010-SLLR-SLLR-1990-2-ATTORNEY-GENERAL-SIRIPALA.pdf
ATTORNEY – GENERAL
v.
SIRIPALA
COURT OF APPEAL.
P.R.P. PERERA, J. AND W.N.D. PERERA. J..
C.A. 218/90 and C.A. 219/90.
M.C. NEGOMBO 1479/89 AND 1480/89.
JUNE 01, 12, 22. and 27. 1990
Narcotics — Heroin – Offence under Section 54A of the Poisons. Opium and DangerousDrugs Ordinance – Jurisdiction of Magistrate – Detention under S. 82(3) of the Poisons.Opium and Dangerous Drugs Ordinance.
The effect of the new Section 54A and Section 54B is to provide a more severe penalty onconviction by the High Court but these sections can under no circumstances be construedto mean that they have vested in the High Court exclusive jurisdiction to try the variousoffences created by the Ordinance. The fact that the report filed by the Officer-in-Charge ofthe Police Narcotics Bureau in the Magistrate's Court alleged the commission of offencesunder S. 54A and S. 54B cannot wipe out the jurisdiction of the Magistrate who isempowered by the Statute to try summarily the offences created by the Ordinance.
Cases referred to:
Attorney-General v. Punchi Banda [1986] 1 Sn L.R. 40, 45.
APPLICATION in Revision of the orders of the Magistrate of Negombo.
J. Charles for accused-respondent,,
Hector Yapa. Deputy Solicitor-General with Malalgoda, State Counsel for petitioner.
Cur. adv. wit.
April 20, 1990
P. R. P. PERERA, J.
The accused-respondent (hereinafter referred to as the respondent)"together with another suspect M. Dharmakaran, were produced beforethe Magistrate of Negombo on 15.11.89, on a report under Section 82
of the Poisions, Opium and Dangerous Drugs Ordinance, asamended by Act No. 13 of 1984. The report alleged that Dharmakaranwas detected on 14.11.89, at the Katunayake International Airport,with 1,197 grammes of a substance suspected to be heroin in hispossession-offences punishable under Section 54A, of the saidOrdinance.
According to this report, the respondent had aided and abettedDharmakaran in committing the offences set out above, and had thuscommitted an offence punishable under Section 54 B of the said Act.The Police, also sought an order of detention in terms of Section 82 (3)of the said Ordinance, and the learned Magistrate made orderpermitting the detention of the respondent in Police custody for thepurpose of investigation, until the 21.11.89.
On 21.11.89, the Officer-in-Charge of the Police Narcotics Bureauproduced the Respondent in the Magistrates Court and filed a furtherreport in terms of Section 82 (4), of the said Ordinance, and moved thatthe suspect be remanded to Fiscal's custody, and informed theMagistrate that he was seeking the advice of the Attorney-Generalregarding this case, under the provisions of Section 393 (5) of theCriminal Procedure Code. The learned Magistrate then remanded therespondent to the custody of the Fiscal up to the 04.12.89, and orderedthat a further report be filed on that date.
On 04.12.89, an order has been made by the Magistrate to call thiscase on 08.12.89, and on this date, defence Counsel had raised theobjection that the Magistrate had no jurisdiction to make an orderremanding a suspect who is alleged to have committed offences underSection 54 A, and Section 54 B, of the Poisons, Opium and DangerousDrugs Ordinance as amended by Act No. 13 of 1984. The learnedMagistrate having heard oral submissions of defence Counsel and StateCounsel, had also afforded the parties an opportunity of filing writtensubmissions. Thereafter, the learned Magistrate on 31.01.90, madehis order upholding the objection raised by the defence and purported todischarge the respondent presumably acting under the provisions ofSection 115 (2)- of the Criminal Procedure Code subject to certainconditions.
The present application of the Attorney-General, is to have this orderof the learned Magistrate set aside by way of revision. Deputy Solicitor-General, Hector Yapa, who appeared in support of this applicationcontended that this order was manifestly erroneous, and was incontravention of the provisions of Section 83 of this Ordinance, and thatit has been made without due regard to the provisions of Section 82 ofthe Ordinance which empower a Magistrate to act under the provisionsof the Code of Criminal Procedure Act, No. 15 of 1979.
Defence Counsel submitted that the Magistrate had no jurisdiction tomake an order remanding a suspect who is alleged to have committed
offences under Section 54 A and Section 54 B of this Ordinance asamended. Counsel invited the attention of the Court to the relevantreports filed by the Officer-in-Charge of the Police Narcotics Bureau, inthe Magistrate's Court, where it is alleged that the respondent hascommitted offences under Section 54 B, of the Poisons, Opium andDangerous Drugs Ordinance. Counsel contended that in the presentstate of the law, a Magistrate has neither the jurisdiction to try thesuspects, nor to inquire into the commission of these offences, so thatan order to remand a suspect in such a situation would be to act outsidethe jurisdiction vested in the Magistrate by law. Counsel also urged thatthere was no specific provision in this Ordinance as amended whichauthorised a Magistrate to make an order for remand in respect of theAccused-Respondent.
In this connection it is necessary however, to bear in mind that thereports filed by the Officer-in-Charge of the Police Narcotics Bureau,also disclose that the respondent may have abetted Dharmakaran in theCommission of one or more of the following offences : –
Possession and consumption of dangerous drugs prohibited bySection 52 of this Ordinance ;
The manufacture of any dangerous drug prohibited by Section53 of this Ordinance ; and
The sale, administration or the procuring of a dangerous drugprohibited by Section 54 of this Ordinance.
