The prosecution must prove the chain of custody in drug cases to avoid suspicion of evidence tampering, impacting the burden of proof.

MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgement dated 29/06/2018 of the High Court of Colombo.

The accused-appellant, hereinafter referred to as the appellant, has been indicted for the possession and trafficking of 2.18 grams of heroin. At the end of the trial the appellant had been convicted for both. The appellant being aggrieved by the said conviction and sentence had preferred the instant appeal.

The following grounds of appeal were raised by the appellant,

1. The trial judge not considering the improbability of the prosecution story

2. Contradictions in the evidence of PW-01 and PW-02 not being considered by the trial judge

3. Inward journey of the productions not being considered by the trial judge 4. The pink colour covering which contained the four parcels of heroin not being produced as a production by the prosecution.

5. The trial judge deciding the merits of the case before considering the defence.

6. Dock statement of the appellant not being considered by the trial judge.

The main raiding officer that is PW-01 had said in evidence that on the 28th of December 2010 on an information received he had arranged a group of police officers to go on a raid pertaining to this case at 1800 hours in a private van, which belonged to his brother, they had left to the food city at Peliyagoda. The information they received was that a young boy would come in a red t-shirt.

As they were waiting inside the food city in Peliyagoda, a person in a red t-shirt had come and they had gone out and PW-01 had searched him. Upon searching he had found a pink colour bag hidden in his underpants. The said pink coloured bag had contained two blue coloured parcels and two pink coloured parcels. They had suspected the substance inside the said bags to be heroin. As such, the suspect had been arrested and the productions had been taken into custody. Thereafter, they had gone to the Police Narcotics Bureau at 20:30 and had weighed the productions. Upon weighing the productions, they had found a gross quantity of 25.510 grams of a substance, which they suspected to be heroin. The PW-01 had further said that after weighing the productions, he had put the two pink colour bags and the blue coloured bags into an envelope and had sealed the same but he had not revealed any evidence as to the pink colour covering which had the four bags. The said pink colour covering had not been produced in court as well.

In cross-examination, at page 124-126 of the brief, he had said that the main the pink coloured covering which had contained the four small bags had not been handed over to the production clerk by him. At 20:30 he had handed over the envelope which contained the four bags, to PC 81970 Suresh but not the initial pink coloured covering.

It also has to be noted at this point that PW-01 had not taken into custody any personal belongings of the appellant.

At this point, the learned President’s Counsel appearing for the appellant, brought to the notice of court that it is very improbable that the raiding officers had not taken any personal belongings of the appellant, who was walking on the streets and he further said that it further substantiates the position of the defence that he was taken into custody at home and not while walking on the streets.

The learned President’s Counsel for the appellant further raised the issue that the prosecution failing to mark the initial pink coloured covering, which had contained the four bags, also raises a doubt with regard to the credibility of the evidence of PW-01.

Another point raised by the learned counsel for the appellant is that although PW-01 has spoken of only 1 envelope being used in the sealing of productions, in the PR book it has been noted as 2 envelopes.

Thereafter, the prosecution has led the evidence of PW-02, who had assisted PW-01 and has corroborated with PW-01, but he had said that the driver who drove the van did not have a driving license. This also the learned President’s Counse