Sumithra Premaratne v. Republic of Sri Lanka
REPUBLIC OF SRI LANKA
COURT OF APPEALJAYASURIYA, J.,
DE SILVA, J.
C.A. NO. 187/95
C. COLOMBO NO. 7269/94MAY 28, 1998.
Poisons, Opium and Dangerous Drugs Ordinance – S. 54A (d) – Alleged pos-session presumption in law that the person who is the Chief Householder/Occupieris in exclusive and actual possession of all articles found in a particular house- Failure to call important witnesses – S. 114(F) Evidence Ordinance-Role ofa trial judge – Contradictions inter se – Testimonial trustworthiness.
There was a noteworthy lacuna in the prosecution case in that no evidencehas been led in regard to the other items that were contained in the bag.The truth or otherwise of the witnesses evidence could have been testedand evaluated had such evidence was led and if material was elicited aboutthe other contents of the bag alleged to belong to the appellant.
The trial judge should not play the role of a mere umpire but must takeeffective action to ascertain and discover the truth.
"It is a great pity that judges when they see two sides fencing with oneanother and manoeuvring for positions, should conceive themselves merelyas umpires in a game of strategy and should not themselves determinethat the truth must be ascertained and themselves call witnesses who forstrategic reasons or through misconception are withheld by either party".
"It is the duty of a trial judge to take effective steps in elucidating pointswhich appear to require clearing up and are material for the purpose ofdoing justice by using his powers over the Information Book".
The contradiction inter se has not been given due weight and significanceand the learned trial judge has disregarded this contradiction in arrivingat a favourable finding in regard to the testimonial trustworthiness of theprosecution witnesses.
APPEAL from the High Court of Colombo.
Sri Lanka Law Reports
 3 Sri L.R.
Cases referred to:
Ponnachipillai v. De Silva 46 NLR 358.
Samaraweera v. Bee Bee 4 CWR 48.
Sunderam Pulle v. Kathirase Pulle 65 CLW 1.
King v. Cooray – 28 NLR 83.
ft v. Muthu Banda – 73 NLR 8.
Sathasivam v. Manickaratnam – 66 NLR 355.
Bhajan Singh v. State of Punjab – AIR 1977 SC 674.
Ranjith Abeysuriya, PC with Ms. Priyadharshani Dias for accused-appellant.Dappula de Livera, Senior State Counsel for Attorney-General.
Cur. adv. vult.
May 28, 1998.
The accused-appellant is charged with illegal possession of 4.02 gramsof heroin, an offence punishable in terms of section 54(A) (d) of thePoisons Opium and Dangerous Drugs Ordinance, as amended.
The evidence led against the accused-appellant at the trialconsisted of the evidence of the raiding police officer, HeadquarterInspector attached to the Slave Island Police, Muhandiramge LewisBenedict and another two prosecution witnesses by the name ofWelitotage Sumanadasa and Habakkala Hewage Chandradasa. Thebag, in which these offending packets of heroin were found wasdiscovered from an unlocked cupboad in a house situated at 66/21,Wekanda Road, Colombo, where the chief occupant and chief house-holder was the aforesaid witness Sumanadasa. In these circumstancesthere was a duty on the part of the trial Judge to have indulged ina careful analysis and evaluation of the evidence of Sumanadasabefore acting on his evidence against the accused-appellant. Thereis a presumption in law that the person who is the chief householderand the chief occupier is in exclusive and actual possession of allarticles found in a particular house Ponnachipillai v. De Silval'KSamaraweera v. Bee Be&2). In these circumstances the trial Judgeought to have probed whether in fact Sumanadasa implicated theaccused in order to extricate himself from the common sensepresumption and inferences arising against himself. Sumanadasa inhis evidence has stated that the accused often quarrelled with her
Sumithra Premaratne v. Republic of Sri' Lanka
husband and on account of resulting stresses and dissension she hadleft this bag in his cupboard with her clothing in accordance wjth hercustomary practice, on the 14th February, 1997. The reason trottedout by Sumanadasa is that accused experienced problems with herhusband and therefore she had left this bag in his house in accordancewith her customary practice. The evidence at the trial which is referredto by the trial judge in her judgment disclosed that the accused'shusband had been remanded in January, 1993 and that even on the14th February, 1993, he would have continued to be on remand andin the circumstances the reason adduced by Sumanadasa for herleaving this bag is wholly unsustainable and untenable. These mattershave not engaged the consideration and analysis of the learned trialJudge.
