SLR - 2005 Vol.1, Page No - 341341

MACHCHAVALLAVAN vs

OIC, ARMY CAMP, PLANTAIN POINT, TRINCOMALEE ANDOTHERS

SUPREME COURTBANDARANAYAKE.J.UDAULGAMA,J.ANDFERNANDO, J.SC. APPEAL No. 90/2003HC. APPLICATIONS No. 244/90AND 245/9422nd SEPTEMBER AND 19th OCTOBER, 2004 AND 16th MARCH, 2005

Writ of Habeas Corpus - Loss of petitioner's sons after removal by Army - Right to life - Articles 13(4) and 126(2) of the Constitution - Duty of Court of Appeal to have referred the entire matter to the Supreme Court - Article 126(3) of the Constitution.

The appellant sought two writs of habeas corpus from the Court of Appeal in respect of his two sons removed after a cordon and search operation by officers of the Army Camp, Plantain Point and who had thereafter disappeared. These applications were referred to a Magistrate who inquired into them and recommended to the Court of Appeal against issuing the writs as the

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responsibility for the loss of the corpus could not be proved against the 1st respondent or any other army officer individually. The Court of Appeal issued . rule nisi and after inquiry dismissed the applications, particularly due to the unsatisfactory evidence of the appellant after six years that he too was removed by the army. But the appellant's version was supported by the complaints he made to the police station, Trincomalee on 19.12.1992 (P1), Civilian Information Office Colombo, on 21.09.1990 (P2), and to the President on 06.07.1990(P5) regarding the corpora. They were arrested on 06.07.1990. There is also the evidence of one Jesudasan who was arrested with the corpora.

One of the questions on which leave to appeal was granted was whether the Court of Appeal failed to refer the entire matter to the Supreme Court under Article 126(3) of the Constitution as there was prima facie evidence of violation of fundamental rights in view of the disappearance of corpora in the light of Article 13(4) (right to life) and recent judgments of the Supreme Court in the matter which gave a broad construction to Articles 11, 13(4), 17 and 126(2) granting the right of petition to the legal representatives of the deceased person, affected by violence at the hands of a public officer.

HELD:

(1) There was prima facie evidence of violation of fundamental rights contrary to Article13(4) of the Constitution.

(2) The Court of Appeal should have referred the entire matter to the Supreme Court under Article 126(3).

(3) The burden was on the Court of Appeal to make such reference and hence the time bar in Article 126(2) had no application particularly as the relief sought by the appellant consisted of relief in habeas corpus applications.

(4) There was sufficient evidence that the cordon and search operation was conducted by the Plantain Point Army Camp even if the identity of the respondents was not established.

(5) As the evidence showed that the corpora had been removed by the army, the State was liable for the acts of the army officers and the State could be ordered to pay compensation and costs to the appellant although in the absence of individual responsibility for the removal exemplary costs may not be ordered against the individual respondents.

Cases referred to1. Shanthi Chandrasekeram v D. B. Wijetunga and Others (1992) 2 Sri LR 293

2. Sebastian M Hongray v Union of India (Air) 1984 SC 1026

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3. Kotabadu Durage Sriyani Silva v Chanaka Iddamalgoda (2003) 1 Sri LR 14 (preliminary objection)

4. Kotabadu Durage Sriyani Silva v Chanaka Iddamalgoda (2003) 2 Sri LR 63 (merits)

5. Rani Fernando's case SC FR 700/2002 S. C. minutes of 26.07.2004

6. R v. Vrixton Prison Governor Ex-Parte walsh (1985) AC 154

7. R v. Durham Prison Governor Ex-Parte Hardial Singh (1984) 1 WLR 704

APPLICATION for writs of habeas corpus

Dr. T. Thirunavukarasu for petitioner appellant.Shyamal A. Coilure 1st respondents.Riaz Hamsa, State Counsel for Attorney-General

Cur.adv.vult

March 31st, 2005

SHIRANI A. BANDARANAYAKE, J.

This is an appeal from the judgment of the Court of Appeal dated 01.07.2003. By that judgment, the Court of Appeal refused to grant a Writ of Habeas Corpus as prayed by the petitioner-appellant. On an application by the petitioner-appellant (hereinafter referred to as the appellant), the Supreme Court granted Special Leave to Appeal on two questions which are set out below :

1. At the time the Court of Appeal made the order in respect of which Special Leave to Appeal was sought, there was prima facie evidence of infringement of the fundamental rights of the corpus at least under Article 13(4) of the Constitution caused by the 1st respondent, or by another State Officer, for whose act the State was liable. In those circumstances, it is arguable that the Court of Appeal should have referred the entire matter for determination by this Court under Article 126(3) of the Constitution;

2. Whether the 1st respondent and or the State are liable for the arrest and the subsequent presumed death of the corpora.

The facts of this appeal, albeit brief, are as follows :

The appellant, being the father of the corpora, filed two habeas corpus Applications (HCA 244/94 and HCA 245/94) in respect of his two sons

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namely Machchavailavan Arumugam and Machchavallavan Mahendrarajah, who were arrested at a cordon and search operation conducted by Plantain Point Army, Trincomalee. At the time of the arrest which took place on 06.07.1990 they were aged 22 years and 25 years, respectively.

The Court of Appeal on 11.09.1995, referred the two applications to the Chief Magistrate, Colombo to inquire into and report upon the said arrest and alleged imprisonment or detention in terms of the 1st proviso to Article 141 of the Constitution. The learned Chief Magistrate held an inquiry and submitted his findings to the Court of Appeal on 14.03.1997. In his report the learned Chief Magistrate had concluded that there was no evidence to establish that the 1 st respondent-respondent (hereinafter referred to as the 1st respondent) either took part in the round-up operation during which the said corpora were alleged to have been taken into custody or was in any manner responsible for the alleged arrest and detention of the said corpora. However, the Court of Appeal, being satisfied that the corpora were detained at the Plantain Point Army Camp after arrest, issued a Rule Nisi on the 1st respondent on 19.07.2000 directing him to bring up the bodies of the said corpora before the Court of Appeal on 17.05.2001.

