SIDDICK vs. THE REPUBLIC OF SRI LANKA

050-SLLR-SLLR-2005-V-1-SIDDICK-vs.-THE-REPUBLIC-OF-SRI-LANKA.pdf


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Siddick vs. The Republic of Sri Lanka (Imam, J.)
383
SIDDICKVSTHE REPUBLIC OF SRI LANKACOURT OF APPEALBALAPATABENDI, J ANDIMAM.J.
C. A. 2/2001
H.C. NEGOMBO 83/96
MAY 13,
NOVEMBER 15, ANDDECEMBER 17, 2004
Poisons, Opium and Dangerous Drugs Ordinance, No. 17 of 1929 amendedby Act, No. 13 of 1984, sections, 54 (A) (d) and 54 (A) (c) Foreign national -Possession of heroin – Mens rea – Standard of proof – Offence of possession/importation? – Criminal Procedure Code, sections 203, and 283 (1) – Verdictwithin 10 days.- Is it mandatory? – Delay of 82 days – Failure of justice?
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Sri Lanka Lavv Reports
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The accused appellant – a Pakistani national was arrested at the KatunayakeAirport on an allegation of possessing a quantity of heroin. The heroin wasdetected in a cleverly concealed false bottom and frame of the suit case,bottom and handle of the cabin bag, and concealed in the inner side of thebrown shoes, the accused was wearing. He was indicted, and after trial wasconvicted.
On appeal, it was contended that:
he did not have the mens rea; ■
that the verdict was delivered after 82 days, and that delay had resultedin a failure of justice.
Per Imam J.,
“In applying the test of credibility and probabilities I am of the view that theprosecution witnesses are credible witnesses and that their evidence wasconsidered.”
The charges have been proved beyond reasonable doubt, and theaccused had the mens rea to commit the offence.
The the verdict was delayed for 82 days after the conclusion ofaddresses — this has not resulted in a failure of justice, as the HighCourt of Negombo is a very heavy court.
The provision that the verdict should be delivered within 10 days is onlydirectory and not mandatory
APPEAL from the judgment of the High Court of Negombo.
Cases referred to :
Anura Shantha alias Prlyantha vs the Attorney General – (1999) 1 Sri LR299
Sinha Rathnatunga vs the State – (2001) – 2 Sri LR
K vs Tholis Silva – 39 NLR 267
Karunadasa vs O/C Nittambuwa – (1987) 1 Sri LR 155
Ranjith Abeysuriya, P. C. with Thanuja Rodrigo for accused appellant,Kumudini Wickremasinghe, Senior State Counse for respondent
Cur. adv. vult.
SCSiddick vs. The Republic of Sri Lanka (Imam, JJ385
April 27, 2005S. I. IMAM, J.
The Accused – Appellant (hereinafter referred to as the Appellant) is aPakistani national who arrived in Sri Lanka on flight UL184 from Karachion 10.07.-1995, on which day he was arrested at the Katunayake Airporton an allegation of possessing a quantity of heroin. He was indicted in theHigh Court of Negombo on 2 charges namely,
That he had in his possession 15.58 grafns of pure heroin incontravention of Section 54(A) (d) of the Poisions, Opium andDangerous Drugs Ordinance, as amended by Act, No.13 of 1984.
That he did import the said quantity of heroin in contravention, ofSection 54(A) (c) of the said Ordinance.
On the Appellant pleading not guilty the case proceeded to trial. Theprosecution relied on the evidence of (1) the principal witness CustomsOfficer A. L. M. Nazeer who detected the heroin, (2) Police Narcotic BureauOfficer A. Nesharajah who took over the productions from witness Nazeerand (3) the Production Clerk of Court S. Rohan'a Wijayatilleke to producethe Government Analysts Report. On a defence being called for by thelearned Trial Judge the Appellant was the sole witness who gave evidenceand stated that he was unaware that the cabin bag, luggage suitcase andthe shoes contained heroin.
