038-NLR-NLR-V-36-LA-HARPE-v.-BEEBE.pdf
104AKBAR J.—La Harpe v. Beebee.
1934Present: Akbar J.
LA HARPE v. BEEBEE.
710—P. C. Galle, 1,732.
Opium—Unlawful possession—Distinction between having and possessing—
Ordinance No. 5 of 1910, ss. 5 and 8—Penal Code, s. 289.
Under section 5 of the Opium Ordinance, there is a distinction drawnbetween the act of “ having ” and of “ keeping ” in possession, and it isonly the latter offence that is penalized under section 8.
Where a person is found guilty of having opium in his possession, theoffence is punishable under section 289 of the Penal Code.
^^PPEAL from a conviction by the Police Magistrate of Galle.
H. V. Perera (with him Kariapper), for appellant.
Wendt, C.C., for respondent.
Cur. adv. vuk.
February 16, 1934. Akbar J.—
Mr. Perera has pressed this appeal on a question of law on which I thinkhe is entitled to succeed.
The accused in this case was charged with unlawful possession of 2ounces and 126 grains of opium without a licence on the day in questionand convicted under section 5 of Ordinance No. 5 of 1910, punishableunder section 8 of the same Ordinance.
The evidence as accepted by the Magistrate was that when the policeraided she was seen to rim towards the kitchen, and, in the very act ofthrowing something, her hand was held by a police sergeant; and she hadin her hand at that time a tin containing 14 packets of opium. Anotherpacket of opium was found in a bed under a pillow. From the PoliceInspector’s evidence it is clear that this accused is a married woman andthat she was living with her husband and mother in the house and thatthe Inspector could not say whose room it was where the opium was found.So that the learned Magistrate was right in excluding from his considera-tion the packet of opium which was found under the pillow. We aretherefore left with this one bit of evidence, namely, that accused was foundwith 14 packets of opium which must be something less than the totalopium found and which aggregated in all to 2 ounces and 126 grains whenshe was arrested by the sergeant.
The point of law stated by Mr. Perera was that under the Opium Ordi-nance—section 5—there is a clear distinction made between mere havingand keeping in one’s possession, and that under the penal section 8 onlythe keeping in possession was penalized. Therefore, if an accused personis guilty of the offence of having in one’s possession he or she cannot beconvicted under section 8 and punished under section 8, but can only bepunished under section 289 of the Penal Code. This is not a new inter-pretation put on these two sections by Mr. Perera for the first time,because he took the same point in the case of King v. Ambalavanar1 in.
* (1922) 4 C. L. R. 115.
AKBAR J.—La Rarpe t>. Beebee.
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which the same distinction was given effect to by the Chief Justice. Heheld there that there are two definite sets of offences with which section 5deals, and that the offence under section 8 of the Ordinance was theoffence of keeping in one’s possession and that having in one’s possessionmeant only a brief and temporary possession, and that if the facts provedthat possession was brief and temporary, the offence was that of havingthe opium and not keeping in one’s possession. In that case the ChiefJustice altered the conviction from one under section 8 to one undersection 289 of the Penal Code, and sentenced the accused to a fine ofRs. 100. This case has been recently followed by my brother Poyser inS. C. Nos. 444-447, P. C. Jaffna, No. 19,867 (S. C. Minutes of January 19,1934). In that case the evidence was held to amount to only a brief andtemporary act and the conviction was altered to one under section 289 ofthe Penal Code.
Mr. Wendt, Crown Counsel, admits that he has nothing to say againstthe law as stated in these two cases. I am therefore left now with theconsideration of the evidence in this case.
As I have stated before, the accused is a married woman, and althoughthe witnesses for the prosecution say that they saw her seated in theverandah with something in her hand they are not prepared to say that itwas this identical tin which was afterwards found in her hand when sheran to the back of the kitchen and which she attempted to throw. Thelearned Magistrate seems to infer that it is the same tin and he has drawnthis inference because the police led, what I consider to be, unfair evidencein this case, namely, that the Inspector had received information thataccused was carrying on a sale of opium and that acting on that infor-mation he had purchased two packets from her on two successive daysand that he was not prepared to disclose the name of the informant.Evidence of this kind is bound to prejudice a Magistrate’s mind, and I amsurprised that an Inspector of the standing of Mr. de la Harpe led suchevidence and I hope he will not lead such evidence again. I am alsosurprised that the Magistrate referred to his evidence in two or three placesin his judgment, and referred also to the further fact that a marked 10-centcoin was found among the production seized in this case, suggesting thatthis woman had carried on sales previously. It is perhaps owing to thishearsay evidence that he has drawn the inference that the somethingfound in the woman’s hand when she. was seated in the verandah wasnecessarily the tin of opium which was found in her hand when she ranto the back of the kitchen. As I said, the evidence does not prove this.
Thus, I am left with these facts—that this woman, as soon as the policecame there, closed the front door and ran towards the back of the kitchenand was trying to throw something which was found by the police to be14 packets of opium. From this, one cannot definitely and positivelydraw the inference that this trading in opium was a business carried on bythe woman herself. If anything, it points to an effort—a natural efforton the part of the wife—to save her husband by trying to do away withevidence that might incriminate him. If so, it was only a brief andtemporary possession, and, therefore, the offence will be, according to theauthorities I have quoted, “ having in her possession the 14 packets of
196
DRIEBERG J.—Majeeda v. Paramanayagam.
opium ” and not that of keeping in her possession. The conviction willhave to be altered to .one under section 289 of the Penal Code, and the finereduced from Rs. 1,000 to one of Rs. 100 or in default one month’s rigorousimprisonment.
I may add that the Magistrate seems to think that the penalty pre-scribed under section 8 of the Opium Ordinance is a penalty of Rs. 1,000for every ounce. This, of course, is entirely wrong.
The appeal is dismissed subject to this variation in the sentence.
Sentence varied.