Sri Lanka Law Reports
 3 Sri LR.
COURT OF APPEALISMAIL, J.,
DE SILVA, J.
C. NEGOMBO NO. 68/92C.A. NO. 143/96FEBRUARY 26, 1998MARCH 02, 1998.
Poisons, Opium and Dangerous Drugs Ordinance S. 54 (a) (c), S. 54(a) (d),S. 54 (b) amendment 13 of 1984 – Abetment – Statement recorded in English- Accused not proficient in English.
The accused-appellant was found guilty and convicted of having abetted the 1staccused to commit the offence of importation of heroin under S. 54 (b) (g) Act13 of 1984. It was admitted that the accused is not proficient in English and thatdespite the direction of senior customs officer to record the statement in Tamilhis statement was recorded in English.
The only evidence against this appellant is his statement.
It cannot be understood as to why the Assistant-Charges Officer S.Sundaralingam who can be presumed to be proficient in Tamil orderedthe statement in English when he was given express instructions to recordthe statement in Tamil. It is apparent that he has questioned the appellantand spoken to him in Tamil.
There cannot be much doubt that the appellant was not adequatelyproficient in English considering the manner in which he has placed hissignature "Mr. Ashok Kumar" at the end of his statement.
APPEAL from the judgment of the High Court of Negombo.
Dr. Ranjit Fernando with Ms. Anoja Jayaratne and Ms. Subashini Godagama foraccused-appellant.
Jayantha Jayasuriya, Senior State Counsel for AG.
Cur. adv. vuit.
Ashok Kumar v. Attorney-General (Ismail, J.)
March 02, 1998.
There were three accused named in the indictment. They were:
Reverend Maradana Sumanawansa,
Manikkarajah Ashok Kumar, and
Vincent Ratnasingham Daniel.
There were four counts in the indictment. The 1 st two counts relatedto the 1st accused. On the 1st count he was charged with havingimported 674.3 grams of heroin at Katunayake on 27.01.1991, anoffence punishable under section 54A (c) of the Poisons, Opium andDangerous Drugs (Amendment) Act, No. 13 of 1984. On an alternativesecond count the 1st accused was charged with possession of 674.3grams of heroin contrary to the provisions of section 54A (a) of thesaid Act.
The charge against the 2nd accused was that he did between8.1.1991 and 27.1.1991 abet the 1st accused in Madras to committhe offence of importation of 674.3 grams referred to in count (1) ofthe indictment, an offence punishable under section 54B of the saidAct.
The 4th charge related to the 3rd accused and the charge againsthim was that he did on 08.01.1991 at Colombo abet the 1st accusedto commit the offence of illegal importation referred to in count (1)of the indictment.
The case was taken up for trial on 29.05.1995 after all threeaccused pleaded not guilty to the several charges against them.However after the evidence of the principal witness the AssistantCharge Officer M. D. A. Jayantha Gunatilleke who made the detectionwas concluded on 16.6.1995 the 1st accused pleaded guilty to thecharge of having illegally imported heroin referred to in count (1). Inthe circumstances he was acquitted on 2nd count which was analternative charge of possession of the same quantity of heroin atthe time of detection.
Sri Lanka Law Reports
 3 Sri L ft
The 3rd accused was discharged and acquitted at the end of thecase for the prosecution as there was insufficient evidence againsthim to establish the charge of abetment in Colombo of the importationof heroin.
The 2nd accused who is the present appellant was found guiltyand convicted of the charge preferred against him in count (3) of theindictment of having abetted the 1st accused to commit the offenceof importation of 674.3 grams of heroin referred to in count (1) ofthe indictment under section 54 (B) of the Act No. 13 of 1984. Itprovides that "any person who abets the commission of or whoattempts to commit or does any act preparatory to or in furtheranceof the commission of any principal offence set out in section 54A,shall be guilty of such offence and shall be liable on conviction tothe punishment provided for the principal offence”. In this instancethe 1st accused has pleaded guilty and was sentenced to life im-prisonment. In the circumstances the punishment for the sentence towhich the 2nd accused was liable is also a sentence of life impris-onment. He has accordingly been convicted on 14.2.1996 of theoffence and sentenced to life imprisonment. He has been in remandcustody since then after conviction pending the hearing of this appeal.It was submitted that he has in fact been in remand custody since
the date of the detection.
Learned Senior State Counsel submitted that the principal evidenceagainst the accused-appellant was the statement of the 2nd accusedrecorded by S. Sundaralingam, the Assistant Charges Officer of theCustoms on duty at the Colombo International Airport, Katunayakeon 27. 01. 1991. The statement was marked P23 at the trial and itappears at page 390 of the appeal brief.
