070-NLR-NLR-V-36-INSPECTOR-OF-POLICE-,-NEGOMBO-v.-HUSAAIN.pdf
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Inspector of Police, Negombo v. Hussain.
1934Present: Akbar J.
INSPECTOR OF POLICE, NEGOMBO v. HUSSAIN.
164—P. C. Negombo, 6,419.
Sentence—Enhancement of punishment—Evidence of bad character of accused—.
False allegations against prosecuting Inspector—No ground for enhancing
sentence.
Where, after the conviction of an accused person, evidence of the badcharacter of the accused is placed before the Court for enhancement ofpunishment such evidence must be given under oath or affirmation bypersons of undeniable position and responsibility.
The fact that the accused made an unfounded allegation against theprosecuting Inspector is not a sufficient reason for passing an enhancedsentence on him.
^^PPEAL from a conviction by the Police Magistrate of Negombo.
C r.^os da Brera, for accused, appellant.
1 (19181 21 N. L. R. 106.
2 24 N. L. R. 188.
AKBAR J.—Inspector of Police, Negombo v. Hussain.
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March 28, 1934. Akbar J.—
The accused was charged with having in his possession 769 grains ofopium without a licence. After some evidence was led the accusedpleaded guilty to the charge. The learned Magistrate sentenced him tofour months’ rigorous imprisonment, basing his reasons for giving such apunishment on two grounds, the first being that the accused had daredto make certain wicked allegations against the prosecuting Inspector,namely, that the accused had only 81 & grains of opium in his possessionwhereas the plaint stated there were 769 grains. The learned Magistratethought this was an aggravation of his offence. In my opinion anaccused person is entitled to make any suggestion he likes. They maybe false or true but if they are false they should not be taken into accountto enhance the punishment. The principle of our criminal law is thatthe accused is innocent until the crime is proved and every lattitudeought to be allowed to the accused to prove his defence so long as therules of evidence are adhered to. The principle is the same as the onementioned by Mr. Justice Shaw as regards the right of petitioning in thecase of Goonetilleke v. Elisa1. Mr. Justice Shaw stated as follows: —
“I think that the provisions of section 180 should be exercised verysparingly and with great caution in the case of petitions against thePolice to their superior officers, for it is much better that the PoliceSuperintendent’s time should be occasionally wasted in inquiring into anunfounded charge against one of his subordinates than that villagersshould be deterred by criminal prosecution from laying their complaintsagainst the Police which are necessarily somewhat difficult to prove in aCourt of Law before their superior officers for departmental inquiry. ”
Using the same remarks I would say that it is much better that a PoliceMagistrate should occasionally waste his time in fully inquiring into suchallegations by the defence rather than discourage the undoubted rightof an accused to put his whole defence fearlessly.
The second ground the Magistrate made use of was one contrary to theprovisions of the Criminal Procedure Code. He stated that InspectorKelaart brought to his notice that accused had carried on this illicittraffic for a long time undetected and that the Inspector moved fordeterrent punishment.
For this reason he sentenced the accused to four months’ rigorousimprisonment. As regards these vague statements made by the Police,I would like to call the attention of the learned Magistrate to the judgmentof two Judges of this Court in the case of Nikapota v. Gunasekera*. Inthat case the learned Judges stated that the prosecution was entitled afterconviction of the accused to place the bad character of the accused forenhancement of punishment. But then such information should begiven under the sanction of an oath or affirmation and by persons ofundeniable position and responsibility.
I think the justice of the case requires, as I am not in a position toaward punishment in this case, that I should set aside the convictionand sentence and send the case back for trial* in the ordinary coursebefore another Magistrate.
Sent back.
* (1912) 14 N. L. R. 213.
* (1917) 20 N. L. R. 136.