CA Oharmarajah v. Beddewel/a O.I.C. of Mullaitivu Police Station l Rat watte, J.) 465
BEDDEWELLA OFFICER IN CHARGE OFMULLAITIVU POLICE STATION
COURT OF APPEAL
RATWATTE, J (PRESIOENTI AND L. H. DE ALWIS, J.
M. C. MULLAITIVU 7628.
Post Office Ordinance — S.76CI1) and (2) — possession of mail bags — exclusive posse-ssion — knowledge – burden of proof.
Mail bags belonging to the Postal and Telecommunication Department were foundin the house of the accused. The accused was not present at the time of the detectionbut his mother was present and while claiming the house as hers said the mail bags hadbeen kept there by her son. The Magistrate convicted the accused holding that theaccused was deemed to be in possession of the bags although they were not in his ownhouse or in his physical possession – such deeming being in terms of 76C(2) of the PostOffice Ordinance amended by Act No. 24 of 1957.
An essential ingredient of the offence under s. 76CI2) is knowltdge on the part of theaccused The burden of proving knowledge is on the prosecution and until this burdenis discharged there is no burden on the accused to prove any lawful excuse. Even on thefacts the prosecution has failed to establish exclusive possession and there was no burdenon the accused The mother's statement was hearsay.
Cases referred to
ft) Allegacone v. Mylvaganam and another 8 C.L. W. 85f2)Labrooy v. Fernando (1945) 46 N.L. R. 285.
Appeal from judgment of the Magistrate's Court of Mullaitivu.
S. Navaratnam for accused-appellantA. Wickremanayake Statu Counsel for the State.
Cur adv vult
March 17. 1981
RATWATTE, J. (President C/A):
The Mullaitivu Police filed an amended plaint on 03.08.1979 withthe authority of the Postmaster-General. The charge against theaccused was as follows: That he did on or about 02. 01. 1979 atMuttiyankaddu without lawful authority have in his possessiontwo postal mail bags valued at Rs.100/41 cts. belonging to the
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Postal and Telecommunication Department and thereby committ-ed an offence punishable under Section 76 C( and (2)of the PostOffice Ordinance (Chapter 190) as amended by Act No. 24 of1957. (Vide 1967 Supplement Volume I page 327).
After trial the learned Magistrate convicted the accused of thecharge and sentenced him to pay a fine of Rs 250/-. The case forthe prosecution was as follows: The accused was a Linesman in theTelecommunication Department working at Achchuveli. On02. 01. 1979 Sub Inspector Premadasa of the Mullaitivu Policewent along with Army Personnel to Muttiyankaddu and searchedhouses in that area. Inside one house they found two Mail bags,which were produced at the trial marked P1. According to S. I.Premadasa the house in which the two mail bags were found wasthe house of the accused. At the time the bags were found theaccused's mother Ledchumy was in the house.
Sinnathamby Sivalogasunderam, Divisional InvestigationOfficer, Post Office, Vavuniya,and S. I. Premadasa gave evidencefor the prosecution. Sivalogasunderam identified the two mailbags P1 as bags belonging to the Postal Department, from theidentification marks on the bags. He stated that the bags are issuedfrom the General Post Office to various Post Offices. He valuedthe bags at Rs. 100/41 cts. He also stated that the mail bags whichare old and cannot be used are rejected by a committee and destroy-ed by a responsible officer. According to him the accused wasemployed in the Telecommunication Department. S. I. Premadasaunder cross-examination stated that at the time the bags werefound the accused was not present. The accused's mother told himthat the house in which the bags were found was her house.
S.I. Premadasa further stated that the accused's mother told himthat the mail bags were kept in the house by her son. This isclearly hearsay evidence. Premadasa took the bags and handedthem over to the Police. He did not arrest the accused's mother,but warned her to appear at the Police Stations. Premadasa did notknow what happened thereafter.
The accused gave evidence and called two witnesses, Vignes-waran a Colonisation Officer and Theivasigamany an Engineerfrom the Regional Telecommunication Department, Jaffna.
Learned Counsel for the accused submitted that the chargeagainst the accused has not been established. It was not disputedthat the two mail bags which were produced belonged to thePostal Department and that they were found in the house atMuttiyankaddu which was occupied by the accused's mother.
