IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST

REPUBLIC OF SRI LANKA

In the matter of an Appeal made

under Section 331 of the Code of
Criminal Procedure Act No.15 of
1979

CA 74/2020
HC/ COLOMBO/7165/2014
Thuwan Nisam Sahabdeen
Saman alias Baba

Accused-Appellant

vs.

The Hon. Attorney General

Attorney General's Department
Colombo-12

Complainant-Respondent

BEFORE : Devika Abeyratne J

P. Kumararatnam J

COUNSEL : Mr.Chamara Wannisekara with Mr.Dineth

Kaushalya and Ms.Sashika Wijeratne for
the Appellant.
Ms.Maheshika Silva SSC for the
Respondent.

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ARGUED ON : 19/11/2021

DECIDED ON : 08/12/2021

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JUDGMENT

P. Kumararatnam J

The above-named Accused-Appellant (hereinafter after referred to as the

Appellant) was indicted by the Attorney General under Sections 54(A) (b) and
54(A) (d) of the Poisons, Opium and Dangerous Drugs Ordinance as amended
by Act No. 13 of 1984 for Trafficking and Possession respectively of 14.76
grams of Heroin on 18th November 2012 in the High Court of Colombo.

After the trial the Appellant was found guilty on both counts and the Learned
High Court Judge of Colombo has imposed life imprisonment on both counts
on 25th of June, 2020.

Being aggrieved by the aforesaid conviction and sentence the Appellant

preferred this appeal to this court.

The Learned Counsel for the Appellant informed this court that the Appellant
has given consent to argue this matter in his absence due to the Covid 19
pandemic. During the argument he was connected via Zoom from prison.

On behalf of the Appellant following Grounds of Appeal are raised.

1. The Learned High Court Judge has failed to satisfy the test of credibility
by analysing the consistency of the testimony of witnesses and
therefore the Learned High Court judge erred in law by convicting the
appellant on the evidence of the prosecution.
2. The Learned High Court Judge had not adequately considered the
probability of the raid.

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 3. The trial judge has incorrectly rejected the accused’s version.

Background of the case.

On 18/11/2010 PW01 SI Udara Chaturanga Premasiri attached to Police

Narcotic Bureau had received information from PC 38993 Padmakumara
about trafficking of Heroin near Cargills Food City in Maradana through a
green coloured three-wheeler bearing No.YE 5361 by a person called Baba.
He had left for the raid accompanied by 07 other police officers attached to
Police Narcotic Bureau after completing all necessary formalities. The team
had left the bureau at 8.55 am and reached the Maradana Bus Halt around
9.20 am as per the information.

The team had waited near the Maradana Bus Halt and the informant had
come there around 9.30 am and had met PW02 PS38993 Padmakumara and
had re-confirmed that the Appellant was planning to traffic drugs on that
day. After taking the informant into the vehicle the police party had
positioned themselves near Maradana Cargills Food City and waited about
15 minutes. At that time as per the information that particular three-wheeler
had arrived and parked after passing the police vehicle. PW01 along with
PW02 had gone up to the three-wheeler, displayed their official identity cards
to confirm their identities and directed the Appellant to alight from the three-
wheeler. The Appellant who was wearing a white colour shirt and a black
trouser had anxiously alighted from the vehicle. When he was subjected to a
body check PW01 had found a parcel wrapped in a grocery bag from his right
trouser pocket which contained a substance like Heroin. In his left pocket a
mobile phone and some documents were found by the police. On a field
examination the substance found in the possession had reacted for Diacetyl
Morphine alias Heroin. Hence the Appellant was arrested for possession of
Heroin around 9.50 am. The police party had then concluded their
investigation and returned to the Bureau at 10.30 am.

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At the Police Narcotic Bureau, the Heroin was properly weighed and sealed
after obtaining the thumb impression of the Appellant. The parcel weighed
about 60 grams and was marked as production number 61/2012. The
witness had handed over the parcel to the reserve police officer IP
Rajakaruna. At the trial he had properly identified the production and the
Appellant.

