Back
MITRADASA FERNANDO v. S. I. POLICE
NLR63V422
1961 Present :
Basnayake, C.J.
MITRADASA FERNANDO, Appellant, and SUB-INSPECTOR OF
POLICE, KALUBOWILA, Respondent
S. C. 950/60-M. C. Colombo, 33015/B .
Excise Ordinance (Cap. 42)-Sections 14 (a) (e), 43 (6) (e), 44 (1) (2)-Charge
of possession of unlawfully manufactured liquor-Proof-Opinions of " specially
skilled persons "-Evidence Ordinance, s. 45.
The accused-appellant was charged under the Excise Ordinance with illegal
possession of unlawfully manufactured liquor. The prosecution sought to
establish that the liquor was not manufactured at any authorised place by the
evidence of a Sub-Inspector of Police who claimed to be an expert. The witness
described himself as a Sub-Inspector of Police who had gone through a special
course of training in the Excise Department to identify excisable articles. He
said that he had given evidence in more than 250 oases of this nature,
Held, that the opinion of the Sub-Inspector of Police was not relevant
inasmuch as he did not come within the class of specially skilled persons
contemplated in section 45 of the Evidence Ordinance.
Held further, that inasmuch as the integrity of the police was assailed in the
present case, it was the duty of the Court to have given sufficient
consideration to the conduct of the prosecuting police officer (a) in not
sending the productions to the Government Analyst after an order in that behalf
had been made, (6) in sealing the bottles in such a way that they could be
tampered with, and (c) in detaining in the Police Station for 10 days without
producing in court the productions taken in the raid.
APPEAL
from a judgment of the Magistrate's
Court, Colombo.
K. Shinya, with Nimal Senanayake, for Accused-Appellant.
A. A. de Silva, Crown Counsel, for Attorney-General.
March 15, 1961. BASNAYAKE,
C.J.-
The appellant has been convicted of the following charges:-
" 1. That at Nawaganrawa on 12th April 1960 he did manufacture an excisable
article unlawfully to wit : 624 drams of arrack M-ithout a licence granted in
that behalf by the Government Agent, Western Province, in breach of section 14
(a) of Chapter 42 L.E.C. and thereby committed an offence punishable under
section 43 (b) of Chapter 42 L.E.C.
" 2. That at the same time and place aforesaid he did use utensils and apparatus
to wit: (1) One empty glass jar, (2) One copper coil wire, (3) One funnel, (4)
One sealing apparatus, (5) One copper pipe, (6) One large barrel, (7) One large
barrel used for cooling purposes, (8) One large barrel where base and soda are
kept, (9) Empty 8 dram bottles for the purpose of manufacturing an excisable
article to wit: Pot arrack without a licence granted in that behalf by the
Government Agent of the Western Province in breach of section 14 (e) of Chapter
42 L. E. C. and thereby committed an offence punishable under section 43 (e) of
Chapter 42 L.E.C.
" 3. That at the same time and place aforesaid he did without lawful authority
have in his possession 624 drams of liquor called " Pot Arrack " an excisable
article which had been unlawfully manufactured in breach of section 44 (1) (2)
of Chapter 42 L.E.C. as amended by Excise Amendment Act No. 36 of 1957 and
thereby committed an offence punishable under section 44 (1) (2) of Chapter 42
L.E.C. as amended by the Excise Amendment Act No. 36 of 1957."
Proceedings were instituted on a report under section 148 (1) (6) of the
Criminal Procedure Code by Police Sergeant U. K. Elwin. After the charges had
been read out and on the application of the Sub-Inspector of Police, Kalubowila,
the Magistrate made order that the productions be sent to the Government Analyst
for examination and report, but the productions were not in fact sent to the
Government Analyst. Instead of producing a report from the Government Analyst
the prosecution sought to establish that the liquor was not liquor manufactured
at any authorised manufactory by the evidence of a
