082-NLR-NLR-V-39-DE-NEISE-v.-SAMBUNATHAN–et-al.pdf
286
ABRAHAMS C.J.—de Neise v. Sambunathan.
1937Present: Abrahams C.J.
DE NEISE v. SAMBUNATHAN et al.
185—8-—P. C. Batticaloa, 45,122.
Opium—Unlawful possession of raw or prepared opium—Use of the word opiumin Analyst’s report—Presumption of guilt—Poisons, Opium, and Dan-gerous Drugs Ordinance, No. 17 of 1929, ss. 30 and 46 (2).
The expression “ opium ” includes raw or prepared opium as definedby the Poisons, Opium, and Dangerous Drugs Ordinance,] No. 17 of 1929.
The mere fact that a person ran away from a house which is raided forcontraband articles does not raise a presumption of gui].t strong enoughto demand an explanation.
A PPEAL from a conviction by the Police Magistrate of Batticaloa.
A. Rajapakse (with him J. R. Jayewardena), for accused, appellants.
M.F. S. Pulle, C.C., for complainant, respondent.
October 5, 1937. Abrahams C.J.—
The'appellants were convicted in the Batticaloa. Police Court of havingin their possession without the licence of the Governor raw or preparedopium weighing two pounds, an offence punishable under section 74 (5) (a)of the Poisons, Opium, .and Dangerous Drugs Ordinance, No. 17 of 1929,as amended by section 28 of the Poisons, Opium, arid Dangerous DrugsOrdinance, No. 43 of 1935.
The appellants were all found in a house that was raided in theexpectation that was realized that opium would be found on. the premises-The individual and combined activities of the appellants led the raidingofficers to the conclusion that they were all concerned in the possessionof two one-pound packets of opium that were found on the premises.They were all convicted and fined various sums.
The petition of appeal relates to questions of fact only,-but learnedCounsel for the appellant when presenting his case raised and argued avery ingenious pojnt of law. The evidence that the substance that wasfound on the premises was opium was given by the Excise Inspector, who
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ABRAHAMS C. J.—de Neise v. Sambunathan.
conducted the raid, and the substance was sent for examination anareport to the Government Analyst- The report of the GovernmentAnalyst contained the following information :—
“ The parcel contained a sealed packet labelled 1D One parcelsaid to contain tw.o one-pound packets of raw or prepared opiumproduced in P.C. Batticaloa; case No. 45,122 This held two packetsof black substance-
“ Opium was identified in both the packets ”.
The charge is that of being in possession of raw or prepared opium..Raw and prepared opium are respectively defined in section 30 of theprincipal Ordinance as follows :—
“ Raw opium ” means the spontaneously coagulated juice obtainedfrom the capsules of the papaver sorriniferum' L., which has only beensubmitted to the necessary manipulations for packing and transport,whatever its content of morphine;
“ Prepared opium ” means raw opium which has undergone theprocesses necessary to adapt it for smoking or eating, and includes“ opium dross ”.
It is argued that there is no proof that the substance analysed containedeither raw or prepared opium because the Analyst’s report does not say so,it merely uses the expression “ opium ”, and, says Counsel, for anythingthat the case actually proved the substance might have been what hecalled opium simpliciter, that is to say, opium as extracted from its source,or to use a more convenient term in the circumstances “ crude opium ”and that is what the Analyst may have meant, or indeed the substancemight have been medicinal opium which is defined in section 46 (2) of theOrdinance, as.: —
"' Medicinal opium ’ means raw*, opium which has undergone theprocesses necessary to adapt it for medicinal .-use in accordance withthe requirements of the British Pharmacopaeia, whether it is in theform of power or is granulated or is in any other form, and whetherit is or is not mixed with neutral substances ”.
I am of the opinion that this argument, subtle though it is, will notstand scrutiny. The very expression “ raw opium ” suggests opium inits crudest form, and it must be remembered that the long title of theOrdinance is “ An Ordinance to amend and consolidate the Law relatingto Poisons, Opium, and Dangerous Drugs ”, so that the Legislature musthave intended to deal with opium in every known form. This is borneout by various sections where the expression “ opium ” is used withoutany qualification, for instance, section 36 prohibits the use of premisesas an opium divan, that is to say, as a place of resort for the purpose ofeating or smoking opium. Finally, the definition of “ opium ” in theOxford Dictionary is to all intents and purposes that of “ raw opium ” inthe Ordinance, namely : —
“ The inspissated juice of a species of poppy (Papaver somniferum)obtained from the unripe capsules by incision and spontaneous eva-poration ”.
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ABRAHAMS C.J.—de Neise v. Sambunathan.
On the other point, namely, that the substance might have beenmedicinal, it seems to me that the evidence of the Excise Inspector wasimportant as to the identification of the article in view of the fact thathe is constantly examining such substances and that, the most cursoryglance and immediate odour of the substance would identify it so far ashe was concerned. Also the report of the Analyst would hardly havebeen silent on the point. The context clearly implies that he identifiedthe substance as raw or prepared opium.
The appeal on the facts is not pressed except by the fifth appellant.When the authorities raided the house he bolted. He was not the ownerof the house nor was he related to the owner, the first appellant* Nodoubt to run away from a house which is raided to search for contrabandarticles is some indication of guilt, but it does not of itself raise a presump-tion strong enough to demand an explanation. The appellant mightvery well have known the presence of opium in the house and may evenhave come to obtain some, but that does not make him guilty of theoffence charged. Crown Counsel agrees that he cannot urge anythingmore against'the appellant than that he ran away.
I allow the appeal of the fifth appellant and direct his acquittal, and Idismiss the appeals of the other four appellants.
Varied.