Documentary Proof in This Regard Was Produced at the Trial
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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA ------------------------------------------------------------------------------- In the nature of an Appeal to the Supreme Court in terms of Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka. Officer-in-Charge Special Crimes Division, Colombo. Complainant SC Appeal No. 155/14 High Court Colombo Appeal HCMCA No. 106/08 vs. Magistrates Court Maligakanda Case No. 22070/05 Mananage Susil Dharmapala No. 132C, Pitumpe Road, Padukka. Accused AND BETWEEN Mananage Susil Dharmapala No. 132C, Pitumpe Road, Padukka. Accused – Appellant vs. 1 Officer-in-Charge Special Crimes Division, Colombo. Complainant – Respondent AND NOW BETWEEN Mananage Susil Dharmapala No. 132C, Pitumpe Road, Padukka. Accused – Appellant – Appellant vs. Officer-in-Charge Special Crimes Division, Colombo. Complainant – Respondent - Respondent Before: Hon. Priyantha Jayawardena, PC Hon. E.A.G.R. Amarasekara Hon. Yasantha Kodagoda, PC Counsel: Kapila Suriyaarachchi with Anuradha Bandara and Dilini Wijesekara for the Appellant. Yuresha De Silva, Senior State Counsel for the Respondent. Argued on: 25th June 2020 2 Written Submissions: On behalf of the Appellant, tendered on 16th October 2014 and further written submissions tendered on 4th August 2020. On behalf of the Respondent, tendered on 7th August 2020. Decided on: 28th June, 2021 Judgment Yasantha Kodagoda, PC, J. Background On 16th June 2005 the Complainant – Respondent – Respondent (hereinafter referred to as the “Respondent”) “Officer-in-Charge, Colombo Crimes Division, Sri Lanka Police” [erroneously referred to in the caption of the Petition by which Special Leave to Appeal was sought, as the “Officer-in-Charge, Special Crimes Division”] instituted criminal proceedings against the above-named Accused – Appellant – Appellant (hereinafter referred to as the “Appellant”) in the Magistrate’s Court of Maligakanda (Case No. 22070/05). In the charge sheet attached to the complaint filed by the Respondent in terms of section 136(1)(b) of the Code of Criminal Procedure Act, it was alleged that the Appellant had committed the following offences: 1. That on or about 8th April 2005, at the Public Library in Colombo 7 situated within the jurisdiction of the Magistrates Court, exhibited for sale, gave on rent, or possessed for trading purposes, unlawfully prepared copies of a record named ‘Galana Gangaki Jeewithe’ containing songs titled ‘Yowun Wasanthae’ and ‘Onna Ekoomath’ which are owned and lyrics composed by Sunil Ariyaratne, and thereby committed an offence punishable in terms of section 178(2) of the Intellectual Property Act, No. 36 of 2003. 3 2. That on or about the same date, place and in the course of the same transaction of the afore-stated offence, exhibited for sale, gave on rent, or possessed for trading purposes unlawfully prepared copies of a record named ‘Galana Gangaki Jeewithe’ containing 15 songs including the song titled ‘Onna Ekoomath Eka’, of which the music was composed by, sung, and is owned by Mirihana Aarachchige Nanda Malini, and thereby committed an offence punishable in terms of section 178(2) of the Intellectual Property Act, No. 36 of 2003. 3. That on or about the same date, place and in the course of the same transaction of the afore-stated offence, exhibited for sale, gave on rent, or possessed for trading purposes unlawfully prepared copies of a record named ‘Galana Gangaki Jeewithe’, which contained songs titled ‘Sannaliyane’ and ‘Galana Gangaki Jeewithe’ owned by Mahagamage Raveendra Mahagamasekera and originally produced by his father, and thereby committed an offence punishable in terms of section 178(2) of the Intellectual Property Act, No. 36 of 2003. On 22nd September 2005, after the charges were read out to the Appellant, he pleaded ‘not guilty’, and accordingly the case was taken up for trial. Witnesses Sub Inspector Roshan Hewawitharana, Sub Inspector Prasad Weeraratne, Professor Sunil Ariyaratne, Visharadha Mirihana Arachchige Nanda Malini, and Mahagamage Raveendra Mahagamasekera testified for the prosecution. No evidence was presented for and on behalf of the Appellant. At the end of the trial, the learned Magistrate delivered Judgment finding the Appellant ‘guilty’ as charged, and accordingly convicted him. He was sentenced to a substantive term of 6 months imprisonment suspended for a period of ten years, and to a fine of Rs. 5,00,000/= with a default sentence of oneyear imprisonment. The Appellant appealed against the afore-stated conviction and sentence to the High Court of the Western Province holden in Colombo. Following the hearing of the Appeal, delivering Judgment dated 20th May 2014, the learned High Court Judge affirmed the conviction and sentence imposed by the learned Magistrate, and accordingly dismissed the Appeal. 