VAN DER HUTES v. ATTORNEY-GENERAL – (2)

015-SLLR-SLLR-1989-V-1-VAN-DER-HUTES-v.-ATTORNEY-GENERAL-2.pdf


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VAN DER HULTESV.
ATTORNEY-GENERAL—<2)
COURT OF APPEALRAMANATHAN. J.
' W. N. D. PERERA..J. ANDA, DE Z. GUNAWARDANA. J.
C. A. NO: 96/86.
"H. C. NEGOMBO NO: 535/86
■MAY 9. 1 0. 1 1. 1 3. 1 6. 17-. T9. 20. 23 AND 24, 1 988.
Poisons. Opium and Dangerous Drugs Ordinance as amended- by Act No: 13 of1984 ss 54A AND 54B — Possession of heroin — Attempting to export heroin.
Mens rea is an essential ingredient of the offences of possessing andattempting to export heroin under sections 54A and 54B of Opium andDangerous Drugs Ordinance amended by Act No. 1 3 of 1 984.
Discrepancies in the weight of the heroin at the time of detection and at thetime of analysis and in the size of the packings are insufficient to cast doubton .the evidence of the identity where the evidence in regard to the sealingand delivery’of-the parcels prove such identity/.
Sentence of death or life imprisonment is not imperative. The Court has a .
discretion in the -matter of' punishment and can impose any appropriatesentence between 7 years rigorous imprisonment and death or lifeimprisonment. -..•.
APPEAL from judgment of the High Court of Negombo.
Ranjith Abeysu'riya. P.C. with Iqbal Mohamed and Lasantha Wickrematunga forthe Accused-Appellant.
D. P. Kumarasinghe. Senior State Counsel for the Attorney-General.
Cur. adv, vult.
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205
Van Der Hultes v. Attorney-General (W. N. D. Perera. J.J
June 28. 1988W. N. D. Perera. J.
The accused appellant in.this case,-Stephanus Cornelius VanDer Hultes was tried before the High Court of Negombo on twocounts under the Poisons. Opium and Dangerous DrugsOrdinance (Cap. 21 8) as amended by Act. No. 1 3 of 1 9.84 viz;
(1) That he did on the 9th of April, 1985 at Katunayake possess,,except as permitted- by. or otherwise in accordance..with the .provisions of the said Ordinance, 482 grams' of heroin andthat he was-thereby guilty of an offence under section 54(A)d’of the said Ordinance and' liable to the penalties set out in -Column 111 of. Part 111 of the third schedule to the saidOrdinance..
1 ,P■ •
(2-) That at the same place and time’an.d in the course' of .the .same transaction he did attempt to export 482 .grams ofheroin except as permitted by or. otherwise, in accordancewith the provisions of the said Ordinance and was therebyguilty of an offence punishable under, section 54(A)c readwith section 54(B) of the saicT Ordinance and therefore liableto the. penalties set out in Col. 111- of Part 11 V of the thirdschedule to the said Ordinance.’
.The accused-was found guilty of both counts arid wassentenced to death..' . –
The facts of the case were.as follows: ., ..
