Present: Appellant, Respondent

In a charge of unlawful possession of opium and ganja te packet seized in the possession of the accused was sealed at the Police Station in the presence of the accused with the Police seal along with the accused's thumb impression.

On the following day at an inquiry held by the Assistant Superintendent of Police regarding certain allegations made by the accused against the Police Officers, who took part in the raid, the seal was broken by the Assistant Superintendent of Police and resealed with his private seal which was identified by the Sub-Inspector of Police, who gave evidence at the trial.

Held, that the failure to reseal the packet in the presence of the accused was not a fatal irregularity.

PPEAL from an acquittal by the Magistrate of Point Pedro.

for the complainant, appellant.

for the accused, respondent.

Cur. adv. vult.

June 9, 1944.

This is an appeal with the leave of the Attorney-General against the acquittal of the respondent for having on July 12, 1943, committed an offence punishable under section 76 (5) (a) of the Poisons, Opium and Dangerous Drugs Ordinance in that he did unlawfully have in his possession one pound of ganja and one pound of opium. He was later seen going from the house towards a straw shed carrying a parcel which he threw at the entrance to the shed. The respondent was seized and the parcel was examined. According to the evidence of the Sub-Inspector and a Sergeant the parcel contained 1 packet of opium and 1 packet of ganja in an ola box wrapped in oil cloth. Aftering being weighed, the packers were put back in the ola box which was wrapped in the oil cloth. The parcel was then sealed with the Police seal along with the respondent's left thumb impression. On the following day there was a departmental inquiry by the Assistant Superintendent of Police, Northern Province, regarding certain allegations made by the respondent against the Police Officers who took part in the raid. At this injury the seals on the parcel were broken by the Assistant Superintendent of Police and resealed with his private seal. This seal was still intact when the parcel was produced at the trial.

The respondent did not go into the witness-box and contest the evidence of the Police. In these circumstances the Magistrate accepted without hesitation the story of the prosecution. He held, however, was a fatal breaking of the seals by the Assistant Superintendent of Police was a fatal irregularity and on the authority of Holsinger v. Joseph [1 31 N.L.R. 250] and Vandendriesen S.I., Police v. Ossen Beebee [2 1 C.L.J.138.] acquitted the respondent. No doubt these two cases to some extent justify the action of the Magistrate in acquitting the respondent. In Holsinger v. Joseph, the tins of ganja which had been seized were not sealed until the Police Station was reached. Lyall Grant J. in these circumstances, followed a case reported in S. C. Minutes of September 14, 1926, where Jayewardene J. held that the failure to seal the tins at once entitled the accused to take the objection that the ganja inside them might have been introduced between the seizure in the dispensary and its sealing at the Police Station. In the present case the respondent was taken to the police station with the packets. No suggestion was made during the course of the trial either by cross-examination or direct evidence that the ganja and opium had been introduced by the Police. In Vandendriesen v. Beebee , the raid took place at 3 P.M., but the opium was not sealed till 6 P.M. Later the seals were broken in the absence of the accused and re-sealed. Moseley J. held that he was bound to follow the judgment in Holsinger v. Joseph and allowed the appeal. There are, however, other cases not brought to the notice of the Magistrate in which it was held that failure to seal was not a fatal irregularit