035-SLLR-SLLR-1998-1-EHELEPOLA-v.-OFFICER-IN-CHARGE-POLICE-STATION-KANDY-AND-ANOTHER.pdf
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Ehelepola v. Officer-in-Charge, Police Station,
Kandy and Another
295
EHELEPOLA
v.
OFFICER-IN-CHARGE, POUCE STATION, KANDY AND ANOTHER
SUPREME COURTPERERA, J.,
ANANDACOOMARASWAMY, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 62/97
C. KANDY NO. 61/95DECEMBER 19. 1997.
JANUARY 10, 1998.
Offences against Public Property Act, No. 12 of 1982 – Theft of Public Property- meaning of "Public Properly" – Sections 3 and 12 of the Act – Section 366of the Penal Code – Evidentiary value of the dock statement of accused.
Five accused including the appellant were convicted of theft of an undergroundcable drum belonging to Sri Lanka Telecom, an offence punishable under section3 of the Offences against Public Property Act, No. 12 of 1982. In his judgment,the Magistrate observed that the dock statement made by appellant had noevidentiary value. In appeal, the High Court set aside the conviction and sentencesimposed on the accused and ordered a retrial before another Magistrate.
Held:
The cable drum which was the subject matter of the charge of theft was'public property* within the purview of section 12 of the Offences againstPublic Property AcL
The Magistrate had misdirected himself when he stated that the dockstatement made by the appellant had no evidentiary value.
Cases referred to:
King v. Sittamparam 20 NLR 257.
The Queen v. Kulamtne 71 NLR 529.
The Queen v. Mapitigama Buddharakhita 63 NLR 433.
APPEAL from the judgment of the High Court Kandy.
Mohan Peiris with Ms. Nuwanthie pias for the appellantBuwaneka Aluvihare, S.S.C for respondents.
Cur. adv. vult
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Sri Lanka Law Reports
(1998) 1 Sri LR.
April 3, 1998.
PERERA, J.
The petitioner and four others were charged in the Magistrate's Courtof Kandy on the following counts :-
That the petitioner with four others did on or about 6.4.1994fraudulently remove from the possession of AriyaratneSerasinghe of Werallagama an underground cable drumvalued at Rs. 125,000/- belonging to the Department ofTelecom and thereby committed an offence punishable undersection 3 of the Protection of Public Property Act as amendedby Act No. 76 of 1988.
That the aforesaid persons did on or about the 6th of April,1994, fraudulently dispose of the said underground cabledrum belonging to the Department of Telecom which wasin the possession of Ariyaratne Serasinghe and therebycommitted an offence punishable under section 3 of theProtection of Public Property Act as amended.
After trial, the learned Magistrate found all five accused guilty onthe 1 st count and sentenced the accused to serve a term of six monthsrigorous imprisonment and imposed on each one of them a fine ofRs. 5,000/- in default six months' rigorous imprisonment.
All the accused appealed against the conviction and the sentencesimposed to the High Court of the Central Province holden in Kandy.At the conclusion of the argument of the said appeal, the learnedHigh Court Judge set aside the convictions and sentences imposedon the accused-appellants and ordered a retrial on the same chargesagainst the accused-appellants before another Magistrate (vide P2).
The appellant-petitioner – hereinafter referred to as the appellant(the 2nd accused-appellant in the High Court appeal) has lodged thepresent appeal against the judgment of the High Court ordering aretrial in this case. No appeals have been filed by the other fouraccused to this Court.
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Ehelepola v. Officer-in-Charge, Police Station,
Kandy and Another (Perera, J.)
297
Both counsel for the appellant and counsel for the State agreedthat this was a fit matter to be decided upon the written submissionsfiled in this case.
This Court granted special leave to appeal to the appellant on the9th of May, 1997 on the following questions
Can the conviction for theft of public property be sustainedin the absence of evidence that the subject matter of thetransaction was public property?
Can the conviction of the 2nd appellant for theft be sustainedin the absence of evidence of any participation by him inthe thpft?
