018-NLR-NLR-V-58-T.-KULASEGARAM-Appellant-and-P.-F.-CHARLY-SINGHO-Respondent.pdf
1955Present : Gunasekara, J.T. KULASEGARAM, Appellant.; and P. F. CHARILYSINGHO, Respondent.
-S’. C. 663—M. C. BaUicaloa, 20,643
“ Ganja ”—JVo£ a plant—-Poisons, Opium and Dangerous Drugs Ordinance (Cap. 172).ss. 26, 2S, 76 (-5).
Ganja ' is not- a plant-. Possession, therefore, of an article which is des-eribed by the prosecution as “ ganja, the parts of a hemp plant knownas cannabis satire-'’ is not punishable under section 2S, read with section j6(5),of the Poisons, Opium and Dangerous Drugs Ordinance.
-Appear from a judgment of the Magistrates Court, Batticaloa.
A. Wijemanne, Crown Counsel, for the complainant-appellant..7. A*. David, for the accused-respondent.
Cur. adv. vult.
January 17, 1955. Gitxasekaka, J.—
This is an appeal with the sanction of the Attornej’-General against anacquittal on a charge of an oifcnce punisliable under section 7G (5) of thePoisons, Opium and Dangerous Drugs Ordinance (Cap. 172). The chargealleged a contravention of section 2S, which provides among other thingsthat no person shall without a licence have in his possession “ any resinobtained from the hemp plant or the preparations of or extracts from thehemp plant commonly known as bhang, hashish, or ganja, or any otherpreparation of which such resin forms a part ”.
The case for the prosecution consisted of evidence to the following effectgiven by a divisional preventive officer of the Excise Department and anexcise guard. The respondent’s house was raided by' the two of them andthe headman of the village at S.50 a.in. on the 10th 3farch. As theyapproached the house they saw the respondent, who had been seated on achair in the front verandah, rush into a room. They followed him andthey saw him place a packet inside a large pot that was in the room. Thepreventive officer immediately seized him and took the packet out of thepot. It contained a substance that the preventive officer purports to haveidentified as “ Ceylon ganja, the parts of hemp plant known as cannabissativa ”. He took the respondent with him in a car to a dispensary' andfrom there to the excise station, having had the substance weighed at thedispensary in the presence of both of them and the packet sealed with therespondent’s left thumb impression. The two witnesses admitted in cross-examination that they also took away from the respondent’s house abottle containing two drams of arrack and a glass.
At the close of the case for the prosecution the learned magistratedelivei'ed the following judgment:
The accused is charged with the possession of ganja in breach ofS. 28 of the Excise Ordinance. There is a fatal error committed by' theD. P. O. The accused was in the rear seat of the car whilst the pro-duction was in the front seat. The guard said that it was in thepocket of the D. P. O. Hence the accused does not know whether it hadbeen introduced or not.
Purtlier in evidence it is stated that the accused ran inside. Hedid not have anything in his hand. Why he should have takenthe alleged packet and placed it in a pot is inexplicable. This isnecessary only if there is evidence that there were other peoplein the house. Purther the explanation given by the guard about theremoval of bottle of arrack and glass is not explained.3lost probably
the raiding party may' have tried to introduce a sale but failed. Theseshow that no Court can believe the story for the-prosecution. I there-fore acquit and discharge accused. ” I
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the respondent “ did not have anything in his hand ” when he rushed in-side the house. This statement in the judgment is apparently basedupon an admission by the excise guard that “ he did not see whether theaccused had anything in his hand ” at that time, which of course is notan admission that the accused “ did not have anything in his handIt is true that the prosecution witnesses did not explain why the bottleand the glass were removed from the house, but they were not asked for anexplanation. There appears to be no ground at all for the learned magis-trate’s finding that most probabty the raiding party tried to fabricateevidence of an illicit sale of arrack.
I agree with the contention for the Crown that the learned magistratelias misdirected himself on the evidence and that his judgment disclosesno adequate ground for his disbelief of the two prosecution witnesses. Itseems to me, however, that the appeal must be dismissed for the reasonthat the prosecution has adduced no satisfactory evidence that the sub-stance that is said to have been found in the possession of the respondentwas such a substance as is described in section 2S of the Ordinance, thatis to say, any resin obtained from the hemp plant or a preparation of orextract from that plant or a preparation of which such resin forms a part.As was pointed out by Basnavake J. in Samarasekera v. Soysci1 “ ‘ Ganja ’is not a plant. It is a preparation of or extract from a plant. ” Theevidence of the preventive officer that the substance in question is ''ganja,the parts of a hemp plant known as cannabis saliva ”, indicates that he isunaware of a distinction between parts of the plant itself (if he can identifythem) and the preparation or extract from it that is known as ganja.(The possession of any part of the plant, without a licence would be breachof section 26 and a different offence to the possession of ganja without alicence.) The preventive officer stated in his evidence in chief that hehad had ‘‘seven 3Tears experience” and that he had been “trained toidentify ganja ”. Apparently the “ganja ” that he had been trained toidentify is not the substance referred to by that name in section 2S of theOrdinance. The excise guard too declared that the packet contained“ Ceylon ganja ”. K"o evidence was placed before the court, however,about his qualifications to express an opinion, apparently for the reasonthat the preventive officer was the witness upon whose evidence as anexpert the prosecution relied.
The appeal is dismissed.
Appeal dismissed.
(1061) 52 N. L. R. 3S0.