132-NLR-NLR-V-47-PERERA-et-al-Appellants-and-DHARMARATNE-EXCISE-INSPECTOR-Respondent.pdf
DE SELVA J.— Parera *>. Dhamiaralne, Sacin Inspector.
381
1946Present: d© Silva J.
PERERA et al„ Appellants, and DHARMARATNE, EXCISEINSPECTOR, Respondent.
490-1—M. C. Colombo, 4,803.
Criminal Procedure—Government Analyst's report as evidence—Duly of Courtto summon Government Analyst if either party makes request-—CriminalProcedure Code, s. 406 (4).
It is the duty of Court, under section 408 (4) of the Criminal ProcedureCode, to summon the Government Analyst if either party to a case makesapplication that he should be summoned to give evidence with regardto his report.
A
PPEALS against two convictions from the Magistrate’s Court,Colombo.
L. A. Rajapakse, K.C. {with him K. C. Nadarajah), for the accused,appellants.
E. P. Wijetunge, C.C., for the Attorney-General.
May 23, 1946. DH Silva J.—
In this case the two accused were charged with having manufacturedan excisable article, to wit, “ Tea Cider ” in breach of section 19 (a) ofChapter 42 of the Legislative Enactments read with Excise NotificationNo. 396 published in Government Gazette No. 9,431 of July 13, 1945,(2) with having bottled “ Tea Cider ” for sale without a licence in breachof section 14 (6) of Chapter 42 of the Legislative Enactments, (3) withhaving in possession material, utensils and implements for the purposeof manufacturing “ Tea Cider ” in breach of section 14 (e) of Chapter 42of the Legislative Enactments and thereby committed an offence punish-able under section 14 (a) of Chapter 42 of the Legislative Enactments.
After trial the accused were convicted and the first accused wassentenced to pay a fine of Rs. 1,500.,
In the course of the proceedings the Counsel who appeared for theaccused made an application that the Analyst should be summoned to
382
Ohriatindhamy v. Conderlag, Inspector of Po lice.
give evidence with regard to his report. On this day the Magistratemade the following order :—
As regards the Analyst I do not consider that his presence is necessaryin this case. If accused or his Counsel desired to inspect the reportthe application should have been made earlier. This case was calledon 18.1.46 for Analyst’s report. It was called again on 8.2.46 andwhen it was found that report was filed the case was fixed for trial.I do not think this application should in any event be made on the dateof trial. The application for a summons on the Analyst today isdisallowed. The trial will proceed.
Thereafter owing to the absence of a material witness the trial waspostponed and Counsel renewed his application for summons on theAnalyst. This application was also refused by the "Magistrate.
Now section 406 of the Criminal Procedure Code which makes thereport of the Analyst admissible without the Analyst being called pro-vides that, if either party to the case, requests that the Analyst should bepresent to give evidence at any particular trial to which the depositionor report may refer such Analyst shall be summoned as a witness for thepurpose of giving evidence in the same manner as the other witnessesfor the prosecution.
In this case there was no doubt that the accused persons had the rightto have the Analyst present in Court to testify to the contents of hisreport. They made an application to exercise that right. I thinkit was the duty of the Magistrate to allow the application. I think it isnecessary that the Magistrate should remember that not only mustjustice be done but it must also appear to be done.
In the circumstances I set aside the conviction and sentence and sendthe case down for trial before another Magistrate.
Retrial ordered.