J. D. WIMALADASA and another, Appellants, and B. L. M. FERNANDO (S. I. Police ),

006-NLR-NLR-V-66-J.-D.-WIMALADASA-and-another-Appellants-and-B.-L.-M.-FERNANDO-S.-I.-Police-.pdf


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Wimaladasa v. Fernando
1964Present: TamMah, J.
J. D. WIMALADASA and another, Appellants, and B. L. M.
EERNANDO (S. I. Police), Respondent
S. C. 50-51 j64—M. G. Anuradjiapura, 34953
Offence of bringing persons into Ceylon unlawfully—Statement made by a person beforea Justice of the Peace or a police officer—Admissibility in evidence—Immi-grants and Emigrants Act, as amended by Act No. 68 of 1961, ss. 45A, 47D (1),47D (2) (g), 47 D (4).
In a prosecution for an offence punishable under section 45A of the Immigrantsand Emigrants Act, as amended by Act No. 68 of 1961, a statement made bya person before a Justice of the Peace or a police officer in terms of section47D is not admissible under section 47Z> (4) unless it bas been certified incompliance with the requirement of section 47D (2) (g).
Appeal from a judgment of the Magistrate’s Court, Anuradhapura.Colvin R. de Silva, with M. L. de Silva, for accused-appellants.
R. I. Obeysehera, Crown Counsel, for Attorney-General.
TAMBIAH, J.—Wimaladasa v. Fernando
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February 10, 1964. Tambiah, J —
In this case the accused were charged with having transported inlorry No. 22 Sri 1237 on 11.5.63 forty persons knowing thatsuch persons have entered Ceylon or remained in Ceylon incontravention of Immigrants and Emigrants 'Act and therebycommitted an offence punishable under section 45A (1) (&) of the saidAct as amended by Act No. 68 of 1961. After trial the learnedMagistrate convicted the accused-appellants and sentenced the firstaccused-appellant to a term of five years’ rigorous imprisonment and thesecond accused-appellant to a term of two years’ rigorous imprisonment.In appeal one of the main points urged by Counsel for the accused-appellants is that the statements of one Weeramuthu Rasiah andAudi Nadar Suppiah Nadar which have been produced in this caseas P6A and P6B are not admissible in evidence, as there is no certificatefrom Mr. Kandiah to the effect that he had complied with the require-ments of section 47 (D) (2) of the Immigrants and Emigrants Act asamended by Act No. 68 of 1961.
Section 47 (D) (1) of this Act enacts as follows :
“ Where any person is accused of an offence under section 45 (1)(a), or section 45 (2) in so far as it relates to section 45 (1) (a), orsection 45A, any other person who is about to leave the Island may,if he so desires, make a sworn or affirmed statement in connectionwith the offence before a Justice of the Peace, or a police officer notbelow the rank of an Assistant Superintendent of Police, in the presenceof the person accused of the offence ”.
Section 47 (D) (2) of this Act imposes a number of duties on the Justiceof the Peace or the Assistant Superintendent of Police before whom astatement is made. Such an officer has to record the statement, readover such a statement to the person signing the statement, explain thestatement to the accused, afford the accused a full opportunity of askingany questions relating to the statement from the person making theStatement, record such answers, secure the signature of the person makingthe statement to the record of the statement, and certify, if such be thecase, that the requirements of this section have been complied with.Section 47D (4) of this Act lays down the conditions under which state-ments purporting to have been recorded under section 47D may beproduced in Court as evidence against any person accused of any offenceunder section 45 (1) (a), or section 45 (2) in so far as it relates tosection 45 (1) (a) or 45A. It further enacts that such a statement shall beprima facies evidence of the facts therein stated.
