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AG petitions SC about acquitted drug traffickers
View(s):The Attorney General (AG) this week petitioned the Supreme Court to set aside the acquittal by a High Court-at-Bar of five persons accused of importing, possessing and trafficking nearly 200kg of heroin, saying the prosecution was not able to obtain a fair trial and judgment.
The bench comprised Justices Adithya Patabendige (President), Majula Tilakaratne and Mahesh Weeraman. The respondents were Jayakody Arachchige Anura Chaminda Appuhamy, Thavarasa Sudakaran, Aglesa Pille Thavarasa, Y A L P Appuhamy alias Yaddehi Arachchige Lasantha Priyalal and Kandiyah Chandrakumar.
The respondents were apprehended by the Navy in the high seas onboard a multi-day fishing trawler. The AG indicted them last year on charges of jointly committing offences punishable under the Poisons, Opium and Dangerous Drugs Ordinance.
In their possession were 248 separate packets of heroin in 13 polysac bags, the appeal states. The net weight of heroin was found to be at 196.986kg, the purity of which was 77.711% as confirmed by the Government Analyst. In September 2022, the defendants were remanded and the case was fixed for pre-trial conference.
At the time of granting bail to the third respondent, who is the owner of the vessel carrying the drugs, the judge who was later designated as the President of the three-judge bench made a “predetermined conclusion” that the first information received from the State Intelligence Service which led to the arrests was “improbable”.
Stating that this “pre-determined conclusion” made at the time of granting bail regarding evidence would prejudice the proceedings, the AG requested a recusal of the said judge, the appeal states. However, the request was refused.
On April 6 this year, the respondents were acquitted. The AG maintains that there was a “litany of misdirections on law” in this judgment which is also “replete with serious errors of law”.
“The Appellant states that the High Court-at-Bar erred in law by its failure to come to specific findings on facts/and or law in relation to each and every ingredient of the offences in the three counts which only could have enabled the High Court-at-Bar to enter a verdict of not guilty or otherwise in this case; and, hence constituted a mistrial,” the appeal continues.
“The Appellant submits that the High Court-at-Bar seriously misdirected itself on the elementary criminal law principles of burden of proof; and, the standard of proof and made errors of law to the detriment of the prosecution case.”
The appeal states that unequal time was granted to the prosecution as opposed to the defence in preparing and leading evidence at the trial.
“The prosecution was not accorded the opportunity on deciding the order of leading witnesses, in that the trial commenced just two working days after the pre-trial conference, when prosecution witness No (1) was abroad on an official assignment but to be made available shortly,” it said.
The AG maintained that there were “continuous interventions with prosecution witnesses affecting the testimony and its effect in evidence for the prosecution”.
“The High Court-at-Bar considered evidentiary standards unknown to the law and/or adopted an impermissible threshold to consider the prosecution case,” the appeal said. The bench had failed, too, “to consider the inconsistent and contradictory positions taken up by the defence after deciding that there was a case to proceed”. The AG has petitioned the Supreme Court to reverse and set aside the judgment of the High Court-at-Bar; to order that each of the respondents be remanded; and to enter an order of conviction against each of the respondents and to sentence them according to law.
The apex Court has also been requested to call for the High Court case records and “to examine the same for propriety and the legality of the proceedings of the case”.
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