PW02 PC Padmakumara who had received the information and participated

in the raid along with PW01 could not give evidence as he was subjected to
an acid attack when he was in the course of arresting a suspect at
Warakapola. Due to the acid attack, he had lost sight in both the eyes when
this case was taken up for trial. Due to his absence PW03 PC 15109
Rajapaksha who was a member of the raiding team had given evidence.

PW06 IP Rajakaruna to whom the productions were handed over by PW01

had given evidence and confirmed that he handed over the same to the
Government Analyst on 21/11/2012 and identified the production and the
Government Analyst Receipt which had been marked as P8 in the trial. In
the receipt the Government Analyst had confirmed that the productions
pertaining to this case had been handed over by PW06 IP Rajakaruna with
the seals intact.

PW07 Assistant Government Analyst Mrs.Kodithuwakku had given evidence

and confirmed that the parcel marked as PR 61/2012 had contained 14.76
grams of pure Heroin. The Government Analyst Report was marked as P8 at
the trial. Her qualifications and expertise in the field of narcotics have been
admitted under Section 420 of the Code of Criminal Procedure Act No. 15 of
1979 by the defence.

After the close of the prosecution case defence was called and the Appellant
had made a lengthy dock statement and denied the charges.

In the 1st ground of appeal the Appellant contends that the Learned High
Court Judge has failed to satisfy the test of credibility by analysing the

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consistency of the testimony of witnesses and therefore the Learned High
Court judge erred in law by convicting the appellant on the evidence of the
prosecution.

In this case PW01 had given very clear evidence regarding the raid and the
arrest of the Appellant. The prosecution was unable to call PW02 who
received the information and went along with PW01 to arrest the Appellant.
PW02 PC 38993 Padmakumara was subjected to an acid attack when he
went to arrest an accused while serving at Warakapola Police station. As both
his eyes were damaged rendering him blind due to the said attack, he could
not come to court to give evidence in this case. But the prosecution had
called PW03 PC 15109 Rajapaksha who was also part of the team during the
raid.

According to PW03 when PW01 and PW02 went to arrest the Appellant he
was seated in the vehicle which was parked 20 meters away from the place
of arrest and had observed them through the window of the vehicle. He had
clearly witnessed that the Appellant was checked inside and outside of the
three-wheeler by PW01 and PW02.

According to section 134 of the Evidence Ordinance:

“No particular number of witnesses shall in any case be required for

the proof of any fact”

In The Attorney General v Devunderage Nihal S.C Appeal 154/10 dated

12/05/2011 the Court held that:

“It is a well-established principle that the prosecution is not required to

lead the evidence of a number of witnesses to prove its case. In a similar
case as the present instance, Jayasuriya J in A.G. v Mohamed Saheeb
Mohamed Ismath C.A.87/97 decided on 13.7.1999 stated that “There
is no requirement in law that evidence of a Police Officer who has
conducted an investigation into a charge of illegal possession of heroin,
should be corroborated in regard to material particulars emanating
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 from an independent source. Section 134 of Evidence Ordinance states
that “No particular number of witnesses shall in any case be required
for the proof of any fact. The principle has been applied in the Indian
Supreme Court where the conviction rested solely on the evidence of a
solitary witness who gave circumstantial evidence in regard to the
accused’s liability. The Privy Council upheld the conviction entered by
the trial judge and adopted the judgment of the Supreme Court in
Muulluwa v State of Madhya Pradesh AIR 1976 S.C.198. This principle
has been adopted with approval and applied in the judgment of
G.P.S.Silva J. in Wallimunige John v The State 76 NLR 488. King v
N.SA. Fernando 46 NLR 255. The principle affirmed is that testimony
must be weighed and not counted. Justice Vaithylingam dealing with a
bribery charge laid down for the future legal fraternity the principle that
even in a bribery case, that there is no legal requirement for a sole
witness’s evidence to be corroborated. No evidence even of a police
officer who conducted a raid upon a bribery charge is required by law
to be corroborated. Gunasekara v A.G. 79 NLR 348”.