Statements made by persons to a Police officer not below the rankof an Assistant Superintendent of Police or a Peace Officer normallyare not admissible in evidence under the provisions of the EvidenceOrdinance or other laws governing the Law of Evidence. This typeof statements is only made admissible provided that there is a certificateas contemplated by section 47D (2) (g). The provisions of the
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TAMBIAH, J.—Wvmaladasa v. Fernando
Immigrants and Emigrants Act No. 68 of 1961 are very drastic. Itwas intended to put an end to a growing menace in this country but atthe same time the legislature has provided certain safeguards which'must be carefully followed.
Mr. Colvin It. de Silva who appeared for the accused-appellants calledthis Act “ a piece of Draconian legislation”. It is not necessary to com-ment on this aspect of the matter but it is sufficient to state that a Courtof law should be vigilant in preserving the freedom of the citizen as oneof the most fundamental and cherished principles of human rights.Learned Crown Counsel submitted that Mr. Kandiah has made a mistakein stating that he acted under the provisions of section 47 (d) (1) whenhe really intended to state that he acted under section 47 (<2) (2). I havelooked at the certificate which is in the hand of Mr. Kandiah.It categorically states that Mr. Kandiah has conformed to theprovisions of section 47 (d) (1) of the Act. In the absence of evi-dence that Mr. Kandiah has made a mistake, this Court cannot presumethat a mistake had been made. The learned Magistrate has acted onP6A and P6B in convicting the accused. In doing so he has purportedto act on evidence which is not intended by the Legislature to be actedupon. Learned Crown Counsel stated that there is other evidencewhich is available to the Crown to prove the guilt of the accused inthis case, but he conceded that this evidence is not sufficient. LearnedCrown Counsel also urged that Mr. Kandiah still can state that he hasmade a mistake and what he intended was that he was issuing acertificate to the effect that he had conformed to the provisions ofsection 47 (d) (2). In view of the gravity of the offence I do not proposeto acquit the accused-appellants in this case but to order a re-trial.
Learned Crown Counsel relied on the ruling of the Court of CriminalAppeal—Queen v. Wilbert Perera 1. In that case the Court of CriminalAppeal held that the failure on the part of the Magistrate to state inthe certificate that a confession made by an accused was voluntarilymade and that it was read over to him, was held not to be a fatal irregu-larity. The Court of Criminal Appeal held that such an omission can besupplied by oral evidence by the Magistrate and that the memorandumreferred to in section 132 of the Criminal Procedure Code cannot beregarded as a legal condition to the admission of the confession. But a con-trary view was taken by the Privy Council in the case of King Emperorv. Nazir Ahmed 2 in interpreting the identical provisions of the IndianCriminal Procedure Code. I may respectfully state that I am inclinedto follow the ruling of the Privy Council in this case but in this particularcase it is not necessary for me to differ from the ruling of the Courtof Criminal Appeal since that case can be distinguished from the factsof the present case.
In Queen v. Wilbert Perera, the confession of an accused person tothe Magistrate was held admissible under the provisions of the EvidenceOrdinance. Section 134 of the Criminal Procedure Code merely sets out
1 (1957) 61 N. L. R. 142.
• 1936 A. I. R. 253.
SRI SKA3SJDA RAJAH, J.—Fernando v. Wijesekera
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the procedure which has to be followed by a Magistrate in recording suchstatements. Neither in section 134 of the Criminal Procedure Codenor in the Evidence Ordinance is there a requirement that the certificateof the Magistrate is a condition precedent for the admission of suchevidence ; but in the instant case a certificate to the effect that theperson recording such a statement has conformed to the provisions ofsection 47 (d) (2) is an imperative requirement before the admissionof such evidence as evidence against an accused person. I think, theaccused are entitled to a re-trial before another Magistrate. Dr. Colvin
R.de Silva also raised various other points in this case. It is not neces-sary to consider them. The accused-appellants are entitled to raisethose points at the re-trial. For these reasons I set aside the order ofthe learned Magistrate convicting the accused-appellants and direct thatthis case be sent back for fresh trial before another Magistrate.
In view of the order that I have made in this case, Counsel appearingin Application No. 41/64 moves to withdraw the application. I allowhis application.
Case sent back for fresh trial.