076-NLR-NLR-V-45-SAHABANDU-Appellant-and-RATNASABAPATHI-Respondent.pdf
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Sahabandu and Ratnasabapathi.
1944Present: Howard C.J.SAHABANDU, Appellant, aord RATNASABAPATHI, Respondent.
251—M. C. Point Pedro, 2,764.
Criminal Procedure—Charge ofunlawful possession of opium and ganja—
Seizure of packet in possession of accused and sealing of same in hispresence—Breaking of seals in course of inquiry—Irregularity not fatal.
In a charge of unlawful possession of opium and ganja the packetseized in the possession of the accused waa sealed at the Police Stationin the presence oftheaccused with thePoliceseal along withthe
accused’s thumb impression.
On the following day at an inquiry held by the Assistant Superintendentof Police regardingcertain allegationsmadebytheaccused againstthe
Police Officers, whotookpart in theraid,thesealwas broken bythe
Assistant Superintendent of Policeand resealed with his private seal
which was identified by the Sub-Inspector of Police, who gave evidenceat the trial.
Held, that the failureto reseal the packetinthe presence ofthe
accused was not a fatal irregularity.
A PPEAL from an acquittal by the Magistrate of Point Pedro.
H. A. Wijemanna, C.C., for the complainant, appellant.
G. Suntheralingam, for the accused, respondent.
Cur. adv. vult.
HOWAED C.J.—Sahabandu and Rainasabapatht.
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June 9, 1944. Howard C.J.—
This is an appeal with, the leave of the Attorney-General against theacquittal of the respondent for having on July 12, 1943, committed anoffence punishable under section 76 (5) (a) of the Poisons, Opium andDangerous Drugs Ordinance in that he did unlawfully have in his posses-sion one pound of ganja and one pound of opium. At the trial theprosecution produced evidence to the effect that the respondent on theapproach of a party of Police Officers ran into his mother’s house andlocked the door. He was later seen going from the house towards astraw shed ■ carrying a parcel which he threw at the entrance to the shed.The respondent was seized and the parcel was examined. Accordingto the evidence of the Sub-Inspector and a Sergeant the parcel contained1 packet ofopium and1 packet of ganja in anola boxwrapped inoil
cloth.Therespondentwastaken to the PoliceStationwhere the two
packets were weighed in his presence. They were found to containone pound of each substance. After being weighed, the packets wereput back in the ola box which was wrapped in the oil cloth. The parcelwas then sealed with the Police seal along with the respondent’s leftthumb impression. On the following day there was a departmentalinquiry by the Assistant Superintendent of Police, Northern Province,regarding certain allegations made by the respondent against thePoliceOfficers who tookpartin the raid. At thisinquiry the seals onthe
parcelwerebroken bytheAssistant Superintendent ofPolice andre-
sealed with his private seal. This seal was still intact when the parcelwas produced at the trial.
The respondent did not go into the witness-box and contest theevidence of the Police. In these circumstances the Magistrate acceptedwithout hesitation the story of the prosecution. He held, however,that the breaking of the seals by the Assistant Superintendent of Police-was a fatal irregularity and on the authority of Holsinger v. Joseph1and Vandendriesen S. 1., Police v. Ossen Beebee2 acquitted the respondent.No doubt these two cases to some extent justify the action of the Magis-trate in acquitting the respondent. In Holsinger v. Joseph, the tins ofganja which had been seized were not sealed until the Police Station wasreached. Lyall Grant J. in these circumstances, followed a case reportedin S. C. Minutes of September 14, 1926, where Jayewardene J. held thatthe failure to seal the tins at once entitled the accused to take the objectionsthat the ganja inside them might have been introduced between theseizure in the dispensary and its sealing at the Police Station. In thepresent case the respondent was taken to the police station with thepackets. No suggestion was made during the course of the trial eitherby cross-examination or direct evidence that the ganja and opiumhad been introduced by the Police. In Vandendriesen v. Beebee, the raidtook place' at 3 p.m., but the opium was not sealed till 6 p.m. Later theseals were broken in the absence of the accused and re-sealed. Moseley J.held that he was bound to follow the judgment in Holsinger v. Josephand allowed the appeal. There are, however, other cases not broughtto the notice of the Magistrate in which it was held that failure to sealwas not a fatal irregularity. In Prins v. Sabaratnam3 Jayewardene J.
1 31 N. JL. JR. 250.* 1 C. L. J. 13S.3 34 N.L. R. 164.
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HOWARD C.J.—Sahabandu and Ratnasabapalhi.
considered Holsinger v. Joseph and other authorities and held that there isno imperative or inflexible rule that the articles' or things seized shouldbe sealed immediately after seizure in the presence of the accused andbefore they are removed to the Police Station. The delay in the sealingand informalities in the manner in which a search is conducted, arecircumstances to be weighed in the consideration of the cases and oftendiminish the weight of the evidence given as 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 convic-tion for unlawful possession, provided the oral evidence is otherwisesatisfactory.
In Kupasamy v. Cader Saibo1, Poyser J. also held that the delay insealing excisable articles in the course of a raid is an irregularity that isnot necessarily fatal to a conviction.
In De Silva v. Sarpin Singho2, Soertsz J. formulated the same principleas that laid down in Prins v. Sabaratnam {supra) and held that delayin the sealing of the productions is a matter to be considered when theMagistrate is examining the possibility or probability of an – introductionof an excisable article with a view to implicating an accused on a falsecharge and that it has no other bearing on the case.
Again in B andaranaya k e v. Ismail3 Lyall Grant J. held that thepurpose underlying the rules that in a case of illicit possession of ganjathe substance found in the accused’s possession should be immediatelysealed in his presence is to prevent the suggestion that a substitutionhas taken place after the seizure. A failure to observe the rule is notnecessarily fatal -to a conviction.
Mr. Suntheralingam on behalf of the respondent concedes that thereis no inflexible rule with regard to immediate sealing and failure to do sois not an irregularity fatal to conviction. He contends that the breakingof the seals and their resealing without the presence of the accusedis such an irregularity. In my opinion I can see no reason why theprinciple formulated by Jayewardene A. J. in Prins v. Sabaratnam{supra) and followed in the other cases I have cited should not applywhere the seals have been broken and resealing has taken place in theabsence of the accused. In this case the seals were broken for an officialenquiry by a responsible officer, an Assistant Superintendent of Police.The packages were resealed in the presence of the Sub-Inspector who hasidentified his seal. No suggestion has been made- at any time that theganja and opium were introduced. The Sub-Inspector and Sergeant,with several years’ experience of ganja and opium cases, testified that thesubstances found in the parcel were in fact ganja and opium. TheMagistrate accepted the evidence of these two witnesses. There isneither probability nor possibility that these substances were introducedwith a view to implicating the respondent on a false charge.
i 2 C. L. W. 416.2 17 C. L. Rec 78.3 Times of Gey. L. R. Vol. 7, p. 91.
SOEETSZ J.—Perera and Jayamanne.
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Jn these circumstances X set aside the order of acquittal and convictthe respondent. The case is remitted to the Magistrate for impositionof sentence after due consideration of his previous record.
Order of acquittal set aside.
Case remitted.