SADATH

Vs.

ATTORNEY GENERAL

SUPREME COURT
ALUWIHARE, J.
MALALGODA, J.
FERNANDO, J.
SC/APPEAL/110/2015
SC/SPL/LA/58/2015
CA/40/2013
HC COLOMBO 61/2003
NOVEMBER 12, 2018, MARCH 11, 2019

Criminal Law-Poisons, Opium and Dangerous Drugs Ordinance,section 54A-Penal Code, sections 69 and 72-Establishing mens rea when not explicitly stipulated in the offence-Difference between trafficking and possession

The appellant was indicted in the High Court for importing, trafficking in and possessing 1,384 grams of heroin in terms of section 54A of the Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984. The defence taken up by the appellant was that he had no knowledge that he was taking a bag containing heroin. On appeal, the Court of Appeal affirmed the conviction. The appellant appealed to the Supreme Court.

Held:

1. Unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of a criminal offence unless he has a guilty mind. The prosecution can discharge its burden of establishing the requisite mental element presumptively by adducing circumstances in which the prohibited substance or something which contained it had been recovered from the accused even though he may not have known the precise nature of the substance.

2. Once the prosecution discharges this burden, consideration must. be given to whether the accused has discharged the evidentiary burden to negate the same. The evidentiary burden on the accused is to create a reasonable doubt as to the requisite knowledge.

Based on the facts of this case and the explanation of the appellant under oath, the High Court and the Court of Appeal were correct in holding that inferentially the prosecution established that the appellant possessed the requisite knowledge in committing the offence.

3. Section 72 of the Penal Code requires that the party pleading the exception contained therein should have acted in good faith and the definition of good faith involves due care and attention, both of which were lacking on the part of the appellant in this case.

4. Section 54A of the Poisons, Opium and Dangerous Drugs Ordinance defines the meaning of the word "traffic" and whether a person has 'trafficked' any of the drugs referred to in the said provision has to be decided by considering whether the act contemplated falls within the said definition.

5. The offence of drug "trafficking" is similar to "possession", but the offence of drug trafficking has an additional requirement (as stipulated in section 54A) of an act that transforms the status of the offence of possession to that of trafficking.

Cases referred to:

1. Van der Hultes v. Attorney General [1989] 1 Sri LR 204 at 215
2. Warner v. Metropolitan Police Commissioner 1968 52 Crim Appl R 373 at 383
3. Jayaseelan Sathyanathan v. Attorney General (CA/188/96, CA Minutes of 20.08.1998)
4. Sarala Natarajan Setti v. Attorney General (CA/209/96,CA Minutes of 29.06.1999)
5. Sumanawathie Perera v. Attorney General [1998] 2 Sri LR 20
6. Shanmugarajah v. The Republic [1990] 2 Sri LR 57
7. Nirmakumar Bhowmik v. Emperor AIR 1938 Cal at 553

APPEAL from the Judgment of the Court of Appeal.

Palitha Fernando, P.C., with R.Y.D.Jayasekera and Eranga Gunawardene for the Accused-Appellant-Appellant.

Yasantha Kodagoda, P.C., A.S.G., for the Attorney General.

cur. adv. vult

December 14, .2020

ALUWIHARE, J.

1. The Accused-Appellant-Petitioner-Appellant (hereinafter sometimes referred to as the Accused) along with another, were indicted in the High Court for importation, trafficking and possession of 1384 grams of Heroin, in terms of Section 54A of the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984 (hereinafter referred to as the Ordinance).

2. At the conclusion of the trial, the learned judge of the High Court convicted the Accused-Appellant and acquitted the other who was ind