Indeed, Section 78 (3) specifically provides that every person whoattempts to commit or abets the commission of an offence, against thisOrdinance, shall be guilty of the same offence and in terms of Section 78(5), all these offences are triable summarily by a Magistrate. Accordingto this section, these offences are also triable by the High Court onindictment in which case, heavier penalties have been imposed {VideSection 78 (5) (a) and (b) of the Ordinance.)
It is significant, that these offences created under the originalPoisons, Opium and Dangerous Drugs Ordinance, have not beenrepealed by the amending Act No. 13 of 1984. Having regard to thefacts of this case what is relevant is that Section 54 A ard Section 54 B,of the amending Act imposes the death penalty or life imprisonment inrespect of certain offences like trafficking, import or export, andpossession of certain dangerous drugs inclusive of heroin over certain
specified quantities, and has introduced more severe penalties wherethe quantity was less than the specified amount on conviction by theHigh Court. The effect of the new Section 54 A, and Section 54 B,therefore is to provide a more severe penalty" on conviction by the HighCourt” and, in my opinion, these two sections can under nocircumstances be construed to mean that they may have vested in theHigh Court exclusive jurisdiction to try the various offences created bythis Ordinance.
On an examination of the relevent provisions of the Ordinance whichhave been set out above, it is clear that one of the objectives theLegislature sought to achieve by this amendment is to vest a widerdiscretion in the prosecuting authorities either to indict the offenderunder Section 54 A or Section 54 B, or to indict the offender under theearlier provisions of the original Ordinance in the High Court, or to chargesuch a suspect in the Magistrate's Court, depending on thecircumstances of each case. (Wc/eSection 78 (5) of the Ordinance). It istherefore in my view erroneous to hold that the amending Act has takenaway the jurisdiction vested in the Magistrate under the Poisons, Opiumand Dangerous Drugs Ordinance, and has vested exclusive jurisdictionin the High Court to try such offences.
It must be stressed that the mere fact that the report filed by theOfficer-in-Charge of the Police Narcotics Bureau in the Magistrate'sCourt alleged that the fact disclosed the commission of offences underSection 54 A and 54 B, cannot wipe out the jurisdiction of theMagistrate who is empowered by the statute to try summarily theoffences created by this Ordinance.
It has been observed in Attorney-General v. Punchi Banda (1) thatwhen suspect is produced before a Magistrate, with a definiteallegation, that he has committed an offence which such Court hasjurisdiction, either to inquire into or try, proceedings are automaticallyinstituted in terms of Section 136 (1) of the Criminal Procedure Code.What a Magistrate should do thereafter are clearly spelt out in Section142 (2) of the Code, where the offences are triable summarily, theMagistrate is obliged to act under Section 182 (1) and frame a chargeagainst the accused. The proviso to Section 142 (2). however
providesthat if the Magistrate is of opinion that the offenc^
cannot be adequately punished by a Magistrate's Court, he shall
forthwith stop proceedings and forward the record of the case to theAttorney-General, and abide by his instructions.
The proper course therefore in my opinion which the Magistrateshould have adopted in the circumstances in this case, is to haveproceeded with the present case in accordance with the provisions laiddown in the Criminal Procedure Code as provided for inSection 82 (4) ofthis Ordinance as amended by Act No. 13 of 1984. Having regard to thefacts of this case, there was absolutely no justification for the learnedMagistrate to have acted under the provisions of section 115(2) of theCode, as he has purported to do, and discharge the respondent in thiscase. The course of action adopted by the learned Magistrate in theinstant case is by no means permissible in law.
I hold therefore, that having regard to the statutory provisions set outabove, the learned Magistrate was in manifest error when he purported■ to discharge the accusfed-respondent subject to certain conditions onthe ground that he had no jurisdiction in law to make an order for thefurther remand of the accused-respondent. I therefore set aside theorder of the learned Magistrate dated 31.01.90, discharging theaccused-respondent, and make order that the accused be committed tofiscal custody forthwith.
The next question that arises for determination is whether theMagistrate had jurisdiction to enlarge the accused-respondent on bail.The answer to this question is certainly in the negative. Section 83 (1)specifically provides that no person suspected or accused of an offenceunderSection 54 A, or Section 54 B, of this Ordinance, shall be releasedon bail except by the High Court in exceptional circumstances. Meresuspicion that such an offence has been committed therefore would .suffice to attract the provisions of Section 83 (1). It is also provided in, Section 82 (4) that upon the conclusion of the investigtion or upon theconclusion of the period of detention whichever occurs first, suchperson shall be produced before' the Magistrate and subject to theprovisions of Section 83 of this Ordinance, the provisions of the. Code ofCriminal Procedure Act, No. 15 of 1979. shall apply to and in relationshipwith such person.
Counsel for the accused-respondent at the commencement of theargument, agreed to abide by the order made in this case in M. C.Negombo case 1480/89 – C. A. 219/90, as the same matters are
canvassed in that application as well, i therefore make order settingaside the order of the learned Magistrate dated 31.01.90, in M. C.Negombo Case No. 1480/89, and direct that the accused-respondentbe committed to fiscal's custody forthwith.
Both applications bearing Nos. C. A. 218/90, and C. A. 219/90 areallowed.
W. N. D. PERERA, J.- I agree.
Applications allowed