…«*. i i
On the night of the 9th April, 1 985,^Lal Charidra Weeras'inghe.'security officer attached to the Katunayake International Airportwas on duty having reported for-duty at 7 p.m. His-task was toexamine passengers who were on’their way to the aircraft whichthey were to board. His place of examination was: according tohis evidence, the final place of examination that a passenger hadto pass,..before boarding his plane. On this, day a Swiss airpassenger plane (Flight No. S. R. 163) was due to leave at 1 (T30p.m. He examined each .passenger who passed-him. As ’theappellant approached him he detected metal on his’’person withhis metal detector. On further examination he found a bunch of
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keys and some coins on the accused. As the 3pparel of theappellant appeared to be bulging in the region of the stomach,he decided to have him further examined by the officer-in-charge.Mr. Neil Jayasinghe. He therefore informed the latter by a signand both of them took the appellant to the search room. In thesearch room the appellant was requested to loosen his belt andlower his trousers when five packets made of transparentpolythene were detected between his shirt and underwear. Thepackets contained a Jight brown powder. The witness andMr. Jayasinghe.thereupon took the appellant and the five packetsto the Senior Asst. Charges Officer. Mr. Cyril Jayamanne. whoinformed the Senior Customs Officer Mr. Selvaratnam. On thelatter's instructions the five packets were given to the Asst.Charges • Officer. Mr. Lalana Seneviratne to be weighed..Mr. Seneviratne weighed the five packets in the presence of theappellant and the packets were then sealed. The weight of thefive packets was found by Mr.- Seneviratne to amount to 482grams. The five packets were, according to Mr. Jayamanne.brought to him, and ■ according to the instructions ofMr. Selvaratnam, weighed by Mr. Seneviratne and sealed. Thetotal weight was 482 grams but he could not remember theindividual weights. The five packets were handed over to him inthe cover P8 on which he had made the endorsements that itcontained 482 grams of heroin and that the appellant togetherwith his passport had been handed over to Mr. Wijesekera of theNarcotics Bureau the following day. He had signed theseendorsements and dated them 10.4.85. A feature of this casewas that nowhere on P8 was the date of detection. 9.4.85.entered by any officer. He admitted that the appellant hadinformed him that-the packets were given to him by a strangerafter he had got down from his vehicle. Mr. Jayamanne hadquestioned him about this, but had not taken steps to locate thestranger. ^The number V 3219 he identified as having beenentered on P8'at Katunayake before it was taken to Colombowhere a separate.register was maintained and on which.an entrywas made prior to the parcel being received into the strong. room.
’ Mr. Seneviratne; Customs. Officer weighed the five packets onthe'instructions of Mr.'Jayamanne in .the presence of the
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appellant, enclosed them, in an envelope and thereafter put themin' the cover P8. The total weight of the five packets recoveredfrom the appellant was 482 grams. Before he enclosed the five,packets he made the distinguishing marks P1 to P5 on them and .circled them; After P8 was sealed, in the presence of theappellant, the latter’s left thumb impression was taken on P8. Healso prepared a document setting out the weight of the packetsrecovered and obtained the signature of the appellant on thisdocument.. This document was however 'not produced – in.evidence. The sealed packet was thereafter on the-same nightkept in the safe, and was taken to the Head Office in Colombo'the following morning. In Colombo he had handed over thepacket to Mr. Suraweera who placed it in. a safe. Mr. Suraweera,who served as the-first officer in the-transit goods ^office inColombo on 1 0.4.85 stated that he took over the packet P8 fromMr. Seneviratne. on this day and made a log entry. He furtherentered the receipt, of P8-in a book maintained in the transitgoods office assigning it the numbers. R. 47/85-dated 10.4..85which he entered on P8 as well.,
After, the packet P8 had been .deposited by Mr. Seneviratne atthe transit baggage, office in Colombo on 10:4.85. it was.according to Mr. Suraweera kept in the safe up to the 1 7th May1985. Mr. Jayamanne.had on 17.5.85 taken charge of it andproduced it before the Magistrate Negombo and on his orderdelivered it to the Government Analyst for examination ’andreport. During the period from 10.4.85 upto 17.5.85. it was inthe charge of the Chief Charges Officer Mr. I.’M. Fernando whoWas however not called as a witness.-'
.The detection had -been notified to the Narcotics Bureau inColombo on the night of-9.4.85 according to Sgt. Mahagederaand two officers. P.C.■ Wijesekera and P.C. Chandredasa hadbeeh sent, to Katunayake and. had brought the appellant incustody to Colombo, together with his passport,, and his' air-ticket.. —
The evidence regarding the contents of the five packets seizedwas given by Mr. A, R. L. Wijesekera. Additional Govt. Analyst.. On17.5,85. Mr. Henry, an officer serving in the Department had
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received from Mr. Jayamanne five packets P1 to P5 enclosed inthe cover P8. The seals were intact. He weighed the packetsseparately and the packets contained 105 gms.. 50 gms.. 100gms.. 100 gms.. and 100 gms. respectively. Making a total of455 gms. He carried out the H. P. L. C. Analysis and found thepercentage of pure heroin in the packets to be 58% and the total. quantity of pure heroin was therefore 263 gms.