Nazeer in his evidence stated that what roused his suspicions was thatthe Accused at the time of detection was attired in a dark blue suit andwore an ill-matching pair of brown shoes. On close examination Nazeersearched the cabin bag and a suitcase which comprised the luggage bag.This witness stated that he detected heroin in a cleverly concealed falsebottom and frame of the suitcase and also in the bottom and handle of thecabin bag. Nazeer further alleged that he found heroin also cleverlyconcealed in the inner- side of the brown shoes which the Appellant woreat that time. It was accepted by the learned President’s Counsel whoappeared for the Appellant that the Appellant agreed that he was carryingboth bags and the aforesaid pair of brown shoes on his arrival to Sri LankaHowever the defence submitted by learned President’s Counsel was thatthe Appellant was completely unaware that the bags and the brown pair ofshoes contained heroin. The position of the Appellant in evidence was that
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he was directed by one Sultan a prominent businessman of Karachi tohand over the two bags and the brown pair of shoes to one Nizam in SriLanka, and that he was not wearing the brown pair of shoes, but merelycarrying them. Briefly the defense position was that the Appellant did nothave the necessary Mens Rea to constitute the offence of "Possession” or“Importation”. The witness Nesharajah stated that on receiving a messagefrom Nazeer that a Pakinstani national was detected with heroin in hisshoes and bags he went to where Nazeer was, where he found a pair ofshoes on the table. Nesharajah in his evidence stated that heroin wasfound in the pair of shoes and in the two bags which were brown and greencoloured respectively. This witness stated that the brown coloured suitcaseand green bag had false bottoms which contained heroin, which was alsofound in the frame of the said suitcases and bag respectively. Witnessstated that Nazeer arrested the Appellant at 7.30 a. m., that the six parcelswhich contained heroin were weighed separately, and that the pair of shoescontained two parcels of which the parcel in the left shoe weighed 71grams and that the parcel in the right shoe weighed 61.50 grams constitutinga total of 132.50 grams.
Furthermore he said that 253 grams and 50 miligrams of Heroin werefound in the green cabin bag and 245 grams were found in the suitcaserespectively. Witness further stated that the Accused was present whenthe heroin was weighed by Nazeer and that the frame of the green cabinbag contained a further 164 grams and 50 miligrams. Subsequently theProduction Clerk Wijayatillake marked the Government Analyst’s Reportand stated that the pure-quantity of herion obtained was 15.58 grams.
The Accused giving evidence stated that the bags and pair of shoeswas given to him by Sultan, and said that he had no knowledge of theheroin whatsover. He said that he came to Sri Lanka on a “feasabilitystudy” on the instructions of Sultan and produced a true copy of theagreement, between him and Sultan as S 2, which is strangely dated25.07.1995, although the Appellant was arrested on 10.07.1995.
This Court examined the written submissions tendered by both sides.The evidence of Nazeer is credible and consistent with that of Nesharajah.Although the defence disputed the evidence of Nazeer, no contradictionswere marked by the defence. The defence further alleged that the Appellantat the moment of arrest wore a pair of back shoes. However the Appellantin his evidence on 17.02.2000 stated that Sultan gave him a pair of brown
SCSiddick vs. The Republic of Sri Lanka (Imam, J.)387
shoes to be handed over to Nizam. Thus the Appellant cannot be said tosay now that he had no "knowledge” of the brown pair.of shoes involved inthis case. Customs Officer Nazeer by virtue of his job was entrusted toquestion and check suspicious looking persons, by virtue of which hearrested the Appellant. The reason for the arrest of the Appellant wasaccording to Nazeer the fact that the Appellant wore an ill-matching pair ofbrown shoes, which the Appellant claimed to be black. However the heroinwas found in the 2 bags and the brown pair of shoes; which the defencedid not contest, but took up the position that they were given to the Appellantby one Sultan, the presence of which narcotic the Appellant was unawareof. The position of the Appellant was that he was carrying the brown pair ofshoes, and wearing a black pair of shoes. The defence laid much emphasison the fact that Nazeer was lying with regard to his evidence that theAppellant was wearing a brown pair of shoes. Nesharajah corroboratedthe fact that he saw a pair of shoes on the table when summoned byNazeer. Nazeer’s suspicions were affirmed, when the heroin was found asaforesaid. Thus this Court is inclined to believe the evidence of Nazeerthat the Appellant wore a brown pair of shoes.
