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Present: Lyall Grant J.
ALMEIDA v. FERNANDO.
838—P. C. Negortibo, 66,631.
Unlawful possession of ganja—Report of Public Analyst—Other methodsof proof—Knowledge of substance.
In a case of unlawful possession of ganja or opium, the productionof a report by the Public Analyst is not the only method of provingthe nature of the substance.
Evidence of a person who has some knowledge of the substancemay be sufficient.
PPEAL from an acquittal by the Police Magistrate ofNegombo.
Sckokman, C.C., for appellant.
Rajapakse, for respondent.
1 (1924) 27 N. L. R. 65.
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February 12, 1930. Lyall Grant J.—
In this case the accused was charged with unlawful possession ofganja and in the connected case with unlawful possession of opium.
After the evidence of one witness for the prosecution (the ExciseInspector) had been taken, the Magistrate stopped the case anddischarged the accused. He did so on the grounds that (1) theExcise Inspector did not seal the productions immediately onseizure, (2) no analyst’s report on the productions was obtained.
The Crown appeals from this order which amounts to an acquittal.
The learned Magistrate says on the first point that there is arecent decision of this Court to the effect that unless productionsof thic nature are sealed immediately they are found the possibilityof introducing arises and the accused is entitled to the benefitof the doubt.
On the second point be says that there is no proof that thesubstances were opium or ganja.
On the second point I am not prepared to hold that the onlyway of proving the substances to be opium and ganja is to obtainan analyst’s report. No doubt such evidence may be necessaryin certain cases where the point is seriously disputed. In thepresent case the Excise Inspector, who is presumably familiarwith the substances, has stated that from his own knowledge thesubstances produced are opium and ganja.
That is evidence which, in the absence of contest on the point, Ido not think the Magistrate is entitled to brush aside as of no value.
The prosecution has not been given an opportunity of leading-further evidence in regard to the nature of the substances producedand is entitled to lay all its evidence before the Court. There is noadmission that there is no further evidence to be led on this point.
The question of sealing may be important, but this again dependson circumstances in each case.
I was referred to a case decided by Jayewardene J. (Kalpage v.Casim, 580 PC. Colombo No. 22.0981), where he held that an objectionthat certain tins taken from the possession of the accused were notsealed in his presence was a good one. The accused there asserted'that the medicine found in the tins was not the medicine in themat the time they were removed from the premises.
That case was followed by me in Holsinger v. Joseph, 553 P. C.Colombo No. 3,249,3 where the circumstances were similar.
In neither of these cases were the packages sealed in the accused’spresence, and there was a reasonable possibility that they mighthave been tampered with.
' S. C. Mine, of September 14, 1926.* S. C. Mine, of September 27, 1929.
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In Bandaranayake v. Segu Ismail, 735 P. G. Kuruneyala No. 11,996,'where it was shown that the Inspector had possession of the gaajatill he produced it in Court and where the accused did not rely onthe defence of substitution but asserted that the ganja had beenintroduced into his house at an earlier stage of the proceedings,I declined to interfere with the conviction.
In the present case the Inspector says that he found the stuffin the presence of the accused, that he went with productions andthe accused to the police station, that he weighed the opium in thepresence of the accused, and that he got the police to seal theproductions in the presence of the accused. There is, of course,always the possibility of fraud if the Inspector is dishonest, butthat possibility exists even where the productions are sealedimmediately. In that event it might be alleged that the Inspectorhad substituted similar sealed packages.
All one need say is that the circumstances proved do not entitlethe Magistrate to dismiss the case without hearing further evidence.
The productions were sealed in the; presence of the accused andso far as the case has gone there is no evidence that he at that timeraised any question as to their being the articles seized in his house.
I allow the appeal and send the case back for trial before anotherMagistrate.
ALMEIDA v. FERNANDO