The accused gave evidence on his own behalf. He stated thathe was a hotelier in Holland and that he had the intention ofcommencing a-hotel in this country. This was his third visit to SriLanka. His s'ori was an asthmatic. On the day in question he hadgone to.the airport vyith the intention of travelling to Amsterdam.
„ He had been accompanied to the airport by his wife and son. He.had got down from the'vehicle'outside the premises, taken leave. of; His wife and son and met a stranger in the lobby who1 hadrequested him to carry five packets of what he had described as 'a new drug for asthma to Bombay. The stranger had told him thata person would meet him in Bombay and that he could identifyhimself to him with a visiting card that he gave him. The fivepackets that he 'was given contained powders of .five differentcolours, pink, blue, white, grease coloured and. the colour of thepowder produced in Court. He had at first refused but had laterconsented. He denied that the five packets that were produced inCourt we.r.e those that he had been given. As the stranger hadtold him tha't he would be delayed by the customs if he were to.carry the packets openly, he had concealed them in hisunderwear. When he was apprehended at the' metal detectorbarrier and taken to the search room he had handed over thepackets ’to the officer and' had informed him that the person whohad given the packets to him could be found in.the lobby but thatno- effort was made till' it was too late to find him. He alsoinformed the customs officers.that it was a new drug for asthma.He disclosed to the-customs officers all that had happened. His. statement was recorded but he did not sign it as no one took anyinterest in trying to locate the individual who had given him thepackets, and secondly as he had.no lawyer to advise him as tothe'contents of the document. He did not know that the packetscontained heroin, i m also did not know the name of the strangerwho had given him a name but he had forgotten it. As regards
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209
the packets recovered from him he admitted that the customsofficers had sealed the packets that were recovered from him.The cover could be P8-and his LTI was taken.on the cover. Theofficer told him that the packets contained heroin. The LTI on P8could. be his. He stated that he had instructed his lawyer that thepackets recovered from him contained a powder which was blue,pink, white,'grease coloured and brown'in colour. As to why hislawyer-had not raised the difference in colour, he had no answer.
The Counsel for the State contended' that the guilt of theaccused was established beyond a reasonable doubt. Thedefence however contended that
The identity of the packets recovered from the-accused andthose examined by the Government Analyst had' not beenestablished.
The learned trial judge had misdirected himself on the-question of knowledge on the part of the accused in that hehad held that the prosecution had no burden to prove.that.
. the accused had the knowledge that the packets contained adrug prohibited under the Ordinance..-.
As regards the. identity the main contention of the defencewas that although Mr. Seneviratne who had weighed the fivepackets, on 9.4.85 had found the weight to be 482 grams,the Government Analyst who weighed and analysed^, thecontents and prepared a report on 18.6.85 found the totalweight to be 455 grams; a diminution of 27 grams. Mr.
Seneviratne stated that, he used a delicate, balance Tor theweighing.. This'diminution in weight was not explained by theprosecution at the' trial.. In appeal it was argued that
dehydration or difference in the scales could have caused it
.or that the difference in weight could "be accounted for-bythe-weight of the polythene bags. An application was in factmade in appeal by the State to-call the Government Analyst to
clarify these matters. This application was refused by thisCourt. There was no evidence led at the trial either that'therewas a difference in.the 2 balances used nor that there.could
be a diminution in weight due to natural causes-although the
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Additional Govt. Analyst Mr. A. R. L. Wijesekera was called as awitness after Mr. Seneviratne who had weighed the packets on9.4.85 had given evidence.
A second circumstance relied on by thedefence was that thesize of the packets recovered from the appellant as stated byMr. Neil Jayasinghe was about 5" to 5" long and 2" to 3" broadwhereas the packets produced, were bigger. (83A"X5"1 Hehowever stated that.he had not unfolded the packets. .