Did the learned Magistrate misdirect himself when he heldthat the unsworn statement of the appellant from the dockwas of no evidentiary value?
Did the learned High Court Judge act correctly in sendingthe case for retrial, having held that the learned Magistratewas-te) wrong in disregarding the dock statement,
the insufficiency of evidence to hold that the subjectmatter was public property, and
the absence of the 2nd accused-appellant at the timethe theft took place on 6.4.1994 in Kandy?
The first question arises for determination by this Court thereforeis whether there is evidence to establish that the underground cabledrum which was the subject matter of the theft constituted publicproperty within the meaning of the definition set out in the Offencesagainst Public Property Act, No. 12 of 1982.
The aforesaid Act defines Public Property as follows:-
"Public Property means the property of the government, any
department, statutory board, public corporation, bank, co-operative
society or a co-operative union."
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(1998) 1 Sri LR.
Further this Act defines a Public Corporation in the following terms:-
"Public Corporation means any corporation, board or otherbody which was or is established by any written law other thanthe Companies Ordinance with funds or capital wholly or partlyprovided by the government by way of grant, loan or otherwise."
It would also be relevant to advert to the preamble to the Sri LankaTelecommunications Act, No. 25 of 1991, which reads thus:
"To provide for
transfer of property, rights and liabilities of the Department ofTelecommunications to the Corporation named Sri Lanka Telecomestablished by Order under section 2 of the State IndustrialCorporations Act, No. 49 of 1957 . . ."
At the trial, the Deputy General Manager of the Sri Lanka Telecom,Merril Perera has testified to the effect that the TelecommunicationsDepartment was converted into a State Corporation in September,1991. He has also identified the cable drum in question as the propertyof the Sri Lanka Telecom. It is his evidence that the Sri Lanka Telecomis a State Corporation which was previously a department ofgovernment. The testimony of Merril Perera stands uncontradicted onthis matter.
Having regard to the evidence set out above and the definitionof the term "Public Property" in section 12 of the offences againstPublic Property Act, No. 12 of 1982, I hold that sufficient evidencehas been adduced to establish that the cable drum which was thesubject matter of the charge of theft was indeed public property andfalls within the purview of the said Act.
The next question on which leave has been granted by this Courtis whether the conviction of the appellant on the charge of theft couldbe sustained in the absence of evidence of any physical participationon the part of the appellant in the actual theft itself in Kandy. It isthe petitioner's contention that at all times material to the commissionof the "alleged theft" he was in Colombo. The allegation is that thetheft of this cable drum was committed at No 360, Werallagama,Padeniya in Kandy.
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Ehelepola v. Officer-in-Charge, Police Station,
Kandy and Another (Perera, J.)
299
It was contended on behalf of the appellant that the offence oftheft under the provisions of Offences against the Public Property Acthas been given the same definition as in the Penal Code in termsof the amendment. It was counsel's submission that having regardto the evidence in this case, the prosecution has failed to prove acharge of theft against the appellant as there was no materialto establish any participation on the part of the appellant in thecommission of the alleged theft on 6.4.94.
The offence of theft is defined in section 366 of the Penal Codeas follows :
The following ingredients have thus to be proved to establish theoffence of theft:-
(а)an intention to take dishonestly
(б)any movable property
(c) out of the possession of any person(a) without that person's consent(e)moves that property
(/)in order to such taking.
The essential feature of the offence of theft undoubtedly is thatit is an offence against possession as opposed to ownership.
Hence it is imperative to identify the person against whom theoffence of theft has been committed or the possessor. Then if theevidence discloses that any person with the requisite intention movesany movable property out of the possession of the possessor in orderto taking such property he commits the offence of theft.
"Salmond in his book on Jurisprudence" (12th ed. pp.270-273) states thus:
"I possess, roughly speaking, those things which I have; thethings which I hold in my hand, the clothes which I wear, andthe objects which I have by me. To possess them is to have themunder my physical control."
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(1998) 1 Sri LR.
"Now to say that something is under my control is not to assertthat I am continuously exercising control over it. I can have athing in my control without actually holding or using it at everygiven moment of time."
