047-NLR-NLR-V-34-PRINS-v.-SABARATNAM.pdf
Prins v. Sabaratnam.
184
1932Present: Jayewardene A.J.
PRINS v. SABARATNAM.
485—P. C. Colombo, 39,093.
Opium Ordinance—Seizure of opium in accused’s possession—Failure to sealbefore removal to Police Station—Irregularity not fatal.
There is no inflexible rule that excise articles seized should be sealedimmediately after seizure in the presence of the accused, before they aretaken to the Police Station.
It depends on the circumstances of each case whether the failure toseal in the. presence of the accused affords a good defence or not.
JAYEWARDENE A.J.—Prins v. Sabaratnam.
16ft
^ PPEAL from a conviction by the Police Magistrate of Colombo.
No appearance for appellant.
H. L. Wendt, C.C., for respondent.
August 24, 1932. Jayewardene A.J.—
The accused has been convicted under the Opium Ordinance, 1910, forpossessing four pounds of opium. On April 24, Inspector Prins, havingreceived certain information, followed the accused from the MaradanaRailway Station after the arrival of the Jaffna train at 6.30 a.m. Hestopped the accused’s rickshaw opposite the Socony Petrol Station inSkinner’s road south and took the accused inside the depot. He openedthe accused’s trunk with a key which the accused produced from hispurse and found in the accused’s trunk a pillow smelling strongly of scenton the top and under it a verti cloth with toilet powder spread on it.Under that he found four pounds of opium and ten pounds of ganja. Hetook the accused and things to the Kotahena Police Station andsealed them in the presence of the accused with a Police seal. He placedthe trunk with that seal on it and a label signed by the accused andproduced everything at the Police Court on the next day. The accusedwhen charged merely said that he was not guilty and would file his list ofwitnesses later. The Inspector was corroborated in every materialparticular by Constable Benedict. The accused admitted the arrestand search, and also that he signed the label on the trunk. He saysthat the Inspector may have introduced the opium and ganja at theinstigation of his enemies. The Police Magistrate has held that thecase for the prosecution was well proved and that he had no doubt what-ever that the accused was caught exactly as stated by the Inspector withfour pounds of opium in his trunk. It was contended that the accused wasentitled to an acquittal because the Inspector did not seal the productionsas soon as they were found but later at the Police Station. In Kalpage v.Cassini1 A. St. V. Jayewardene A.J. held that an objection, that certaintins taken from the possession of the accused, a vedarala, were not sealedin his presence, was a good one. The accused there asserted that themedicine found later in the tins was not the medicine in them at the timethey were removed from his premises. Jayewardene A.J. remarked “Itwas possible for such an introduction to have taken place and in cases ofthis kind we have to see that whatever is found in the accused’s possessionis not tampered with .^ . . . I think the failure to seal thementitles the accused to take the objection that the ganja might have beenintroduced between the seizure at his dispensary and its sealing at thePolice Station ”. This case was followed in Holsinger v. Josephr,where the circumstances were similar. The principle of these cases wasadopted in Wijesekere v. Pakir* and Fernando v. Mudalihamy4
• :>80 P. C. Colombo. 22,09S S. C.‘M. 14.9.2G.
*31 N. L. R. 2o0.
KilS P. C. Kitrunrgaia, 17,924 S. C. M. 24.9.30.
1 C. L. IV. S99.
166JAYEWARDENE A.J.—Prins v. Sabaratnam.
Referring to them in Almeida v. Fernando Lyall Grant J. said that inneither of them were the packages sealed in the accused’s presence andthere was a reasonable possibility that they might have been tamperedwith. The remarks of Lyall Grant J. in setting aside the acquittal andsending the case back for trial are relevant. “ In the present case theInspector says that he found the stuff in the presence of the accused, thathe went with the productions and the accused to the Police Station, thathe weighed the opium in the presence of the accused, and that he got thePolice to seal the productions in the presence of the accused. There is,of course, always the possibility of fraud if the Inspector is dishonest,but tha'tN possibility exists even where the productions are sealedimmediately. In that, event it might be alleged that the Inspector hadsubstituted similar sealed packages …. The productions weresealed in the presence of the accused and so far as the case has"gone thereis no evidence that he at that time raised any question as to their beingthe articles seized in his house ”.
It was held in Ponniah v. Pitche ~ that the Excise Ordinance, No. 8 of1912, nowhere lays down that an excisable article should be sealed inthe presence of the accused immediately after seizure, and that itdepends on the facts of each case whether the failure to seal in thepresence of the accused affords a good defence1 or not.
The Opium Ordinance is similar to the Excise Ordinance and the sameprinciples apply. After examining the authorities, I am of opinion thatthere is no imperative or inflexible rule that the articles or things seizedshould be sealed immediately after seizure in the presence of the accusedand before they are removed to, the /Police Station. The delay in thesealing, and informalities in the manner in which a search is conducted,are circumstances to be weighed in the consideration of the case andoften diminish the weight of the evidence givenxas to the possession of theincriminating articles, and have seriously affected the credit to be attachedto the evidence in many cases. They do not however preclude theadmission of such evidence. It seems desirable, nevertheless, that thearticles found should be sealed, wherever practicable, immediately aftersearch in the presence of the accused and before removal to the PoliceStation. Failure in this respect is not an irregularity fatal to a con-viction for unlawful possession, provided that the oral evidence is other-wise satisfactory.
The conviction is right, in my opinion, both on the facts and on the law.The Magistrate has considered the question of sentence. I affirm theconviction and < sentence.
Affirmed.
> ;a .V. R. 331 at p. 333.
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2fi9.P. C. Put tala in, 13.969 S. C. M. ^4.3.31.