Thirdly, the defence argued that Mr. Seneviratne whoweighed the packets stated that he marked them with theletters' P1 to P5 and circled them which marks he identified atthe trial. The packets produced however also bore togetherwith the markings PV to P-5-the initials which had not beenshown to him at the trial and therefore not identified by him.The Govt. Analyst had detected the initials when the packetswere examined by him.:
Fourthly., the defence, argued that although Mr. Seneviratne'claimed that on 9.4.85 the details of the packets were enteredin a register maintained-.at.Katunayake and P8, assigned thenumber V 3219 which was written on it and thecorresponding entry in the register signed by the appellant,the register .itself was not produced in evidence, and thattherefore-the prosecution had failed to produce a vital link inthe evidence regarding the identity of the productions.
On. behalf of the State it was contended that the identity ofthe packet's 'recovered from the appellant with those whosecontents were examined by the Govt. Analyst was establishedbeyond' reasonable doubt'by the oral evidence of Messrs.Weerasinghe. Jayasinghe, Jayamanne and Suraweera, by theentries on P8. by the thumb impressions of the appellant onP8 and by the markings P1 to P5 on P8 made on 9.4.85 byMr. Seneviratne. It was further argued that if the packetsrecovered from the appellant contained an innocuous drug forasthma, no officer at Katunayake or at the Transit BaggageOffice at Colombo, had any motive to substitute an expensivedrug-for it.
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Van Der Hultes v. Attorney-General (W. N. D. Perera. J.)211
It is thus seen that the recovery of 5 packets containing apowder from..the appellant concealed betvveen his shirt andunderwear on the night of 9.4.85 at Katunayake by the securityofficer Mr. Weerasinghe is not in dispute in this case, nor that he.attempted to export'these packets out of-this country. It has to be■determined, firstly, whether the learned'trial judge was justified inholding that these packets were the very same packets that werehanded over, .in-the same condition, to the. Government-Analyston 1 7.5.85 on the evidence placed before hint .r
That evidence is as follows:
The evidence of Messrs. Weerasinghe and Jayasinghe that .
they were handed over to Mr. Jayamanne immediately afterthe'd.etection. ■V . . . ' .
The evidence of Mr. Jayamanne that he handed over .thepackets he received to Mr. Seneviratne to be weighed in thepresence of the appellant and that Mr. Seheviratne enclosed
them in the envelope P8…..
The evidence of Mr, Jayamanne and Mr.. Seneviratne thatimmediately1 after the packets., were weighed' and enclosed' in 'P8, P8.was-sealed and the thumb impression of the appellantwas taken on was on the envelope by-Mr. Seneviratne whokept it in the safe. ■
The markings P-1 to P5 rnade .on the. packets made by Mr.Seneviratne before, they were enclosed in P8 and circled andidentified by him.- ■
The endorsements made on P8 by Mr. Jayamanne. that theappellant and the file were handed over to Mr.'Wijesekera of
. the Narcotics Bureau,on the following.day and identified'byhim.■ 6
(6)The evidence of Mr. Suraweera that he had. on' 10.4.85received P.8 from Mr. Seneviratne with the seals, intact and
. the thumb impressions on the cover arid that he had madethe endorsement SR 47/85-on. it before depositing it.in thesafe.
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The evidence of Mr. Jayamanne that he had taken charge ofP8 on 17.5.85 from the transit baggage office from thecustody of the officer on duty and taken it to the Magistrate'sCourt of Negombo and on receiving an order from theMagistrate to have it examined by the Government Analyst,had taken it to’the Government Analyst's department on thesame day.-
The evidence of Mr. A. R. L. Wijesekera. Additional Govt-.Analyst that P8 was received by his assistant. Mr. Henry. Asst.Govt. Analyst, who had observed that the seals were intact,and that he had proceeded to weigh, and analyse thecontents of the five packets. Each of the five packets had on
. it the marking P1 to P5 with an initial next to the markings.
