095-NLR-NLR-V-59-M.-D.-NAYAWATHIE-Appellant-and-R.S.-DE-SILVA-S.-I.-Police-Respondent.pdf
430
H. N. G. FERNANDO, J.—Mayaivath'ie v. de Silva
1957Present: H. N. G. Fernando, J.
M. T>. MAYAWATHIE, Appellant, and R. S. DE SILVA (S. I. Police),■ •Respondent
S. C. 874—31. O. Avissawella, 21,681
Evidence—Prosecuting officer as material witness—Duly of Court then to lest truth ofprosecution—Illegal raid—Weight of evidence of participants—Possession ofcontraband by husband—Inability of wife.
The fact that the same person is both prosecuting officer and material witnessrenders the prosecution case open to suspicion and imposes upon the Judge thoduty of making certain that the interests of justice have not suffered inconsequence.
Tho ovidenco of officers who took part in an illegal raid should bo viewed withsuspicion. Liability of a wifo for her husband’s possession of prohibitedarticles considered.
■Appeal from a judgment of the Magistrate’s Court, Avissawella.
31. M. Kumarakulasingham, with K. Shinya, for the accused-appellant.S. Pasupaii, Crown Counsel, for the Attorney-General.
Cur. adv. viilt.
March 29, 1957. H. N. G. F-Ernaxdo, J.—•..
The practice under which prosecutions are conducted by officers whoare themselves material witnesses has repeatedly been condemned bythis Court, but the view has never been taken that the adoption of sucha practice, however reprehensible, would without more be a ground forsetting aside a conviction. My Lord the present Chief Justice, who inearlier cases had condemned the practice, nevertheless was of opinion
]I. X. (J. KERXAXDO, J.—iHaymvathie v. de Silva
431
(SanliapiUai v. SHlampaTam J) that if the interests of justice have notsuffered by a prosecution being conducted by a person who is a materialwitness there would be no ground for setting aside the conviction. If Iconstrue his view aright the fact that the same person i3 both prosecutingofficer and material witness renders the prosecution case open to sus-picion and imposes upon the Judge the duty of making certain that theinterests of justice have not suffered in consequence. This view is atany rate that which I myself take .and propose to apply in the presentcase.»
Xo objection was taken at the present trial to the conduct of the prose-cution by Sub-Inspector de Silva and the defence made no submissionas to the matter even when the Sub-Inspector entered the witness-box.In my opinion, however, the omission of the defence to make a formalobjection did not absolve the Magistrate from the duty to take accountof the fact that Sub-Inspector de Silva was a material witness and toassure himself that there was no consequent prejudice to the due adminis-tration of justice. In fact the matter appears to have passed unnoticedby the Magistrate who has considered the evidence regardless of thisspecial feature.'
This was not the only matter which escaped the attention of the Magis-trate. The entry into the house of the accused was made without asearcli warrant and there is no evidence to indicate that the provisions ofsection 72 (o) of the Poisons, Opium and Dangerous Drugs Ordinance(Cap. 172) which require a record to be made of the grounds of an un-authorised entry were complied with. It is now settled law (Rajapakse v.Fernando 2) that the fact that the entry is unlawful does not render inad-missible in consequence thereof the evidence obtained in an illegal search.But that decision of three Judges did not in any way reduce the force ofearlier observations of this Court that such evidence should be looked uponwith suspicion. In the present case the only evidence for the prosecutionwas that of the Sub-Inspector and Police Constable, and the Magistratein accepting that evidence observes that “ the defence have not urgedany motive as to why Inspector Silva should give false evidence. ” Thisobservation is an indication of the Magistrate’s failure to view -withsuspicion the evidence of officers who participated in an illegal raid.
Thirdly there was here a i^ossible explanation of the innocence of theaccused which though not put forward by her might well have been takeninto account in testing the truth of the evidence for the prosecution.The prosecution version was that the Excise party stopped their jeepnear the house of the accused and that, as they did so, the accused’shusband promptly ran away from the scene while the accused herselfwas seen to enter the house from the verandah ; sho'rtly thereafter theofficers themselves entered the house and found the accused near thekitchen having in one hand a bottle of arrack and in the other a tin con-taining portions of the Hemp plant, the latter of which are the subjectof this prosecution. However false portions of the defence evidencemay have been the essential position for the defence was that the tin andthe bottle were introductions and were not found hi the hands of the
(19 IS) 49 N. L. R., 13S.
(1951) 52 JY. L. II. 361.
432H. 3ST. G. Fi’RNAKDO, J.—Mayavoalhia v. de Silva
accused. The accused’s husband of cpurse denied that he was ever atthe scene, but it was part of the prosecution case that he was there an.dran away. The husband admitted in his evidence that he had beenpreviously convicted for offences of this nature, an admission whichexplains why the raiding party decided to stop their jeep near this parti-cular house, and it renders reasonable the explanation that having foundprohibited articles in the house, the officers decided to foist them on theaccused for want of evidence against the true offender, the husband.The case is not in my view op all fours with that of Cornells v. ExciseInspector 1 because there, there was no evidence that the husband waspresent at all, and that being so, the inference that the wife was in pos-session of the articles was a legitimate – one. The present ease morenearly resembles that of Dunuwila, v. Poola 2 where Soertsz, J. thoughtthat the attempt of the wife to destroy the article might have been merelyan effort to screen the husband. In a case where there are present, asI have pointed out earlier, two reasons for viewing the prosecution evidencewith suspicion, the possibility that the wife either seized the articles in anattempt to destroy evidence against her husband or that the articleswere found by the Police but not in. her physical possession as alleged,should not have been disregarded by the Magistrate. I would thereforeallow the appeal and acquit the accused.•
Appeal allowed.
(1010) 47 N. L. It. 407.
– {1030) 40 2s. S. It. 113. ■