038-SLLR-SLLR-1997-V3-ATTORNEY-GENERAL-v.-SAMPATH.pdf
390
Sri Lanka Law Reports
(1997}3SriL.R
ATTORNEY-GENERAL
v,
SAMPATH
COURT OF APPEAL.
GUNASEKERA, J. (P/CA)
DE SILVA. J.
C.A. REV: 650/96.
C. COLOMBO 7764/96.
JUNE 23,1997.
Offensive Weapons Act No. 18 of 1966 – Section 2( 1) (B) – Indicted – Pleadedguilty – Sentence to be effective from dale of offence – Section 287, section300 Criminal Procedure Act – Could the period of remand that has been servedbe deemed to be a part of the sentence imposed – Imposing a fine is itmandatory.
Held:
The learned High Court Judge having imposed a term of three years R.l.could not have in law directed that the period spent in remand by theaccused-respondent should be taken into consideration as a part of theperiod of the sentence that he had served.
Under section 2(1 )(B) imposing a fine is a mandatory provision.
APPLICATION in Revision by the Attorney-General.
Rienzie Aresakularatne D S.G., with Kapila Waidyaratne S.S.C., for Attorney-General.
Mevan Balalle for accused-respondent (assigned).
Cur. adv. vult.
June 23. 1997.
GUNASEKERA, J. (P/CA)
This is an application in revision filed by the Hon. Attorney-Generalseeking to have the sentence imposed by the learned High CourtJudge on 02.09.1996 on the accused-respondent on pleading guiltyto a charge under section 2(1 ){B) of the Offensive Weapons ActNo. 18 of 1966 set aside.
CA
Allorney-General v. Sampath (Gunasekera, J. (P/CA))
391
The accused-respondent was indicted with having being inpossession of two offensive weapons on or about 23.05.1993,punishable under section 2(1){B) of the Offensive Weapons Act.When the trial was taken up on 02.09.1996 the accused-respondenthad withdrawn his earlier plea of not guilty and pleaded guilty tothe charge in the indictment. After hearing Counsel for the State andlearned Counsel for the accused-respondent in mitigation, thetrial judge had sentenced the accused-respondent to a termof three years Rigorous Imprisonment and directed that the saidsentence of three years Rigorous Imprisonment to be effective from23.05.1993 which was the date of offence and the date on which hehad been arrested, taking into account the fact that the accused-respondent had been in custody for a period of three years and fourmonths the learned trial judge had taken the view that the sentenceof three years imposed by him had already been served by theaccused-respondent and directed the Prison Authorities to releasethe accused-respondent from custody. It is against this order thatthe Attorney-General had filed this application in revision on the basisthat there is no provision in law for the learned trial Judge to havedirected that sentence imposed by him should have retrospectiveeffect.
It is submitted by learned Deputy Solicitor General that for anOffence under section 2{1){B) it was open to the learned trial judge tohave imposed a maximum sentence of 10 years RigorousImprisonment and a maximum fine of Rs. 10,000/- and in additionwhipping. The learned trial judge having imposed a term of 3 yearsrigorous imprisonment could not have in law directed that the periodspent in remand by the accused-respondent should be taken intoconsideration as a part of the period of the sentence that he hasserved. In this connection learned Deputy Solicitor-General draws ourattention to provisions of sections 287 and 300 of the Code ofCriminal Procedure Act. These two provisions clearly indicate thatupon the sentence being pronounced after conviction that theRegistrar of the High Court shall make out a warrant of committalwhich shall be signed by the judge who passed the sentence, or acolleague of his or his successor in office and dated of the day thatsentence was passed.
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Sri Lanka Law Reports
11997} 3 Sri L.R.
Section 300 states that when a person actually undergoingimprisonment is sentenced to imprisonment such imprisonment shallcommence at the expiration of the imprisonment to which he hasbeen previously sentenced.
These two provisions clearly indicate that the trial judge is notempowered to direct that a period of remand that has been servedby an accused should be deemed to be a part of the sentenceimposed and treat, that as a part of the sentence that he has served.The learned Deputy Solicitor General also contends that the learnedtrial judge has failed to give effect to the imperative provisions ofsection 2(1 )(B) in that trial judge had failed to impose a fine on theaccused-respondent on pleading guilty.
We have considered the provisions of section 2(1) (B) of theOffensive Weapons Act and are of the view that imposing a fine is amandatory provision. In the circumstances we are of the view thatthere is merit in the contention made on behalf the Hon. Attorney-General. Thus we set aside the order of the learned High CourtJudge dated 02.09.1996. Having regard to the fact that the accused-respondent has been out of jail consequent upon the order made bythe learned trial judge on 02.09.1996 and also having regard to thefacts as set out by Counsel who appeared assigned on his behalf inmitigation we impose a term of two years rigorous imprisonment onthe accused-respondent from today and direct that the two yearsRigorous Imprisonment be suspended for a period of five years. Inaddition we impose a fine of Rs. 1000/- and in default of paymentimpose a term of six months rigorous imprisonment. The learned trialjudge is to comply with provisions of section 303 subsections (4) and(6) of the Code of Criminal Procedure Act and consider givingreasonable time for payment by instalment of the fine imposed. Theapplication in revision is allowed.
DE. SILVA, J. – I agree.
Application allowed.