ABRAHAMS C.J.—Talaisingham v. Muttiah.
Present; Abrahams C.J.
TALAISINGHAM v. MUTTIAH.487—P. C. Point Pedro, 12,075.
Unlawful possession of ganja—Proof of possession with knowledge and sanction—First offence—Sentence of imprisonment.
Where a person is charged with unlawful possession. of ganja theprosecution must prove that the article was in the possession of theaccused with his knowledge and sanction.
It is not desirable that, as a rule, an accused person should besentenced to a term of imprisonment for a first offence.
PPEAL from a conviction by the Police Magistrate of Point Pedro.
A. Rajapakse (with him Gilbert Perera and Soorasangaram), foraccused, appellant.
M.F. S. Pulle, C.C., for Crown, respondent.
'Cur. adv. vult.
November 24, 1936. Abrahams C.J.—;
The appellant was convicted of having in his possession 5 pounds and4J ounces of ganja, in breach of section 28 of Ordinance No. 17 of 1929,as amended by section 7 (1) of Ordinance No. 43 of 1935, and was sentenced1 19 N. L. R. 426.* (1913) S. L. R. App. Div. 390. .
ABRAHAMS C.J.—‘Talaisinghtmi v. Muttiah.141
to 9 months’ rigorous imprisonment in addition to a fine of Rs. 300 or afurther 3 months’ rigorous imprisonment.
The facts are these. On May 7 last, a few minutes before midday,a number of Excise Officers entered into the house of the appellant accom-panied by. the Police. The excise authorities were acting on certaininformation which they had received. The name of the informant wasnaturally not disclosed in Court. The appellant was not at home, and aservant was in charge of the house. The officers made a search, and in aroom in the house they discovered a pile of five tin boxes the bottom oneof which was locked. Hanging on the wall of the room was a bunch ofkeys, one of which fitted the box. The box was found to contain 5pounds and 4£ ounces of ganja, 25 letters, 4 Money Order receipts, and awoman’s gold ornament. The appellant and his wife were both chargedfor being in possession of the ganja but the wife was acquitted. Theappellant gave evidence and denied any knowledge of the presence of theganja in his box. He admitted that the box was his and said that he hadlocked it when he left the house on April 22 to go with his wife to worshipat a temple a few hundred yards away. He said that he and his wifedid not leave the temple even for meals until they returned to the house .to-find that it had been searched by the Excise Officers, and he called inevidence the officiating priest of the temple to corroborate his story.It was given in evidence, both by the prosecution and by the .appellant,that the room in which the box containing the ganja was found had nowall at the back and opened on to the compound of the appellant’s house,and that the opposite end of that room faced the road and had an openingin the wall which was secured by a shutter which apparently could be-opened from the outside. The appellant stated that his next doorneighbour was ill-disposed towards him, and could easily get into thecompound and so enter the room .by the open end.
The statement of reasons for finding the appellant guilty was, I amafraid, not satisfactorily expressed. I regret to have to comment on thefact, but cases from Magistrate’s Courts are all too common whereMagistrates give findings on facts without stating their reasons. Itmakes matters very difficult ’for an Appeal Court, especially if the judg-ment is partially founded upon inadmissible evidence or false inferencesfrom facts. Here, the statement of reasons consisted very largely of arecital of undisputed facts. The Magistrate then says that he disbelievesthe defence, and says it is not true to say that the accused was stayingat the temple, and that he does not accept the suggestion that theaccused’s next door neighbour must have introduced the* ganja.
It is not possible to say from his judgment whether the Magistratereally addressed himself to the real point of the case. That point wasthis: Had the prosecution satisfactorily shown that the contrabandarticle was in the possession of the .appellant, that is to say, did heknow that it was on his premises, and did he sanction its presence there ?It was said in Rex v. Lewis1, that the mere fact of finding stolen propertyon premises occupied by a person is not per se sufficient to raise a presump-tion that the occupier is in possession of that property, and it was also
1 4 Cr. App. R. 96.
ABRAHAMS C.J.—Talaisingham v. Muttiah.
said in Rex v. Savage1, that where stolen property, is found in a man’s houseit is a question of fact for the Jury whether the property was found in hispossession, that is to say, whether it was there with his knowledge andsanction. The same reasoning naturally applies to any property thepossession of which is illicit.
Now it is obviously not sufficient to secure a conviction in this casethat the sole evidence against the appellant should be the mere presenceof the ganja in his house. What further Evidence is there to raise thepresumption which, if not rebutted by the appellant, would justify theCourt in coming to the conclusion that the ganja was on his premiseswith his knowledge and consent ? Now, the ganja was found in his boxand he admittedly had control over that box. There was no evidencenor was it even suggested by the defence that some other person, whetherin the house or not, was in the habit of using that box. In that box werea number of letters, and some of them are addressed to somebody by theinitials P. T., which are the initials of the appellant. One of the letters isdated April 26, 1936, and another dated April 30, 1936, so that it isobvious that the appellant went to the box oh several days after the dateon which he said he locked it, namely, April 22. The appellant having. manifestly given false evidence about the date on which he locked thebox, and not having denied that the letters were his, then comes thequestion as to when he visited the box last since he wishes it to be believedthat somebody else, in fact his next door neighbour, unlocked that boxsometime between April 22 and the date (May 7) when the Policediscovered the ganga. It is obvious that the appellant has failed tosupport his contention that he was not the last person tb’handle thatbox, and I am of the opinion that the prosecution has put forwardsufficient evidence to justify a conviction.ril!
I dismiss the appeal, but I do not consider that a sentence of such ,severity can stand. Appropriate measures must of course be adopted tosuppress this traffic in forbidden drugs, and it appears that the area inwhich the appellant is resident is a centre of that traffic, but in anycampaign for the suppression of any particular form of crime Courtsmust be obedient to the principles upon which punishment must beinflicted, and at the same time must maintain a proper sense of propotionin imposing sentences. It has been said again and again in this Courtthat it is not desirable as a rule that people should be sent to Prison for afirst offence. More than one case has been cited to me during theseproceedings in which persons offending more seriously than the appellantagain the Ordinance concerned in this case have been punished with nomore than a' fine. The Magistrate here has actually imposed a sentenceof three-quarters of the maximum term of imprisonment which can beinflicted under the enactment contravened. It is difficult to believe thathe really paused to think, otherwise he must.have appreciated that he wasleaving very little margin for an appropriate punishment for any subse-quent offence committed by this appellant against the same enactment.
I see no justification for departing from the policy which the Judges ofthis Court have continually observed. I quash the sentence of imprison-ment, but I leave the fine and the default sentence untouched.
» (1906) 70 J. P. 36.
TALAISINGHAM v. MUUTIAH