A.L. Shiran Gooneratne J.

[1] The Accused-Appellant-Appellant was indicted by the High Court of Colombo under the Poisons and Dangerous Drugs Act No. 13 of 1984 (as amended) on two counts i.e. that on or about 19/12/2004, the Accused was in possession of 23.2 grams of diacetyl morphine also known as heroin, and trafficking the said quantity, to which the Accused pleaded not guilty.

[2] At the conclusion of the trial before the High Court, by Judgment dated 01/03/2011, the Accused was convicted on both charges and was sentenced to death. The Court of Appeal by its Judgment dated 14/06/2012, affirmed the said conviction.

[3] Being aggrieved by the said conviction and sentence the Accused-Appellant by Petition dated 24/07/2012 is before this Court, to set aside the Judgment dated 01/03/2011 and 14/06/2012, delivered by the High Court and the Court of Appeal respectively.

[4] By Order dated 26/09/2012, this Court granted leave to appeal on the following questions of law;

1. Did the Court of Appeal misdirect itself in law as to the manner of evaluating evidence as required by law.

2. Did the Court of Appeal err in law when it rejected the Petitioner’s evidence and thereby her defence outright.

[5] When this matter was taken up for hearing, the learned Presidents Counsel for the Accused-Appellant identified specific issues, which in his submission arise due to the failure by the Court of Appeal to consider the infirmities in the prosecution evidence, to be addressed by this Court when answering the questions of law, No. 1 and 2 above, which have been reiterated in the written submissions tendered dated 10/09/2024, that is;

1. Contradictions inter se in the evidence of PW1 and PW3.

2. Not entering notes by the detection party prior to leaving the police station amounts to noncompliance with departmental orders to ensure that nothing illegal was found on them.

3. Conscious decision not to call PW4, the woman police constable.

4. The inherent discrepancy in the inward journey.

5. Failure to consider the defence of the Petitioner.

6. Excessive intervention and interjections by the learned High Court Judge.

The arrest of the Accused.

[6] The prosecution evidence leading to the arrest of the Accused was that, on 19/12/2004 around 2.45 p.m., a police party consisting of five police officers, including a women police constable were travelling in a three-wheeler on a regular reconnaissance duty and arriving close to the Mattakkuliya petrol station, the leader of the police party, Handagala Devage Piyapala had received information from an informant that a woman was trafficking heroin from Thotalanga to Kelani Ganga Mola area. Acting on the said information a woman was identified in the vicinity of the Aliwatta mosque and on search, had recovered a parcel containing an illegal substance suspected to be heroin from her. Having arrested the Accused, the suspected substance along with the Accused was taken to the Police Narcotics Bureau, where the substance was weighed and sealed. Thereafter, the police party had proceeded to the Modera Police Station where the recovered substance and the suspect was formally handed over to their custody.

[7] The Accused version of events leading to the arrest was different to that of the prosecution. According to the Accused, in the morning of the date of arrest, five police officers had entered her house and had carried out a search. Soon after, the Accused was taken to her mother’s house which was in close proximity. Thereafter, the police officers had brought one Siththy Fareena who was known to her and had pointed to a parcel which Siththy Fareena was carrying. The Accused was then questioned about the parcel and had implicated that the contents of the parcel, as belonging to her. Thereafter, the Accused and Siththy Fareena were arrested and taken to the Modera Police Station in a jeep, and then to the Police Narcotics Bureau.

Contradictions inter se in the evidence of PW1 and PW3

[8] It is the position of the Accused-Appella