R. v. Madhur Kapadia, Crim. Rev. 1-Z-66, 1/9/66, Saidi Ag. C. J.

R. v. Madhur Kapadia, Crim. Rev. 1-Z-66, 1/9/66, Saidi Ag. C. J.

On 7 January 1966, a police officer was instructed to search the store of the accused, upon information that certain goods stolen in Tanganyika had been smuggled into Zanzibar and were stocked in his store. Such a search was proper and properly carried out. (Police Decree, cap. 50, s. 27.) During the search, goods were found for which the accused could not account satisfactorily. Thereupon he was arrested, without a warrant, and detained so that the firm’s two godowns could be searched without the accused having the opportunity to hide any stolen goods which might be kept therein. Within two hours of his arrest, an advocate appeared before a Resident Magistrate seeking bail for the accused. He had previously approached the police, who refused bail. The advocate claimed that he had in his possession invoices covering the goods which the accused had been unable to account for satisfactorily, and that the accused had his business in Zanzibar and was well known, so that there was no danger that he would not appear for trial. He argued that if the police had suspected the presence of stolen goods in the godowns as well as the store, these places should have been searched simultaneously. Over police objection, bail was granted to the accused, pursuant to the provisions of the Criminal Procedure Decree, cap. 14, s. 117(1).

Held: (1) Section 117(1) provides, in part: “When any person, other than a person accused of murder or treason, is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person may be admitted to bail.” The advocate was permitted to appear for the accused because the latter was precluded from appearing, as he had not yet been brought to court to answer any penal charge. The words “appears or is brought before a court’ refer to the accused alone, and do not refer to an appearance by an advocate. Until the accused has been charged with a specific offence, a magistrate’s court has no power to grant bail, and the court here should have refused to do so.

            (2) The Court stated, obiter “There are minor offences such as traffic offences and breaches of town rules, in which the appearance of the accused person can be dispensed with under section 93 of the Criminal Procedure Decree. In such cases an advocate, or any other representative of the accused person being fully instructed in the matter, is allowed to appear for him before the court, but here again the matter of bail does not arise.”

            (3) The police are empowered to arrest without a warrant a person suspected to have committed a cognizable offence, under s. 21(a) of the Criminal Procedure Decree. A person so arrested must be taken before a magistrate having jurisdiction without delay, according to s. 25. By s. 28, an accused may be held in custody pending investigation, where the offence appears to be of a serious nature, for up to 24 hours, but no longer. In view of the language of s.28, the police quite properly refused bail, section 117(1) notwithstanding. In all events, s. 117 is merely permissive; it allows bail in certain situation, but in no instance

does it require that bail be allowed.

            (4) The conduct of the police in this case cannot be faulted. “The police force exists for benefit of the public in general and ought, as far as it is possible, to be presumed to be acting in good faith in carrying out its duties, unless there is sound reason to believe it is not doing so.”

            (5) The Court noted, obiter, that if the accused had been held for over 24 hours, in contravention of s. 28, his proper remedy would have been to apply to the High Court for a write of habeas corpus.