In response to the aforementioned position, the 1st respondent filed an affidavit dated 15.05.2001 denying the arrest and detention of the corpora by him. He filed another affidavit on 04.10.2001, further clarifying his defense. The Court of Appeal on 01.07.2003, delivered its judgment discharging the Rule Nisi issued on the 1st respondent and dismissed the applications filed by the appellant, holding that the appellant had not succeeded in discharging his burden of proof.

Having set down the factual position in this appeal, I would now turn to examine the two questions on which Special Leave to Appeal was granted.

1. The Court of Appeal should have referred the entire matter for determination by the Supreme Court under Article 126(3) of the Constitution.

Article 126 of the Constitution, deals with fundamental rights jurisdiction and its exercise and Article 126(3) specifically refers to the applications received by the Court of Appeal and reads thus :

"Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition,

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procedendo, mandamus or quo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court."

It is common ground that the appellant preferred his application to the Court of Appeal seeking a mandate in the nature of a writ of habeas corpus directing the respondents who were responsible, for the alleged arrest and the detention of the corpora referred to in the application to produce them before Court.

The 1st and the 4th respondents however were of the view that there was no basis for the Court of Appeal to have referred the application made by the appellant to the Supreme Court. Their position was that, the petition, or the supporting affidavits did not contain any averment or material against any of the respondents cited in the petition. Further it was submitted that, in paragraph (a) to the prayer to the petition, a writ of habeas corpus was prayed for with a direction to the responsible respondents to produce the corpora before the Court of Appeal. In support of this position, learned Counsel for the 1st and 4th respondents relied on the decision in Shanthi Chandrasekeram v. D. B. Wijetunga and others (1) and submitted that, there was no prima facie evidence of an infringement of the fundamental rights of the corpora by a party to the said applications for the Court of Appeal to refer the instant application to the Supreme Court.

Learned Counsel for the 1 st and 4th respondents, also submitted that, the appellant in his original habeas corpus applications has not raised the question of any violation of fundamental rights and did not do so even in his application for Special Leave to Appeal. Further it was submitted that no allegations based in terms of Articles 11, 13(1), 13(2) or 13(4) were taken up by the appellant at any stage.

Learned Counsel for the 1st and 4th respondents, also took up the position that the appellant had not made the applications within the stipulated time, in terms of Article 126(2) of the Constitution.Article 126(3)of the Constitution, referred to earlier, does not state that all applications in the nature of obtaining writs from the Court of Appeal be referred to the Supreme Court. Such reference is necessary only if there

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is evidence to the effect that there is an infringement or an imminent infringement of fundamental rights. Article 126(3) of the Constitution is quite precise in its position and the said Article states clearly that if it appears to the Court of Appeal, while in the course of hearing an application for orders in the nature of writs of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto, that there is prima facie evidence of an infringement or an imminent infringement of fundamental rights, such matter should forthwith be referred to the Supreme Court for determination. In Shanthi Chandrasekeram's case (Supra), in the course of hearing of the habeas corpus applications filed by three petitioners, the Court of

Appeal considered that there was prima facie evidence of the infringement of Articles 11,13(1) and 13(2) of the Constitution and made the reference to the Supreme Court. Considering the infringements referred to above, in that case, this Court held that the alleged infringement of Article 11 could not have been the basis of reference under Article 126(3), firstly, because there was only an assertion and no prima facie evidence of such infringements, and secondly because there was no averment or evidence that the infringements, were by a party to the habeas corpus applications. With reference to Articles 13(1) and 13(2), the Supreme Court held that the detainee had been arrested in violation of Article 13(1) and had been detained in violation of Article 13(2).

Accordingly, the notable feature in this provision is that there should be prima facie evidence of an infringement or an imminent infringement in the matter before the Court of Appeal. It would also be necessary that there is an averment or evidence that the infringements were by a party to the habeas corpus application. A question arises at this point as to whether it is necessary that the petitioner should bring it to the notice of the Court of Appeal of such an infringement. Article 126(3) does not refer to any such requirement casting the onus on the petitioner to move Court with his application. Instead, what the Article professes is that, if it appears to the Court of Appeal, that there is prima facie infringement or an imminent infringement in terms of fundamental rights, then the Court should forthwith refer. such matter for determination by the Supreme Court. The burden therefore lies with the Court of Appeal and it would be the duty of the Court to decide, in the course of the hearing of a writ application, as to whether there is an infringement of a fundamental right in relation to the complaint made by the petitioner.

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There is one other matter that I wish to state briefly. Learned State Counsel had stated in his written submissions that "if every habeas corpus application, which invariably refers to the arrest and disappearance of a corpus, is to be referred to the Supreme Court in terms of Article 126(3) of the Constitution, it could lead to an abuse of this provision and a mockery of justice".

It is to be borne in mind that, it is not every habeas corpus application that would be referred to the Supreme Court in terms of Article 126(3) of the Constitution. Provision is made in terms of Article 126(3) for the Court of Appeal to refer to the Supreme Court the writ application only when it appears to such Court that there is prima facie evidence of an infringement or an imminent infringement of the provisions of Chapter Ml or Chapter IV by a party to such application. Therefore it would not be correct to say that all habeas corpus applications would invariably be referred to the Supreme Court by the Court of Appeal as such reference should strictly be in terms of Article 126(3) of the Constitution.

