BASKARAN

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
ABEYRATNE, J.
KUMARARATNAM, J.
CA/HCC/228/2018
HG COLOMBO 7604/2014
FEBRUARY 2, APRIL 30, 2021

Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984, sections 54(A)(b), 54(A)(d)-Trafficking and possession of heroin-Inward journey

The appellant was indicted before the High Court of Colombo for the offences of trafficking and possession of 7.93 grams of heroin. After trial he was found guilty on both counts and sentenced to life imprisonment on the first count. No sentence was imposed on the second count. The appellant appealed against the conviction and sentence to the Court of Appeal. The two grounds of appeal were that the High Court failed to consider whether the chain of the inward journey was established by the prosecution, amounting to doubt about whether the parcel containing the substance sent to the Government Analyst could have been swapped or contaminated, and that the prosecution failed to prove the inward journey of the productions beyond reasonable doubt.

Held:

1. Chain of custody issues are very important in cases involving drugs. The prosecution has to present undisputed evidence to prove the chain of custody of the production. Further, the prosecution has to prove that the item presented at the trial is the same item that was in the possession of or taken from the accused. Allowing the court to base its decision on evidence that is tainted, unreliable or tampered with would undermine the integrity of the judicial system. The court is not the place to correct mistakes made by the investigating officers.

2. In this case the evidence presented by the prosecution revealed a gross violation of the handling of the production by the police witnesses. They have deviated from routine practice. Due to this

the prosecution has failed to present sufficient and clear evidence to prove the chain of inward journey.

Cases referred to:

1. Mohamed Nimnaz v. Attorney General (CA/95/1994)

2. Faiza Hanoon Yoosuf v. Attorney General (CA/121/2002)

3. Perera v. Attorney General [1998] 1 Sri LR 378

4. Mahasarukkalige Chandani v. Attorney General (CA/213/2009, CA Minutes of 30.06.2016)

5. Koushappis v. The State of WA [2007] WASCA 26; (2007) 168 A Crim R 51 at 85

6. Sinniah Kalidasa v. Attorney General (CA/128/2005); (2010) Vol Ill BASL Criminal Law at 31

APPEAL from the Judgment of the High Court of Colombo.

lsuru Somadasa for the Appellant.

Janaka Bandara, S.S.C., for the Respondent.

cur. adv. vult.

July 16, 2021

KUMARARATNAM, J.


The above named Accused-Appellant (herein after referred to as the Appellant) was indicted by the Attorney General under Sections 54(A)(b) and 54(A)(d) of the Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984 for Trafficking and Possession, respectively of 7.93 grams of Heroin on 29/01/2014 in the High Court of Colombo.

After the trial the Appellant was found guilty on both counts and the Learned High Court Judge of Colombo has imposed life imprisonment on the first count on 18/07/2018. The Learned High Court Judge had refrained from imposing a sentence on the second count.

Being aggrieved by the aforesaid conviction and sentence the Appellant preferred this appeal to this court.

The Learned Counsel for the Appellant informed this court that the Appellant has given consent to argue this matter in his absence due to the Covid-19 pandemic. During the argument he was connected via zoom from prison.

On behalf of the Appellant the following Grounds of Appeal are raised.

1. The Learned Trial Judge has failed to consider the fact whether the chain of inward journey was established by the prosecution, amounting to a doubt whether the parcel containing the substance which was sent to the Government Analyst could have been swapped or contaminated.

2. Whether the prosecution has failed to prove beyond reasonable doubt the inward journey of the productions.