1932 Present : Jayewardene A.J.

PRINS v. SABARATNAM.

485-P. C. Colombo, 39,093.

Opium Ordinance-Seizure of opium, in accused's possession-Failure to seal before removal to Police Station-Irregularity not fatal.

There is no inflexible rule that excise articles seized should be sealed immediately after seizure in the presence of the accused, before they are : taken to the Police Station.

It depends on the circumstances of each case whether the failure to seal in the, presence of the accused affords a good defence or not.

APPEAL from a conviction by the Police Magistrate of Colombo.

No appearance for appellant.

H. L. Wendt, C.C., for respondent.

August 24, 1932. JAYEWARDENE A.J.-

The accused has been convicted under the Opium Ordinance, 1910, for possessing four pounds of opium. On April 24, Inspector Prins, having received certain information, followed the accused from the Maradana Railway Station after the arrival of the Jaffna train at 6.30 A.M. He stopped the accused's rickshaw opposite the Socony Petrol Station in Skinner's road south and took the accused inside the depot. He opened the accused's trunk with a key which the accused produ6ed from his purse and found in the accused's trunk a pillow smelling strongly of scent on the top and under it a verti cloth with toilet powder spread on it. Under that he found four pounds of opium and ten pounds of ganja. He took the accused and things to the Kotahena Police Station and sealed them in the presence of the accused with a Police seal. He placed the trunk with that seal on it and a label signed by the accused and produced everything at the Police Court on the next day. The accused when charged merely said that he was not guilty and would file his list of witnesses later. The Inspector was corroborated in every material particular by Constable Benedict. The accused admitted the arrest and search, and also that he signed the label on the trunk. He says that the Inspector may have introduced the opium and ganja at the instigation of his enemies. The Police Magistrate has held that the case for the prosecution was well proved and that he had no doubt whatever that the accused was caught exactly as stated by the Inspector with four pounds of opium in his trunk. It was contended that the accused was entitled to an acquittal because the Inspector did not seal the productions as soon as they were found but later at the Police Station. In Kalpage v. Cassim 1 A. St. V. Jayewardene A.J. held that an objection, that certain tins taken from the possession of the accused, a vedarala, were not sealed in his presence, was a good one. The accused there asserted that the medicine found later in the tins was not the medicine in them at the time they were removed from his premises. Jayewardene A.J. remarked " It was possible for such an introduction to have taken place and in cases of this kind we have to see that whatever is found in the accused's possession is not tampered with .... I think the failure to seal them entitles the accused to take the objection that the ganja might have been introduced between the seizure at his dispensary and its sealing at the Police Station". This case was followed in Holsinger v. Joseph 2 where the circumstances were similar. The principle of these cases was adopted in Wijesekere v. Pakir 3 and Fernando v. Mudalihamy 4

Referring to them in Almeida v. Fernando 1 Lyall Grant J. said that in neither of them were the packages sealed in the accused's presence and there was a reasonable possibility that they might have been tampered with. The remarks of Lyall Grant J. in setting aside the acquittal and sending the case back for trial are relevant. " In the present case the Inspector says that he found the stuff in th