In the instant application, the complaint made by the appellant related to the arrest, detention and the subsequent disappearance of the corpora. The appellant, being the father of the corpora, had made a complaint to Civilian Information Office on 21.09.1990 giving information regarding missing persons (P2). In that, the appellant had stated that on 06.07.1990, the Army Officers at Linga Nagar took two of his sons, referred to in his appeal, into custody along with him and several others and later they were taken to the Plantain Point Army Camp at Trincomalee. According to the appellant, he was released with two others around 5.00 p.m. in the evening. The appellant had stated in the information sheet that his sons were not released at any stage and that on inquiring from the Plantain Point Army Camp

he was informed that his sons are not in the said Army Camp. The appellant had also sent a letter to His Excellency the President on 21.09.1990 informing His Excellency the disappearance of his sons. In this communique (P5) the appellant had described how they were arrested on 06.07.1990. According to him the corpora and the appellant were at home on 06.07.1990 when there was a cordon and search operation around6.00 a.m. Thereafter they were taken to Palaiyoothu College until the arrival of the Commander. The appellant had stated that the Grama Niladhari of the area had taken down the details of the persons who were so arrested and a copy of that document was given to the Commander. Thereafter the

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Army personnel took all of them to the Plantain Point Army Camp. The appellant and two others were released around 5.00 p.m. on the same day, but not the corpora. The appellant had repeated the aforementioned details in a statement made to the Police Station, Trincomalee on 09.12.1992 (P1).

The appellant had cited the Officer-in-Charge of the Army Camp at Plantain Point Trincomalee as the 1st respondent in his appeal. At the time the Rule Nisi was issued on the 1st respondent, requiring him to bring up the bodies of the corpora before the Court of Appeal on 17.05.2001, he had filed an affidavit before the Court of Appeal on 15.05.2001. In that he had averred that he was not the Commanding Officer of the Plantain Point Army Camp during the time material to this application claimed by the Rule Nisi, but only the Officer-in-Charge of the Military Police Section . of the said Camp during the said period. In a further affidavit filed on 04.10.2001, Major Channa Etipola averred that, at the time material to this complaint, he was only a Lieutenant attached to the Plantain Point Army Camp and the late Brigadier C. L. Wijeyaratne functioned as the Commanding Officer. He further averred that Plantain Point Army Camp was the Headquarters of the 22nd Brigade of the Sri Lanka Army and that there were two major units at the said Plantain Point Army Camp, namely, the Operational Staff and the Logistic/Administrative Straff and the Military Police Camps had come under the supervision of the latter. He had further averred that as a Military Police Officer he has no authority whatsoever to arrest civilians under any circumstances and hence he had not arrested the corpora referred to in this appeal.

It is clear on the evidence that the corpora were arrested and detained in or around 06.07.1990 at a cordon and search operation. According to the appellant this was carried out by the Plantain Point Army Camp. The 1st respondent denies any knowledge or involvement in such an arrest but admits that he was attached to the Plantain Point Army Camp situated at Trincomalee. He had further submitted that the said camp consisted of the Headquarters of the 22nd Brigade of the Sri Lanka Army, the Operational Unit and the Logistic/Administration Branch, Therefore on an analysis of the material placed before this Court, although the 1st respondent may not be responsible for the arrest and detention of the corpora and/or that he has no knowledge whatsoever with regard to the arrest and detention, there is a possibility in all probabilities that the corpora would have been arrested and detained by officers in one or both of the other units of the said Camp. This

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fact is clearly supported by the information given in the complaint made to the Trincomalee Police (P1), complaint made in Colombo to the Civilian Information

Office (P2) and in the letter sent to His Excellency the President in September 1990 (P5). It is inconceivable that civilians would have been permitted to stay in the Plantain Point Army Camp without the permission/ knowledge of the Army authorities, especially at the relevant time where hostilities were high. Therefore it is reasonable to conclude that the corpora were kept in the Army Camp with the knowledge and connivance of the Army officers. Hence Army authorities are responsible to account for the whereabouts of the two sons of the appellant. In such circumstances, would it be correct to say that the appellant had no right to move the Court for grant of writ of habeas corpus? The writ of habeas corpus is a writ of remedial nature and is available as a remedy in all cases of wrongful deprivation of personally liberty. The basis of the writ of habeas corpus is the illegal detention or imprisonment, which is incapable of legal justification and the appellant's complaint involved the liberty of the corpora.

In the instant application, the complaint made by the petitioner related to the arrest, detention and the subsequent disappearance of the corpora. Whilst Articles 13(1 ).and 13(2) refer to the arrest and detention of a person according to the applicable procedure laid down by law, Article 13(4) of the Constitution states that no person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The aforementioned Articles are contained in Chapter III which deals with fundamental rights and falls within the category which speaks of freedom from arbitrary arrest, detention and punishment and prohibition of retroactive penal legislation.

It is therefore evident that the appellant was complaining of an infringement of the provisions contained in Chapter III of the Constitution. Moreover, it is to be borne in mind that the complaint was against the officers attached to the Plantain Point Army Camp who had carried out the cordon and search operation. Therefore the allegations were made against the State which involved the liberty of the corpora. According to the appellant, the corpora and others along with him were taken to the Plantain Point Army Camp. Although the appellant and some others were released later, he had not thereafter heard anything about his sons. In fact he had referred to this position in all his communications

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regarding the arrest, detention and disappearance of his sons and therefore it was not factually correct for the Court of Appeal to have stated that nearly 6 years after the alleged incident the appellant had at the inquiry whilst giving evidence had stated for the first time that he too was taken into custody. The Court of Appeal had taken the view that the appellant's evidence must fail on the promptness test.

The Chief Magistrate, Colombo who held the inquiry on the reference made by the Court of Appeal, in his report dated 19.11.1996 (P7) has clearly stated that the appellant had submitted that the corpora were arrested by the Plantain Point Army Camp. A witness by the name Titus Jesudasan, had said that he too was taken to the Plantain Point Army Camp and had also stated that the said operation was conducted by one Colonel Tennakoon and that one Ajith Kumara had questioned them at the time of the arrest. The 1st respondent of course has denied any involvement. Based on the evidence of the 1 st respondent the learned Chief Magistrate had come to the finding that 1st to 3rd respondents are not responsible for the disappearance of the corpora.

Considering the evidence of Titus Jesudasan referred to by the learned Chief

Magistrate, Colombo in his report, I am of the view that the said witness has corroborated the position taken up by the appellant.

