POYSER J.—Dharmaratne v. Kandasatny.
1933Present: Dalton and Poyser JJ.
DHARMARATNE v. KANDASAMY.
453—P. C. Point Pedro, 5,116.
Excise Ordinance—Evidence of decoy—Corroboration, where decoy fails tosupport charge.
Where in a charge under the Excise Ordinance the decoy employed inthe case contradicts the evidence for the prosecution, the charge may beproved by other evidence, provided it is sufficient to establish, beyondall reasonable doubt, that a sale in fact took place.
ASE referred by Akbar J. to a Bench of two Judges.
A. Gnanaprakasam (with him A. Sambandan), for accused, appellant.
Wendt, C.C., as amicus curiae, on notice.
December 4, 1933. Poyser J.—
The appellant was convicted of selling ganja contrary to the pro-visions of the Excise Ordinance, No. 8 of 1912, and appeals against suchconviction.
The evidence for the prosecution was briefly as follows:—On April 19,1933, at 7.30 p.m. B. C. Dharmaratna, an Excise Inspector, searched aman called Selliah, gave him three marked 10-cent coins and asked him
POYSER J.—Dharmaratne v. Kandasamy.
to go and buy ganja from the accused. Anthonipiliai, an Excise Guard,followed Selliah to watch his movements and the Excise Inspectorfollowed some ten minutes afterwards in a car.
Selliah, according to Anthonipiliai, went to the accused and had aconversation with him on the road and in the course of such conversationgave the accused something. Then the accused took something from hiswaist and handed it to Selliah. Anthonipiliai stated he was 20 yardsaway when this took place and it was not very dark as there were lampsin the boutiques but he also stated the accused used an electric torch to-examine what Selliah gave him. The Inspector then came up, seizedthe accused, searched and found on him the three marked coins. Selliahthen gave the Inspector two packets of ganja and stated that he boughtthem for thirty cents from the accused. Selliah when giving evidencedenied that he had been given any money by the Inspector or that he hadpurchased ganja from the accused and he also stated that he had beengiven the ganja by another man. The accused gave evidence anddenied the charge, and also stated that he had received ten 10-cent coinsfrom Edward, a witness for the prosecution, in payment of a debt.
The appeal first came before Akbar J. on July 18, 1933, and was directedby him to be listed before two Judges.
The following is his order :—
“I think this a case which should go before two Judges. Thereis a difference of opinion between my brother Maartensz andmyself as to the exact evidence required in the case of asale of an excisable article. The cases will be found reportedin 34 N. L. R. I was of the opinion that if the decoy failed to provethe sale any corroborative evidence of the Inspector or of his guardsof the sale, e.g., that the marked coins were found in the possession ofthe accused and the excisable article in the possession of the decoy,would be insufficient to justify a conviction of the accused for sellingan excisable article. My brother Maartensz was of a differentopinion. I think this is a good case for the point to be settled by aBench of Two Judges and I direct that it be listed before two Judges. ”There are two cases referred to in this order, namely,: Rodrigo v.Karunaratne in which Akbar J. delivered the following judgment:—
“ The appellant was charged with selling fermented toddy without alicence and he was fined Rs. 75. According to the evidence a decoywas sent ahead with a marked 50-cent piece to buy toddy from theaccused, who is a toddy contractor. The decoy, however, did notsupport the prosecution case and the prosecution case was only leftwith the evidence of the Excise Inspector and of the Police Inspector,neither pf whom saw the sale. This being a criminal case, it is incum-bent on the prosecution to prove the sale. All that the acceptedevidence proves was that the decoy had a coconut shell of toddy in hishand and a pot full of toddy behind a shed and that a marked 50-centpiece was found in the accused’s waist. I do not think this is sufficientevidence to prove a sale. Mr. Schokman cited a case of my brotherMaartensz, but I regret I am unable to follow this case as an authority.If full effect is given to the case cited, a decoy need not give evidence
» 3i N. L. li. 366.
POYSER J.—Dharmaratne v. Kandasamy.
in an excise case. The very reason why decoys are called to give evi-dence is because there must be some evidence to prove a sale. Themere fact that a marked coin is found in the accused’s possession andthe decoy is found with a coconut shell of toddy, cannot, I think, ina criminal case be held to be sufficient evidence of a sale. It was forthis reason that I postponed the case to enable Mr. Schokman to citeEnglish authorities on the point, but he was unable to do so. I amtherefore compelled to set aside the conviction and acquit the accused.”
