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281
1937 Present :
Abrahams C.J.
PONNIAH v. ABDUL CADER
543-P. C. Jaffna, 10,306
Criminal Procedure-Case for
prosecution and defence closed-Magistrate's' power to call witness to fill a gap
in the prosecution-Criminal
Procedure Code, ss. 190 and 429-Excise
Ordinance-Presumption regarding offence-Suspicious behaviour regarding excisable
article-Ordinance
No. 8 of 1912, s. 50-Production of copy of Police Information
Book.
Where, in a summary trial, after the case for the prosecution and the defence
had been closed the Police Magistrate reserved his
order and on a subsequent
date called further witnesses of his own motion,-
Held, the powers given to the Magistrate under section 429 of the
Criminal Procedure Code should not be used to remedy a defect or to
fill a gap
in the case for the prosecution.
Where it is sought to prove a statement recorded in the information book of a
Police station by the production of a certified copy,
the copy must be produced
by the Police officer, who recorded the statement.
The presumption created by section -50 of the Excise Ordinance does not arise
merely because a man behaves in a suspicious way in
respect of any excisable
article.
Section 50 comes into effect when from the suspicious behaviour of the person
charged an element of an offence under section 43
of the Ordinance can be
proved.
APPEAL
from a conviction by the Police
Magistrate of Jaffna. The accused was convicted of transporting nine slabs of
ganja without a permit
and of possessing an excisable article, the possession of
which is prohibited and sentenced to six months' rigorous imprisonment
and to a
fine of Rs. 500. The facts are stated in the judgment.
Rajapakse (with him Thiagaraja), for the accused, appellant.-Constructive
possession is insufficient in criminal law. Here there
is something even less
than constructive possession.
A mass of hearsay has been admitted in evidence. The circumstantial evidence is
insufficient to have a conviction.
The extract from the information book is inadmissible, since the person to whom
the statement was made has not been called. After
the close of the case for the
prosecution and the defence, the Police Magistrate should not have called for
further evidence. The
circumstances do not justify the application of sections
429 or 190 of the Criminal Procedure Code. See Rex v. Dora Harris[1 (1927)
2 K.
B. 587. ]. To apply the presumption under section 50 of the Excise Ordinance the
conduct of the accused must amount to a breach
under section 43, e.g., if he in
fact was in possession, the prosecution need not go further and prove mens rea.
(Silva v. Silva
[2 32 N. L. R. 230. ] , Lockhart v. Fernando [ 27 N. L. R.
229.].
N. Nadarajah, C.C., for the complainant, respondent.-The hearsay evidence that
has been recorded has not influenced the Police Magistrate
in arriving at his
decision. The circumstances are not only suspicious, but pont to the guilt of
the accused.
282
Under section 50 of the Excise
Ordinance, No. 8 of 1912, a presumption that the accused is guilty in a
prosecution such as this
(possession of ganja) arises, if the accused does not
give a satisfactory explanation of his conduct in connection with its
possession,
and he is guilty.
The extract from the information book is a public document under section 74 of
the Evidence Ordinance. Ordinance No. 12 of 1864,
which is at the end of the
Evidence Ordinance, makes admissible a certified copy of such a document.
Rajapakse (with permission of the Court), in reply.-Ordinance No. 12 of 1864
applies only where the original document is admissible.
It does not make a copy
admissible where the original is not.
Cur. adv. vult.
February 4, 1937. ABRAHAMS
C.J.-
The appellant was convicted of transporting nine slabs of ganja without a permit
and of possessing an excisable article the possession
of which is totally
prohibited. He was sentenced to six months' rigorous imprisonment and to a fine
of Rs. 500.
The following facts were led in evidence by the prosecution. On December 2,
1934, a woman named Chellamma residing in Anuradhapura
received by post a
parcel. This parcel was later returned unopened by her husband to the
Postmaster, on the ground that the parcel
was not meant for his wife but for
some other woman of the same name. The parcel was addressed, " Mrs. Sellammah,
Maiwatoya,
Anuradhapura". The parcel was eventually opened by the postal
authorities and was found to contain nine slabs of ganja packed
in a towel
bearing a laundry mark " N ". Later, on December 2, the appellant complained to
the Anuradhapura Police that
he had come to the town at 1 A.M. by the night mail
from Jaffna and had stayed in the house of Chellamma where he was robbed of
Rs.