In the light of the above position, it is abundantly clear that the appellant's main ground was that of the disappearance of his sons. Considering the totality of the circumstances of this appeal, the only inference that could be drawn is that both of them must have met an unnatural death. Prima facie such deaths would have to be taken as offences of murder and the important fact would be not to cast any aspersions on as to who had committed the crime, but as a first step to come to the conclusion that the corpora are not alive and that they have met unnatural deaths. In fact in Sebastian M. Hongray v. Union of India2 where a writ of habeas corpus was issued to produce C. Daniel and C. Paul who were taken to Phungrei Camp by the Jawans of 21st Sikh Regiment, Desai J. referring to the persons who were missing stated that,

"Prima facie, it would be an offence of murder......It is not necessary to start casting a doubt on anyone or any particular person. But prima facie there is material on record to reach an affirmative conclusion that both Shri C. Daniel and Shri C. Paul are not alive and have met an unnatural death."

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In the aforesaid circumstances it is beyond doubt that at the time the Court of Appeal made the order, there was prima facie evidence of an infringement of the fundamental rights of the corpora at least in terms of Article 13(4) of the Constitution caused by some State Officers. Article 13(4) of the Constitution does not deal directly with right to life, but states that,

"No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person pending investigation or trial shall not constitute punishment."

Considering the contents of Article 13(4), this Court has taken the position that no person should be punished with death or imprisonment except by an order of a competent court. Further, it has been decided in Kotabadu Durage Sriyani Silva v. Chanaka Iddamalgoda (3) and 4 and in Rani Fernando's case(5) that if there is no order from Court no person should be punished with death and unless and otherwise such an order is made by a competent court, any person has a right to live. Accordingly Article 13(4) of the Constitution has been interpreted to mean that a person has a right to live unless a competent court orders otherwise.

In such circumstances it was apparent that there was an alleged violation of Article 13(4)oftheConstitution.

Therefore, for the reasons aforementioned, I hold that the Court of Appeal should have referred the entire matter for determination by the Supreme Court in terms of Article 126(3) of the Constitution.

2.Whether the 1st respondent and/or the State are liable for the arrest and the subsequent presumed death of the corpus

The appellant stated that his sons were taken into custody on 06.07.1990 by the Plantain Point Army in the course of a cordon and search operation. According to

the appellant after the arrest, his sons were detained in the Plantain Point Army Camp and since then he has not received any information of his sons.

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Learned Counsel for the 1st respondent made several submissions to indicate that the 1st respondent is not responsible for the alleged disappearance of the corpora and that the appeal should be dismissed.

In support of his submissions, learned Counsel for the 1st respondent has relied upon the following positions:

(a) The appellant in his original application for the writ of habeas corpus did not take up the question of violation of his fundamental rights in terms of Article 13(4) of the Constitution ; and

(b) The appellant has not made the complaint within the stipulated time limit of one month from the disappearance of his children.;

(a) The appellant in his original application for the writ of habeas corpus did not take up the Question of violation of his fundamental rights in terms of Article 13(4) of the Constitution ;

The appellant, it is to be borne in mind, preferred an application for a writ of habeas corpus to the Court of Appeal, on the basis of the arrest, detention and the subsequent disappearance of his two children. The appellant therefore did not come  before the Court of Appeal and later to the Supreme Court on the basis of an infringement of Article 13(4) of the Constitution. Whilst the appellant's chief and only contention was on his application for a writ of habeas corpus, it was this Court which had granted leave on the question of an infringement in terms of Article 13(4) of the Constitution. The Supreme Court has the jurisdiction to look into such a question in terms of Article 126(3) of the Constitution. In terms of Article 126(3), it is obvious that the purpose of that Article was to prevent persons from filing different applications in the Supreme Court and the Court of Appeal on the same transaction. Referring to the purpose of the provisions in Article 126, Justice Mark Fernando, in Shanthi Chandrasekeram v. D. B. Wijetunga and others (Supra) stated that,

"Since those provisions do not permit the joinder of such claims, the aggrieved party would have to institute two different proceedings, in two different courts, in respect of virtually identical 'causes of action' arising from the same transaction unless there is express provision permitting joinder. The prevention in such circumstances, of a multiplicity of suits (with their known concomitant) is the object of Article 126(3)."

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It would therefore not be correct for the 1st respondent to take up the  position that, as the appellant has not taken up the infringement of Article 13(4) at the initial stage, that now he cannot urge such violation before the Supreme Court. In fact, it is also to be borne in mind that, the appellant could not have combined a violation of Article 13(4) with an application for a writ of habeas corpus in the Court of Appeal and in the event he had proposed for an application in terms of Article

13(4) of the Constitution, he should have made the application to the Supreme Court and not to the Court of Appeal and in any event, the sole purpose of Article 126(3) of the Constitution is to avoid such multiplicity of actions and therefore the 1st respondent cannot now take up the position that the appellant has failed to urge the infringement in terms of Article 13(4) of the Constitution. On a careful consideration of the provisions of Article 126(3), I hold that, it is the duty of the Court of Appeal to decide whether there is prima facie evidence of an infringement or an imminent infringement of the provisions of the Articles contained in the Chapter on fundamental rights of the Constitution and if so to refer such matter for determination by the Supreme Court. In such circumstances, there is no requirement or a need for the appellant to take up the question of an infringement of Article 13(4) of the Constitution in his application for a writ of habeas corpus in the Court of Appeal.

(b) The appellant has not made the complaint within the stipulated time limit of one month from the disappearance of his children.

Learned Counsel for the 1st respondent submitted that, there was no basis on which the Court of Appeal could have referred the appellant's application in terms of Article 126(3) of the Constitution as he has not complained within one month since the alleged incident as stipulated in Article 126(2) of the Constitution. His position is that the appellant's children were alleged to have been removed from their residence and were taken to Plantain Point Army Camp in June or July 1990, whereas his application praying for mandates in the nature of writs of habeas corpus were filed only in June 1994.

