Mitradasa Fernando v. Sub-Inspector of Foticc, EalubowHa
1961Present : Basnayake, C.J.
MTTRADASA FERNANDO, Appellant, and SUB-INSPEOTOR OF
POLICE, KALUBOWILA, Respondent
S. C. 950[60—M. C. Colombo, 33015fB
Excise Ordinance (Cap. 42)—Sections 14 (a) (eJ, 43 (6) (e), 44 (I) (2)—Charge ofpossession of unlawfully manufactured liquor—Proof—Opinions of *' specially■skilled persons ”—Evidence Ordinance, s. 45.
The accused-appellant was charged under the Excise Ordinance with illegalpossession of unlawfully ..manufactured liquor. The prosecution sought toestablish that the liquor was not manufactured at any authorised place by theevidence of a Sub-Inspector of Police who claimed to be an expert. The witnessdescribed himself as a Sub-Inspector of Police who had gone through a specialcourse of training in the Excise Department to identify excisable articles.He said that he had given evidence in more than 250 cases of this nature.
Held, that the opinion of the Sub-Inspector of Police was not relevant inas-much as he did not come within the class of specially skilled persons contem-plated in section 45 of the Evidence Ordinance.
Held further, that inasmuch as the integrity cf the police was assailed in thepresent case, it was the duty of the Court to have given sufficient considerationto the conduct of the prosecuting police officer (a) in not sending the productionsto the Government Analyst after an order in that behalf had been made, (6) insealing the bottles in such a way that they could be tampered with, and (c)in detaining in the Police Station for 10 days without producing in court theproductions taken in the raid.
PPEAL from a judgment of the Magistrate’s Court, Colombo.
K.Shinya, with Nimal Senanayalce, for Accused-Appellant.A. A. de Silva, Crown Counsel, for Attorney-General.
BASNAYAKE, C.J.—Mitradaaa Fernando r. Sub-Inspector423
of Police, Kalubowila
March 15, 1961. Baskayake, C.J.—
The appellant has been convicted of the following charges :—
“ 1. That at Nawagamuwa on 12th April 1960 he did manufacturean excisable article unlawfully to wit : 624 drams of arrack withouta licence granted in that behalf by the Government Agent, WesternProvince, in breach of section 14 (a) of Chapter 42 L.E.C. and therebycommitted an offence punishable under section 43 (b) of Chapter 42
" 2. That at the same time and place aforesaid he did use utensilsand apparatus to wit: (1) One empty glass jar, (2) One copper coil wire,(3) One funnel, (4) One sealing apparatus, (5) One copper pipe, (6)One large barrel, (7) One large barrel used for cooling purposes, (8)One large barrel where base and soda are kept, (9) Empty 8 drambottles for the purpose of manufacturing an excisable article to wit:Pot arrack without a licence granted in.that behalf by the GovernmentAgent of the Western Province in breach of section 14 (e) of Chapter42 L. E. C. and thereby committed an offence punishable undersection 43 (e) of Chapter 42 L.E.C.
“3. That at the same time and place aforesaid he did withoutlawful authority have in his possession 624 drams of liquor called “ PotArrack ” an excisable article which had been unlawfully manufacturedin breach of section 44 (1) (2) of Chapter 42 L.E.C. as amended byExcise Amendment Act No. 36 of 1957 and thereby committed anoffence punishable under section 44 (1) (2) of Chapter 42 L.E.C. asamended by the Excise Amendment Act No. 36 of 1957."
Proceedings were instituted on a report under section 148 (1) (b) of theCriminal Procedure Code by Police Sergeant U. K. El win. After thecharges had been read out and on the application of the Sub-Inspectorof Police, Kalubowila, the Magistrate made order that the productionsbe sent to the Government Analyst for examination and report, but theproductions were not in fact sent to the Government Analyst. Insteadof producing a report from the Government Analyst the prosecutionsought to establish that the liquor was not liquor manufactured at anyauthorised manufactory by the evidence of a Sub-Inspector of Policecalled Sahib who claimed to be an expert. He described himself as aSub-Inspector of Police who had gone through a special course of trainingin the Excise Department to identify excisable articles. He says thatthe contents of the bottles marked PIa and PIb are in his opinion potarracjt and not Government arrack. The opinion of Sub-Inspector Sahibis not relevant unless he comes within the class of persons contemplatedin section 45 of the Evidence Ordinance. That section provides :—
“ When the Court has to form an opinion as to foreign law, or ofscience, or art, or as to identity or genuineness of handwriting orfinger impressions, palm impressions or foot impressions, the opinionsupon that point of persons specially skilled in such foreign law, science,
BASNAYAKE, C.J.—Mitradasa Fernando v. Sub-Inspector
of Police, Kaluboioila
or art, or in questions as to identity or genuineness of handwritingor finger impressions, palm impressions or foot impressions, are relevantfacts.”
In the instant case the evidence does not show that Sahib is speciallyskilled in any science or art which qualifies him, as in the case of theGovernment Analyst, to express an opinion on the question .whetherthe bottles PI a and P1b contained Government arrack or pot arrack.He says that he has given evidence in more than 250 cases of this nature.That does not bring him within the ambit of section 45 of the EvidenceOrdinance and his opinion as to the contents of the liquor in the bottlesmarked P1a and P1b is not relevant and cannot be acted on.
Apart from that, the fact that the liquor was at the Police Stationfrom the 12th of April to the 22nd of April and the following furtherfacts lend support to the suggestion made by the defence that this is afalse case. Among the productions brought into court were two glassjars each said to contain 176 drams of “ pot arrack ”. Two bottleswere drawn from each of the jars to serve as specimens. One set wasmarked Pi a and the other P1b. They were said to be sealed with theseal bearing the initials of the Sub-Inspector and the thumb impressionof the accused. The accused’s thumb impression appeared on a sideof the bottles. The Sub-Inspector admitted that there was nothing toprevent the four bottles being tampered with without displacing thethumb impression because the accused’s thumb impression had beenplaced on a side of each bottle and not on the top. When he was askedwhy the thumb impression of the accused was put on a side of the bottleshe gave the following unconvincing explanation:—
“ The thumb impression of the accused was not put at the mouthof the bottles for the reason when those bottles are sent to the Govern-ment Analyst that seal is broken.”
The accused gave evidence on his own behalf and he called the headmanand two others Sediris Singho and Hon Gunasekara. The learnedMagistrate has not only based his finding on the irrelevant evidence ofSub-Inspector Sahib, but he has also failed, in a case where the integrityof the police has been assailed, to give sufficient consideration tot theconduct of Sub-Inspector, ELalubowila—
(a) in not sending the productions to the Government Analyst afteran order in that behalf had been made,
(Jb) in sealing the bottles in such a way that they can be tamperedwith and
Jayasena v. Sideek
(c) in detaining in the Police Station for 10 days without producingin court the productions taken in the raid.
Apart from the above omissions he has also failed to give sufficientconsideration to the evidence called by the defence.
I set aside the conviction and acquit the accused-appellant.
MITRADASA FERNANDO, Appellant, and SUB-INSPECTOR OF POLICE, KALUBOWILA, Respond