RANJANI PERERA

Vs.

ATTORNEY GENERAL

COURT OF APPEAL
KARUNARATHNA,J.
GURUSINGHE, J.
CA/HCC/121/2017
HC PANADURA 2539/09
OCTOBER 21, 2021

Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act, No. 13 of 1984, section 54A{b) and (c)-Burden of proof and presumption of innocence-Misdirection on burden of proof vitiates the conviction

The appellant was indicted in the High Court under sections 54A(b) and (c) of the Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984, for being in possession of and trafficking in 2.4 grams of heroin. After the prosecution closed its case, the appellant gave evidence and denied the incident. The High Court convicted the appellant and passed a sentence of life imprisonment. The appellant appealed to the Court of Appeal.

Held:

1. In a criminal trial, the burden lies on the prosecution to establish its case beyond reasonable doubt. This burden is neither neutralised nor shifted because the accused takes a particular plea in his defence. The prosecution cannot take advantage of the weakness of the defence case. It must stand on its own legs.

2. In a case where any general or special exception is pleaded under the Penal Code, the accused has to satisfy the circumstances bringing the case under such exception. In this case, the appellant has not relied on any exception.

3. The burden of proof and the presumption of innocence have to be considered together. The misdirection regarding the burden of proof in the case cannot be regarded as a mere irregularity. It is a grave error that vitiates the conviction.

Cases referred to:

    1. The King v. James Chandrasekara 44 NLR 97

APPEAL from the Judgment of the High Court of Panadura.

Gayan Perera with Prabha Hemanthi Perera for the Accused-Appellant.

Riyaz Bary, S.S.C., for the Respondent.

cur. adv. vult.

December 15, 2021

GURUSINGHE, J.

The accused-appellant (the appellant) was indicted in the High Court of Panadura under Section 54A(b) and 54A(c) of the Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984, for being in possession and trafficking 2.4 grams of heroin on or about the 11th of December 1999 at Piliyandala.

The Learned Trial Judge, by her judgment dated the 14th of June 2018, found the appellant guilty of the charges and convicted and sentenced the appellant to life imprisonment on two counts. Being aggrieved by the said conviction and sentence, the appellant preferred this appeal.

The version of the prosecution was that on information received from a private informant by sub-Inspector Vijitha Perera (PW1) of Walana, a Special Vice Squad was arranged and a raid was conducted on the 11th of December 1999. The information was received a week prior to the date of the raid; however, no reason was given as to why they waited a week and selected that particular day to conduct the raid. The police party was led by sub-inspector Vijitha Perera, including PC2395 Dayaratne, PC444 Wijesooriya, PC7659 Suraweera, PC3386 Pathirana, PC23743 Douglas, RPC 31944 Ekanayake, and PCD20002 Ratnayake. They were dressed in civilian clothing except for Suraweera, who was in uniform.

All of them left Walana in a van bearing No. 250-6347 at 5.45am in the morning and came up to Piliyandala within half an hour. They had stopped the van about twenty yards away from the appellant's house and had waited to see if any person or vehicle would come to the appellant's house. After about twenty minutes, as no one came, they went to inspect the appellant's house. Sub-inspector Vijitha Perera went to the house along with three other officers, including the one in the uniform. The front door of the appellant's house was opened. Sub-inspector Vijitha Perera

and the officer in the uniform had entered the house. The appellant was seated at the table in the living area of the house and appeared to be doing something. She was wearing a nightgown. They approa