Learned counsel for the accused-appellant submitted that the accusedis not proficient in English and that despite the direction of SeniorCustoms Officer to record his statement in Tamil, his statement hasbeen recorded by the Assistant Charges Officer in English. It appearsfrom the endorsement at the conclusion of the recording of thestatement that "the statement (was) recorded and translated into Tamilby him". It is therefore clear that the statement has been recordedin English and translated or interpreted to the 2nd accused into Tamil.Learned counsel for the accused-appellant referred us to the dockstatement made by the accused-appellant appearing at page 287 of
Ashok Kumar v. Attorney-General (Ismail, J.)
the appeal brief. There he has stated that he spoke to the officerrecording the statement in Tamil and that he was questioned in Tamilbut that the statement was recorded in English. He also stated thatthis statement which was recorded in English was not read over orexplained to him and that he placed his signature as he was askedto do so. We note that he has signed as “Mr. Ashok Kumar".
As the submission was made that the only evidence against the2nd accused-appellant is the statement which has, been recorded andproduced marked P23, we have carefully considered its contents. Theportion of the statement strongly relied upon by the prosecution andrelating to the offence was as follows:
"At Madras, we stayed at Sri Buwaneswary lodge and I wentout and met 'heroin' dealers and introduced to thero. After that,thero spoke to them and bought the heroin from them. But I donot know the quantity he bought and the money he paid. All thetransaction was done by thero himself", (sic)
Learned Senior State Counsel drew our attention to the rest ofthe passages in the statement which indicate that the 2nd accused-appellant was introduced to the 1st accused by the 3rd accused forthe purpose of introducing the 1st accused to persons who sell heroinand to help him to purchase heroin from them. It also appears thatthe appellant was promised the payment of a sum of Rs. 10,000 "forthis help". According to the evidence led at the trial it appears thatthe 2nd accused-appellant and the 1st accused went together toMadras on 08. 01. 91 and that they were seen off at the Airport bythe 3rd accused and that the two of them returned together on thesame flight on 27.01.1991. The 1st accused, a Buddhist priest andthe 2nd accused-appellant had missed their scheduled flight on 08.01.91but after the 1st accused had pleaded with the authorities they werepermitted to board the next flight that day. On their return on 27.01.1991the 1st accused was stopped at the customs on suspicion and thebag carried by him was searched and it was found to contain twoparcels with a large quantity of about 1,600 grams of brown powderconcealed in a false bottom in the bag. The said quantity of brownpowder was later analyzed by the Government Analyst and found tocontain about 674.3 grams of pure diacetyl morphine – heroin.
Sri Lanka Law Reports
 3 Sri LR.
It was strongly contended by learned Senior State Counsel thatthe statement of the 2nd accused-appellant as recorded reveals thatthe offence of abetment has been accomplished. We are howeverof the view that there is no reference in the statement to the rolehe played in assisting the 1st accused in the importation of heroinnor is there any indication in his statement that he was aware of thepurpose for which the 1st accused purchased heroin. It is abundantlyclear from the statement that his role was merely to help the 1staccused, who presumably did not speak Tamil, to introduce to himthe heroin dealers. He has specifically stated that the transaction wasdone by the 1st accused himself. Admittedly the appellant had beena student in Madras for several years and has knowledge of thelanguage and the city. Although it was contended by the Senior StateCounsel that inferentially his statement reveals that he was aware ofthe purpose for which the 1st accused purchased heroin we are ofthe view that the exculpatory portions in this statement of the 2ndaccused-appellant should also to be taken into account, specially inview of the submission on his behalf that the statement made in Tamilto the Assistant Charges Officer was recorded in English. We do notunderstand the reason as to why the witness S. Sundaralingam, theAssistant Charges Officer, who can be presumed to be proficient inTamil recorded the statement in English when he was given expressinstructions to record the statement in Tamil. It is apparent that hehas questioned the appellant and spoken to him in Tamil. There cannotbe much doubt that the 2nd accused-appellant was not adequatelyproficient in English considering the manner in which he has placedhis signature at the end of his statement.
The only evidence against the appellant is his statement referredto above and there is no other item which connects him with theimportation of heroin. For the reasons set out above we are of theview that it would not be safe to allow the conviction of the 2ndaccused-appellant for abetment to stand. We therefore quash theconviction of the accused-appellant and direct that the accused-appellant be acquitted of the charge.
DE SILVA, J. – I agree.
ASHOK KUMAR v. ATTORNEY-GENERAL