007-SLLR-SLLR-1990-2-SHANMUGAMRAJAH-v.-REPUBLIC-OF-SRI-LANKA.pdf
SHANMUGARAJAH
v.REPUBLIC OF SRI LANKA
COURT OF APPEAL.
P. R. P. PERERA, J. AND W. N. D. PERERA, J.
C. A. 16/89.
HIGH COURT, NEGOMBO,
CASE No. 644/86,
AUGUST 01 AND 02, 1990.
Evidence – Evidence Ordinance, section 106 – Poisons, Opium and Dangerous DrugsOrdinance (ss. 54A(a) & 54A(d) as amended by Act No. 13 of 1984 – Possession – Mensrea – Burden of proof.
The accused was detected at the Katunayake Airport carrying 619 grammes ofheroin concealed in the false bottom of his suitcase.
Held :
The prosecution had by proof of the above facts established a prima fade case againstthe accused in regard to the mental element.
The inference at (1) which at first sight appears to be legitimate could be exposed aserroneous by proof of facts peculiarly within the accused's knowledge (s. 106 of theEvidence Ordinance).
The phase 'burden of proving' as used in the Evidence Ordinance has a constantmeaning and, envisages the burden not merely of leading some evidence but ofestablishing the fact in question.
It is settled law that section 106 imposes on the accused the duty of establishing onthe evidence the fact peculiarly within his knowledge.
As there is some substance in the complaint of the accused that the trial judge has beeninfluenced by certain considerations which are not strictly relevant on tire question ofsentence and in view of his age, sentence can be altered from the death penalty to 15 yearsrigorous imprisonment.
Cases referred to:
Van Der Hultes v. Attorney-General [1989] 1 Sri L.R. 204
King v. James Chandrasekera 44 NLR 97 (CCA)
Jayasena v. The Queen 72 NLR 313
APPEAL from Judgment of High Court of Negombo
Ranjith Abesuriya, P.C. with V. E. Selvarajah and Lasantha Wickrematunga for accused-appellant.
C. R. de Silva S. S. C. for the State.
Cur. adv. vulL
October 04,1990
P. R. P. PERERA, J.
The accused-appellant was indicted in the High Court of Negombo on thefollowing counts:—
That he did on or about 25th March, 1986, import 619 grammes of
Heroin except as permitted by or otherwise in accordance with theprovisions of the Poisons, Opium and Dangerous Drugs Ordinance – anoffence punishable under section 54 A (d) of the said Ordinance asamended by Act No. 13 of 1984.i
That at the same time and place aforesaid, and in the course of thesame transaction, he did have in his possession 619 grammes of Heroinexcept as permitted by or otherwise in accordance with the provisions ofthe Poisons, Opium and Dangerous Drugs Ordinance – an offencepunishable under section 54 A (d) of Act No.13 of 1984.
After trial, the learned High Court Judge found the appellant guilty onboth counts of the indictment and the sentence of death was accordinglyimposed. The present appeal is against this conviction and the sentenceof death imposed on the appellant.
The prosecution case was briefly as follows: On the morning of the25th March, 1986,about9.30a.m. Customs Officer Pakiyanathan was onduty at the Passenger Terminal of the Katunayake Airport. It was his dutyto examine the baggage of passengers who arrived there on the IndianAirlines Flight, which landed at the Katunayake Airport at 9.30 a.m. Theappellant who was a passengeron this flight had come up to Pakiyanathanand handed over his travel documents and the declaration which aremarked ‘P8’ & ‘P9’. Pakiyanathan then examined the accused’s baggagewhich consisted of a travelling bag and suitcase (“P10"). According toPakiyanathan when he examined the contents of the suitcase (‘P1 O') hefelt suspicious and he had instructed the accused to load his baggage intoa trolley and to take it to office No. 1 of the Customs Department. At thisoffice, Pakiyanathan opened ‘P1 O' and having emptied the contents hadexamined this suitcase once again. Pakiyanathan had then torn off ayellow cloth which covered the bottom of the suitcase, and removed theplastic cover which lay beneath it. He then discovered two flat polythenepackets. Pakiyanathan had questioned the accused and at the outset theaccused had stated that he did not know what they were. Thereafter hehad explained that *P10’ had been given to him by one Shanmugalingamat the Madras Airport to be delivered to an address at No. 116, KathiresanStreet, Colombo. On being further questioned the accused had statedthat the two polythene packets may be containing ‘Kudu’ (It is in evidencethat Heroin is commonly referred to as Kudu).