"All that is necessary is that I should be in such a positionas to be able in the normal course of events to resume actualcontrol if I want."
“The test then for determining whether a man is in possessionof anything is whether he is in general control of it." at p. 273.
It would be necessary in the circumstances to briefly refer to theevidence adduced in this case. On 6.9.94 when witness Wijeratne,a driver attached to the Sri Lanka Telecom (who had been assignedthe lorry 43-4949) has reported to the Telecom Office in Kandy afterwork, Wijeratne had been instructed by the first accused to proceedto Wattegama and collect a cable drum from the Telecom warehouseat Wattegama. He had complied with those instructions and whenhe brought the drum to Kandy, the 1st accused-appellant hadinstructed Wijeratne to transport this drum to Colombo on the followingday -7.4.94 and to meet another Sri Lanka Telecom employee Ehelepola(the present appellant) near the Sugathadasa Stadium.
Accordingly when he reached Colombo on 7.4.94, he had met theappellant Ehelepola near the Sugathadasa Stadium. Ehelepola hadbeen waiting there in a Hiace Van belonging to the Sri Lanka Telecom.The appellant had walked up to Wijeratne's vehicle and had inquiredfrom him whether there was any message from Wickremasekera (the1st accused) and Wijeratne had replied that the 1st accused hadinstructed him to hand over the drum to the appellant Ehelepola. Thelorry had been driven to a place at Bloemendhal Road and the drumhad been shifted from Wijeratne's lorry and loaded into a private lorrywhich was brought there by the appellant. Wijeratne had thereafterreturned to Kandy.
According to Liyanawaduge, the Storekeeper of Sri Lanka Telecomwarehouse at Wattegama, he was directed by the 1st accused onthe telephone to issue a cable drum when witness Wijeratne's lorrycalls for it at the stores, and as instructed by the 1st accused, hehad ordered the release of the cable drum to Wijeratne.
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Ehelepola v. Officer-in-Charge, Police Station,
Kandy and Another (Perera, J.)
301
The virtual complainant in this case is one Ariyaratne Serasinghewho at the time of the alleged theft held the office of Telecommu-nications Engineer, Central Province. It is his testimony that both the1st accused and the warehousekeeper were answerable to him inregard to any issues from the warehouse. As regards all requisitionsmade by the 1st accused, it was Serasinghe who had immediateauthority to sanction the same. The storekeeper was permitted todespatch goods only in respect of such requisitions as had been dulyauthorised by the complainant. The complainant however was answer-able to the Deputy General Manager who was also the head of theNorth-Central Branch of the Sri Lanka Telecom. Requisitions couldalso be sanctioned by the Deputy General Manager, but it is therefore,clear that no movement of goods in the warehouse was possiblewithout the sanction of the complainant being first obtained.
On the evidence adduced at the trial therefore it is manifestly clearthat the complainant wets in general control of the goods in thewarehouse and therefore may rightly be said to have been inpossession of the said goods.
According to the evidence, the warehousekeeper was answerableto the complainant. In point of fact the position of the warehouse-keeper in relation to the complainant would be that of a clerk, agentor servant. The position is the same in regard to witness Wijeratnewho transported the cable drum to Colombo.
Section 25 of the Penal Code provides thus:
"When property is in the possession of a person's wife, clerkor servant on account of that person, it is in that person'spossession within the meaning of the Penal Code".
Therefore, the warehousekeeper and subsequently, the driverWijeratne had only custody in respect of the goods entrusted to him.In regard to this aspect of the matter, namely, the interpretation ofsection 25 of the Penal Code, Dr. G. L Peiris observes thus:
The purpose of this provision is to obviate an anomaly whichcould otherwise have characterised the law governing theft. Wherethe master's property was in the keeping of his servant and theservant dishonestly converted the property to his own use, a
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(1998) 1 Sri LR.
conviction of theft would not be possible against the servant ifpossession of the property was held to be with the servant. Toeliminate this difficulty, the law construes the situation as involvingmerely custody in the servant, where the master retains thepossession of the property derivatively through his servant*.(Vide offences under the Penal Code – Dr. G. L. Peiris, p. 372.)