It was alleged by the prosecution that the accused had appearedat the police station and had handed over the key of the padlockannexed to the bag which contained the heroin packets to the authoritieson 16th February, 1993, That is two days after the detection. It isnot quite clear on the evidence the identity of the police officer towhom this key is alleged to have been handed over by the accused.At page 46 it is in evidence that the raiding chief inspector hadinstructed police sergeant Jinadasa to proceed to the reserve andattempt to open the padlock with the key alleged to have beenfurnished by the accused. That evidence does not disclose that anyother person was present at the time this exercise was indulged in,except police officer Jinadasa. However at page 48 in reply to a leadingquestion the aforesaid inspector has stated that this exercise tookplace both before himself and Jinadasa. In view of the earlier answergiven by this witness this answer furnished to a leading question,appears to be inherently improbable. In these circumstances we areof the view that there was an onus on the part of the prosecutionto have called police sergeant Jinadasa who would have given evidencein regard to this exercise and possibly evidence in regard to the personwho is alleged to have handed over the key to reserve at the SlaveIsland police station. If he was called as a witness, certainly theevidence of Inspector Benedict would have been advanced in strength.In these apt and exceptional circumstances, we are inclined to drawan adverse inference in terms of section 114(F) of the EvidenceOrdinance against the prosecution for the failure to call the importantand vital witness sergeant Jinadasa. Although the key was producedas a production; the padlock which was attached to this bag had notbeen marked and produced as a production in court. There was a
Sri Lanka Law Reports
 3 Sri L.R.
noteworthy lacuna in the prosecution case in that no evidence hasbeen led in regard to the other items that were contained in the bagmarked as P4. The truth or otherwise of Sumanadasa's evidence couldhave been tested and evaluated had such evidence been led andif material was elicited about the other contents of the bag allegedto belong to the accused-appellant. We hold that it was the duty ofthe trial judge in such circumstances to have put relevant questionsto ascertain the nature of the remaining contents of the bag P4, assuch an investigation by her would have helped her to arrive at thetruth and satisfy the ends of justice.
The trial judge should not play the role of a mere umpire but musttake effective action to ascertain and discover the truth. Justice Bertramwith Justice Garvin agreeing – Sunderam Pulle v. Kathirase Pulle®1lamented thus: "It is a great pity I think that Judges, when they seetwo sides fencing with one another and manoeuvring for positions,should conceive themselves merely as umpires in a game of strategyand should not themselves determine that the truth must be ascer-tained and themselves call witnesses, who for strategic reasons orthrough misconception are withheld by either party."
Again Justice Garvin stressed the duty of a trial Judge to takeeffective steps in elucidating points which appear to require clearingup and are material for the purpose of doing justice, by using hispowers over the Information Book. A perusal of this book "might showthat there exists a witness, whom neither side has called, able to givematerial evidence which the Judge may think should be placed beforethe court. It may indicate lines of inquiry which should be exploredin the highest interests of Justice" – King v. Cooray<4) at 83. Videthe observations of Justice Alles in R. v. Muthumenikai5) – at 8 inregard to the use of the Information Book by the trial Judge in provingsignificant omissions to ascertain credibility and the truth and topromote the ends of justice.
In Sathasivam v. Manickaratnarrf61 – the contention was advancedthat the trial Judge in a maintenance case "had descended into thearena" when he put repeated questions to a witness called on behalfof the defendant and induced him to come out with the truth. ButJustice Sri Skandarajah in reply) to this contention succinctly observedthat a trial Judge is not bound to take the position of a mere umpireand refrain from using his inherent powers to ascertain the truth.
Sumithra Premaratne v. Republic of Sri Lanka
In the result, he held that "the Magistrate has not acted improperlyin making this witness (Kirihamy), who was giving palpably falseevidence favourable to the defendant, speak the truth. In this caseif the other contents of the bag could not be traced to the appellant,then this fact would have thrown considerable doubt on Sumanadasa'sevidence.
In view of the paucity of the evidence led against the accusedwhich consisted almost exclusively of the evidence of Sumanadasawho had an interest to implicate the accused and extricate himselffrom a possible charge, we hold that it is unsafe to allow the convictionto stand on the evidence which has been placed against the accused-appellant.
Learned President's Counsel appearing for the accused-appellanthas drawn our attention to a glaring contradiction in regard to theplace where the bag was found by the police on their raid. Theaforesaid chief Inspector who conducted the raid has stated that thebag was found inside the cupboard which was positioned in the hallwhereas Sumanadasa and Chandradasa have stated that the bag wasfound in the "Dum messa" in the kitchen. The evidence of Sumanadasaon this point too indicates a conscious attempt by him to extricatehimself from the charge and assert that the bag was found in the"Dum messa" when the police inspector states that the bag was foundin the cupboard in the constructive possession of Sumanadasa. Thiscontradiction inter se has not been given its due weight and signifi-cance and the learned trial judge has disregarded this contradictionin arriving at a favourable finding in regard to the testimonial trust-worthiness of the prosecution witness – see – Bhajan Singh v. Stateof Punjabm. Besides, the trial judge has erroneously and wrongfullydisregarded and rejected the defence contentions and version of theaccused on pure conjecture and surmise. Vide page 11 of her judg-ment. In view of the matters adumbrated by us we hold it is unsafeto let the conviction rest on this evidence. In view of the deficienciesand lacuna which we have adverted to in our judgment, we hold thatmore than a reasonable doubt has been raised in regard to theprosecution case and we proceed to set aside the conviction andsentence passed on the accused-appellant and we acquit the accused-appellant.
DE SILVA, J. – I agree.