4 The Appellant sought from this Court, Special Leave to Appeal against the Judgment of the High Court of the Western Province. On 4th September 2014, the Supreme Court granted Special Leave to Appeal in respect of the Judgment of the High Court of the Western Province, on the following two questions of law: 1. Has the High Court erred in law by failing to apply the law with respect to the productions marked “P2”, while the evidence of the prosecution has created a reasonable doubt as to the integrity of the said productions? 2. Has the High Court failed to consider the fact that the prosecution has not proved its case beyond reasonable doubt? The case for the prosecution presented before the learned Magistrate can be summarized in the following manner: According to the evidence of Professor Sunil Ariyaratne, Visharadha Mirihana Aarachchige Nanda Malini, and Mahagamage Raveendra Mahagamasekera, upon receiving information that a particular person was illegally selling at the compound of the Colombo Public Library, music compact disks (music CDs) containing songs in respect of which they held proprietary rights, on 8th April 2005, they have gone to the Colombo Crimes Division of the Sri Lanka Police and lodged complaints relating to this matter. The complainants alleged that several video compact disks (VCDs) containing such unlawfully copied songs were also being sold at the same location. On the same day, a team of police officers led by Sub Inspector (SI) Roshan Hewawitharana conducted a raid at the premises of the Colombo Public Library using Sub Inspector Prasad Weeraratne as a decoy. When the police party reached the premises of the Colombo Public Library the time was around 3.10 pm, and there had been an exhibition at the premises with multiple stalls. The Appellant was at one stall. On a table near the Appellant were some compact disks for sale. The compact disks (CDs) for sale included CDs titled ‘Galana Gangaki Jeewithe’ and ‘Sannaliyane’. Decoy Weeraratne had inquired from the Appellant about the price at which the two CDs were being sold, and the Appellant had responded that each 5 one was being sold at Rs. 150/=. Thus, the decoy had given the Appellant a 500/= Rupee note, which SI Hewawitharana had previously given him at the police station to be used during the raid, and purchased from the Appellant two CDs which contained the afore- stated titles. The Appellant had returned change of Rs. 200/=. As soon as the transaction was completed, the decoy had given the previously agreed beckoning signal and the rest of the police officers including SI Roshan Hewawitharana had come to where SI Weeraratne and the Appellant were. The Appellant had been arrested by SI Hewawitharana. He had recovered the 500/= Rupee note which was tendered by the decoy to the Appellant from the right-hand trouser pocket of the Appellant. At the time of the arrest, further eight CDs titled ‘Galana Gangaki Jeewithe’ ’had been taken into the custody by the police from the possession of the Appellant. Thereafter, the Appellant had been taken in police custody to the police station along with the CDs. At the police station, officers have got down an audio CD playback device to play the CDs and also a television set, and played the CDs. They had done so in the presence of the three complainants, having got them down to the police station following the raid. They have listened to the songs in the CDs. There is also evidence that at the police station, the police had shown to the complainants a film contained in another CD recovered from the Appellant’s possession. It is necessary to note that the three charges contained in the charge sheet relate to one out of the two CDs purchased from the Appellant by the decoy SI Weeraratne, namely the CD titled ‘Galana Gangaki Jeewithe’. Following the examination of the CDs by the police officers and the complainants at the police station by listening to and viewing them, they had been duly sealed and placed in safe custody, after registering the productions under reference ‘PR 46/05’. It is in evidence that for the purpose of sealing the productions the investigators have used both the left thumb impression of the Appellant and the police seal. Several items relating to the raid, namely (i) the 500/= Rupee note bearing No. H/79 420550 which was used to purchase the two compact disks, (ii) the two compact disks that were so purchased, and (iii) the eight compact disks that were taken into custody from the possession of the Appellant, were produced at the trial and marked “P1” (currency note), “P2A” and “P2A1” (two CDs purchased by the decoy from the Appellant) and “P3” (the eight CDs taken by the police from the possession of the Appellant). 6 According to Professor Sunil Ariyaratne, the compact disk titled ‘Galana Gangaki Jeewithe’ was played at the police station in the room of a police officer. He observed that the disk contained three songs of which he had composed the lyrics, namely ‘Onna Ekomath’, ‘Bambarindu Bambarindu’ and ‘Yowun Wasanthe’.