IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under 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.

Court of Appeal Case No.

CA/HCC/ 0012/2018 Daluwathumulla Gamage Mallika High Court of Balapitiya Case No. HC/866/2006 Accused-Appellant vs.

The Hon. Attorney General Attorney General’s Department Colombo-12 Complainant-Respondent BEFORE : Sampath B. Abayakoon, J.

P. Kumararatnam, J.

COUNSEL : Asthika Devendra with Kaneel Maddumage for the Appellant.

Riyaz Bary DSG for the Respondent.

ARGUED ON : 13/02/2023 DECIDED ON : 31/03/2023 *******************

JUDGMENT

P. Kumararatnam, J.

The above-named Accused-Appellant (hereinafter after 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 5.3 grams of Heroin on 14^th March 2004 in the High Court of Balapitiya.

After trial, the Appellant was found guilty on both counts and the Learned High Court Judge of Colombo has imposed life imprisonment on both counts on 26^th of February 2018.

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 her absence due to the Covid 19 pandemic. During the argument she was connected via zoom from prison.

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

1. The prosecution has failed to establish the chain of production beyond reasonable grounds.

2. Evidence of PW1 and PW3 are contradictory.

3. The recovery of a parcel containing 680 packets of Heroin inside Appellant’s brassier is not probable/possible.

4. Whether it is safe to convict only on the evidence of PW3.

5. Whether the Learned High Court Judge failed to consider the contradictions of the prosecution case.

6. Whether the Learned High Court Judge properly considered the defence case.

Background of the case.

On 14/03/2004 IP Vijith Jayantha attached to Ambalangoda Police Station had received information from one of his informants about the trafficking of Heroin by a lady named Mallika and she was coming in a three-wheeler bearing No.SP GE-3341. He with 07 other police officers attached to Ambalangoda Police Station had left for the raid immediately as per the information. The team went to Sangaraja Junction, which is situated 50-75 meters away from the police station. As the station vehicle was not available at that time, the team left in a private vehicle owned by one of the friends of PW1.When they positioned themselves on the Galle Road, PW1 had seen the said three-wheeler coming from Colombo towards Galle. As per the direction the team had stopped the three-wheeler and PW1 had identified the Appellant who was seated on the rear of the vehicle.

As the place of arrest was not suitable to check a female, the Appellant was brought to the Ambalangada Police Station and was checked by PW3. A parcel was found underneath her brassier which consisted about 36 plastic bags. Upon further check PW1 had found 680 packets in different colours inside those 36 bags. As the substance in those packets reacted for Heroin, the Appellant was arrested, and the production was handed over to the reserve police officer after an initial sealing.

On the following day, PW1 with some other police officers had gone to the Balapitiya Hospital to weigh the production. As the scale was not in order, the team had gone to Polwatta Hospital, but the pharmacist was on leave on that day. Hence, the weighing finally had been done at Borakanda Hospital.

The substance weighted to be 10.500 grams.

PW3, WPC 434 Dayawathie was called to corroborate the evidence given by PW1.

After the conclusion of the prosecution case, the defen