Vandendriesen V. Houwa Umma

1937   Present: Abrahams C.J.

VANDENDRIESEN v. HOUWA UMMA

161-P. C. Kandy, 51,644.

Criminal procedure-Reception of evidence after close of prosecution-Identification of accused-Proper method to be followed.

Evidence for the prosecution should not be taken after the case for the prosecution has been closed when such evidence would have the effect either of filling the gap left in the evidence or resolving some doubt in favour of the prosecution.

 Identification of an arrested person must be carried out in such a way that not only must the identifying witness be given every reasonable chance of being right but must also be given every reasonable chance of being wrong.

APPEAL from a conviction by the Police Magistrate of Kandy.

Gratiaen, for accused, appellant.

 Pulle, C.C., for the Crown.

 August 4, 1937. ABRAHAMS C.J.-

The appellant was convicted by the Police Magistrate, Kandy, on November 20 last year for the offence of having in her possession on May 18, 1936, 1,286 grains of opium without having obtained a licence, in breach of section 74 (5) (a) of Ordinance No. 17 of 1929 as amended by Ordinance No. 43 of 1935. She was fined Rs. 500 or in default six weeks' simple imprisonment. The Magistrate believed that he was inflicting the maximum fine which is in fact Rs. 1,000. This was a first offence. The Magistrate ordered half of the fine to be paid to the Police Rewards Fund.

It was alleged by the prosecution that on May 18 last year Sub-Inspector VandenDriesen, Police Sergeant Ratnam, Police Sergeant Marso, Police Constables Silva and Mohideen, went into a house in King street, Kandy, owned by one Idroos. Presumably in anticipation of discovering illicitly possessed drugs in the premises, some of the police entered from the front and the others went round to the back. As entry was effected, a woman was seen to run through the house towards the back and to throw something she had in her hand on to the roof. This was found to be a packet containing 1,286 grains of opium. The woman was detained and the police officers proceeded to search the house with no further result. Idroos, who was in the house, was then arrested and taken to the Police Station, but the Sub-Inspector left the woman in the house as he thought she was pregnant and was in too delicate health to be further troubled. She gave her name as Maideen Beebee, and the police accepted Idroos as surety for her appearance- Idroos was brought up a few days later, but the police were unable to find any woman called Maideen Beebee until September 8, when a woman of that name appeared and said that she was not the woman who was found in the house, and this denial the police accepted. No further action was recorded until November 20, 1936, when Police Sergeant Ratnam went to Gampola and arrested the appellant who is the wife of one Abdul Hamid and the

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sister-in-law of Idroos. The Police Sergeant said that when he entered her house she bolted and took shelter in a house some distance away, and was subsequently surrendered by the residents in the house. She and Idroos were brought up for trial on January 20, i.e., seven and half months after the alleged offence. It was manifest at an early stage of the evidence of the first witness that there was no case against Idroos, and it is a little difficult to see why he was ever put on his trial- The Magistrate then and there discharged him. Sub-Inspector Vanden Driesen purported to identify the appellant as the woman who was in the house. Police Sergeant Ratnam said that he identified her when he arrested her at Gampola, and P. C Mohideen seems to have identified her by necessary inference from his evidence. The evidence of these three witnesses was the only evidence brought up against the appellant. She gave evidence on her own behalf and completely denied that she was the woman concerned when the house was raided. She admitted her rela

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