244. On this complaint the house of Chellamma was searched by the Police, and
two letters were found purporting to be written
by the appellant to Chellamma's
husband where he refers to certain transactions between them expressing himself
in mysterious language,
referring in Tamil to the word which translated was
taken to mean " stuff" and which the prosecution allege means ganja.
It was also
alleged that shortly after the parcel had been delivered to Chellamma the
appellant displayed considerable anxiety
about the parcel and reproached the
postal peon for delivering it to Chellamma and asked him to get it back from her
and hand it
over to him. He also complained to a neighbour of Chellamma's to the
effect that the woman had wrongfully taken in a parcel that
was intended for
him.
The Jaffna Police searched a house in Jaffna which they believed on certain
information they said they had received to belong to
the appellant, and there
they found a towel and a shirt with the laundry mark " N ". The Magistrate seems
to have concluded
that the accused himself posted the parcel to Chellamma from
Jaffna and had travelled down by the same train in order to obtain
the parcel on
its arrival in Chellamma's house, and that he had been carrying on an extensive
trade in dope with the assistance
of Chellamma's husband and that for some
reason or other he had fallen out with his confederates and had brought a false
charge
against the latter.
283
Unfortunately for the prosecution
the learned Magistrate has accepted their theory on evidence improperly received
and on inferences
which have been drawn from objectionable evidence which, in my
opinion, he was not justified in doing. Undoubtedly it could have
been proved
from properly receivable evidence that the appellant had actually travelled down
from Jaffna by the same train that
carried the parcel, that it was his house
that was searched in Jaffna and that therefore the towel found in that house
belonged
to him, and that the letters found in the house of Chellamma's husband
did actually refer to dealings in ganja. That would go a
very long way to
proving that the appellant had posted the parcel containing a contraband drug.
However, it was sought to be proved
that the appellant had travelled from Jaffna
on the night of the 1st by producing a copy of a complaint in the Police
information
book in Anuradhapura. An objection was taken before me as to the
admissibility of this document on the ground that, assuming the
information book
was itself a document which need not be produced and could be represented by a
certified copy of any entry in
it, that copy was not produced by the Police
officer who took down the alleged complaint of the appellant. I am of the
opinion
that this submission is sound. Next, as to the contents of the letters
found in the house of Chellamma's husband. This man was called
by the
prosecution and admitted that the letters were in the writing of the appellant
but he says that they referred to transactions
dealing1 with dried fish. This
witness was a witness for the prosecution and he was not cross-examined by the
prosecution as hostile,
although it could hardly have been expected that he
would admit that he had been engaged in any transaction in which he had broken
the law. I cannot see therefore how the Magistrate was entitled to discredit
him. The prosecution having called him they vouched
for him as a witness of
truth and had to take their chance that his evidence would not be completely
satisfactory to their case.
Then as to the discovery of the towel, the Police officer who searched the house
in Jaffna said that the house was pointed out to
him as being that of the
appellant by the son of the local Police Vidane. This youth was called by the
prosecution and said that
he did not point out that house as being that of the
appellant but of some other person. The Magistrate believed that this witness
was lying. He was of course entitled to come to that conclusion if he wished,
but that conclusion did not bring the prosecution
any nearer to proving that the
house pointed out to the Police was that of the appellant, since the statement
that the information
on which they acted was hearsay. Although he does not say
so, the Magistrate himself seems to have come to the conclusion that the
house
had not been properly identified, and he took this extraordinary course. After
the conclusion of the defence which consisted
only of an address by Counsel, the
Magistrate recorded that he would make his order on June 16: (the hearing
terminated on the
11th). Later it does not appear on what date the learned
Magistrate recalled the Police officer who searched the house. He said
he could
not find it but if he went inside it he would be able to identify it. The
learned Magistrate directed the witness to draw
a plan of the house which he
searched and the witness sketched a rough plan. The Magistrate then adjourned
the case to enable the
Maniagar
284
to submit a plan of the
appellant's house. On June 30, the Maniagar produced a sketch of three houses in
which the appellant had
admitted he had lived during the period of three years
which included the date on which this offence was said to have been committed.
