Sri Lanka Law Reports
(1998) 2 Sri LR.
COURT OF APPEALISMAIL, J.,
J. A. N. DE SILVA, J.
HC NEGOMBO 147/93MARCH 23, 1998.
Poisons, Opium and Dangerous Drugs (Amendment) Act, No. 13 of 1984 -S. 54A (b), (c) and (d) – Trafficking – Importation – Heroin – Possession – Intentionto possess or knowledge that one does possess a prohibited substance – Reasonabledoubt
Sumanawathie Perera v. Attorney-General (Ismail, J.)
Whether in the circumstances the accused should be held to have pos-session of the substance, rather than mere control Court should considerall the circumstances – the modes or events by which the custody com-mences and the.legal incident in which it is held.
The accused has succeeded in creating a reasonable doubt in regard tothe question whether she did possess the requisite knowledge requiredfor the purpose of proving charges in the indictment against her.
APPEAL from the judgment of the High Court of Negombo.
Cases referred to:
Warner v. Metropolitan Police Commissioner (1968) 52 Criminal AppealReport 373.
Re v. Edmond Levis – 87 Criminal Appeal Report 270.
R. v. Boyesen 82 AC 768.
Dr. Ranjith Fernando with Miss Anoja Jayaratne and Miss Subashini Godagamafor the accused-appellant.
Jayantha Jayasuriya, SSC for Attorney-General.
Cur. adv. vull.
March 23, 1998ISMAIL, J.
The accused-appellant was charged on an indictment dated 13.9.93on three counts with trafficking in 204.69 grams of heroin on 08.07.92at Katunayake, and at the same time and place aforesaid and in thecourse of same transaction with having imported 204.69 grams ofheroin and with having been in possession of the said quantity ofheroin, offences punishable under section 54 A (b), 54 A (c) and 54A (d), respectively of the Poisons, Opium and Dangerous Drugs(Amendment) Act, No. 13 of 1984. The accused-appellant was con-victed after trial on 21.6.96 on the charge of importing 204.69 gramsof heroin on count 2 of the indictment. She was acquitted on counts(1) and (3) in respect of the offences of trafficking in and withpossession of the said quantity of heroin.
It appears from the evidence that the accused-appellant had returnedat night at the Katunayake airport from a flight from Madras on08.07.92. On arrival her bag was seized by officers of the NarcoticsUnit on suspicion that it contained heroin. On examination of her bag,it was found to contain the body of a ceiling fan in which was concealeda parcel which contained about 400 grams of a brown-colouredpowder. On analysis the said quantityfof brown powder was foundto contain 204.69 grams of pure heroin.
Sri Lanka Law Reports
(1998) 2 Sri LR.
The position of the accused in her statement made immediatelyafter the detection to the officers of the Narcotics Unit was that shehad returned a few months ago after being employed in the MiddleEast and that she was entitled to import a certain quantity of goodswithout the payment of duty in proportion to the allowance availableto her calculated according to her income and the period of her stayabroad. She had known a lady by the name of Chandrawathie duringher stay abroad and she had become her friend. A friend ofChandrawathie named Sammy and a lady referred to as Sriyani'smother arranged a trip for them to proceed to India to purchase goodsthere and to utilize the allowance she was entitled to and to bringcertain articles of clothing, etc., from Madras without the payment ofduty. Accordingly, a trip was arranged and the accused-appellantaccompanied by Chandrawathie proceeded to India on 5.7.92. Thearrangement was for the accused-appellant to be given a sum of Rs.600 in cash in India for her shopping expenses. In return for the useof her allowance she was promised a sum of Rs. 1,500 to be paidto her on her return. The expenses on account of the purchase ofher ticket and other expenses for the journey and her stay abroadwas to have been borne by the person who arranged the trip. Whilstleaving for Madras from Colombo each of them carried bags containingspices on behalf of the person named Sammy to be handed overto his friends who were to meet them there. On arrival at Madrasthey were met by friends of Sammy who provided them with boardand lodging. After a three-day stay in Madras when it was the timefor them to return, a friend of Sammy hurriedly brought two bags andhanded over one each to Chandrawathie and to herself. The zip ofthe bag was opened and she was permitted to take a glimpse ofits contents. She was made aware that the bag contained sarees andsarongs. These articles which had been packed in the bag were notpurchased by either Chandrawathie or the accused-appellant.
