ABRAHAMS C.J.—Ponniah v. Abdul Cader.
Under section 50 of the Excise Ordinance, No. 8 of 1912, a presump-tion that the accused is guilty in a prosecution such as this (possession ofganja) arises, if the accused does not give a satisfactory explanation ofhis conduct in connection with its possession, and he is guilty.
The extract from the information book is a public document undersection 74 of the Evidence Ordinance. Ordinance No. 12 of 1864, whichis at the end of the Evidence Ordinance, makes admissible a certified copyof such a document.
Rajapakse (with permission of the Court), in reply.—Ordinance No. 12of 1864 applies only where the original document is admissible. It doesnot make a copy admissible where the original is not.
Cur. adu. vult.
February 4, 1937. Abrahams C.J.—
The appellant was convicted of transporting nine slabs of ganja withouta permit and of possessing an excisable article the possession of whichis totally prohibited. He was sentenced to six months’ rigorousimprisonment and to a fine of Rs. 500.
The ^following facts were led in evidence by the prosecution. OnDecember 2, 1934, a woman named Chellamma residing in Anuradhapurareceived by post a parcel. This parcel was later returned unopened byher husband to the Postmaster, on the ground that the parcel was notmeant for his wife but for some other woman of the same name. Theparcel was addressed, “ Mrs. Sellammah, Malwat-oya, Anuradhapura ”.The parcel was eventually opened by the postal authorities and was foundto contain nine slabs of ganja packed in a towel bearing a laundry mark“ N ”. Later, on December 2, the appellant complained to the Anuradha-pura Police that he had come to the town at 1 a.m. by the night mail fromJaffna and had stayed in the house of Chellamma where he was robbedof Rs. 244. On this complaint the house of Chellamma was searched bythe Police, and two letters were found purporting to be written by theappellant to Chellamma’s husband where he refers to certain transactionsbetween them expressing himself in mysterious language, referring inTamil to the word which translated was taken to mean “ stuff ” andwhich the prosecution allege means ganja. It was also alleged thatshortly after the parcel had been delivered to Chellamma the appellantdisplayed considerable anxiety about the parcel and reproached the postalpeon for delivering it to Chellamma and asked him to get it back from herand hand it over to him. He also complained to a neighbour of Chel-lamma’s to the effect that the woman had wrongfully taken in a parcelthat was intended for him.
The Jaffna Police searched a house in Jaffna which they believed oncertain information they said they had received to belong to the appellant,and there they found a towel and a shirt with the laundry mark “ N ”.The Magistrate seems to have concluded that the accused himself postedthe parcel to Chellamma from Jaffna and had travelled down by the sametrain in order to obtain the parcel on its arrival in Chellamma’s house,and that he had been carrying on an extensive trade in dope with theassistance of Chellamma’s husband and that for some reason or other hehad fallen out with his confederates and had brought a false chargeagainst the latter.
ABRAHAMS C.J.—Ponniah v. Abdul Cader.
Unfortunately for the prosecution the learned Magistrate has acceptedtheir theory on evidence improperly received and on inferences whichhave been drawn from objectionable evidence which, in my opinion, hewas not justified in doing. Undoubtedly it could have been proved froSJiproperly receivable evidence that the appellant had actually travelleddown from Jaffna by the same train that carried the parcel, that it washis house that was searched in Jaffna and that therefore the towel foundin that house belonged to him, and that the letters found in the house ofChellamma’s husband did actually refer to dealings in ganja. Thatwould go a very long way to proving that the appellant had posted theparcel containing a contraband drug. However, it was sought to beproved that the appellant had travelled from Jaffna on the night of the1st by producing a copy of a complaint in the Police information book inAnuradhapura. An objection was taken before me as to the admissibilityof this document on the ground that, assuming the information book wasitself a document which need not be produced and could be representedby a certified copy of any entry in it, that copy was not produced by thePolice officer who took down the alleged complaint of the appellant. Iam of the opinion that this submission is sound. Next, as to the contentsof the letters found in the house of Chellamma’s husband. This man wascalled by the prosecution and admitted that the letters were in the writingof the appellant but he says that they referred to transactions dealingwith dried fish. This witness was a witness for the prosecution and hewas not cross-examined by the prosecution as hostile, although it couldhardly have been expected that he would admit that he had been engagedin any transaction in which he had broken the law. I cannot see thereforehow the Magistrate was entitled to discredit him. The prosecutionhaving called him) they vouched for him as a witness of truth and had totake their chance that his evidence would not be completely satisfactoryto their case.