Pakiyanathan had then summoned an officer attached to the CustomsNarcotic Division by the name of Premanath and had shown him the twopolythene packets which he had recovered from the accused’s suitcase‘P10’. The two polythene packets which contained a brown colouredpowder had been produced marked ‘P1 ’ & *P2'. Then Pakiyanathan an<fPremanath had made an inventory of the productions and informed N. A.Perera, the Chief of Customs Narcotic Division, and also the PoliceNarcotics Bureau.
The contents of the two packets ‘P11 & ‘P2 had been weighed andsamples taken therefrom under the supervision of N. A. Perera. Theproductions had thereafter been duly sealed with the seal of the CustomsNarcotics Division and the left thumb impression of the accused. Theproductions were then produced before the Magistrate of Negombo whohad ordered that they be handed over to the Government Analyst. N. A.Perera, the Head of the Customs Narcotics Division had accordinglyhanded over the productions to the Government Analyst.
The Government Analyst had testified to the effect that the production‘P1’ contained 311.4 grammes of pure Heroin, and that ‘P2’ contained307.6 Grammes of the same substance. On the uncontradicted evidenceof the Government Analyst therefore the two packets ‘P1’ & ‘P2contained 619 grammes of Heroin. The report of the Government Analysthas been produced marked ‘P3
On the evidence adduced at the trial, I hold therefore that the identityof ‘P1 ’ & ‘P2’, with those recovered from the possession of the accusedhad been correctly determined by the learned Trial Judge.
Counselforthe appellant did not seek to canvass the finding of the trialJudge relating to the detection of the productions ‘P1 ’ & ‘P2 in the falsebottom of the suitcase ‘P1 O' which admittedly formed part of the baggageof the accused- appellant. It was Counsel’s submission however that forthe purpose of bringing home guilt to an accused under section 54 A, orsection 54 B, of the Poisons, Opium and Dangerous Drugs Ordinance, asamended by Act No. 13 of 1984, there was a burden on the prosecutionto prove that the appellant had the knowledge that he was carrying aprohibited drug. In support of this submission Counsel relied on a decisionof this Court in Van DerHultes v. Attorney-General fl) where it has beenheld that mens rea is an essential ingredient of the offences of possess-ing and attempting to export Heroin under section 54 A, and 54 B of ActNo. 13 of 1984.
Counsel submitted that having regard to the entirety of the evidenceof this case the prosecution had failed to establish that the accused hadknowledge that a prohibited drug was concealed in the false bottom of thesuitcase ‘P10’, which formed part of his baggage.
It was the defence case that the accused was engaged in ‘BaggageBusiness' -which entailed bringing goods from India for sale in Sri Lanka.
The accused had also made a dock statement in this case and stated thatone Shanmugalingam had met him at the Madras Airport before heenplaned and had handed over to him the suitcase ‘P1 O' together with itskeys with instruction to deliver ‘P10’ at No. 116, Kathiresan Street. Theaccused had opened the bag and as there was sufficient room in it hadput some of his personal belonging into' P1 O' before he boarded the planeat Madras.
The learned trial Judge, having considered the accused’s dock state-ment has totally rejected this story narrated by the accused. The trialJudge, had indeed come to a firm finding that the accused had therequisite knowledge envisaged by section 54 A and 54 B, of the Ordi-nance, as amended by Act No. 13 of 1984. In coming to this conclusionthe trial Judge had observed that on his own showing the accused hadcomplete custody and control over ‘P10’ as the keys to ‘P10’, had alsobeen given to the accused. The Judge states that it is therefore clear thatthe accused has every opportunity and the power to do what he pleasedwith 'P1 O'. In point of fact the accused had opened ‘P1 O' and pu»ome ofhis personal belongings into this suitcase and brought them to Sri Lanka.Having thus had such complete control and custody over ‘P10’, the trialJudge states, that the accused cannot be heard to say that he had noknowledge of the fact that ‘P1 ’ & ‘P2’, were concealed in the false bottomof the suitcase 'P1 O’.