The accused-appellant has set out the above facts in detail to theofficers of the Narcotics Unit who recorded her statements. At thetrial she gave evidence and her evidence was in accordance with thethree statements given by her immediately after the detection, on09.07.92, 10.7.92 and on 11.7.92. The trial Judge has at the end ofthe trial come to the finding notwithstanding the uncontradictedevidence of the accused-appellant, that her conduct showed that shehad the requisite knowledge that a quantity of heroin had beenconcealed in the head of the ceiling fan and packed in the bag handedover to her.
CASumanawathie Perera v. Attorney-General (Ismail, J.)23
At the hearing of this appeal learned counsel for the accused-appellant submitted that the prosecution had succeeded only in showingthat the accused-appellant had the mere custody of the bag and thatthe accused-appellant has raised a doubt in regard to her knowledgeof the presence of heroin packed in the head of the ceiling fan. Hehas referred to the principles set out by Lord Wilberforce in Warnerv. Metropolitan Police Commissionerf’L It is as follows:
"The question, to which an answer is required, and in the enda jury must answer it, is whether in the circumstances the accusedshould be held to have possession of the substance, rather thanmere control. In order to decide between these two, the jury should,in my opinion, be invited to consider all the circumstances – touse again the words of Pollock & Wright, Possession in theCommon Law, p. 119 – the 'modes or events' by which the custodycommences and the legal incident in which it is held. By theseI mean, relating them to typical situations, that they must considerthe manner and circumstances in which the substance, or some-thing which contains it, had been received, what knowledge ormeans of knowledge or guilty knowledge as to the presence ofthe substance, or as to the nature of what has been received,the accused had at the time of receipt or thereafter up to themoment when he is found with it; his legal relation to the substanceor package (including his right of access to it). On such mattersas these (not exhaustively stated) they must make the decisionwhether, in addition to physical control, he has, or ought to haveimputed to him the intention to possess, or knowledge that he doespossess, what is in fact a prohibited substance. If he has thisintention or knowledge, it is not additionally necessary that heshould know the nature of the substances".
These observations have been applied in Edmon Lewis® inR. v. Boyesen®.
We have considered the evidence led at the trial and we are ofthe view that the following items of evidence are relevant in consideringthe requisite knowledge to be imputed to the accused-appellant. Thetrip to India was arranged by Chandrawathie and her friends, thepayment for the use of her allowance was agreed upon and herexpenses for the trip has borne by them. The purchases in India werenot made by her. The bag was not in her possession from the timeit was handed over to Sammy's friends until the time the goodspurchased in India were packed into if and brought to her hurriedlyat the time of her leaving for the airport with Chandrawathie. She
Sri Lanka Law Reports
(1998) 2 Sri LR.
was permitted to have a glimpse of its contents and she had notexamined the bag. None of her personal articles appear to have beenpacked into this bag. The customs clearance and the other formalitiesat the airport in Madras were not handled by her but by the personssaid to be friends of Sammy. The customs declaration form on arrivalhere has also not been filled up by her. There was a person namedSammy who was awaiting their arrival that night at the airport.
In addition at the hearing of this appeal learned counsel for theaccused-appellant produced before this Court a certified copy of theproceedings of HC case No. 153/93 in the High Court of Negomboin which the accused was the said Chandrawathie, referred to by theaccused-appellant as her friend and with whom she made the tripto India. She was charged with the importation of heroin and for havingbeen in possession on the same date at Katunayake of 204 gramsof heroin. She has pleaded guilty to the charge and has beenconvicted on her own plea on 4.10.94. She has been sentenced toa term of 10 years rigorous imprisonment.
We have taken these facts into consideration and applying theobservations of Lord Wilberforce, referred to above, we are of theview that the accused-appellant has succeeded in creating a reason-able doubt in regard to the question whether she did possess therequisite knowledge required for the purpose of proving charges inthe indictment against her. We are of the view that it would beappropriate to extend the benefit of the doubt in this regard to theaccused-appellant. For these reasons we quash the conviction andsentence and acquit the accused-appellant.
J.A. N. DE SILVA, J. – I agree.