IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal in terms of Section 331 of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal Case No:

CA-HCC-213-20 HC of Colombo Case No:

HC/323/18 The Democratic Socialist Republic of Sri Lanka Complainant V.

Olua Austin Chiedozie alias Joseph Austin Emmanual Accused AND NOW BETWEEN Olua Austin Chiedozie alias Joseph Austin Emmanual Accused Vs.

The Hon. Attorney General, Attorney General’s Department, Colombo 12.

Complainant-Respondent Before: Menaka Wijesundera, J.

B. Sasi Mahendran, J.

Counsel: Asthika Devendra with Wasantha S. Widanage for the Accused-Appellant Sudharshana De Silva, DSG for the Respondent.

Written 21.04.2022 and 26.10.2023 (by the Accused-Appellant)

Submissions: 12.09.2023 and 06.11.2023(by the Respondent)

On Argued On: 11.10.2023 Decided On: 13.11.2023 Sasi Mahendran, J.

The Accused Appellant (hereinafter referred to as the Accused) was indicted at the High Court of Colombo for possession and trafficking of 774.97 grams of Cocaine, punishable under section 54 A (d) and (b) of the Poisons, Opium, and Dangerous Drugs Ordinance. After the trial, the Appellant was convicted and sentenced to death. Being aggrieved with the said conviction and the sentence the Appellant had preferred this appeal.

The primary grounds for the Appellant’s Appeal are as follows:

1. Whether a prosecution under section 54(A) (D) and 54 (A) (B) can be maintained/can be sustained on section 27 (1) recovery under the evidence Ordinance or has the Learned High Court Judge has come to the erroneous conclusion regarding the same?

2. Considering the evidence/ law of the case could the finding that the appellant was in exclusive possession or was trafficking the cocaine be sustained?

The facts of the case are briefly summarized as follows:

PW01, IP Subodha, acting on information received from PC Gupta, who had received information from a private informant, regarding the trafficking of Cocaine, led a team of officers to conduct a search operation. According to his testimony, he accompanied PW02 to the 5th floor of Blue Hill Residencies Apartment, where they apprehended Mohommed Guhari Rasik and the Accused in possession of a bag containing 516g of Cocaine. The Accused has been indicted for this offense by the Honorable Attorney General, and the case is currently pending.

On the following day, after presenting the Accused before the Mt. Lavinia Magistrate Court and obtaining a detention order, the Accused provided a statement indicating the presence of more contraband at his residence. Acting on this information, the officers proceeded to the address disclosed by the Accused.

Upon arrival at the location, a woman believed to be the Accused’s wife granted the officers access to the premises. During their search, the officers discovered a plastic container in the kitchen containing a bag of cocaine weighing 1048g.

In his dock statement, the Accused denied the allegations against him. He contended that he was arrested at Dehiwala while waiting for a bus and that the parcel was shown to him after the officers searched his residence upstairs while he was downstairs. Furthermore, he asserted that there was no kitchen upstairs in his house.

The Learned High Court Judge convicted the Accused on the grounds of discovering cocaine under Section 27 of the Recovery of Property Ordinance at the said premises, where the Accused was the primary occupant. However, the Learned High Court Judge neglected to assess whether the prosecution had established the actual and exclusive possession of the Accused.

According to Sir Hari Singh Gour in his book "The Penal Law of India," he has stated:

"Possession to be criminal must be actual and exclusive. For criminal liability does not apply to constructive possession."

This proposition was considered by Justice De Sampayo in the case of Banda v.

Haramanis, 21 NLR page 141. Justice De Sampayo held:

“ ………The question is whether either of the accus