090-NLR-NLR-V-11-COREA-v.-GRIGORIS-APPU.pdf
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[In Rbvision.]
Present: Mr. Justice Wendt.
COREA v. GRIGORIS APPG.
P. G., Negombo, 10,203.
Revision — Inadequacy of sentence — Enhancement — Appeal — CriminalProcedure Code, ss. 347, 356, and 357.
The Supreme Court has power, in the exercise of its revisionaryjurisdiction, to enhance the sentence passed on an accused by aPolice Court, even if an appeal lies from* such sentence.
T
HIS was an application by the Attorney-General to revise thesentence passed on the accused with a view to its being
enhanced. The facts sufficiently appear in the judgment.
Walter Pereira, K.C., S.-G., for the Attorney-General.
H. Jayewardene (with bim A. Drieberg), for the accused,respondent.
Cur. adv. vult.
October 23, 1908. Wendt J.—
The Solicitor-General in this case invokes the re visionary powersof this Court with the view of having the sentence passed upon theaccused enhanced. Mr. Jayewardene, for the accused, has raisedthe question of the jurisdiction of this Court to interfere in themanner suggested, and I will deal with that point first- I thinkthere can be no doubt about the jurisdiction. Section 356 of theCriminal Procedure Code empowers this Court to sail for andexamine the record of any case for the purpose of satisfying itselfas to the legality or propriety of any sentence passed therein, andsection 357 authorizes the Court in its discretion to exercise any ofthe powers conferred by section 347, and thereby expressly investsit with the power of increasing the amount of the sentence or thenature thereof. But, perhaps, Mr. Jayewardene intended to puthis objection rather on the footing of a rule of practice in this Court,for he cited the case of Bogaars v. Karunaratne.1 There the Magis-trate had acquitted the accused, and Clarence J., in refusing toaccede to the Attorney-General’s application for revision, said hedid not, in general, consider jt proper to interfere by way of revisionin cases where an appeal might have been taken. -There is, perhaps,no objection to be taken to that as a general rule, but each case must
1908.
October 23.
» {1891) 1 C. L. R. 80.
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1808. depend on its own circumstances, and I think a distinction should beOctober 83. drawn between the case of an acquittal and that of a convictionWendt J. with 8,1 inadequate sentence, and also between the sentence of aDistrict Court, in which the Attorney-General directly prosecutesby one of his officers, and that of a Police Court, of which theAttorney-General has not, as a rule, any direct cognizance. Re-spondent's counsel himself, however, cited the case of The Queenv. Dotniel, 1 which, if it can be considered good law at the presentday, establishes that .the Attorney-General, cannot appeal in order toobtain enhancement of the sentence. The case of Saxton v. Audi 2was also an appeal (apparently by the Attorney-General) againstan inadequate sentence upon conviction, and it was dismissed onthe express ground that the Court of Appeal has no power to enhancethe punishment—a ground which, in view of the provisions of section347 already referred to, is no longer maintainable.
The jurisdiction of the Court being clear, I hold this is a propercase for its exercise. The accused pleaded guilty to the charge ofhaving possessed half a pound of extract of opium without havingobtained a licence, in breach of section 16 of Ordinance No. 5 of 1899,as amended by section 8 of Ordinance No. 9 of 1905, which imposesthe penalty of a fine not exceeding Rs. 50, or imprisonment of eitherdescription not exceeding three months, or a combination of bothpunishments for every unlawful possession, transfer, gift, or sale ofopium- The quantity found in the respondent's possession waslarge; it was entirely unaccounted for, and the articles found withit and produced in Court pointed to the probability that the opium' was kept for illicit sale. The offence being a first offence, I do notthink imprisonment was called for; but, in view of the profitsderivable from the illicit traffic in opium, the amount of the fineought to have been such as to ensure a deterrent effect. Rs. 10was an inadequate amount. In revision I enhance it to Rs. 30,with one month’s rigorous imprisonment in default of payment.
Sentence enhanced.
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1 (1896) 1 N. L. if. 87.
> (1895) 1 N. L. R. 341.