FERNANDO AND 5 OTHERS VS. STATE

FERNANDO AND 5 OTHERS VS. STATE

COURT OF APPEAL
RANJIT SILVA. J
ABEYRATNE. J.
CA 168-173/2006
HC NEGOMBO 105/2002
SEPTEMBER 30,2010
OCTOBER 7, 13, 18, 19,21,27,2010
NOVEMBER 3,8,2010
JANUARY 12,2011

Penal Code Section 102, 113a - Opium and Dangerous Drugs Ordinance Section 54 (A) d - amended by Act 13 of 1984 Importation - trafficking -Heroin -Defence of Alibi -Dock statement - Assessment of evidence on a wrong premise? - Ellenborough principle - Applicability - Evidence ordinance - section 114(f)

The accused - appellants were indicted on 4 charges -possession of pure heroin - Section 54 (A)(d)- importation - Section 54 (A) c, trafficking Section 54 A (b) -abetting and/ or conspiracy to import - Section 54 (A) (b) read with Section 102, 113A Penal Code. All accused were found guilty.

Held

(1) Evidence in support of the defence of Alibi is evidence that tends to show that by reason of the presence of an accused (1) at a particular place (2) in a particular area at a particular time the accused was not or was unlikely to have been at the place where the ffence is alleged to have been committed at the time of the alleged commission.

(2) An alibi is not an exception to criminal lability, like a plea of private defence or grave and sudden provocation. An alibi is nothing more than an evidentiary fact which, like other facts relied on by an accused must be weighted in the scale against the case of the prodecution. The trial Judge has correctly analyzed the evidence adduced on the defence of alibi.

(3) It is only where upon the facts the order is manifestly unreasonable or plainly unjust that the appellate Court may infer that in some way there has been a failure to exercise the discretion vested in the trial judge. So long as the Court has exercised its discretion judicially an appellate Court cannot and will not disturb and interfere with such an order.

There is no substantial miscarriage ofjustice that had occurred by mistakes made by the trial Judge.

(4) No person accused of crime is bound to offer any explanation of his conduct or of circumstances of suspicion which attach to him, but, nevertheless if he refuses to do so where a strong prima facie case has been made out, and when it is in his own power to offer evidence - if such exist, in explanation of such suspicious circumstances which would show them to be fallacies and explicable consistently with his innocence it is a reasonable and justifiable conclusion that he refrains from doing so only from the conviction that the evidence so suppressed or not adduced could interfere adversely to his interest - Ellenborough Principles - the 5th and 6th appellants did not offer any explanation.

APPEAL from the judgment of the High Court of Negombo.

Cases referred to:-
1. King us. Marshal 51 NLR 157.
2. Gunapala and others us. The Republic of Sri Lanka 1994 2 Sri LR 180
3. Wijewardane us. Lenora 60 NLR 457 at 463.
4. Rohana us. Shayama Attanayake & others 1990 3 Sri LR 381
5. R. Vs. Lord Cochrane and others 1814 Gurneys Reports 479
6. R. us. Burdett 1820 4 B & Ald 161 at 162
7. Rajapaksa Deuaga Somarathna Rajapakse and others us. A. G. SC 2/2002 TAB

K. Kulatunga for 1st and 3rd accused appellants
Anil Silva PCwith Tony Fernando for 2nd accused appellant
W. Dayaratne PC for 4th accused appellant
Shanaka Ranasinghe for 6th accused - appellant

June 02nd 2011
UPALI ABEYRATHNE, J.
The Accused Appellants (hereinafter referred to as the 1st, 2nd, 4th, 5th and 6th Appellant) were indicted in the High Court of Negombo on 04 charges namely;

1. That 1st, 2nd and 3d Appellants had in their possession 14.071 kilograms of pure heroin in contravention of section 54(A)(do) f the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No 13 of 1984.

2. That 1st  to 6th Appellants did import the said quantity of heroin in contravention of section 54(A)(c) of the  said Ordinance.

3. That 1st to 6th Appe

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