IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST

REPUBLIC OF SRI LANKA

In the matter of an Appeal made

under Section 331 of the Code of
Criminal Procedure Act No.15 of
1979.

Court of Appeal No.

CA/HCC/ 0296/2017 Muthuthanthrige Nilmini
Reshani Fernando alias Rosy
High Court of Panadura
Case No. HC/ 2550/2009
Accused-Appellant

vs.

The Hon. Attorney General

Attorney General's Department
Colombo-12

Complainant-Respondent

BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : W. M. Samadara P. Kumari Jayasinghe for

Appellant.
Dileepa Peiris, SDSG for the Respondent.

ARGUED ON : 17/05/2022

DECIDED ON : 16/06/2022

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 JUDGMENT

P.Kumararatnam, J.
The above-named Accused-Appellant (hereinafter referred to as the
Appellant) was indicted by the Attorney General under Sections 54(A) (d) and
54(A) (b) of the Poisons, Opium and Dangerous Drugs Ordinance as amended
by Act No. 13 of 1984 for Possession and Trafficking respectively of 2.9 grams
of Heroin on 25th May 2003 in the High Court of Panadura.

After trial the Appellant was found guilty on both counts and the Learned
High Court Judge of Panadura has imposed a sentence of life imprisonment
on her on the 08th of September 2017.

Being aggrieved by the aforesaid conviction and sentence the Appellant

preferred this appeal to this court.

The Learned Counsel for the Appellant informed this court that the Appellant
has given consent to argue this matter in his absence due to the Covid 19
pandemic. During the argument she was connected via Zoom platform from
prison.

On behalf of the Appellant two Grounds of Appeal are raised.

1. In the first ground of appeal the Appellant contends that

the prosecution has failed to prove that the production
was sealed after following accepted sealing procedure and
failed to prove its movement until it reached the
Government Analyst Department.
2. There is inter se contradictions between the prosecution
witnesses.

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Facts of the case albeit briefly are as follows.

PW1 SI/Perera attached to the Moratuwa Police Station was on night patrol
duty along with a team of police officers on 25/05/2003. While they were at
Alwis Mawatha, Katubedde around 10.00 p.m., the Appellant was seen
walking towards the police officers but suddenly changed direction by
turning towards the Saman Place. PW1 having observed the change of
movement of the Appellant which he thought was suspicious, rushed at her
and stopped her to check. He had then observed a red coloured cloth, a part
of which was visible under her right-hand armpit. When PW1 pulled it out,
he had found a blue coloured grocery bag wrapped inside. A large number of
small packets packed in printed paper was found when the grocery bag was
opened. When PW1 opened a packet, he had found some substance in it
which reacted for Heroin. Then the Appellant was arrested immediately and
brought to the Moratuwa Police Station. At the police station the parcel was
opened and about 400 packets containing heroin were found to be held
within. After collecting all the Heroin on to a tissue paper it had been weighed
using an electronic scale. The weight has been recorded as 12000 milligrams.
The weight was noted including the tissue paper. The production was
properly sealed and sent to the Government Analyst Department for analysis.
According to the Government Analyst Report 2.9 grams of pure Heroin
(Diacetylmorphine) had been detected in the parcel.

The evidence given by PW1 has been properly corroborated by the other
police witnesses called by the prosecution.

After the closure of the prosecution case, the defence was called as the
Learned High Court Judge had observed that the prosecution had presented
a prima facie case against the Appellant and the Appellant had opted to give
evidence from the witness box and had proceeded to call witnesses.

In the first ground of appeal the Appellant contends that the prosecution has
failed to prove that the production was sealed after following accepted sealing

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procedure and that the prosecution has failed to prove its movement until it
reached the Government Analyst Department.