Considering above mentioned judgment a single witness’s evidence is

sufficient to prove a case beyond reasonable doubt against an accused in a
criminal trial. In this case the prosecution even though they could have led
only PW01’s evidence, called PW03 as well to corroborate the evidence of
PW01 with regards to the raid.

The counsel for the Appellant argues that the PW03 had given contradictory
evidence against PW01’s evidence which affect the root of the case. In this
case PW03 had not given contradictory evidence but he had given evidence
based on what he had witnessed while he was seated inside the police
vehicle. Both PW01 and PW03 mentioned in their evidence that the Appellant
was searched in and out of the three-wheeler in which the Appellant arrived.
Hence no contradictory evidence is adduced by the prosecution in this case.

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In the second ground of appeal the Appellant argued that the Learned High
Court Judge had not adequately considered the probability of the raid.

PW01 had vividly explained to the court as to how this raid was conducted
and the Appellant was arrested. Whatever the productions necessary to
prove the case were produced and marked in court. The police had conducted
further investigation regarding the Appellant’s involvement in any other drug
dealings. That investigation had been carried out by a separate police team
after obtaining a 07 days detention order from the relevant court. As further
investigation has nothing to do with the present case those evidence with
other productions is not marked and produced in this case. Hence the
prosecution case will not fail the test of probability.

In the case of Wickremasuriya v. Dedoleena and others 1996 [2] SLR 95

Jayasuriya J held that;

“A judge, in applying the Test of Probability and Improbability relies

heavily on his knowledge of men and matters and the patterns of
conduct observed by human beings both ingenious as well as those
who are less talented and fortunate”

His Lordship further held that;

“If the contradiction is not of that character the Court ought to accept
the evidence of witnesses whose evidence is otherwise cogent having
regard to the Test of Probability and Improbability and having regard
to the demeanour and deportment manifested by witnesses. Trivial
contradictions which do not touch the core of a party’s case should not
be given much significance, especially when the probabilities factors
echo in favour of the version narrated by an applicant”

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In Iswari Prasad v. Mohamed Isa 1963 AIR (SC) 1728 at 1734 His Lordship
held that;

“In considering the question as to whether evidence given by the

witness should be accepted or not, the court has, no doubt, to examine
whether the witness is, an interested witness and to enquire whether
the story deposed to by him is probable and whether it has been
shaken in cross-examination. That is whether there is a ring of truth
surrounding his testimony.”

Justice Mackenna in “Discretion”, The Irish Jurist, Vol.IX (new series), 1 at

10 has said;

“When I have done my best to separate the true from the false by these
more or less objective tests, I say which story seems to me the more
probable, the plaintiff’s or the defendants, and If I cannot say which, I
decide the case, as the law requires me to do in defendant’s favour.”

Guided by the above cited judgments I conclude that the learned High Court
Judge had adequately applied the probability test and come to a correct
finding. Hence it is incorrect to say that the Learned High Court Judge had
not adequately considered the probability of the raid.

Finally, the Appellant contends that the trial judge has incorrectly rejected
the accused’s version.

Learned High Court Judge in his judgment adequately considered the dock
statement of the Appellant and had given reasons as to why he disbelieves
the same. The position taken by the Appellant had been put to PW01 and he
had vehemently denied all such suggestions. Hence the defence had failed to
create any doubt in the prosecution case.

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In this case the investigating officers had received specific information that
the Appellant was travelling with Heroin in a green coloured three-wheeler
bearing No.YE 5361. Accordingly, the raid was arranged and the Appellant
was taken into custody along with the Heroin he was carrying. Considering
this evidence there is no improbability occasioned. Their evidence pertaining
to the raid was clear, cogent and without any contradiction or ambiguity.
Considering all the circumstances their action cannot be faulted at any stage
of the raid. Hence the appeal grounds advanced by the Appellant are devoid
of merit due to aforesaid reasons.

Accordingly, we affirm the conviction and the sentence imposed and dismiss
the appeal.

Appeal dismissed.

The Registrar is directed to send a copy of this judgment to the High Court
of Colombo along with the original case record.

JUDGE OF THE COURT OF APPEAL

DEVIKA ABEYRATNE, J

I agree.

JUDGE OF THE COURT OF APPEAL

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