MOHAMED IQBAL MOHAMED SADATH

MOHAMED IQBAL MOHAMED SADATH
vs.
ATTORNEY GENERAL

COURT OF APPEAL
H.N.J., PERERA, J.
P.W.D.C. JAYATHILAKA, J.
CA 40/2013
HC NEGOMBO 61/2003
ARGUED ON 28.10.2014/10.11.2014

Poisons, Opium and Dangerous Drugs Ordinance - Conscious possession and fact of possession - Knowledge and mens rea - Penal Code, section 69  Section 72

The accused- appellant together with the 2nd accused were indicted on four counts. Importation, possession and trafficking of 1384 grams of heroin. The 2nd accused was charged for aiding and abetting the accused. The accused appellant was convicted and sentenced to life imprisonment. The 2nd accused was discharged.

The accused appellant came to Sri Lanka on board flight No. UL 124 - he had two baggages in his possession. The Customs checked the bags and in checking the 2nd bag, recovered two parcels wrapped in brown colour cello tape - and contained a brown colour powder - heroin. The accused was convicted.

In appeal it was contended that, the accused appellant had no knowledge that there was heroine inside the travelling bag - as the bag was given to him by a third party at the Chennai Air Port.

Held:

(1) Prosecution is not required to prove conscious possession on the part of the accused. Prosecution need prove only the fact of possession.

It is not open to the accused to throw doubt by making suggestions on a matter which is not an ingredient of the offence.

(2) Nevertheless, knowledge and mens rea is relevant to liability and therefore the accused person is entitled to be acquitted if he brings his case within the ambit of Section 69 and Section 72 of the Penal Code.

(3) Section 69 - Section 72 postulate that the accused should have acted in good faith. In this instant case, the accused has not acted with due care and attention and, therefore is unable to bring his case within the ambit of Section 69 and Section 72 of the Penal Code.

Per H.N.J. Perera, J.

"It is evident that the accused appellant had not taken precautions and reasonable care that would be exhibited by a prudent person to inspect and find out as to what was contained in the bag before accepting it."

APPEAL from the Judgment of the High Court of Negombo.

Case referred to :

Jayaseelan Sathyanathan V. Attorney General C.A. 188/96 H.C. Negombo 155/94

Anil Silva P.C. with Nalin Weerakoon for the accused appellant

S. Thurairaja D.S.G. for the Respondent

Cur.adv.valt.

March 13, 2015.

H.N.J. PERERA, J.

The accused-appellant together with the 2nd accused were indicted in the High Court of Negombo on four counts. The accused-appellant was charged in counts 1, 2 and 4 for importation, possession and trafficking of 1384 grams of heroin. The 2nd accused was charged for aiding and abetting the 1st accused appellant for the importation of the said quantity of heroin and thereby committed offences punishable under the provisions of the Poisons, Opium and Dangerous Drugs Ordinance. After trial the learned High Court Judge delivered his judgment on 22.02.2013 and convicted the accused- appellant in respect of the charges levelled against him and sentenced him to life imprisonment. The learned High Court Judge acquitted the 2nd accused in respect of charge 3 of the indictment. Being aggrieved of the aforesaid conviction and sentence the accused-appellant had preferred this appeal to this court.

According to the prosecution on 01.09.2001 around 11.20 p.m. flight No. UL 124 from Madras India arrived at the Katunayaka International Airport. At that time witness No.1 Assistant Superintendent of Customs D.I.Upul Gonawala was on duty at the Green Channel Counter of the Arrivals Terminal. Witness Gonawala on the instructions of his supervising Officer Sivakumaran checked several passengers who arrived at the said flight. The accused appellant was one of the passengers among them so inspected. According to the said witness Gonawala the accused-appellant

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