In several judicial decisions delivered both by the Apex Court and the Court
of Appeal of our jurisdiction, one salient point stressed frequently is that the
inward journey of the productions in drugs related cases plays a decisive role
in the final outcome of the matter. If the inward journey evidence creates a
doubt, the failure of the prosecution case is inevitable. Hence, the chain of
the inward journey of the production plays a major role in matters related to
drugs. The inward journey begins with the detection, sealing, custody and
the conclusion by reaching the Government Analyst Department.

In every criminal case the burden is on the prosecution to prove the case
beyond reasonable doubt against the accused person. In a case of this nature
the prosecution does not only need to prove the case beyond reasonable
doubt but also ensure, with cogent evidence that the inward journey of the
production has not been disturbed at the all-material point.

In the case of Mohamed Nimnaz V. Attorney General CA/95/94 the court

held:

“A criminal case has to be proved beyond reasonable doubt. Although

we take serious view in regard to offences relation to drugs, we are of
the view that the prosecutor should not be given a second chance to
fill the gaps of badly handled prosecutions where the identity of the
good analysis for examination has to be proved beyond reasonable
doubt. A prosecutor should take pains to ensure that the chain of
events pertaining to the productions that had been taken charge from
the Appellant from the time it was taken into custody to the time it
reaches the Government Analyst and comes back to the court should
be established”.

According to PW1, the detection was done without any information received
beforehand. The reason for the arrest of the Appellant was due to her sudden
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suspicious movement as observed by PW1 and his team. The Heroin was
recovered from under her right armpit. After recovering the substance, the
Appellant was taken to Moratuwa Police Station for further investigations.
Until such time the production was in the custody of PW1. After coming to
the police station PW1 had collected all the substances from the packets on
to a tissue paper and weighed the same using an electronic scale. The total
weight including the tissue paper showed 12000 milligrams. The Appellant
was searched with the assistance of a female police officer to ensure that she
does not have any more substances in her possession. The weighing and
sealing were done in front of the Appellant. PW1 had used his personal seal
to seal the production and also obtained the fingerprint of the Appellant to
seal the production. The sealed productions were handed over to the reserve
police officer PC 6040 Lalith marked as (PR 57/03).

The Appellant was produced before the Learned Magistrate of Moratuwa on

26/05/2003. The production was taken to the Government Analyst
Department by PS 11038 Jayatilake on 05/06/2003.

PW2 Sgt/12085 Sirisena, had corroborated the evidence given by PW1

without any contradiction or omission. In his evidence he admitted that the
investigation revealed that the Appellant was a market vendor at Katubedde
Public Market.

The prosecution led evidence that production PR 57/03 was duly kept under
the care of reserve police officers until it reached the Government Analyst
Department. All reserve officers were called to give evidence to confirm that
the production pertaining to this case had reached the Government Analyst
Department without any break in the chain of production.

PW8 Assistant Government Analyst, Chandrani confirmed that the

production pertaining to this case had reached her department with all seals
intact. Government Analyst Sivaraja who was called as a defence witness too

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confirmed that the seals of the production were intact when it reached his
department.

Proving detection, sealing and chain of custody are a very important task
entrusted to the prosecution in a drug related case. If investigating officers
do not do their duty properly, detection, sealing and chain of custody can be
successfully challenged during trial. This is because the prosecution always
relies on evidence gathered by police officers in cases of this nature.

In Perera V. Attorney General [1998] 1 Sri.L.R 378 it was held:

“…the most important journey is the inward journey because the final
analyst report will depend on that”.

In Witharana Doli Nona v. The Republic of Sri Lanka CA/19/99 His

Lordship Justice Abrew remarked thus;

“It is a recognized principle that in drug related cases the prosecution

must prove the chain relating to the inward journey. The purpose of this
principle is to establish that the productions have not been tampered
with. Prosecution must prove that the productions taken from the
accused Appellant was examined by the Government Analyst”

In this case, although the Appellant contends that the productions were not
sealed according to the accepted procedure by the police, all prosecution
witnesses vividly explained without any contradictions or omissions that the
production which reached the Government Analyst Department had been
properly sealed. Hence the argument advanced by the Appellant under the
first ground of appeal has no merit.