I see no compelling reason to disagree with this conclusion reached bythe learned High Court Judge on this matter.
Be that as it may, Senior State Counsel contended that while heconceded that the burden was on the prosecution to make out a primafacie case against the accused which involved proof of both the actusreus andthe mensrea, in a clear case it would be open to the prosecutionto make out a prima facie case as to the mental element required byinvoking the tentative presumption that a person is deemed to intend thenatural and probable consequences of his act. If the accused in such asituation did nothing, the prosecution may be held to have discharged itsburden in regard to proof of the mental element necessary to establishliability for the offence. The accused may however in such circumstancesshow that he did the act with some mental element, other than that whichthe character and circumstances of the act suggest. The accused may doso and secure an acquittal, not for the reason that he has proved adefence, but simply because the prosecution has failed to prove that hecommitted the act with the mental element required. In this event theaccused must prove the mental element entertained by him at the time ofhis act. I am in entire agreement with this submission.
In the present case the prosecution has established a prima facie caseagainst the accused in regard to the mental element when it establishedthat the accused was detected at the Katunayake Airport having in hispossession the suitcase ‘P10’ in which 619 grammes of Heroin werefound concealed in a false bottom. This inference which appears at firstsight to be legitimate could be exposed as erroneous by proof of factspeculiarly within the accused’s knowledge. Vide section 106 of theEvidence Ordinance. The initial inference is relied on by the prosecutionas the basis of its prima facie case against the accused in respect of themental element of the offence, but that inference could effectively bevitiated by facts of which the accused alone is aware.
A further question arises for determination in this context, and that iswhether*the phrase ‘burden of proving’ in section 106 of the EvidenceOrdinance contemplates the burden of establishing the fact that isespecially within the knowledge of the accused or whether the dutyimposed on the accused is merely that of adducing some evidence insupport of the fact alleged. On this question I hold that the phrase ‘burdenof proving' as used in the Evidence Ordinance has a constant meaning,and envisages the burden not merely of leading some evidence but ofestablishing the fact in question. I find support for this view in King v.James Chandrasekera (2) and the decision of the Privy Council inJayasena v. The Queen. It has been laid down inthese authorities that
the definition of the word “proved” contained in section 3 of the EvidenceOrdinance applied generally to all the provisions of the Ordinance.Section 3 of the Evidence Ordinance provides thus –
“A fact is said to be proved when after considering the mattersbefore it, the Court either believes it to exist or considers its existenceso probable that a prudent man ought, under the circumstances of theparticular case, to act upon the supposition that it exists."
It is settled law therefore that section 106 imposes on the accused theduty of establishing on the evidence, the fact peculiarly within hisknowledge. I am of the opinion that this burden the accused-appellant hasfailed to discharge in the present case. I hold therefore that the pointraised by Counsel for the appellant must necessarily fail. I therefore affirmthe conviction on both counts of the indictment.
Counsel forthe appellant also contended that in any event this was notan appropriate case in which the sentence of death should have beenimposed on the accused-appellant. Counsel complained that in imposingthe death sentence the learned trial Judge had been influenced by certainconsiderations which were not strictly relevant.
I have perused the reasons given by the trial Judge in deciding toimpose the death penalty in the present case, and I am of the opinion thatthere appears to be some substance in the complaint of Counsel in thisregard. I have also taken into account the age of the accused-appellantwhich was twenty seven years at the time this offence was committed.Having regard to all the circu mstances in this case, I am of the opinion thata term of fifteen year (15 yrs.) rigorous imprisonment would meet theends of justice. I therefore set aside the sentenceof death imposed on theaccused-appellant and substitute therefor a sentence of fifteen yearsrigorous imprisonment on each count, the sentences to run concurrently.Subject to this variation in sentence the appeal is dismissed.
W. N. D. PERERA, J.-1 agree.
Appeal dismissed.
Sentence varied.