Learned Counsel contended that in terms of Section 76 C (1)and (2) the prosecution had to prove knowledge on the part of the
CA Dharmarajah v. Beddewella O.I.C. of Mullaitivu Police Station IRatwatte. JJ 467
accused before the burden was cast on him and he argued that onthe evidence the prosecution has failed to establish this ingredient.Learned Counsel argued that the learned Magistrate has entirelymisdirected himself. In his Order the learned Magistrate hasstated that as the bags were found in a house occupied by theaccused's mother who was present at the time the bags werefound, the son "is deemed to be in possession of the bags althoughthey were not in his house or in his physical possession or in hisown house." The learned Magistrate has cast the entire burden onthe accused. Section 76 C (2) reads as follows:
"For the purposes of Sub-section (1) a mail bag shall bedeemed to be in the possession or keeping of any person ifhe knowingly has it in the actual possession or keeping of anyother person or in any building or place whether occupied byhim or not, and whether it is so had for his own use or bene-fit or for the use or benefit of another." (The emphasis ismine.)
So that it .is clear that the prosecution had to establishknowledge on the part of the accused before the burden was caston the accused to prove any lawful excuse. There is similar provi-sion in Section 53 of the Excise Ordinance (Chapter 52). InAllegacone v. Mylvaganam and Another11' it was held that for thepresumption created by Section 50 of the Excise Ordinance No. 8of 1912 to arise and for the burden of rebuttal to be cast on theLicence-Holder it must be established by the prosecution that anoffence has been committed — Section 50 of the Excise OrdinanceChapter 42 of the 1938 Revised Edition (the same as Section 53of Chapter 52 of the 1956 Revised Edition). In Labrooy v.Fernando 12 ’ it was held as follows:
The presumption arising out of Section 50 of the ExciseOrdinance that an accused person in possession of an excisablearticle has committed an offence under Section 43 of theOrdinance can only arise when exclusive possession has beenestablished.
The learned Magistrate arrived at the conclusion, which I havereferred to above, because he rejected the accused's evidence forthe reason that the accused, according to the Magistrate, utteredthree falsehoods. The accused in his evidence stated thafhis motherlived with his sister at Karaveddy and that he was not on talkingterms with his mother. But he stated that he knew that his motherwas doing some cultivation at Muttiyankaddu. When he heard thathis mother had been asked to report at the Police Station, he wentto Mullaitivu and he stated in his examination-in-chief that he was
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arrested at the Police Station. Under cross-examination he statedthat at the Police Station his mother told him that the Army hadarrested her. He therefore went to the Army Camp. The ArmyOfficers telephoned the Police Station and at the request of thePolice, the accused was brought and handed over to the PoliceStation. The learned Magistrate has disbelieved the accusedbecause he states, that if the accused was not on talking termswith his mother, he would not have come to the Police Station tosee her. I am of the view that the learned Magistrate has misdirec-ted himself. The second falsehood referred to by the Magistrateis the fact that the accused stated that his mother lived with hissister at Karaveddy. The learned Magistrate states that the accusedhas been contradicted by his own witness Vigneswaran, theColonisation Officer who according to the Magistrate stated thatthe accused's mother lived at Muttiyankaddu. The learned Magis-trate has completely misdirected himself. Though the accusedstated that his mother lived at Karaveddy with his sister, heknew that she was doing some cultivation at Muttiyankaddu.Vigneswaran in his evidence stated that what was on the land atMuttiyankaddu was only a temporary hut and that during thecultivation period Ledchumy resided there. He further statedunder cross examination by the Police that after the cultivation isover the farmers go back to their villages. So that there is no realconflict between the evidence of the accused and Vigneswaran onthis point. The third falsehood referred to by the learnedMagistrate is in connection with the situation of the offices of thePostal Department and the Telecommunication Department atAtchuvely. The Magistrate states that the accused was specificin saying that he was not working in the same premises as thfePost Office whereas the Telecommunication Engineer who wascalled by the accused stated that the Post Office and the Teleco-mmunication Office are in separate buildings but in the samepremises. What the accused stated in his evidence was that thetwo offices are not in the same building. He did not say anythingabout not being in the same premises. The TelecommunicationEnginner stated the same thing as what the accused stated. I amof the view that here too the learned Magistrate has misdirectedhimself.
The position is that the only circumstances on which theprosecution can rely are firstly, that,the mail bags were foundin a hut which is occupied at times by a woman who is the accu-sed's mother; and secondly, that the accused was working in theTelecommunication Department. In my view these are onlygrounds for strong suspicion against the accused. I do not thinkthat the prosecution has made out a case beyond reasonabledoubt for the presumption, created by Section 76 C (1) and (2)
CA Dharmawansa Silva and Another v. The Republic of Sri Lanka (Rodrigo. J.l 469
to arise and that accordingly there was no burden cast on theaccused to establish his innocence. I would accordingly set asidethe conviction of the accused and the sentence imposed on himand acquit him.
L. H. DE ALWIS, J.
DHARMARAJAH v. BEDDEWELLA OFFICER IN CHARGE OF MULLAITIVU POLICE STATION