Learned Counsel for the 1st respondent considered that, in a long line of cases, the Supreme Court has consistently held that the time limit of one month stipulated in Article 126(2) of the Constitution is mandatory. He took up the view that the intention of the legislature with regard to the mandatory time limit specified in Article 126(2) of the Constitution is re- emphasized in section 13(1) of the Human Rights Commission of Sri Lanka Act, No. 21 of 1996 which states that,

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"When a complaint is made by an aggrieved party in terms of section 14 to the Commission, within one month of the alleged infringement or imminent infringement of a fundamental right by executive or administrative action, the period within which the inquiry into such complaint is pending before the Commission shall not be taken into account in computing the period of one month within which an application may be made to the Supreme Court by such person in terms of Article 126(2) of the Constitution."

Learned Counsel for the 1st respondent also drew our attention to the decision in Shanthi Chandrasekeram v. D. B. Wijetunga and others (Supra) where he submitted that, the detainees were arrested on or about 03.07.1991 and that the applications praying for the writs of habeas corpus were filed in August 1991.

Admittedly, the corpora were taken into custody in July 1990 and the appellant had come before the Court of Appeal only in June 1994. The appellant had stated in his petition that he had made inquiries and had searched for his sons with government and non governmental organizations (P1-P5).

Habeas corpus, unlike other prerogative orders still remains as a writ. It is not

discretionary and therefore it cannot be denied because there may be some alternative remedy. As pointed out by Wade (Administrative Law, 9th Edition, 2004, pg. 594).

"The writ may be applied for by any prisoner, or by anyone acting on his behalf, without regard to nationality, since 'every person within the jurisdiction enjoys the equal protection of our laws'. It may be directed against the gaoler, often the appropriate prison governor, or against the authority ordering the detention, e.g. the Home Secretary. It is not discretionary, and it cannot therefore be denied because there may be some alternative remedy. There is no time limit. The defense will not always be statutory."

It is also to be borne in mind that the writ of habeas corpus potentially has a very wide scope as it is directly linked to the liberty of citizens. Blackstone referring to the writ of habeas corpus, had stated that, (Commentaries, BK III, 12th Edition, 1794, pg. 131):

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"the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."

Although the learned Counsel for the 1st respondent had referred to the provision in Article 126(2) of the Constitution, the appellant had not moved the Court in terms of that provision. It is this Court which had granted Special Leave to Appeal to consider the question of any violation in respect of Article 13(4) of the Constitution. Therefore it would not be correct to say that the appellant had to strictly adhere to the mandatory time limit stipulated in Article 126(2). The application made by the appellant was on the basis of obtaining a writ of habeas corpus and was not in terms of the fundamental rights jurisdiction of the Supreme Court. Although I am in complete agreement that a long line of cases of this Court had decided that an application on the basis of obtaining relief in terms of any infringement or imminent infringement of his fundamental rights will have to be filed within 30 days of the alleged infringement, subject to a few exceptions, it is my view that this condition does not apply to the appellant in this case as he had moved the Court of Appeal on an entirely a different premise. In such circumstances it would not be relevant to consider the application of Article 126 in relation to the time bar with regard to this appeal.

The next question that has to be gone into is whether the 1st respondent and or the State are liable for the arrest and the subsequent presumed death of the corpora.

The appellant's position was that in or around 06.07.1990, two of his sons were taken into custody by the Army Officers attached to the Plantain Point Army Camp. The appellant had made a complaint to the Trincomalee Police on 09.12.1992 about the said arrest. In the said complaint and in the subsequent complaints made by the appellant with regard to the arrest of his sons he had mentioned that his sons were arrested by the officers attached to Plantain Point Army Camp. However, the appellant had made no direct allegation against the 1 st respondent to the effect that he and he alone is responsible for the arrest of his sons. The appellant's contention was that the corpora were arrested by the officials of the Plantain Point Army Camp and they were last seen at the said Camp. This position was substantiated by witness Jesudasan who was also arrested at the time the

corpora were arrested, but released after a few days of the arrest.

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Habeas corpus could be applied for and granted in many occasions such as when there is an excessive delay in bringing a prisoner up for trial (R v Brixton Prison Governor, ex-parte Walsh(6) )or in executing an order for his deportation (R v Durham Prison Governor, ex-parte Hardial Singh(7)). However, it is to borne in mind that the writ has served and has a remarkable reputation as a bulwark of personal liberty although it has failed to measure up to the standards of the European Convention on Human Rights (Wade, Administrative Law, 9th Edition pg. 596).

In such circumstances the question arises as to the burden of proof in habeas corpus cases. Considering this question Wade (Supra) is of the view that it is the responsibility of the detaining authority to give positive evidence of the circumstances. As pointed out by Wade (Supra at pgs. 294-295):

"In cases of habeas corpus there is a principle which 'is one of the pillars of liberty, that in English Law every imprisonment is prima facie unlawful and that if is for a person directing imprisonment to justify his act.

Accordingly the detaining authority must be able to give positive evidence that it has fulfilled every legal condition expressly required by statement, even in the absence of contrary evidence from the prisoner. This rule is indeed an example of the principle stated at the outset, since unjustified detention is trespass to the person. It is particularly important that the principle should be preserved where personal liberty is at stake".

The existence of the Plantain Point Army Camp is not disputed by the 1st and 4th respondents and the appellant as well as witness Jesudasan refers to the cordon and search operation conducted by the said Army Camp.

Although the 1st respondent denies his involvement with such an operation, he himself has stated that Plantain Point Army Camp was the Headquarters of the 22nd Brigade of the Sri Lanka Army and moreover that there were two major units at the said camp which consisted of the branches dealing with the operations and administration of the area. The Military Police Camps had come under the supervision of the latter. He has also admitted that he had no authority to arrest civilians under any circumstances and that there were other high ranking officers in charge of

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the Army Camp. All the documents filed by the appellant give a clear indication that he had been referring to the Plantain Point Army Camp as the place from which the cordon and search operation was conducted, the arrests made and was the place where the corpora as well as the appellant (for a short period) were detained. As has been pointed out earlier, it is reasonable to conclude that corpora were kept in the Army Camp with the knowledge and the connivance of the Army officers. In such circumstances, it was the duty of the Commanding Officer who had the authority to arrest and detain, to discharge the burden as to what took place on or about 03.07.1991. As pointed out by Wade, one cannot ignore the cardinal principle laid down in English Law with regard to habeas corpus

applications that every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act. Since there is no evidence against the 1st respondent I cast no liability on him, but I hold that the State is responsible for the disappearance of the corpora while they were in detention at the Army Camp and the subsequent presumed death.

