IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal in terms of Section 331(1) of the Code of Criminal Procedure Act No. 15 of 1979 read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

The Democratic Socialist Republic of Sri Lanka.

Court of Appeal Case No.

CA/HCC/0169/2015 Complainant High Court of Embilipitiya Case No. HCE/17/2007 Vs.

Kankanamage Jagathchandra Wijesinghe.

Accused AND NOW BETWEEN Kankanamage Jagathchandra Wijesinghe.

Accused-Appellant Vs.

Hon. Attorney – General, Attorney General’s Department, Colombo 12. Respondent BEFORE : MENAKA WIJESUNDERA, J K.M.G.H. KULATUNGA, J COUNSEL : J.P. Gamage with Theekshana Ranaweera for the Accused-Appellant.

Disna Warnakula, DSG for the Respondent.

ARGUED ON : 30.09.2024 DECIDED ON : 10.10.2024 K.M.G.H. KULATUNGA, J.

When this matter was taken up for argument on 30.09.2024, the Attorney-at-Law for the appellant, Mr. J.P. Gamage informed court that he would limit this appeal to the sentence and will not persue with the appeal against conviction. Accordingly, the appeal against the conviction was abandoned. The appeal against the sentence will be considered.

Another accused person and the Appellant were indicted with four counts as follows;

1. Under Section 54A(b) of the Poisons, Opium and Dangerous Drugs Act for trafficking of 634kg of Cannabis Sativa L.

2. Under Section 54A(b) of the Poisons, Opium and Dangerous Drugs Act for possessing the said 634kg of Cannabis Sativa L.

3. Under the Section 22(3) read with Section 22(1) of the Firearms Ordinance No. 33 of 1916 for being in possession of a locally made firearm.

4. Under Section 27 read with Section 09(2) of the Explosives Act No. 21 of 1956 for being in possession of a live cartridge.

At the commencement of the trial, the 1st accused had pleaded guilty on 18.07.2011 and was sentenced as follows;

One year’s RI and a fine of Rs.50,000/- was imposed for counts one and two separately. Then, rigorous imprisonment of one year with a fine of Rs. 5,000/- was imposed for counts three and four respectively. Upon imposing the said sentences, the same were ordered to run concurrently.

As the Accused-Appellant (hereinafter also referred to as the Appellant) pleaded not guilty the matter proceeded to trial. At the end of which the Trial Judge found the 2^nd accused guilty and convicted him in respect of all four counts and sentenced him to: two years RI for counts one and two respectively and rigorous imprisonment of one year with a fine of Rs. 10,000/- for counts No. 03 and rigorous imprisonment for one year with a fine of Rs. 25,000/- for count No. 04 and a default of six months imprisonment. Thereafter, the sentences-imposed for counts three and four were ordered to run concurrently along with the sentences imposed for counts one and two. The end result is that the appellant was required to serve a sentence of four years RI being a two-

year term each for counts one and two to be served consecutively.

It is against this sentence that the accused had preferred this appeal and learned Counsel submitted that a variation on the sentence be made in favour of the appellant for following reasons;

1. The current medical condition of the Appellant.

2. The disparity in the sentence between the 1st accused and the appellant.

In opposition, the learned Deputy Solicitor General (DSG), Ms. Disna Warnakula argued that the sentence should not be reduced and considering the facts and circumstances the sentence ought to be enhanced. In support of the argument, she relied on the following;

1. That the facts and circumstances are serious as the 2nd accused was a reserve Police Constable in active service at the time he committed the offence and he was in uniform. 2. The appellant absconded for over a month.

3. The quantity is 634kg which is a substantial amount.

4. In respect of counts one and two, the law has specified a minimum mandatory sentence of two years imprisonment.

Now, I will briefly