An omission to convict in the original judgment does not amount to an acquittal, allowing appellate courts to rectify procedural errors.

Headnote:(A) Poisons, Opium and Dangerous Drugs Ordinance - Sections 54A(d), 54A(b), 54B - Joint possession of Heroin - Conviction and sentencing of the 3rd accused - Court of Appeal's authority to rectify omissions from the High Court judgment discussed - Omission to record a conviction does not equate to an acquittal, allowing for conviction upon correction. (Paras 18, 19, 24, 32)

(B) Criminal Procedure - Jurisdiction of the Court of Appeal to affirm, reverse, correct or modify judgments.

Facts of the case:
The 3rd accused was charged jointly with her husband for possession and trafficking of Heroin. The High Court omitted to record her conviction for count No.4, leading to appeal proceedings. The Court of Appeal rectified this omission and affirmed her conviction for counts related to possession and trafficking.

Findings of Court:
High Court Judge acknowledged counts 4 & 6 proved beyond reasonable doubt; the Court of Appeal appropriately acted to correct the omission and affirm the conviction of the 3rd accused.

Issues: Whether it was legal for the Court of Appeal to convict the 3rd accused on count No.4 in the absence of an appeal against her acquittal.

Ratio Decidendi: The Supreme Court held that an omission in recording a conviction does not lead to an acquittal; thus, the appellate court had the authority to rectify this oversight. The lack of a formal acquittal on Count 4 allowed for its correction.

Result: Appeal dismissed.

K. PRIYANTHA FERNANDO, J.

The 3'rd accused-appellant-appellant (hereinafter referred to as the 34 accused) along with the 1st and 274 accused were indicted in the High Court of Colombo on the following counts;

• Count No.1: The 1st accused for having in possession of 1.290 kg of Heroin contrary to section 54A(d) of the Poisons, Opium and Dangerous Drugs Ordinance .

• Count No.2: The 1st accused for trafficking 1.290 kg of Heroin contrary to section 54A(b) of the Poisons, Opium and Dangerous Drugs Ordinance .

• Count No.3: The 2"4 accused for aiding and abetting 1st accused to traffic 1.290 kg of Heroin as referred to in Count No.2 contrary to section 54B of the Poisons, Opium and Dangerous Drugs Ordinance .

• Count No.4: The 1st and the 34 accused for having in possession of 7.796 kg of Heroin contrary to section 54A(d) of the Poisons, Opium and Dangerous Drugs Ordinance .

• Count No.5: The 1st accused for trafficking 7.796 kg of Heroin contrary to section 54A(b) of the Poisons, Opium and Dangerous Drugs Ordinance

• Count No.6: The 34 accused (appellant) for aiding and abetting 1st accused to traffic 7.796 kg of Heroin contrary to section 54A(b) of the Poisons, Opium and Dangerous Drugs Ordinance

After trial, by his judgement dated 14.12.2007, the learned High Court Judge convicted the 1st accused on counts 1, 2, 4 and 5 of the indictment and convicted the 2nd accused on count No.3 as charged. The learned High Court Judge also convicted the 34 accused (appellant) on count No.6 as charged. All three accused were thereafter sentenced accordingly.

Being aggrieved by the said convictions and sentences all three accused appealed to the Court of Appeal. The Court of Appeal by judgment dated 04.07.2019, affirmed the decision of the learned Judge of the High Court and dismissed the appeals of all three accused.

Moreover, Their Lordships of the Court of Appeal proceeded to convict the 34 accused for the aforementioned 4th Count and sentenced her to life imprisonment.

The instant appeal was preferred by the 3™ accused (appellant) against the judgement of the learned Judges of the Court of Appeal that affirmed her conviction and sentence on Count No.6 and also against the conviction and the sentence imposed in relation to Count No.4.

This Court granted leave to appeal on 10.08.2023 on the following question of law;

“Did the Court of Appeal err, in convicting the 3rd Accused-Appellant-Petitioner to the count No. 4 of the indictment, which allege that she jointly possessed 7.796 Kg of Heroin with lst Accused-Appellant- Petitioner in SC/SPL/LA. No. 301/2019, in the absence of an appeal against her acquittal of the said count and, contrary to the reasoning of the judgment of Upul de Silva v Attorney General, reported in Vol. 2 of Sri Lanka Law Reports (1999), at p. 324?”

In light of that, at the time of the hearing, the main argument advanced by the learned President’s Counsel for the 34 accused was that, there was no appeal brought before the Court of Appeal against the acquittal of the 3™ accused in relation to count 4. It was the position of the learned President’s Counsel that, in the absence of such an appeal in relation to the acquittal, the Court of Appeal nevertheless proceeded to convict the accused to count No. 4 of the indictment, which alleged that she jointly possessed 7.796 kg of Heroin with the 1st Accused. The question raised is whether this course of action was legal and whether the Court of Appeal erred in doing so.

In the Court of Appeal, the Additional Solicitor General has submitted that the learned High Court Judge has neither convicted nor acquitted the 34 accused for count No.4 and urged the Court of Appeal to convict the 3™ accused for Count No.4 and sentence accordingly. Thereafter, upon considering the omission on the part of the learned trial Judge to enter a finding on the 34 accused on the 4th count, the learned Judges of the Court of Appeal, invoking its jurisdiction under Article 138 (1) of the Constitution read

Click Here to Read the rest of this document