028-NLR-NLR-V-58-M.-SELVAN-Appellant-and-SENARATNE-Police-Sergeant-Respondent.pdf
1956Present : Basnayake, C.J., and K. D. de Silva, J.
M. SELVAN, Appellant-, and SENARATXE {Police Sergeant),
Respondent
S. C. SS7—JI. C. Salnapura, 48,063
Jividcnce—Coecmment Analyst's report—Admissibility—Criminal Procedure Code■ s. 400 (3) and (4).
The w-liole of a report issued by a Government Analyst tinder section 40G (3)of tho Criminal Procedure Code is admissible in evidence..
A
xXPPEAL from-a judgment of the Magistrate’s Court, Ratnapura.The question of law involved in this case was reserved in the following’terms by Gunasekara, J., under section 48 of the Courts Ordinance,for decision by more than one Judge :—
" The learned Magistrate’s finding that the liquor in question hasbeen, unlawfully manufactured appears to be based entirely upon thereport P8 submitted by the Government Analyst.
The Analyst states in his report ‘ In my opinion PI and P2 areliquors which do not fall under the following categories :—
Approved brands of Imported liquors.
Liquors manufactured under licences issued under the Excise
Ordinance.’
The question arises whether the admission of the material portionsof this report involves the admission of inadmissible hearsay. On thisquestion there appears to be a conflict of opinion among the Judges ofthis court. This conflict is exemplified by the views expressed byNagalingam J. in Pamasamy Kone el at. v. Ginigatkena Police1 and bySansoni J. in S. C. No. 496E—M. C. Colombo South No. 62,792 2 decidedon the 24tli August, 1955.
In this conflict of opinion I think it is desirable that I should reservethis appeal for the decision of more than one Judge of this court andI direct that the case be submitted to My Lord, the Chief Justice,for an order constituting a bench to hear the appeal.”
J3. A. It. Camlappa, with 31. SkanmagciHngam, for the accused-appellant.
A. C. Alles, Crown Counsel, with Y. S. A. Pnllcnaycgum, Crown Counsel,for tho Attorney-General.
February 29, 1956. Basxavake, C.J.—
Tho question which arises for determination on this appeal is whethertho following statement in tho Government Analyst’s roport is inad-missible on tho ground that it is hearsay evidence.
“In my opinion PI and P2 are liquors which do not fall under thefollowing categories :—
Approved brands of Imported Liquors.
Liquors manufactured under licences issued under the Excise
Ordinance
« (1054) 5G X. L,. It, 401.
– Fernando t>. Gconctvard'inc (10-5-5) 54 -V. L. H. IT.
Under section 406 (3) of the Criminal Procedure) Codo
“ any documont purporting to bo a report under tho hand of theGovernment Analyst upon any matter or thing duly submitted to himfor examination or analysis and report may bo used as ovidonce in anyinquiry, trial or othor proceeding under this Code ”.
Tho Analyst’s roport PS has therefore been properly used in evidence.Tho question is whother all tho facts stated in a report by tho Govern-ment Analyst, whether they are matters within his own personal knowledgeor not, aro admissiblo in evidence. Section 406 (4) of tho Criminal Proce-dure Code provides that oithor party in a case may request tho attendanceof the Government Analyst at any trial or proceeding whore his roportis used in evidence for tho purpose of giving evidence. In the instantcase there lias boon no such application. Where the roport of tho Govern-ment Analyst is made admissible it is our opinion that tho whole of suchroport may bo usod in evidence.
Counsel for tho Crown has referred us to the judgment of my brotherSansoni in Fernando v. Gooneicardene 1, where he has taken tho sameview. Wo are in agreement with that judgment. Our decision on thepoint referred to us is that tho whole of the report of the GovernmentAnalyst is admissiblo in evidence. In this case the prosecution has led-the evidence of a clerk in tho Excise Commissioner’s Pepai tment to provesome of the material facts referred to in the report of the GovernmentAnalyst but it is not necessary to do so where the report is issued undersection 406 (3) of the Criminal Procedure Code. We therefore dismissthe appeal.
.K. D. JiE Silva, J.—I agree.
Appeal dismissed.