In the present case, the movement of the movable property to witthe cable drum was caused as follows:
On the 6th of April, 1994, the 1st accused informed the warehouse-keeper of the Wattegama warehouse to despatch the impugned propertyto a team headed by the 3rd accused. The 1st accused was aDistrict Telecommunications Inspector whose work came under thesupervision of the complainant. Being an officer, he was vested withthe implied authority to requisition goods from the Wattegama ware-house in the event of an emergency. The evidence however, disclosesthat there was no such emergency on the 6th of April, 1994, whichnecessitated the despatch of impugned property. Therefore, there wasno 'source' from which the 1st accused could derive the impliedauthority to requisition goods. He nevertheless held out to thewarehousekeeper that he did so properly possessing the impliedauthority to do so.
The warehousekeeper actng in good faith in accordance with theimplied authority vested in him by the complainant despatchedthe goods according to the wishes of the 1st accused believing thelatter to be duly authorised to requisition the impugned property. Theimpugned property was received by Wijeratne on the instructions ofthe 1st accused.
The warehousekeeper by virtue of his office was a servant of thecomplainant and therefore had only the custody and notpossession in respect of the goods entrusted to him. Since the 1staccused had by his act of requesting the impugned property from thewarehousekeeper held out to the latter that he was acting with dueauthority, the warehousekeeper proceeded to despatch the same onthe premise that he had the implied consent of the complainant soto do.
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Ehelepola v. OfUcer-in-Charge, Police Station,
Kandy and Another (Perera, J.)
303
Inasmuch as the transfer of the impugned property was executedwith the consent and co-operation of the warehousekeeper, thoughwrongfully procured, the said transfer is a 'delivery* as opposed toa taking'.
The person who took receipt of the impugned property, namely,witness Wijeratne (3rd accused) too was by virtue of his employment,answerable to the complainant, his acquisition of the impugnedproperty can in no way amount to an acquisition of possession, butmerely amounts to an acquisition of custody. Accordingly, despite thetransfer of the property from one person to another, the complainant,at this juncture still retained possession of the subject property. It mustalso be observed that the impugned property was loaded onto a lorrywhich belonged to the complainants office. In my view, therefore,in the absence of 'a moving out of the possession of the possessor*and 'a dishonest taking' by a recipient as well as the presence ofthe implied consent of the possessor, the aforesaid '1st movementof the subject property cannot amount to a theft. According to theevidence, it was on the instructions of the 1st accused that theimpugned property was moved, by a team headed by the 3rd accusedfrom Kandy to Colombo on the 7th of May, 1994, in the same lorrybelonging to the Sri Lanka Telecom – Central Province used for thepurpose of transporting the said property from Wattegama to Kandy.
Inasmuch as the 3rd accused and his party, by virtue of theiremployment were all answerable to the complainant and thereforecould only claim custody of the impugned goods, and by virtue ofthe fact that they were acting under the instructions of the 1st accusedwho had held himself out to have been authorised by the complainant,this '2nd movement1 of the impugned property too like the '1st movement*referred to above does not suffice to constitute a theft. This is clearlyillustrated in illustration 'N' to section 366 of the Penal Code. * 'A'asks charity from ‘Z's wife. She gives 'A' money, food and clothing,which 'A' knows to belong to 'Z her husband. Here it is probablethat 'A' may conceive that 'Z' 's wife is authorised to give away alms.If this was 'A' 's impression, 'A' has not committed theft."
The evidence discloses that when the impugned property reachedColombo, it was transferred from the 3rd accused's custody to the2nd accused on the instructions of the 1st accused.
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(1998) 1 Sri LR.
As has been observed earlier, the 3rd accused and his partyby virtue of their employment were answerable to the complainant.Accordingly, they merely had custody in respect of the subjectproperty. Furthermore, since they were acting solely on theinstructions of the 1st accused, who held himself out to have beenauthorised by the complainant to do so, they, in good faith believedthemselves to have had the implied consent of the complainant todeliver the custody (as opposed to possession) of the impugnedproperty to the 2nd accused.
