043-SLLR-SLLR-1998-1-PERERA-v.-ATTORNEY-GENERAL.pdf
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Sri Lanka Law Reports
(1998) 1 Sri LR.
PERERA
v.ATTORNEY-GENERAL
COURT OF APPEALGUNASEKERA. J. (P/CA),
DE SILVA, J.
CA NO. 61/96HC PANADURA 1062/95JULY 4, 8, 9 AND 14, 1997.
Poisons, Opium and Dangerous Drugs Act, No.13 of 1984 s. 54 (A) C — Custodyof the Production – Inwards and outwards journey – Opportunity for tampering~ S. 420 Code of Criminal Procedure Act, No.15 of 1979 and No. 11 of 1988- Recording of admissions.
Held:
The most important journey is the inwards journey because the final AnalystReport will depend on that.
As the Defendant had admitted the correctness of the procedure adoptedby the prosecution in sending the production to the Analyst Departmenthe is estopped from contesting the validity of the correctness of the AnalystReport even if the prosecution had not led in evidence the receipt ofacceptance of the productions by the Analyst Department.
An admission could be recorded at any stage of the trial, before the casefor the prosecution is closed. The purpose of recording an admission isto dispense with the burden of proving the fact at the trial.
CA
Perera v. Attorney-General (J. A. N. De Silva, J.)
379
APPEAL from the judgment of the High Court of Panadura.
Dr. Ranjith Fernando with Ms. Kishali Pinto-Jayawardena for the appellanLSajeewa Samaranayake S.C. for the Attorney-General.
Cur. adv. vutt.
August 21, 1997
J. A. N. DE SILVA, J.
The accused-appellant Nawagamuwage Sajeewa Priyantha Pererawas indicted in the High Court of Panadura with having being inpossession of 2.93 grams of Heroin on 17.02.1989, near the railwaystation at Moratuwa, in contravention of section 54A (c) of the Poision,Opium and Dangerous Drugs Act, No. 13 of 1984 as amended andpunishable under Schedule 3 Column 11 of the said Act.
The trial had been before a Judge and after the conclusion of thecase the learned trial Judge had convicted the accused-appellant andsentenced him for a term of life imprisonment. For the prosecutionseveral witnesses had given evidence. On behalf of the defence nowitnesses been called but the accused-appellant had made a state-ment from the dock to the effect that when he went with a friendto buy some spare parts for a car, in front of the station he sawa fight between some parties. He with the friend settled the fight.Thereafter some people came and assaulted him and his friend andboth were handed over to the police with a parcel.
The case for the prosecution was that on an information receivedby the Moratuwa Police, Inspector Wilmot Alexander Rodrigo alongwith P/S Chandrani Weerasinghe and another constable hadproceeded towards the Moratuwa Railway Station around 4 in theafternoon. They had observed the accused-appellant waiting for a busat the Panadura Bus Stand which was in close proximity to the RailwayStation. Since the description which was in their possession fitted theaccused-appellant the Police team had questioned him and on beingsearched they had found 13 big packets in his trouser pocket. Eachof those 13 packets had contained 20 smellier packets of brownishpowder. Thereafter the accused-appellant had been taken into custodyand handed over to the Moratuwa Police.
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The following events had taken place in respect of the productionsafter they had been taken into custody. On the next day i.e. 18thof February 1989 I.P. Rodrigo had taken the accused-appellant andthe production to the "City Pharmacy" for the purpose of weighing.There all the heroin packets had been emptied into one bag andweighed. The total weight had been 7,200 miligrams. Thereafter thisbag had been sealed and handed back to the Police Reserve by I.P.Rodrigo. On the 28th of February the productions had been sent tothe Moratuwa Magistrate's Court. I.P. Iddamalgoda had taken theproductions from the Court under BR No. 57/89 to the AnalystDepartment on the 30th of June 1989. Having obtained a receipt forthe same from the department he had given back the receipt to theRecord Keeper of the Magistrate's Court the same day. P/S Silva hadcollected the production from the Analyst Department on 28.05.1990and returned to the Magistrate Court.
