087-NLR-NLR-V-39-WIJEYMANNE-v.-SINNATAMBY.pdf
ABRAHAMS C.J.—Wijeymanne v. Sinnatamby311
1937Present: Abrahams CJ.
WIJEYMANNE v. SINNATAMBY.
191—P. C. Batticaloa, 45,136.
Opium—Illicit possession—Discovery of opium under pillow—Reception ofhearsay evidence—duty of Magistrate—Poisons, Opium and DangerousDrugs Ordinance, No. 17 of 1929, s. 32.
Where the accused was found, in a house occupied by another person,sleeping on a camp bed under the pillow of which there were two packetsof opium,—
Held, that there was not sufficient proof of possession to constitute anoffence under section 32 of the Poisons, Opium and Dangerous DrugsOrdinance, No. 17 of 1929.
■A.PFEAL from a conviction by the Police Magistrate of Batticalpa.
. A. Rajapakse (with him Dodwell Gunawardena), for accused,appellant.
M.F. S. Pulle, C.C., for complainant, respondent.
vCur. adv. vult,
October 20, 1937. Abrahams’ C.J.—
The appellant was convicted of having in his possession without alicence two pounds of prepared opium in breach of section 32 of thePoisons, Opium and Dangerous Drugs Ordinance, No. 17 of 1929, andread with section 74 (1) (a) of the same Ordinance. The facts were verybrief . The police entered the house of one Sampunathan, it would appearto ascertain whether the appellant, who had gone to Sampunathan’shouse, was in possession of opium. They found the appellant sleepingon a camp bed in the verandah. He had nothing on his person but onlifting the pillows of the camp bed two packets of opium amounting totwo pounds in weight were discovered covered with paper and wrappedup in a shawl. It was not questioned that the stuff w.as opium and theappellant gave no evidence, but it was suggested in cross-examinationof one of the police officers that the opium was actually found in thegarden.
It is objected that the mere discovery of the opium beneath the pillowof the bed occupied by the appellant is not more than suspicion that theappellant had it in his possession: It does not even provide sufficientevidence to call- upon him to explain why it was there. The learnedMagistrate who tried the case seems to have only concerned himself withdeciding whether the opium was found under the pillows of the bed orwhether it was found, as suggested by the defence, in the garden, and hedecided without any hesitation that it was found under the pillows, butno fault can be found with him for that. . There is another question thatmust be decided before the appellant could be convicted; and the leam'edMagistrate has not given that any attention. That question is whetherthe appellant’s connection with the opium is sufficient to imply that hehad possession of it. I am not prepared to say that it is sufficient.The appellant was not in his own house. There is nothing to show howlong the opium had been there. It might have -been put there by the39/25
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ABRAHAMS C.J.—Wijeymanne v. Sinnatamby.
occupier of the house who was steeping actually inside the house. Itmight have been put there by any other person who had been previouslyin the house, and there is nothing to show that the bulk or shape of thepacket was such that a person with his head on the pillows must haveknown of the presence of the article under the pillows, and there isnothing in the conduct of the appellant either before or after the discoveryof the opium to indicate that he knew it was there.
Evidence was given that earlier in the day there was a raid in somebodyelse’s house and that the appellant ran away on the approach of theExcise party, but the purpose of that raid was not explained. This isat any rate inadmissible, and there is nothing to show that anything wasdiscovered as a consequence of the raid. A little more care, it may be, inthe conducting of the prosecution might have produced evidence bothadmissible and valid. I am of opinion that though this is a very suspiciouscase, it lacks that finality in proof which every criminal case must have.
I must also make some observations onihe action of the Magistrate inadmittiiig evidence of information made to the police that the appellanthad two pounds of opium in Sampunathan’s house. It is very difficultto resist the conclusion that the Magistrate was influenced by thathearsay evidence because he -opens his judgment by stating that aninformant had conveyed this news to the police. He further says thatthe proctor for the appellant had only himself to blame for the adoptionof this hearsay evidence through his line of cross-examination of thepolice witnesses who preceded the witness who gave the hearsay evidence.I fear that the learned Magistrate has completely overlooked the fact thatthe very first witness in the case, namely, the Police Inspector who raidedSampunathan’s house, gave in ample detail the information which he hadreceived from the informant. That being so, how the proctor is to beblamed I entirely fail to understand. Magistrates must remember thatit is their duty to keep out inadmissible evidence.
I quash the conviction and acquit the accused.
Conviction quashed.