The Magistrate was of the opinion that the sketch made by the Police officer was
very similar to the plan of one of the houses
made by the Maniagar. Apart from
the admissibility of this belated evidence to which I shall presently refer, I
do not think that
any inference adverse to the appellant could have been drawn
from the comparison of the rough sketch with the plan. There was nothing
distinctive about the house which the sketch and the plan disclosed and although
the two were certainly similar in appearance neither
was drawn to any sort of
scale. I am also of the opinion that the action of the Magistrate in calling
evidence to supplement the
case' for the prosecution after the close of the
defence was unwarranted by law. Section 429 of the Criminal Procedure Code gives
any Court very wide powers to take evidence suo proprio motu either by summoning
any person as a witness or examining a person
in attendance. Section 190 of the
Code lays down the procedure that is to be adopted by the Magistrate after
taking all the evidence,
that is to say, the evidence for the prosecution and
the defence and any evidence that he himself may have called for. It runs as
follows : -
" If the Magistrate after taking the evidence for the prosecution and defence
and such further evidence (if any) as he may
of his own motion cause to be
produced finds the accused not guilty, he shall forthwith record a verdict of
acquittal. If he finds
the accused guilty he shall forthwith record a verdict of
guilty and pass sentence upon him according to law and shall record such
sentence."
There is a number of decisions of this Court to the effect that section 190
requires a Magistrate to write his judgment immediately
after he has taken all
the evidence which means that he is not entitled to reserve his decision, and
that if he does reserve his
decision his action is so irregular as to vitiate
any conviction which he may have recorded. There are other decisions to the
effect
that such an action would be an irregularity in the procedure but will
only be fatal to the conviction if an injustice resulted
from the delay. The
cases on both sides were considered by Koch J. in Seneviratne v. Bodia[1 35 N.
L. R. 252. ]. In the case before
me the Magistrate had actually concluded the
trial. He had reserved his decision, and the taking of further evidence suo
proprio
motu was an afterthought possibly excited by the appearance in his mind
of certain doubts in considering what his decision should
be. I do not, however,
propose to consider whether it is a fatal or incurable irregularity for the
Magistrate to reserve his judgment
because I am prepared to go so far as to say
that the provisions of section 490 must be interpreted by a Magistrate with
reasonableness
and ought not be used to remedy a dangerous defect or to fill a
gap in the case for the prosecution. It has been held in England
that it is
illegal for a Judge to call a witness in favour of the prosecution's case after
the close of the defence, and it is
not very difficult to visualize the
perpetration of a serious injustice if a Magistrate is given a free hand to
assist the prosecution
in this way. See Rex v. Dora Harris [2 (1927) 2 K. B.
597.].
285
It appears to me that the very
most that the prosecution has been able to prove in this case is a strong
inference from the behaviour
of the appellant that he anticipated the receipt of
a parcel by Chellamma, which parcel was intended for him and which contained
to
his knowledge contraband goods. This, however, does not make him guilty of any
offence. It was nevertheless argued by Counsel
for the Crown that section 50 of
the Excise Ordinance, No. 8 of 1912, places upon the appellant, in view of the
circumstances prevailing
in this case, the burden of proving that he is not
guilty of the offence of which he is charged. The substance of this section is
as follows : In prosecutions under section 43 it shall be presumed, until the
contrary is proved, that the accused person has committed
an offence in respect
of any excisable article for the possession of which, or for his conduct in
connection with which, he is
unable to account satisfactorily. It is argued on
the strength of that section that the conduct of the appellant in respect of
this parcel was such that an obligation was placed upon him to explain his
conduct, and that as he made no attempt to do so he was
guilty of the offence of
which he was charged. I cannot agree that the section can be interpreted to
admit of this contention.
It cannot mean that because a man behaves in a
suspicious way in respect of ganja that he can be convicted of any offence under
section 43 unless he gives a satisfactory explanation of his conduct. I think
section 50 comes into effect when from the suspicious
behaviour of the person
charged an element of an offence under section 43 can be proved. The prosecution
has then done all that
it can be called upon to do and it then remains for the
accused to give a reasonable account of his behaviour. In this case the
most
that can be inferred from the appellant's behaviour is, as I have said, that he
expected the arrival of a parcel and that
he knew that that parcel contained
contraband goods. Supposing that to be his explanation, it is not an
unreasonable one and it
does not amount to the admission of an offence.
I therefore quash the conviction and acquit the appellant.
Conviction quashed.
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