At the trial it had been revealed that the packet which containedheroin was empty. This packet had been marked as P1. It hadtranspired that one end of the packet had been eaten up by rats andheroin had disappeared. The 260 small alluminium foils had beenmarked as P2. (13 x 20 = 260).
At the hearing of the appeal the Counsel for the appellant raisedthe following matters:-
Is it incumbent on the prosecution to prove the 'chain' relatingto the custody of the production with regard to the inwards andoutward journey in obtaining the analyst report?
Can an admission be recorded under section 420 of the Codeof Criminal Procedure Act, No. 15 of 1979 after the commence-ment of the trial?
Has the learned trial Judge misconstrude the admissionrecorded in this case?
It is a recognized principle that in a case of this nature, theprosecution must prove that the productions had been forwarded tothe Analyst from proper custody, without allowing room for any suspicionthat there had been no opportunity for tampering or interfering withthe production till they reach the Analyst. Therefore it is correct to
CAPerera v. Attorney-General (J. A. N. De Silva, J.)381
state that the most important journey is the inwards journey becausethe final Analyst report will be depend on that. The outward journeydoes not attract the same importance.
In the instant case the prosecution had led evidence of severalwitnesses to establish this fact and at one stage had amended theindictment to include several more witnesses for this purpose. Howeverfrom the proceedings of 23.01.96 it is clear that the defence hadadmitted the correctness of the procedure adopted by the prosecutionup to the time of sending the productions to the Analyst.
The learned counsel for the appellant submitted that the admissionrelates only to the "inwards" journey to the Analyst Department andas the receipt of the Analyst Department had not been produced bythe prosecution to show that the productions were in fact receivedby them and therefore to that extent there is a break in the 'chain'.
The admission recorded by the High Court Judge on 23.01.96 wasas follows: "It is admitted that the packets containing heroin allegedto have been taken into custody from the possession of the accusedby I.P. Rodrigo on 17.02.89 were kept in safe custody at the PoliceStation till they were produced to the Government Analyst throughthe Magistrate's Court under BR No. 57/89". The defence Counselat the trial had further stated that in view of the above admissionit is not necessary to call the Government Analyst as a witness, (page181).
The learned trial Judge had approached the question raised bythe counsel for the appellant in the light of the above admissionsrecorded by court. The learned trial Judge had stated that since thedefendant had admitted the correctness of the procedure adopted bythe prosecution in sending the production to the Analyst Department,the defendant is estopped from contesting the validity or the correct-ness of the analyst report even if the prosecution had not led inevidence the receipt of acceptance of the productions by the AnalystDepartment. Furthermore the defence had suggested not to call theanalyst In these circumstances defendant should not be permittedto take advantage of his own conduct and complain that the reportof the Analyst is diffective or inaccurate. We are in agreement withthese observations of the learned trial Judge.
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The 2nd question is that at what point of time can an admissionbe recorded under section 420 of the Code of Criminal ProcedureAct, No. 15 of 1979. The purpose of recording an admission is todispense with the burden of proving that fact at the trial. Thereforewe are of the view that an admission could be recorded at any stageof the trial before the prosecution close the case. The Learned StateCounsel pointed out that by the Code of Criminal Procedure(Amendment) Act No. 11 of 1988 this matter has been put beyonddoubt. In the circumstances we see no merit in this argument.
The 3rd question raised by the learned Counsel for the defenceis whether the learned trial Judge had misconstructed the admissionrecorded by him. In the judgement the learned trial Judge haderroneously stated that the accused-appellant had admitted both theinward and outward journey. However in view of the reasons givenby him with regard to the admissibility of the analyst report we considerthis as an oversight. We see no reason to interfere with the findingsand the sentence of the learned trial Judge and dismiss this appeal.
GUNASEKERA, J. (P/CA) – I agree.
Appeal dismissed.