For the aforementioned reasons, I answer both questions raised by this Court at the time Special Leave to Appeal was granted in the affirmative. The appeal is allowed and the judgment of the Court of Appeal dated 01.07.2003 is set aside.

On a consideration of the circumstances referred to above, this Court must consider the kind of relief that should be granted to the appellant. In a similar situation, Desai J. in Sebastian M. Hongrayv Union of India (Supra) had held that exemplary costs from the respondents are permissible in such cases. As we have held that the 1st respondent is not personally responsible, there cannot be any exemplary costs payable to the appellant. However, as has been referred to earlier, the Commanding Officer has the authority to arrest and to detain and was in overall charge of such operations. In the circumstances, the State is responsible for the infringement of the fundamental rights of the corpora governed in terms of article 13(4) of the Constitution, which rights have accrued to and/or devolved upon the appellant. It is to be borne in mind that respect for the rights of individuals is the true bastion of democracy and State has to take steps to redress the infringement caused by its officers to the corpora. I therefore direct the State to pay a sum of Rs. 150,000 each for the two sons of the appellant, who had disappeared in detention as compensation and costs.

358

" Thus Rs. 300,000, being the total amount to be paid to the appellant within 3 months from today.

UDALAGAMA, J.     -     I agree.

FERNANDO, J.    -     I agree.

Relief granted.

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SLR - 1997 Vol - 3    Add to iNote

 SLR - 1997 Vol.3, Page No - 265

265SUNIL RODRIGO (ON BEHALF OF B. SIRISENA COORAY)

v.CHANDANANDA DE SILVA AND OTHERS 

 SUPREME COURT. AMERASINGHE, J. WIJETUNGA, J. AND GUNAWARDANA, J.S. C. APPLICATION (FR.) 478/97 JULY 21 AND 22, 1997. Fundamental Rights - Preventive detention - Order under Emergency Regulation 17 - Alleged conspiracy to assassinate the President - Offence under E.R. 24(b) - Detenu arrested on unverified information and vague suspicion - Validity of detention - Articles 13(1) and 13(2) of the Constitution. The detenu was arrested by Police Officers on the 16th June 1997 acting on an order of the Secretary, Ministry of Defence of the same date. In his order the Secretary stated that he was acting by virtue of powers vested in him by regulation 17(1) of the Emergency Regulations published in Government Gazette (extraordinary) No. 843/12 of 4th November 1994. Regulation 17(1) states: "Where the Secretary is satisfied upon the material submitted to him or upon such further material as may be called for by him with respect to any person, that with a view to preventing such person. (a) from acting in any manner prejudicial to the national security or to the maintenance of public order ... (b) ...  

(c) ... It is necessary so to do, the Secretary may make order that such person be taken into custody for a period not exceeding three months..." The order of the Secretary did not specify the period. But by an amending order dated 2nd July 1997 he sought to amend the order making it effective for a period of three months from 16th June 1997. In his affidavit to court the Secretary stated by way of justifying his order that he was informed by the inspector General of Police and other Senior Police

266 Officers that they had received reliable intelligence that the detenu had discussed with others about assassinating the President of Sri Lanka or causing physical harm to her and to create unrest in the country. The information relied upon by the Secretary had not been verified either by Police Officers or by the Secretary himself. The Secretary notified the advisory committee under regulation 17 in writing of the fact of making the detention order on the basis of information he had received. The Police Officer who executed the order informed the detenu of the "purposes" of the arrest as contained in the order. But he was not informed of the reason for his arrest viz. . the grounds and particulars there for either at the time of the arrest or during his interrogation by the Police. Nor could the detenu hope, on the basis of the Secretary's notification, to receive from the Chairman of the Advisory Committee, in terms of regulation 17(9), the "grounds" and "particulars" relevant to the Secretary's decision. Held: 1. The amendment of the original order of detention for specifying the period of detention did not remedy the defect. Hence the detention from 16th June to 2nd July 1997 was unconstitutional. 2. The court will not usurp the discretion of the Secretary and substitute its own views for that of the Secretary. However, the Court must determine whether on the material before him the Secretary was reasonably satisfied that the detenu should be arrested and detained. 3. In issuing the detention order the Secretary acted on unverified reports of Police Officers that were vague and suspicious. He abdicated his authority and mechanically signed the detention order. His decision was not only wrong but unreasonably wrong. It was not his opinion. The arrest made in pursuance of such an order was not according to procedure prescribed by law and therefore contravened Article 13(1) of the Constitution and was unlawful and invalid. Per Amerasinghe, J. "The decision whether certain activities of a citizen constitutes a threat to national security is a matter for the Secretary and not of a Police Officer, whatever his rank might be. The power of the Secretary given by regulation 17(1) concerns physical liberty of persons, including those who have not yet,

267 nor never, committed an offence. It is therefore an exceedingly great power, indeed

an awesome power, that must be exercised with corresponding degree of responsibility". 4. Conspiracy to murder the President is an offence under regulation 24(b), and so there was an offence the detenu was supposed to have committed which was the "reason" for his arrest and detention. He was not informed of that reason as required by Article 13(1) of the Constitution. 5. The detenu was not arrested under a procedure established by law. He was arrested on vague suspicion in circumstances that showed a reckless disregard for his right to personal liberty. In the circumstances by failing to produce him before a judge the respondents transgressed his rights under Article 13(2) of the Constitution. Cases referred to: 1. Secretary of State for Education and Science v. Tarneside Borough Council (1977) AC 1014. 2. Nakkuda Ali v. Jayaratne 51 NLR 457 (P.C.) (1951) A.C. 66 (P.C.) 3. Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds (1979) 3 All ER 129 (P.C.) 4. Director of Public Prosecutions v. Head (1959) A.C. 83, 110.  5. Dumbell v Roberts (1944) 1 ALL ER 326. 6. Muttusamy v. Kannangara (1951) 52 NLR 324.  7. Faiz v. Attorney-General (1995) 1 Sri L.R. 372. 8. Faurdeen v. Jayetilleke and Others S.C. Application 366/93 S.C. Minutes 8 September 1994. 9. Channa Pieris v Attorney-General (1994) 1 Sri L.R. 1, 51. 10. Siriwardena v Liyanage (1983) FRD (2) 310. 11. Associated Provincial Picture Houses Ltd., v Wednesbury Corporation (1948) 1 K. B. 223, 229 12. Short v Poole. Corporation- 1926 Ch. 66.  13. In re H (An Infant) 1971 A.C. 682, 700. 14. Secretary of State v. ASLEF (No. 2) (1972) 2 ALL ER 949.  15. Joseph Perera v. Attorney-General (1992) 1 Sri L.R. 199.  

