IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal under and in terms of Article 138(1) of the Constitution read together with Section 11 (1) of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 with Section 331 of the Code of Criminal Procedure Act No. 15 of 19798.

Court of Appeal Case No:

CA-HCC 281-282/19 HC of Chilaw Case No: The Democratic Socialist Republic of Sri Lanka HC 38/11 Complainant v.

1. Buddhika Nandana Paranawithana

2. Vidanage Prasanna Indika Perera Accused AND NOW BETWEEN

1. Buddhika Nandana Paranawithana

2. Vidanage Prasanna Indika Perera

02^nd Accused-Appellant The Hon. Attorney General, Attorney General’s Department, Colombo 12.

Complainant Respondent Before: Menaka Wijesundera, J.

B. Sasi Mahendran, J.

Counsel: Malindu Peiris with Dimuthu Bandara for the Accuse Appellants Sudharshana De Silva, DSG for the Respondent Written 22.06.2021 (by the Accused-Appellants)

Submissions On : 22.06.2021 (by the Respondent)

Argued On: 01.11.2023 Decided On: 13.12.2023 *************

Sasi Mahendran, J.

The Accused Appellants (hereinafter referred to as "the Accused") were indicted before the High Court of Chillaw for the possession and trafficking of 333.7g grams of Heroin (Diacetylmorphine) under Section 54A(d) and 54A(b) of the Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984.

The prosecution, in order to substantiate the charge examined six witnesses. The

1^st and the 2^nd Accused gave dock statements and did not call any witnesses. After the trial, the Learned High Court Judge found both the Accused guilty on both counts, convicted, and imposed Death sentence.

Being aggrieved by said judgment and sentence this appeal was preferred by the Accused.

The following Grounds of Appeal were urged by the counsel for the Accused.

A. The learned trial judge has failed to consider the need to adduce evidence of the Driver of the Van alleged to have been used by the accused, especially when the conduct of such a raid is vehemently disputed by the defence.

B. The learned trial judge has failed to consider the glaring improbabilities and lapses in the prosecution version of the alleged raid which warrant calling of the said driver of the van as an independent witness.

C. The learned trial Judge has not considered the gravity of the failure by the prosecution to submit the vehicle alleged to have been used by the accused to be identified at the trial by which substantial prejudice was caused to the accused depriving them of a fair trial.

D. The learned trial judge has misdirected himself in law by not forming an inference under sec 114(f) of the Evidence Ordinance with regard to non-production of the van of the accused in the trial and failure to call its driver as a witness.

E. The learned trial judge has unduly burdened the accused by expecting them to prove certain facts, which is against establishes law.

F. The learned judge has erred in law, by considering against the accused, several facts which have not been proved in Court, and which also irrelevant to the matter.

The relevant facts giving rise to the prosecution are that on 09.03.2006 Prosecution Witness 02 (PW02) received information from his private informant about a consignment of drugs brought via boats from India being transported to Colombo. They were informed that the drugs would be transferred among parties at a certain place on the Chilaw-

Colombo road in the Mahawewa area.

A team of 10 police officers proceeded to the said location and observed the said suspicious vehicle (van) from a distance of 50 meters. At around 5:55 am another suspicious motorcycle approached the said van, the officers noticed a parcel being passed. Then they promptly obstructed the van and searched it. Two parcels of Heroin were recovered from the two Accused who instantaneously tried to hide the said parcels. Although the officers gave directions to trap the motorcyclist, they managed to escape and there was no trace to