The other case cited is S. C. No. 814-815, P. C. Jaffna, No. 8JL24,*and the judgment was as follows:—
“Maartensz J.—Appeal No. 814 is by the accused in this case who-was convicted of selling brandy without a licence from the Govern-ment Agent, an offence punishable under section 41 (b) of the ExciseOrdinance, No. 8 of 1912. The evidence which the Police Magistratehas believed is that on the day in question, the 29th of May last, oneAnjalingam was sent by Excise Inspector Ferdinands with a markedRs. 5 and Re. 1 note with instructions to purchase a bottle or a pintof brandy from the accused. Anjalingam went to the accused’s housefollowed by an excise guard and later on by Excise Inspector Ferdi-nands and Excise Inspector Gunasekera. The signal for them torush in was the flashing of a torch. On seeing the signal they rushedin and found Anjalingam with a bottle of brandy in his hand. In abox in the accused’s house was found a bottle of brandy and a pint ofbrandy. In another small wooden box was found the Rs. 5 note andthe Re. 1 note. Anjalingam in his evidence before the Police Magistratedenied going to the accused’s house at all. This denial appears to bein conflict with a statement which the witness made to Mr. Moses,Justice of the Peace, on June 10. It is unnecessary for me to considerwhether this statement to Mr. Moses was admissible in evidence asthere is sufficient evidence, without the evidence of Anjalingam, toestablish that the accused sold a bottle of brandy to Anjalingam.That evidence is the evidence of the Excise Inspectors who saw Anja-lingam in possession of a bottle of brandy and the marked notes in abox in the accused’s possession. But the statement made to the Justiceof the Peace was admissible in this way, to show that Anjalingam madedifferent statement to the Justice of the Peace and that therefore hisevidence to the Police Magistrate was not worthy of credit so as to makethe evidence of the Excise Inspectors unreliable. Apart from that,it is not evidence against the accused. However, as I have said, theevidence which the Police Magistrate has accepted establishes the caseagainst the accused, even if Anjalingam’s evidence is eliminated fromthe record. I accordingly affirm the conviction and sentence passedon the accused.”
The other cases on this point are:—(a) Wijeratne v. Rupasinghe* Inthis case Drieberg J. in the course of his judgment said :—
“lam not sure that it is not possible to prove charges of this naturewithout the evidence of the decoy. The sale to the decoy might beproved by those present who may be in a position to speak to every
1 S. C. Minutes of February 9, 1932.2 2 Cey. Law Weekly 284.
POYSER J.—Dharmqratne v. Kandasamy.
detail of the incident, except matters which would be legally inadmis-sible, unless the decoy were called, such as statements by him, but whenthe decoy is not called and the evidence is that of one person alonewho says he was present, the evidence of the sale must be given withsufficient detail to enable a Court to judge its truth. A bare statementby one witness 'I saw the accused sell ganja to the decoy’ is clearlyinsufficient for this purpose, specially when the omission of necessarydetails is intentional, as I believe it is in this case.”
S. C. No. 112, P. C. Dandagamuwa, No. 11,55V—a case in whichthe facts were very similar to this one. Akbar J. said after referring toRodrigo v. Karunaratne (supra):—
“ I cannot see how the gap can be filled up when the decoy gives thelie to the rest of the prosecution case.”
S. C. No. 263, P. C. Galle, No. 41V. In this case Macdonell. C.J.concurred with the judgment of Maartensz J. (supra) and added :—
“ In considering a case such as this it is not a bad test to ask yourselfhow you would direct the jury on the facts. Would you direct thejury to acquit the accused or would you point out that if they acceptedthe facts set out in this case as proved, they could if they were sominded, convict the accused.”
Having considered these judgments I am unable, with the greatestrespect, to agree with Akbar J. that a conviction cannot be sustainedwhen the decoy fails to prove the sale or gives the lie to the rest of theprosecution evidence.
I think that the correct principles in deciding cases of this descriptionare those laid down in the judgment of Macdonell C.J. and Drieberg J.which may be summarized as follows:
Charges of this nature may be proved without the evidence of thedecoy or even if the decoy contradicts the rest of the prosecution evidence,provided that there is sufficient other evidence to establish beyond allreasonable doubt that a sale in fact took place.
In regard to this case I do not consider there was sufficient evidenceto establish beyond all reasonable doubt that a sale took place. Onreading the judgment it appears that the Magistrate attached considerableimportance to the statement made by Selliah to the Inspector. Thisevidence however, although admissible to show that Selliah’s evidencewas not worthy of credit, was not evidence against the accused.
Therefore the only evidence against the accused was that of theInspector and Anthonipillai and that evidence is not, in my opinion,sufficient to support the conviction.
As Drieberg J. said in Wijeratne v. Rupasinghe (supra), the sale might beproved if those who were present were able to speak to every detail of theincident, but in this case the witnesses are unable to do so.
I think the appeal should be allowed and the conviction set aside.
Dalton J.—I agree.
1 2 Cey. Law Weekly 280.2 S. C. Minutes of May 29, 1928.
DHARMARATNE v. KANDASAMY