8IRIMANE, J.— Wanigaratne o. Palapitiya
1971Present : Sirlmane, J.
P.WANIGARATNE, Appellant, and S. PALAPITIYA(S. I. Police), Respondent
S. C. 529170—M. C. Negombo, 16535
Excite Ordinance (Cap. 52)—Section 47—Charge of illegal possession of an excisablearticle—Requirement of strict proof of the identity of productions.
In a prosecution for illegal possession of an excisable article, it is the duty of theprosecuting officer to ensure that there can be no doubt whatsoever in regard tothe identity of the productions in the case.
■A-PPEAL from a judgment of the Magistrate’s Court, Negombo.
H. C. Jayetileke, for the accused-appellant.
Tyrone Fernando, Crown Counsel, for the Attorney-General.
Ifiaroh 15, 1971. Stbimanb, J.—
The appellant has been convicted under Section 47 of the ExciseOrdinance for having had in his possession 80 drams of unlawfullymanufactured distilled spirits.
Counsel for the appellant in this case has very strongly urged thatthe production sent to the Government Analyst for examination wasnot part of the distilled spirits found with the appellant, evenassuming that the appellant did have some spirits in his possession. Incases of this kind it is. the duty of prosecuting officers to ensure thatthere can bo no doubt whatsoever in regard to the identity of theproductions in the case.
MRIMANE, J.—Wanigaralna v. Palapitiya
An examination of the evidence shows that a Sub-Inspector of Polieehad raided the house of the appellant, and (according to his evidence)had found 80 drams of spirits in a large bottle which was kept insidethe kitchen. He says that he extracted some 8 drams out of this quantityand poured it into a separate bottle marked P2, which he sealed in theusual manner.
On 17.2.66 he had presented to Court a report under Section 148
(6) of the Criminal Procedure Code dated 10.2.66 in- which he hadset out in his list of productions :—
“a large bottle containing 72 drams UDS (PI), another bottle
containing 8 drams UDS (P2), one gunny bag (P3).”
He had not given evidence and. formally produced them in Court. Ipresume that they were handed over to the record room.
Thereafter summons had been issued on the accused and on 7.4.66after the accused appeared in Court and pleaded, the learned Magistratehad made an order to forward P2 to the Government Analyst. Thisorder had not been carried out till about a year later, for, according tothe evidence of the record keeper and a constable who took theproduction to the Government Analyst a bottle P2 was packed andsealed on 27.3.67 and taken to the Government Analyst.
Knowing the state of disorder in the over-crowded production roomsin practically all Magistrates’ Courts, this long delay is most unsatis-factory. The chances of error or substitution are high.
The formal covering letter of the Magistrate forwarding the productionto the Government Analyst describes the production as “ a sealed bottlecontaining 8 drams of U.D.S.’’, and marked P2. It is very significantthat the Government Analyst in his report had described what he hadexamined as a sealed bottle “ marked P2 in my laboratory ”. He haddeliberately scored off the printed words “ as described in the coveringletter". I agree with the contention of counsel for the appellant thatthere is at least some doubt as to whethor the contents of the bottleexamined by the Government Analyst were part of the spirits allegedto have been found with the appellant. It would appear that the bottlewhich was handed to the Government Analyst had no label on it.
Another feature in this case shows a very careless attitude towardsthe productions. At the trial which took place on 25.11.68 thesub-inspector had stated that the productions PI and P3 were destroyedon the orders of the Court. There is in fact no order made by Court tothat effect up to that date. The only order to destroy productions—presumably referring to the bottle produced at the trial—was madeon 19.12.68 long .after the sub-inspector gave evidence.
The conviction is quashed and the appellant is acquitted.
P. WANIGARATNE, Appellant, and S. PALAPITIYA (S. I. Police), Respondent