In the second ground of appeal the Appellant argues that there is inter se
contradictions between the prosecution witnesses.

The Appellant in her evidence admitted that she was arrested on

25/05/2003 and brought to the Moratuwa Police Station and that her
fingerprint was obtained on to an envelope. But she denied that she
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possessed Heroin at the time of arrest as claimed by the prosecution. During
her evidence a number of questions had been asked from her by her
Attorney-at-Law with regard to the personal seal of PW1.

Although the Appellant was subjected to numerous questions with regard to

the personal seal of PW1, the defence failed to direct those questions to the
most relevant person, PW1. Further the appellant in her evidence complaints
that she was subjected to torture and duress while at the Moratuwa Police
Station, but she had failed to lodge a complaint to the appropriate authority,
including the Learned Magistrate before whom she was produced several
times before being indicted in the High Court of Panadura.

Defence witness No.2, the Registrar of the High Court of Panadura was
summoned by the defence to prove that the sending of production pertaining
to this case to the Government Analyst Department and receiving of the
receipt and the Government Analyst report.

PW8 Chandrani, the Assistant Government Analyst in her evidence stated

that the production pertaining to this case was directly received from the
police. As a routine practice she had checked the seals with the specimen
seal and accepted the production and issued a receipt which had been
marked as P10.

According to her the covering letter sent by the Officer-in-Charge of

Moratuwa Police Station had mentioned that the weight of the Heroin was
12000 milligrams (12 grammes). When the parcel was first weighed as it is,
it showed 12.84 grammes. The defence did not ask any question regarding
this discrepancy in weight. (0.84 grammes) The brown coloured substances
weighed about 9.8 grammes. After the analysis of the brown coloured
substances the Government Analyst had extracted 2.9 grammes of pure
Heroin. The prosecution had proved the Government Analyst Report without
any contradiction.

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The defence witness PW3, who was the Government Analyst and co-signed
the report had corroborated the evidence of PW8.

As the evidence presented by the prosecution with regard to the detection,

sealing and forwarding for analysis sans any contradiction or ambiguity, I
conclude that the appellant is not successful in his second ground of appeal
too.

In this case evidence pertaining to the detection of Heroin from the appellant
is clear, cogent and without any contradiction or omission. The evidence
presented by the prosecution is not challenged at any material point. Hence
no fault had occurred at any stage of the trial.

The Court of Appeal in Bandara v. The State C.A. 27/99 held that:

“…when there is ample opportunity to contradict the evidence of

a witness but is not impugned or assailed in cross-examination
that is a special fact and feature in the case, it is a matter falling
within the definition of the word “proof” in section 3 of the
Evidence Ordinance and a trial judge or court must necessarily
take the fact in to consideration in adjudicating the issue before
it.”

In Ukkuwa v. The Attorney General [2002] 3 SLR 279, is a case where

Justice S. Tilakawardene held that matters of fact that could have been
challenged and clarified at the Trial Court are precluded from being
challenged at the Appellate Court in the following manner at page 282;

“… court is mindful of the fact that having had the opportunity to cross-
examine the witness before the original court and having failed or
neglected to avail himself of the opportunity of such examination on
these matters which could have been clarified, had such objections or
cross-examination being raised in the original court, the counsel is
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 precluded from challenging so the veracity of such matters of fact before
this court.”

The Learned High Court Judge had accurately analysed and considered the
evidence presented by both parties and arrived at a proper finding.

Considering all the evidence presented during the trial, I conclude that the
prosecution has proved the case beyond reasonable doubt. I further conclude
that this is not an appropriate case in which to interfere with the decision of
the Learned High Court judge of Panadura dated 08/09/2017.

Hence, the appeal is dismissed.

The Registrar is directed to send a copy of this judgment to the High Court
of Panadura along with the original case record.

JUDGE OF THE COURT OF APPEAL

Sampath B. Abayakoon, J.

I agree.

JUDGE OF THE COURT OF APPEAL

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