268 16. Wijewardena v. Zain S.C. Application 202/87 S.C. Minutes 24 July 1989.  17. Dissanayake v. Superintendent Mahara Prison (1991) 2 Sri L.R. 247.  

18. Brogan v U.K. ECHR 29 November 1988 Ser. A. N. 145 B. 19. Fox, Campbell & Hartley v. U.K. UCHR 30 August 1990 Ser. A. No. 182.  20. Liversidge v. Anderson (1941) 3 ALL ER 338; (1942) A.C. 206 21. Ridge v. Baldwin (1963) 2 ALL ER 66, 76; (1964) A.C. 40 at 73. 22. Janatha Finance and Investments v D. J. Francis Liyanage (1983) FRD (2) 373. 23. Sasanasiritissa !hero and Others v De Silva and Others (1989) 2 Sri L.R. 356. 24. Weerakoon v, Weeraratne S.C. Application 42/92 S.C. Minutes 16. November 1992. 25. Somasiri v. Jayasena and Others S.C. Application 147/88 S.C. Minutes 1 March 1991. 26. Kishori Mohan v. The State of West Bengal AIR 1972 S.C. 1749. 27. Mariadas v Attorney-General (1983) FRO (2) 397. 28. Selvakumar v. Douglas Devananda and Others S.C. Application 150/93 S.C. Minutes 13 July 1994. 29. Shalini Soni and Others v. The Union of India and Others (1980) 4 SCC 544.  30. Gunasekera v. De Fonseka (1972) 75 NLR 246. 31. Wickramabandu v Cyril Herath (1990) 2 Sri L.R. 348. 32. Munidasa v. Seneviratne S.C. Application 115/91 S.C. Minutes 3 April 1992.  33. Kumarasena v. Snyantha S.C. Application 257/93 S.C. Minutes 23 May 1994.  34. Christie v. Leachinsky (1947) A.C. 573. 35. Vijaya Kumaranatunga v. G. V. P Samarasinghe and Others (1983) FRO (2) 347 (1983) 2 Sri L.R. 63. 36. Shibban Lal Saksena v. State of U.P. AIR 1954 S.C. 179.  37. ICCU Devi Choria v Union of India (1980) 4 SCC 531, 539.  38. Mallawarachchi v Seneviratne (1992) 1 Sri L.R. 181. 39. Elasinghe v. Wijewickrama and Others (1993) 1 Sri L.R. 163.  40. Chandra Kalyanie Perera v. Siriwardena (1992) 1 Sri L.R. 251.  41. Lalanle and Nirmala v. De Silva and Others S.C. Application 53/88 S.C. Minutes 6 April 1990.  

269 

42. Edirisuriya v. Navaratnam (1985) 1 Sri L.R. 100. Sund Rodrigo (on behalf of B. Sirisena Cooray) 43. Kumara v. Rohan Fernando and Others S.C. Application 22/90 S.C. Minutes 21 July 1994. 44. Ansalin Fernando v. Sarath Perera and Others (1992) 1 Sri L.R. 411.  45. Weerakoon v. Mahendra (1991) 2 Sri L. R. 172. 46. Fernando v. Kapilaratne (1992) 1 Sri L.R. 305. 47. Joseph Silva and Others v Balasuriya and Others S.C. Application 112-115/87 S.C. Minutes 26 May 1988. 48. Gerstein v. Pugh 420 U.S. 103, 95 S. ct. 854, 43 L. Ed 2d 54 (1975). 49. Mohammed Faiz v. Attorney-General S.C. Application 89190 Minutes 19 November 1993. 50. Nallanayagarn v. Gunatilake (1987) 1 Sri L.R. 293. APPLICATION for relief for infringement of fundamental rights. K. N. Choksy, P.C. with Desmond Fernando, P.C. Kosala Wijetilake, P.C. M. D. K. Kulatunga, Hemantha Warnakulasuriya, S. Mahenthiran, Upul Jayasuriya, Lakshman Ranasinghe, Sarath Kongahage, Methsiri Cooray and Ronald Perera for the petitioner. C. R. de Silva, P.C. Additional S.G. with Kolitha Dharmawardena, D.S.G. S. Samaranayake, S.C. and N. Pulle, S.C. for the respondents. 

Cur. adv. vult. August 19, 1997. AMERASINGHE, J. This is a matter concerning the alleged infringement of certain fundamental rights declared and recognized by the Constitution.Locus standi.

The petitioner in this case, Mr. Sunil Kumara Rodrigo, is an Attorney-at-Law appearing on behalf of Mr. Bulathsinghalage Sirisena Cooray. Article 126 (2) of the Constitution states, inter alia, that where any person alleges that any fundamental right relating to such person has been infringed, he may himself or by an Attorney-at-Law, on his behalf apply to the Supreme Court by way of petition praying for relief or redress in respect of such infringement.