The first contention of the defence as stated earlier, was thatthe discrepancy in weight when the packets were weighed byMr. Seneviratne (482- grams) and by the Govt. Analyst (4-55grams) raises a reasonable doubt as to the identity of the packetsrecovered from the .appellant and those whose contents weresubsequently analysed. The packets were however weighed withtheir plastic containers at Katunayake and it was Mr. Wijesekera'sevidence that he weighed only'their contents. Although it wasopen to the prosecution to have clarified this discrepancy at thetrial wheri Mr. Wijesekera gave evidence, which they have failed' to do. it must be borne, in mind that the proof of identity does notrest only on the factor of weight. While .the discrepancy of 27’ grams may to some extent be accounted for by the proved factthat .the greater weight included the weight of the coveringpackets, the other factors regarding identity cannot be ignored. Itwas also contended'by the State that the difference in weightmay be-partly attributed to a difference in the weighing scales.The packets were placed in P8 after being placed in a. secondenvelope, which was however not produced at the trial, andsealed. One o.f the contentions of the defence in appeal was thatthe non-production:of this second envelope raised a doubt asregards the identity of the packets recovered from the appellant.However as the outer packet P8 had been positively identifiedand shown to,: have had its seals intact at- all stages until itreached the Government Analyst, we do not consider this
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absence to be of any significance. The. sealing of theenvelope containing the" five packets recovered, from him wasacknowledged : by the appellant as having been done in hispresence. It has not been suggested at any stage of the trial thatthe seals were'not found intact at any stage upto the receipt ofP8 by the Additional Government Analyst, although affirmativeevidence had been led by the prosecution as-to their having beenintact right upfo this stage. Furthermore, although the appellantdescribed the contents of. the packets recovered from.'him asbeing blue, white,, pink, grease'coloured and light brown, thistotal discrepancy with the-1 colour of the productions- PI. to P5was not the subject of a single .question by the defence in cross-examination in s.pite of the fact .that-the-five packets containing abrownish''powder were identified -by jail {he., prosecutionwitnesses. The markings.on the five-packets also'go to establish,their identity. These markings were made by Mr. Seneviratne. The..defence argued that since Mr. Seneviratne did .not say that.heinitialled the markings, but that as the p'ackets received by-theAdditional Government Analyst had. the markings P1 to P5 aswell as initials, the presence of the'initials raises a further doubtas to-their identity..If in fact'Mr. Seneviratne had stated that he.had -initialled the markings, and’ these initials- were not'subsequently found, this could have given some substance to thedefence.argument. But the omission .of the prosecution to showthese initials to Mr. Seneviratne at the trial, is, in our view, not'afactor that leads to the implication suggested by the defence. The, identity of the packets contained in P.8 and whose contents wereanalysed by-the Government Analyst is further fortified by theendorsement SR 47/85 made on 1Q.4.85.by Mr. Suravyeera onP8 at the' Transitf.Baggage office in. Colombo. -The appellant,contended that the'register in which the witness claimed to havemadeva corresponding entry in. office :had.not been produced.We do not consider the; production.of this register indispensable,
. although the-prosecution should bear in. mind.the importance1 of.adducing all relevant evidence in a case of this nature. – ■. . .. •
• Another argument put’forward on behalf of the.appellant wasthat acbording to the evidence of Mr. Jayasinghe the packets that■ he saw-on t-he'person of the appellant were about 3" by 2" in sizewhereas,the ' packets, that were .produced in evidence were
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Q3A" by 5" in size. But this witness has further stated that he didnot unfold .the packets and that if h'e had done so. the packetsthat he saw would have corresponded in size to those producedin evidence.
The appellant in his evidence stated that the packets given tohim by the stranger were the size of match boxes, but noquestion was put to the prosecution witnesses in cross-examination regarding this matter, suggesting that the packetsrecovered were actually of this size.
Oh this evidence we.hold that the identity of PI to P5 withthose recovered from the possession of the appellant had beencorrectly determined by the learned trial judge: On theuncontradicted evidence of Mr-. A. R. L. Wijesek.era these packetshad contained 263 grams' of pure heroin.-
We also hold that the.learned trial.judge has correctly rejectedthe version given by the appellant as false. His evidence that heconsented reluctantly' to conceal five packets of a powderdescribed as medicine for asthma on his person which were to-be handed.over to another at Bombay whom he could identify,only with the aid -of a visiting card given to him appearsincredible. Further it.was his evidence that the stranger had toldhim that his own brother was a passenger on the same plane. Ifthis was so there does not appear to have been any reason whythe packets'were not entrusted .to him. He also stated in hisevidence that he was accosted by the stranger after he hadcleared his. baggage at the customs and had returned to thelobby, a circumstance which .in itself is suspicious. He has notspoken of how he concealed the packets while being in thelobby. It is-difficult to see how he could have done so in thepresence of the others there. It has to be borne in mind that hehad to conceal them between his shirt and underwear. whichaccording to him, he did on the instructions of the stranger.
