THIRUCHELVAM V. ATTORNEY-GENERAL

027-SLLR-SLLR-1995-2-THIRUCHELVAM-V.-ATTORNEY-GENERAL.pdf


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Thiruchelvam v. Attorney-General
135
THIRUCHELVAM
v.
ATTORNEY-GENERAL
SUPREME COURT
P. S. DE SILVA, C.J.,
KULATUNGA, J.
RAMANATHAN, J.
S.C. APPEAL NO. 144/94.
C.A. 106/92.
C. COLOMBO 4996(9)
MARCH 6, 1995, APRIL 27, 1995.
Indictment – Charge of possession of Heroin – Poisons, Opium and DangerousDrugs Ordinance S. 54A (d) as amended by Act 13 of 1984 – Part III of the ThirdSchedule – Interpretation – Life Imprisonment- Whether Mandatory.
The Appellant was indicted on the charge of possession of 71.3 grammes ofHeroin. After trial in the High Court, the accused was sentenced to a term of LifeImprisonment. The Court of Appeal affirmed the said Order. On appeal to theSupreme Court it was submitted that the Court of Appeal erred in law in holdingthat where an accused had been found guilty of having been in possession ofover 2 grammes of Heroin, a sentence of life imprisonment is mandatory.
Held:
In the Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act,No. 13 of 1984 column II of Part III of the Third Schedule sets cut the quantity ofHeroin; the Penalty is in the corresponding entry in column III.
On a plain reading of the wording in Part III it is clear that for the possessionof “2 grammes of Heroin and above” (column II) the penalty as set out in thecorresponding entry in column III is “death or life imprisonment.”
Part III of the schedule sets out three different forms of penalty in respect ofvarying quantities of heroin. Where the legislature has specified the maximum andminimum terms of imprisonment, the Court is vested with a discretion within thespecified limits.
In a case of possession of 2 grammes of heroin and above, the penalty setout is “death or life imprisonment.” It is manifest that in this category thediscretion of court is limited to the imposition of the death sentence or to asentence of life imprisonment; the punishment is one fixed by the legislature;there is no discretion vested in the Court in regard to the period of imprisonment.
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There is no warrant for inserting additional words where the sentence is onewhich is fixed by law.
Case referred to:
Van der Hultes v. AG. 1989-1 SLR 204.
Overruled
APPEAL from the Judgment of the Court of Appeal.
Somapala Gunadheera for Accused-Appellant.
C. R. de Silva, D.S.G. with Samaranayake, S.C. and Miss S. Jayawardene, S.C.for Attorney-General.
Cur. adv. vult.
May 12, 1995.
P. S. DE SILVA, C.J.
The appellant was indicted on the charge of possession of 71.3grammes of heroin, an offence punishable under section 54A (d) ofthe Poisons, Opium and Dangerous Drugs Ordinance, as amendedby Act, No. 13 of 1984. After trial, he was convicted by the High Courtand sentenced to a term of life imprisonment. On appeal, the Court ofAppeal affirmed the conviction and sentence.
Special leave to appeal to this court was granted on two matters
Has the Court of Appeal erred in law in holding that where anaccused had been found guilty of having been in possession of over2 grammes of heroin, a sentence of life imprisonment is mandatory?
Does an appellate court have the power to order the deductionof the period spent on remand prior to the date of conviction from thesentence imposed on him?
The first question involves the interpretation of Part III of the thirdSchedule to the Poisons, Opium and Dangerous Drugs Ordinance asamended by Act, No. 13 of 1984. Column II of Part III of the thirdschedule sets out the quantity of heroin and the penalty is set out inthe corresponding entry in Column III. On a plain reading of the
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Thiruchelvam v. Attorney-General (G. P. S. De Silva, C.J.)
137
wording in Part III it is clear that for the possession of “2 grammes ofheroin and above” (Column II) the penalty as set out in thecorresponding entry in Column III is “death or life imprisonment”.Mr. Somapala Gunadheera for the appellant strenuously contendedthat it was open to the High Court to have imposed a sentence ofimprisonment less than “life imprisonment”. Counsel cited the case ofVan der Hultes v. A.G.m in support of this submission. In that case theCourt of Appeal quoting the words “shall be liable to the penalties inColumn 3 …" held that the High Court “had the discretion to imposeany sentence over 7 years rigorous imprisonment extending up to thedeath penalty or life imprisonment…”.
I am afraid I cannot agree with the submission of Counsel for theappellant, and the view taken in Van der Hultes case {supra). Part IIIof the schedule sets out three different forms of penalty in respect ofvarying quantities of heroin. Where the quantity of heroin does notexceed 1 gramme, the penalty ( insofar as jail terms alone areconsidered) is “imprisonment of either description for a period notless than 3 years and not exceeding seven years." In a case wherethe quantity of heroin varies between 1 to 2 grammes the term ofimprisonment is “for a period not less than 7 years and not exceeding20 years". Thus it is seen that in both these instances the legislaturehas specified the maximum and minimum terms of imprisonment. TheCourt is vested with a discretion within the specified limits.
In the appeal before us we are concerned with a case ofpossession of “2 grammes of heroin and above” (vide Column IIwhich sets out the quantities). The penalty set out in thecorresponding entry in Column III is “death or life imprisonment”. It ismanifest that in this category the discretion of the court is limited tothe imposition of the death sentence or to a sentence of lifeimprisonment. In other words, the punishment is fixed by thelegislature; there is no discretion vested in the Court in regard to theperiod of imprisonment. If the argument of counsel for the appellantis to be accepted, additional words vesting a discretion in the courtwould have to be inserted, a mode of interpretation which isimpermissible save in exceptional situations. There is no warrant forinserting additional words where the sentence is one which is fixedby law. In this context the expression “liable to the penalty” which
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occurs in section 54A (d) cannot be given the meaning “exposed to"as contended for by counsel for the appellant, for the sentencefollows upon conviction. As rightly submitted by Mr. C. R. de Silva,Deputy Solicitor-General, on a reading of Part III of the schedule as awhole, it is clear that the legislature intended a graded form or scaleof punishment. Mr. de Silva stressed that this is the scheme of theSchedule. Having regard to the quantity of heroin found in thepossession of an accused person, the legislature enacted anascending scale of punishment. Where the case is one of possessionof “2 grammes of heroin and above" the legislature appears to haveconsidered the offence to be of a serious nature and the discretion ofthe Court is confined to imposing sentence of death or sentence oflife imprisonment and nothing less.
I accordingly hold that the sentence of life imprisonment wascorrectly imposed on the appellant by the High Court.
The second question does not arise for consideration in the instantappeal, since the sentence is one fixed by law.
For these reasons the judgment of the Court of Appeal is affirmedand the appeal is dismissed.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. –
“I have had the benefit of a full argument and I am now of theopinion that the view expressed in Van der Hultes v. A.G. (1989)1 SLR 204 is incorrect. I agree with the judgment of the ChiefJustice”.
Appeal dismissed.