The 2nd accused (the present appellant) however though anemployee of the Sri Lanka Telecom, was not be virtue of his em-ployment answerable to the complainant, nor to the 1st accused.Therefore, he could not, at any time be considered a clerk, agentor servant of the complainant or the 1st accused. Therefore, whenthe impugned property was transferred from the 3rd accused to the2nd accused, the 2nd accused was not obliged to recognize thesuperior right of the complainant, and accordingly acquired possessionof the impugned property as opposed to mere custody.
In so acquiring the possession of the impugned property, the 2ndaccused had done so without the consent of the former possessor,namely, the complainant.
Further, according to the evidence, the impugned property wasloaded onto a private vehicle which had been procured for this purposeby the 2nd accused on the instructions of the 1st accused.
The '3rd movement1 could not have been effected without theparticipation of both the 1st and 2nd accused. While the 1st accused,by his display of apparent authority caused the subject property tobe released from the possession of the complainant, the 2nd accusedby his act of procuring the same, acquired possession anew on behalfof both himself and the 1st accused. The said '3rd movement' resultedin the impugned property being moved out of the possession of thepossessor, namely, the complainant without his express or impliedconsent. Therefore, in my view the actus reus of the offence of theftwas properly constituted by this '3rd movement'.
Having regard to the facts stated above, I am unable to agreewith the submission that there was no participation by the appellantin the alleged offence of theft.
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Ehelepola v. Officer-in-Charge, Police Station,
Kandy and Another (Perera, J.)
305
The third matter on which leave to appeal has been granted ison the question whether the learned Magistrate misdirected himselfwhen he observed that the dock statement of the appellant had noevidentiary value. I have examined the judgment of the learnedMagistrate and find that the Magistrate has indeed stated that thedock statement made by the appellant had no evidentiary value. Onthis matter the learned Magistrate has clearly misdirected himself. Itis indeed well settled law that when an unsworn statement is madeby an accused from the dock, that such statement must be lookedupon as evidence subject however to the infirmity that the accusedhad deliberately refrained from giving sworn testimony. Though thereis no statutory provision for it, the right of an accused to make anunsworn statement from the dock has been recognized by our Courtsfor many years. (See The King v. Sittampararrf1f) and is now partof the established procedure in our Criminal Courts. If such statementis believed, it must be acted upon, if it raises a reasonable doubtin their minds about the case for the prosecution, the defence mustsucceed. However, it should not be used against another accused.(Vide The Queen v. Kularatne«). In the instant case, the learnedMagistrate had admittedly given no consideration whatsoever to theunsworn statement made by the appellant from the dock and hasspecifically stated that such statement had no evidentiary value. InThe Queen v. Mapitigama Buddharakhita Thera and two others w, theCourt of Criminal Appeal has observed that the right of an accusedperson to make an unsworn statement from the dock is recognizedin our law. That right would be of no value, unless such a statementis treated as evidence on behalf of the accused, subject however tothe infirmity it attaches to statements that are unsworn and have notbeen tested by cross-examination.
I am in respectful agreement with this view and I am of the opinionthat such a statement must be looked upon as evidence subject tothe infirmity that the accused had deliberately refrained from givingsworn testimony.
Having regard to the evidence adduced in this case, I am of theview that there was sufficient evidence before the Magistrate uponwhich the appellant might reasonably have been convicted, but forthe erroneous view taken by the Magistrate that an unsworn statementfrom the dock made by an accused person has no evidentiary value.The conduct of the Magistrate in disregarding altogether the unswornstatement made by the accused from the dock, in my view, has caused
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prejudice to the appellant. I therefore hold that the learned High CourtJudge has rightly ordered a retrial in this case. In the circumstances,I affirm the judgment of the learned High Court Judge directing a trialde novo in this case before a different Magistrate. The appeal is,accordingly, dismissed.
ANANDACOOMARASWAMY, J. – I agree.
BANDARANAYAKE, J. – I agree.
Appeal dismissed.