066-NLR-NLR-V-18-JAYAWARDENE-v.-DIYONIS-et-al.pdf
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Present: Wood Benton C.J.
JAYAWABDENE v. DIYONIS et al.
199 and 200—P. C. BaduUa, 2,854.
Charge of possessing ganja—Defence that; ganja to as introduced by others—Evidence led by prosecution to prove that accused sold ganja before.
The accused were charged with haying been in unlawful possessionof ganja. Their defence was that the ganja had been foisted uponthun bv some person associated withthe prosecution.The
prosecution led evidence to prove that accused had sold ganjabefore as a medicine.
Held, that the evidence was admissible – to negative the defence,fjp HE facts are set out in the judgment.
J.W» de Silva, for the appellants.—The conviction is based onevidence which the Magistrate should not have admitted. Thestatement made to the Batemah&tmaya is inadmissible. See Kingv. Kalu Banda; 1 Evidence Ordinance, section 25.
The evidence of Sivatu that accused had sold ganja to him onprevious occasions is inadmissible.
Ganel'eratnc, C.C., for the Crown.—The cross-examination of theRatemahatmava shows the actual statement made by the accused.It clears up the statement made in examination-in-ohief. TheRatemahatmava is an Excise officer as well, and a statement madeto ao Excise officer, even if it amounts to a confession, is admissible.
It is open to the prosecution to prove that the presence of theganja was not accidental, and may for that purpose lead evidence toshow that accused was dealing in ganja even on previous occasions.See Bex v, Bond.2
March 26, 1915. Wood Renton C.J.—
The accused-appellants have been convicted of having been foundin unlawful possession of a certain quantity of ganja, and have been
L (1919) 16 N. L, R. m.2 (1906) St K. B. 389.
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isentenced under section 48 of the Excise Ordinance, 1912, taken
Woop in conjunction, with Excise Notification No. 26 published in theRskton C.J. Qneetfe 6(606 of February 18, 1914, to pay each a fine of Es. 250.Jayawardene or, in default, to undergo rax week's rigorous imprisonment. Thev. Diyonis jeame(j Police Magistrate has discussed the evidence at length, andI see no reason to think that he has come on the facts to a wrongconclusion. The appellants” counsel, however, took two points, asto which it is necessary that a word should be said. The principalwitness for the prosecution was the Batemahstmaya of Wellassa.In his examination-in-chief he stated that he had found ganja intiie possession of the accused, and that .they stated that “ it wasnot theirs, and that they did not know how it came there."The appellant's defence was that the ganja had been foisted uponthem by some person associated with the prosecution. It is obviousthat if the Batemahatmaya’s statement as to why they had saidto him stood alone, it would not only strike at the very root of thedefence, but be obnoxious to the provisions of section 25 of-theEvidence Ordinance. But the Batemahatmaya was cross-examinedupon the point, and gave the following evdence:“ The second
accused then said at once ‘ that ’—meaning the opium—-hasbe&n introduced. First accused then also said the same." Thedefence of the appellants was conducted in the Police Court withobvious care and skill. But there was no further cross-examinationof the Batemahatmaya in regard to what, if the point now taken inappeal is a sound one, was a complete and very serious alterationin his evidence. My own view is that the two statements were insubstance identical, and that the legal advisers of the appellantsin the Court below regarded them as such. The other point wasbased upon a statement by a witness Siyatu, a forest guard, to theeffect that he had bought ganja from the appellants before as amedicine. It was contended that this evidence was inadmissible,on the ground of its being prejudicial to the character of the accused.The evidence in question undoubtedly oasts a reflection upon bothappellants. But it is admissible for all that. The appellantsadmitted that ganja had been found in their physical possession.Their defence was that, so far as they were concerned, its presencewas accidental. It was open, therefore, to the prosecution, availingitself of the principle affirmed in a long series of cases, of which thejudgment ci the Privy Council in Makin v. Attorney-General of NewSoidh Walee 1 may be taken as the locus classicus, to negative thisdefence by proving previous instances in which the appellants hadbeen in possession of, and had been dealing with, ganja.
The appeals must be dismissed.
Appeals disnyssed.
1 (1894) A. C. 87.