corentyne, Berbice.  Bissessar was seen to take a half-bag containing bottles of bush rum into the house.  In Bissessar’s absence, the house was searched, by virtue of a search warrant, and two large bottles of bush-rum were found in the kitchen  in a barrel of water next to which Ramdai was standing.
Ramdai denied knowledge of the contents of the bottles.   She and her husband were thereupon  charged jointly with the unlawful possession of spirits, to wit, bush-rum, contrary  to Section 89 (1) of the Spirits Ordinance ,Chapter 319.  The magistrate dismissed both complaints, holding that:
(a)      There was no proof that the signature  appearing  upon  the Government Analyst’s  certificate  was  that of the Government Analyst;
(b)       The search warrant  was inadmissible, as it should have been obtained  under the provisions  of Section 89 (3) of the Spirits Ordinance, Chapter 319, and not under  the provisions  of Section 15  of the Summary Jurisdiction (Proceduree) Ordinance, Chapter 15;
(c)      There was not sufficient proof that Ramdai was in physical control or mental possession of the bottles.
The Full Court held that:   (i) By virtue of the provisions  of Section 89 (5) of the Spirits Ordinance, Chapter 319, and  Section 44 (1)  of the Evidence Ordinance, Chapter 25, it was not necessary for proof of the signature of the Analyst to be given;
(ii)   Section 9 of the Summary Jurisdiction (Proceduree) Ordinance , Chapter 15 regulates the issue of search warrants  and proceedings thereunder  in respect of all summary conviction offences, and  the offence charged in this case was a summary conviction offence.  It was clear  from the wording of the information leading to the issue of search warrant,  and from the search warrant itself , that the latter was applied for and was issued in pursuance of Section  89 (5) of the Spirits  Ordinance, Chapter 319, even though no provision  of the law was specified in the information of the warrant;
(iii)  Evidence obtained as  result  of an illegal search  is in any case admissible.  Kuruma, son of  Kaniu v- R,  [1955] A.C, 197, applied;
(iv)  Both Bissessar and Ramdai were in possession of the bottles. Finey and Rajcoomar v.Phoenix, 1951  L.R.B.G. 167 considered. 
The Full Court allowed the Appeal.
Mr. K.M. George, Crown Counsel, appeared for the appellants, while Mr. M. Poonai represented the  respondents.
Delivering the Reasons for Decision,  Justice Luckhoo said: “The respondents were charged jointly with  the unlawful possession of spirits,  to wit, bush-rum, contrary to Section 89 (1)  of the Spirits Ordinance , Chapter 319. 
“After evidence had been led by the prosecution, the respondents closed their cases without leading any evidence, and relied on certain legal submissions made on their behalf by counsel.
“The magistrate dismissed the charge against both respondents.
“The respondents are husband and wife, and reside together in a house at No. 62 Village, Corentyne, Berbice.   Evidence was led by the prosecution to the effect that on Saturday, March 12, 1960,  the respondent, Bissessar, and four other men  joined a car  driven by one Mohamed Jahoor, and placed in the trunk  of the car two half-bags with bottles.
“In the course of the journey, the men, including Bissessar, were drinking from one of the bottles taken from one of the half-bags  placed in the trunk  of the car   and offered Jahoor a drink from the bottle saying  that it was bush-rum.  On reaching No. 62 Village, Bissessar left the car  with one of the half-bags of bottles which he carried into his house.
“A search warrant was obtained by the police on the same day, authorizing and requiring Detective Constable  4786 Gerald Fowler  to enter between the hours  of 9pm and 5am   into  Bissessar’s  premises   at No. 62 Village, Corentyne to search for a quantity of spirits,  known as bush-rum, cups, glasses  and other containers  which would afford evidence  as to the commission  of an offence  contrary to law.
“Inspector of  Police Saunders, P C  Fowler  and PC Bacchus went  to Bissessar’s  premises  later that night  and upon the  respondent, Ramdai, opening the door, Inspector Saunders told her  that they were  policemen  in plain clothes, and that they had a warrant  to search the premises.    Ramdai  closed the door and said that her husband  was not at home, and that she could not allow anyone  to enter.   PC  Fowler  went to the back of the house, while  P C Bacchus  went to the front step.
“The policemen then heard footsteps in the house go towards the bedroom, and there was the sound of bottles knocking together. The footsteps were then heard to go towards the kitchen.  Ramdai was then seen to open the kitchen window.  An  alarm was raised,  and PC Bacchus  forced open the front door, entered the house  and went into the kitchen.   There, Ramdai was seen standing by a barrel containing water.  The warrant was read to Ramdai, and the house was searched.
“In the barrel of water were found two large bottles containing liquid.   Ramdai was asked to smell the contents of the bottles.  She did so and said that she did not know what they contained.   The bottles were sealed with a police seal and taken to the Government  Analyst for examination and report.  The Analyst’s certificate disclosed that the contents of the bottle were bush-rum.
“At the time of the execution of the search warrant, the male respondent, Bissessar, was not at home, and the female respondent, Ramdai was the only inmate of the house present. There was no evidence or suggestion that anyone else resided in the house.  No evidence was led on behalf of the respondents.
“The learned magistrate held that there was no sufficient proof in respect of the female respondent, Ramdai, of any physical control or mental possession. He also held that the search warrant was inadmissible, as it should  have been obtained under the provisions of Section  89 (3) of the Spirits Ordinance, Chapter 319,and not under the provisions  of Section 15 of the Summary Jurisdiction (Procedure) Ordinance, Chapter 15.
“Finally, the learned magistrate held that the prosecution had failed to prove that the signature appearing  upon the Government Analyst’s Certificate  was that of the Government  Analyst.   He therefore  dismissed the charge against both the respondents.
“The appeals are allowed; the orders of the magistrate are set aside.   The matters are remitted to the magistrate of the Corentyne  Judicial District  to  be reheard and determined.”