A further submission made on behalf of the appellant was thatthe learned’triaj judge had misdirected himself in law when heheld that there was no burden on the prosecution to prove thatthe appellant had the knowledge that he was carrying a
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prohibited drug, and that therefore his .conviction was invalid.The trial judge has in fact in certain passages of his judgmentexpressed the view that in offences of this type, there is noburden on the prosecution to prove that the suspect hadknowledge that what he was carrying was a prohibited drug, buthe' has nevertheless considered – .the evidence of thecircumstances of the finding of the five packets arid the suspect'sbehaviour in coming to the-c.onclusion that-the appellant had th.eknowledgethat he was transporting a prohibited .drug. We are of.the view that mens rea is an essential ingredient of the offenceswith which the appellant was charged. The ordinance nowhererules out-.the necessity, recognized , in the general law, that .theprosecution must prove this element, beyond reasonable doubt.On a consideration of'the'entirety of the evidence however, we'are-in agreement with the finding of the learned trial judge thatthe appellant was aware that the substance he possessed andattempted to export was a prohibited drug. Firstly there was thecircumstance that the substance was concealed, the only excusegiven being that .thestranger had.told, him that concealment was',necessary to prevent delay at the customs. Secondly in his ownevidence the appellant stated that if the person who was to takethe drug at Bombay'could not be traced there, he would have-leftthe packets in the plane at Amsterdam, which would have been a■strange procedure in respect; of an-innocuous'but all the same-.anentirely.new drug'for.the treatment of as.thma. The explanationgiven by the appellant appears to have been entirely artificial, forhowever, altruistic a person may'be it cannot be-said to-bereasonable that any rational person would have been willing to•run. the risk of detection and delay by concealing this supposeddrug on his.person. One circumstance relied on by the. appellant,was that on' detection he informed the senior officers and' Mr.Jayamanne of the nature of the drug and that the person whohad given it to him would be in the lobby and may be traded. Thiswas acknowledged by the prosecution witnesses. When an effortwas made to trace him about an hour later, he could not befound. We are of the view that this explanation could be putforward by any person detected with a dangerous, drug withoutany certainty of verification and.the learned trial judge has beencorrect in rejecting it on that ground/
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We therefore hold that the appellant has been correctlyconvicted of both offences. However, it appears that theindictment has incorrectly stated that the amount of heroin inboth counts 1 and 2 is 482 grams whereas according to theevidence the amount has been 263 gms. This is a matter whichshould have been the subject of an amendment to the indictmentat least at the end of the prosecution case, but both prosecutingcounsel and the judge appear to have overlooked it. However theordinance penalises the possession and export of any quantity ofheroin without lawful excuse and as the quantity found is over 3grams, no prejudice has been caused to the appellant on this•ground.
As regard§_sentence it was argued on behalf of the appellantthat the possession^ of more than 3 grams of heroin does notinvariably attract the death penalty or life imprisonment as thewords used in section 54 are 'shall be liable to the penalties incolumn 3 . . . . . etc". We are in agreement with this submissionand hold that the trial judge had the discretion to impose anysentence over 7 years rigorous imprisonment extending up tothe death penalty or life imprisonment on each count.
We therefore affirm-the conviction of the appellant on bothcounts of the indictment. Taking into account his age which wasfifty six years at the time of the offence, we however set aside thesentence .of- death passed on him and substitute in its place a■sentence of fifteen years rigorous imprisonment on each count,the sentences to run concurrently.
p. ramanathan, J. — I agree.
A. DE Z. GUNAWARDANA. J. — I agree.
Appeal dismissed: sentence varied.