Then as to the discovery of the towel, the Police officer who searchedthe house in Jaffna said that the house was pointed out to him as beingthat of the appellant by the son of the local Police Vidane. This youthwas called by the prosecution and said that he did not point out that houseas being that of the appellant but of some other person. The Magistratebelieved that this witness was lying. He was of course entitled to cometo that conclusion if he wished, but that conclusion did not bring theprosecution any nearer to proving that the house pointed out to thePolice was that of the appellant, since the statement that the informationon which they acted was hearsay. Although he does not say so, thfrMagistrate himself seems to have come to the conclusion that the househad not been properly identified, and he took this extraordinary course.After the conclusion of the defence which consisted only of an address byCounsel, the Magistrate recorded that he would make his order on June 16(the hearing terminated on the 11th). Later it does not appear on whatdate the learned Magistrate recalled the Police officer who searched thehouse. He said he could not find it but if he went inside it he would beable to identify it. The learned Magistrate directed the witness to drawa plan of the house which he searched and the witness sketched a roughplan. The Magistrate then adjourned the case to enable the Maniagar
ABRAHAMS C.J.—Ponniah v. Abdul Cader.
to submit a plan of the appellant’s house. On June 30, the Maniagarproduced a sketch of three houses in which the appellant had admittedhe had lived during the period of three years which included the date onwhich this offence was said to have been committed. The Magistratewas of the opinion that the sketch made by the Police officer was verysimilar to the plan of one of the houses made by the Maniagar. Apartfrom the admissibility of this belated evidence to which I shall presentlyrefer, I do not think that any inference adverse to the appellant couldhave been drawn from the comparison of the rough sketch with the plan.There was nothing distinctive about the house which the sketch and theplan disclosed and although the two were certainly similar in appearanceneither was drawn to any sort of scale. I am also of the opinion that theaction of the Magistrate in calling evidence to supplement the case’ for theprosecution after the close of the defence was unwarranted by law.Section 429 of the Criminal Procedure Code gives any Court very widepowers to take evidence suo proprio motu either by summoning anyperson as a witness or examining a person in attendance. Section 190of the Code lays down the procedure that is to be adopted by the Magis-trate after taking all the evidence, that is to say, the evidence for theprosecution and the defence and any evidence that he himself may havecalled for. It runs as follows : —
“ If the Magistrate after taking the evidence for the prosecution anddefence and such further evidence (if any) as he may of his own motioncause to be produced finds the accused not guilty, he shall forthwithrecord a verdict of acquittal. If he finds the accused guilty he shallforthwith record a verdict of guilty and pass sentence upon himaccording to law and shall record such sentence.”
There is a number of decisions of this Court to the effect that section 190requires a Magistrate to write his judgment immediately after he hastaken all the evidence which means that he is not entitled to reserve hisdecision, and that if he does reserve his decision his action is so irregularas to vitiate any conviction which he may have recorded. There areother decisions to the effect that such an action would be an irregularityin the procedure but will only be fatal to the conviction if an injusticeresulted from the delay. The cases on both sides were considered byKoch J. in Seneviratne v. Bodia In the case before me the Magistratehad actually concluded the trial. He had reserved his decision, and thetaking of further evidence suo proprio motu was an afterthought possiblyexcited by the appearance in his mind of certain doubts in consideringwhat his decision should be. I do not, however, propose to considerwhether it is a fatal or incurable irregularity for the Magistrate to reservehis judgment because I am prepared to go so far as to say that the provi-sions of section 490 must be interpreted by a Magistrate with reasonable-ness and ought not be used to remedy a dangerous defect or to fill a gapin the case for the prosecution. It has been held in England that it isillegal for a Judge to call a witness in favour of the prosecution’s caseafter the close of the defence, and it is not very difficult to visualize theperpetration of a serious injustice if a Magistrate is given a free hand toassist the prosecution in this way. See Rex v. Dora Harris’.
1 35 N. L. R. 252.* (1927) 2 K. B. 597.
The King v. Sepala et al.
It appears to me that the very most that the prosecution has been ableto prove in this case is a strong inference from the behaviour of theappellant that he anticipated the receipt of a parcel by Chellamma, whichparcel was intended for him and which contained to his knowledgecontraband goods. This, however, does not make him guilty of anyoffence. It was nevertheless argued by Counsel for the Crown thatsection 50 of the Excise Ordinance, No. 8 of 1912, places upon the appel-lant, in view of the circumstances prevailing in this case, the burden ofproving that he is not guilty of the offence of which he is charged. Thesubstance of this section is as follows : In prosecutions under section 43it shall be presumed, until the contrary is proved, that the accused personhas committed an offence in respect of any excisable article for thepossession of which, or for his conduct in connection with which, he isunable to account satisfactorily. It is argued on the strength of thatsection that the conduct of the appellant in respect of this parcel was suchthat an obligation was placed upon him to explain his conduct, and thatas he made no attempt to do so he was guilty of the offence of which hewas charged. I cannot agree that the section can be interpreted to admitof this contention. It cannot mean that because a man behaves in asuspicious way in respect of ganja that he can be convicted of any offenceunder section 43 unless he gives a satisfactory explanation of his conduct.I think section 50 comes into effect when from the suspicious behaviourof the person charged an element of an offence under section 43 can beproved. The prosecution has then done all that it can be called upon todo and it then remains for the accused to give a reasonable account of hisbehaviour. In this case the most that can be inferred from the appellant’sbehaviour is, as I have said, that he expected the arrival of a parcel andthat he knew that that parcel contained contraband goods. Supposingthat to be his explanation, it is not an unreasonable one and it does notamount to the admission of an offence.
I therefore quash the conviction and acquit the appellant.
Conviction quashed.