[1948] EACA 61

## APPELLATE CRIMINAL

## Before Sir BARCLAY NIHILL, C. J.

### REX, Through Nairobi Municipal Council, Respondent (Original Prosecutor)

# SHANTILAL MAGANBHAI PATEL, Appellant (Original Accused)

## Criminal Appeal No. 92 of 1948

Criminal Law-Sale of adulterated milk-Public Health (Milk and Dairies) Rules, 1925, rule 40A—Accused laying information against employee as actual offender—Public Health (Milk and Dairies) Amendment Rules, 1944 (G. N. No. 851 of 1944), rule $40A$ —Warrant issued but not served—Responsibility for service thereof—Evidence of due diligence and search imperative before proceeding against accused—Criminal Procedure Code, section 381—Uncurable irregularity.

### The facts appear sufficiently from the judgment.

*Held* (30-3-48).—(1) Where an accused charged with the sale of adulterated milk has duly laid an information under rule $40\lambda$ (Public Health (Milk and Dairies) Rules) against another as the actual offender, and a warrant of arrest has been issued, it is the responsibility of the officers charged with the execution of the warrant, and not that of the accused, to see that due diligence is exercised to apprehend the person named therein.

(2) When such a warrant has not been executed there must be at least evidence that due diligence and search was made before proceeding with the charge against the accused.

(3) Where a Magistrate proceeds with the charge against the accused without first<br>satisfying himself that the person named in the warrant cannot be brought before the Court, it is an uncurable irregularity within the meaning of section 381 of the Criminal Procedure Code.

#### Mangat for the Appellant.

Holland, Crown Counsel, for the Crown.

JUDGMENT.—An interesting point arises on this appeal. The accused was charged with an offence against the Public Health (Milk and Dairies) Rules in respect of a sale of adulterated milk.

When the case first came up for hearing on 19-12-47, his advocate Mr. Mangat filed a complaint against the accused's servant Gaitho as he was entitled to do under the provisions of Rule 40_A of the Public Health (Milk and Dairies) Amendment Rules, 1944, G. N. No. 851 of 1944. The case was adjourned until 23-12-47, whence warrant was issued against Gaitho to compel his attendance before the Court. The case was next before the Magistrate on 6-1-48 when it appeared that the warrant had not been served.

The learned Magistrate then proceeded to hear evidence in respect of the charge against the appellant and having done so convicted him. In his judgment he gives his reasons for so doing and his interpretation of the provisions of Rule $40A$ .

The learned Magistrate came to the conclusion that the appellant having failed to produce Gaitho before the Court the Court was justified in proceeding against the appellant by himself. I do not consider that this conclusion was a sound one in law. An information had been duly laid, a warrant of arrest had been issued by the Court and it was for the officers charged with the execution of the warrant to see that due diligence was exercised to apprehend and bring before the Court the person named in the warrant. The appellant might well assist these officers in tracing the whereabouts of Gaitho but the responsibility for executing the warrant was not his and the learned Magistrate seems to have erred in his judgment in suggesting the contrary. Actually no evidence was taken as to

$\nu$ .

why the warrant had not been served and it is to be observed that the period between the issue of the warrant and 6-1-48 amounted to only a fortnight, a fortnight which included the Christmas and New Year holidays—I am by no means to be taken as holding that under no circumstances could a prosecution not proceed against a dairyman who had exercised the right given him to prefer a charge against his employee where that employee cannot be found, but to justify proceedings against the dairyman alone there must at least be evidence that due diligence and search has been made for the employee and has failed. All this is completely absent in the present case with the result that a conviction has been entered against the appellant who has been deprived of his opportunity of satisfying the Court that he used due diligence to enforce the execution of these Rules and that his employee committed the offence in question without his knowledge, consent or connivance. $\Box$

$\cdot$ I have considered carefully whether this is a case where I should order a rehearing of the charge against the appellant jointly with the employee when arrested, but I have come to the conclusion that it would be unfair to do so. The error of the Magistrate in proceeding with the charge without first satisfying himself that Gaitho could not be brought before him did occasion a failure of justice since it deprived the appellant of all opportunity of establishing a defence. In $\rightarrow$ these circumstances I consider the irregularity uncurable under the provisions of section 381 of the Criminal Procedure Code and I think the appellant is entitled to succeed in his appeal.

The conviction is quashed and the fine if paid must be remitted.