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.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka CA/HCC/0254/16 COMPLAINANT Vs.

High Court of Kuliyapitiya Loku Arumage Nimal Jayasinghe Case No: HC/132/2011 ACCUSED AND NOW BETWEEN Loku Arumage Nimal Jayasinghe ACCUSED-APPELLANT Vs.

The Attorney General, Attorney General’s Department, Colombo 12 RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : J. P. Gamage with Dulshika Wijerathna and Chamara Fernando for the Accused Appellant : Anoopa De Silva, DSG for the Respondent Argued on : 31-01-2023 Written Submissions : 25-07-2018 (By the Accused Appellant)

: 05-11-2018 (By the Respondent)

Decided on : 16-03-2023 Sampath B Abayakoon, J.

This is an appeal by the accused appellant (hereinafter referred to as the appellant) on being aggrieved of his conviction and the sentence by the learned High Court Judge of Kuliyapitiya.

The appellant was indicted before the High Court of Kuliyapitiya on two counts. In count 01, he was charged for having in his possession a gun, that is to say a repeater shot gun (තුව්කුව්ක, එනම් රැලි තුව්කුව්ක) on or about 6th September 2007 at Dambadeniya, without a valid permit and thereby committing an offence punishable in terms of section 22 (3) read with section 22 (1) of the Firearms Ordinance No. 33 of 1916 as amended by Firearms Amendment Act No. 22 of

1996.

The 2^nd charge preferred against him was that at the same time and at the same transaction, having in his possession 60 live cartridges without a valid permit, and thereby committing an offence punishable in terms of section 27 of the Explosives Act No. 21 of 1956 as amended by Amendment Act No. 33 of 1969.

After trial, the learned High Court Judge of Kuliyapitiya of his judgement dated 30th November 2016, found the appellant guilty as charged on the basis that the charges proved that he had in his possession a gun and 60 live cartridges.

Accordingly, he was sentenced to 4 years rigorous imprisonment on count 1 and ordered to pay a fine of Rs. 10000/-. In default of paying the fine, he was sentenced to 01-year rigorous imprisonment.

On count 2, he was sentenced to 01-year rigorous imprisonment and to a fine of Rs. 2000/-. In default of paying the fine, he was sentenced to 6 months rigorous imprisonment.

It has been ordered that the default sentences should commence at the conclusion of the rigorous imprisonment sentences ordered in relation to the two counts.

Since it has not been ordered that the sentences should be concurrent to each other, it has to be taken as that the total imprisonment period for both the counts should be 5 years rigorous imprisonment.

The Facts in Brief PW-01 was serving in the Peliyagoda Police Crime Investigation Division at the time relevant to this incident. On 6th September 2007, one of his subordinate officers PS-48856 Chandana has received an information of a person who is possessing a T-56 weapon and ammunition, as well as two magazines.

Accordingly, since his unit had the jurisdiction to investigate information of this nature throughout the island, PW-01 has organized a raid. After informing his superior officers, he has left the police station with seven other officers, including police sergeant (PS) Chandana, and had reached Giriulla area where PS Chandana had met the informant. The informant has pointed out the house of the suspect and has left. The police party has surrounded the house of the suspect around 10.50 pm, and PW-01 has called for the suspect by his name.

The suspect Nimal has opened the door querying who is calling at this time of the night.

According to the evidence of PW-01, when he saw the police party, he appeared to be panicked. Apart from the suspect, he has seen two females and two small male children in