Although the Appellant stated that he came to Sri Lanka fora “feasabilitystudy” no acceptable documents were produced to substantiate this. Atrue copy of a document marked as 82 which was an agreement supposed ,to have been signed between the Appellant and Sultan, was strangelydated 25.07.1995, when the Appellant was arrested on 10.07.1995, whichforces this Court to come to the conclusion that this so called Agreementwas an after – thought, and thus cannot be accepted. There was a socalled “Rent Agreement". Where one party is a Sri Lankan, Muslim residingin Negombo which was found in the diary of the Appellant, which hasobviously nothing to do with the “feasabiltiy study” of the Appellant, as theAppellant’s name is not mentioned anywhere in this “Rent Agreement”.Although the Appellant claimed that he functioned as a hotel manager, nodocumentary or other evidence was produced to prove this. It is ratherstrange that Sultan sent a pair of brown shoes to be handed over to Nizamunless the shoes were of a rare variety and meant to be given as a gift.However it is a well known fact that Sri Lanka has a wide range of verygood shoes available in the market, and the pair of brown shoes which theAppellant brought had nothing in special, except of course for the heroinfound in them. Although learned President’s Counsel submitted that if theAppellant was bare footed, Nesharajah should have said so in evidence.
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Nesharajah unfortunately had nothing to say on this aspect. However thefact that the Appellant was bare footed or not does not absolve the Appellantfrom liability for possession of heroin. This aspect was possibly highlightedby the learned President’s Counsel to illustrate that Nazeer lied in hisevidence. In this regard Nazeer in his evidence clearly stated that heconducted the detection and handed over the productions to Nesharajah,which task Nesharajah was obviously involved in. Nesharajah in cross-examination admitted that the piece of paper which contained the telephonenumber of the person whom the Appellant spoke to was a drug dealer.Futhermore the accused in his evidence referred to this person namelyNizam as having been arrested in Kandy and was later in remand. Thefamily photograph of Nizam was found in the diary which the Appellanthad in his possession. In applying the test of credibility and probabilities,
I am of the view that the prosecution witnesses are credible winesses andthat their evidence is consistent.
Learned President’s Counsel contended that the Trial Judge had notcomplied with section 203 of the Criminal Procedure Code and had delayedfor 82 days after the conclusion of addresses of counsel, although theverdict should be delivered within 10 days. It was however admitted bylearned President’s Counsel that this provision of law is only directory andnot mandatory, as decided in Anura Shantha alias Priyantha Vs AG{') Thequestion is whether the delay resulted in a failure of justice. Althoughadmittedly there was a delay in pronouncing the verdict by the Trial Judge,this has not resulted in a failure of justice,as the High Court of Negombois a very heavy court, and the learned trial judge apparently delivered hisverdict with reasons amidst a great pressure of work. The directory natureof Section 203 of the Criminal Procedure Code was also affirmed in SinhaRatnatunga Vs State(2) Learned President’s Counsel submitted to Courtthat the evidence of the Appellant must be critically examined and thatthere compulsorily must be a specific holding that his evidence is rejectedfor stipulated reasons. Learned President’s Counsel further submitted thatif there Mad been such a failure, then the conviction must be set aside. Tosubstantiate this position,
(1) King vs Tholis Silva(3), where Hearne J held that “The evidence forthe defence must be scrutinized, and failure to do so is an injusticeto the accused"
SCSiddick vs. The Republic of Sri Lanka (Imam, J.)389
(2) Karunadasa vs O. I. C. Nittambuwa<4> where it was held that itmust appear from the judgment that the trial judge has adequatelyconsidered the evidence given by an accused and that the failureto do so, and to state the reasons for the decision would occasiona failure of justice were referred to by learned President’s Counsel.
Furthermore learned President’s Counsel submitted that in accordance
with Section 283 (1) of the Criminal Procedure Code which states that
‘‘in case where appeal lies shall contain the points for determination, thedecision thereon and the reasons for.the decisions”. In my view the learnedtrial judge has given reasons for his verdict, and conformed with the aforesaid'section.
Learned President’s Counsel cited numerous authorities to illustratethat the Mens Rea with regard to the possession of the heroin should beproved beyond reasonable doubt. However on a perusal of the indictmentit is my view that the 2 charges against the Appellant have been provedbeyond reasonable doubt. Thus the Appellant had the necessary MensRea to commit the offences and was not merely an innocent person whowas at every point manipulated by one Sultan as he seemed to depict.
For the aforesaid reasons I dismiss the appeal of the Appellant withoutcosts, and affirm the verdict and conviction of the learned trial judge ofNegombo dated 16.02.2001.
BALAPATABENDI, J. -1 agree.Appeal dismissed