270 Reliefs sought  The petitioner prays that this Court be pleased to: (a) grant the petitioner leave to proceed with this application; (b) declare that the fundamental rights of Mr. Cooray guaranteed by Articles 12(1),

12(2), 13(1), 13(2), 14(1) (c) and 14(1) (h) of the Constitution have been violated by the 1st and/or 2nd respondents; (c) direct that the said Mr. Cooray be released from custody and detention; (d) direct the 1st and/or 2nd respondents to pay damages and/or compensation to Mr. Cooray in a sum of rupees ten million; (e) make an interim order pending the hearing and final determination of this application releasing the said Mr. Cooray from custody and detention upon such terms and conditions as may be imposed by Court; (f) make interim orders pending the hearing and final determination of this application permitting the said Mr. Cooray to be met by the petitioner and his lawyers, and examined when necessary by his Doctors, upon such terms and conditions as may be imposed by Court; (g) for costs; (h) for such other and further relief as to the Court shall seem meet. Leave to proceed With regard to the prayer set out in paragraph (a) of the petition, the Court (Fernando, Dheeraratne, Wadugodapitiya, J.J.) on the 24th of June 1997, after hearing counsel, granted leave to proceed in respect of the alleged violations of Articles 12(2), 13(1), 13(2), 14(1) (c) and 14(i) (h) of the Constitution.  

271 Interim relief for release from custody  With regard to the prayer set out in paragraph (e) of the petition, on the 24th of June 1997, after hearing counsel, the Court denied the relief claimed: (S.C. minutes 24.06.97). Fernando, J. (Dheeraratne and Wadugodapitiya, J.J. agreeing) stated: "To grant prayer (e) would be, in effect, to grant the petitioner the substantive relief to which he would be entitled if he ultimately succeeds. Although the petitioner has established, prima facie, infringements of the aforesaid Articles, it has not been established that very probably the detention is void and will cause irreparable prejudice, and we do not consider that an interim order in terms of prayer (e) should be made at this stage: an early hearing would suffice." Interim relief for legal and medical assistance With regard to the prayer set out in paragraph (f) of the petition, on the 24th of June 1997, after hearing counsel, the Court granted the relief claimed: (S.C. Minutes 24.06.97). Fernando, J. (Dheeraratne and Wadugodapitiya, J.J. agreeing) stated: "In respect of prayer (f), Mr. Choksy submits that the detainee's lawyers have been denied access to the petitioner up to date; but Mr. de Silva states that an order has been made by the 1st respondent on 23.6.97, permitting access to the detainee's lawyers. He submits that the 1st respondent has power, under Emergency Regulation No. 17(4) to allow access to a detainee's lawyers. Emergency Regulation 17(4) authorizes detention 'in accordance with instructions

issued' by the Secretary. Even assuming that this would extend to allowing him to deny the right of access to a detainee's lawyers, in fact no such instructions were either set out in the Detention Order or issued thereafter. The detainee's lawyers should, therefore, not have been refused access to him, particularly after this application was filed. Had the detainee been detained in prison, it is common ground that under the Prison Rules, his right of access to lawyers would have been respected. That is the norm; and it is implicit in Emergency Regulation 17(4) that a person should not

272 be denied that right simply because he was detained elsewhere. Mr. de Silva referred to the proviso to Emergency Regulation 17(4) which states that the Secretary may direct that any provision of the Prisons Ordinance or the Rules, which would otherwise apply to a detainee, would not apply to him. While the Constitution recognises the power to make Emergency Regulations, overriding, amending or suspending the provisions of any statute, it is doubtful whether Emergency Regulations can confer on the Secretary any such power. Mr. De Silva has no objection to the detainee having access to doctors. The Court accordingly grants an interim order in terms of prayer (f). It is the petitioner and the attorneys-at-law (including [the] instructing attorney) who appeared for him today, who will have the right of access." Articles 12(2),14(1) (c), and 14(1) (h) not violated  Although leave to proceed had been granted for the alleged infringement of Articles 12(2), 13(1), 13(2), 14(1) (c) and 14(1) (h) of the Constitution, matters relating to the violation of the rights enshrined in Articles 12(2), 14(1) (c) and 14(1) (h) were not pressed by learned counsel for the petitioner. In the circumstances, I declare that the violation of Articles 12 (2), 14(1) (c) and 14(1) (h) of the Constitution has not been established. The remaining matters for consideration The remaining matters for consideration by this Court are whether the fundamental rights of Mr. Cooray declared and recognized by Article 13 have been violated, and if so whether any or some or all of the reliefs prayed for in paragraphs (c), (d), (g) and (h) should be granted in the exercise of the power of the Court under Article 126(4) of the Constitution "to grant such relief or make such directions as it may deem just and equitable...". Article 13(1) of the Constitution Leave to proceed was granted for the alleged infringement of Article 13(1) of the Constitution. Article 13(1) states as follows:

273 "No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest." There are two rights that are recognized and declared by Article 13(1): * A person shall not be arrested except according to procedure established by law;

 * A person arrested must be informed of the reason for his or her arrest. In applying the law to the facts of the matter before me, I have therefore to consider two matters in relation to the alleged violation of Article 13(1): * Was Mr. Cooray arrested according to procedure established by law?* Was Mr. Cooray informed of the reason for his arrest? Was Mr. B. Sirisena Cooray arrested according to procedure established by law? The Detention Order was ex facie defective on the question of the duration of detention., It is not in dispute that Mr. B. Sirisena Cooray was arrested by Police Officers on the 16th of June 1997 acting on an order of the Secretary, Ministry of Defence, dated the 16th of June 1997. In his order dated the 16th of June 1997, the Secretary states that he was acting by virtue of the powers vested in him by paragraph 17(1) of the Emergency (Miscellaneous provisions and Powers) Regulations No. 4 of 1994 published in Gazette Extraordinary No. 843/12 of the 4th of November 1994. Regulation 17(1) states: "Where the Secretary is satisfied upon the material submitted to him, or upon such further additional material as may be called for by him with respect to any person, that with a view to preventing such person

274 (a) from acting in any manner prejudicial to the national security or to the maintenance of public order... (b) ...

(c) ...

It is necessary so to do, the Secretary may make order that such person be taken into custody and detained in custody for a period not exceeding three months..." The emphasis is mine. Regulation 17(1) authorizes the Secretary to make an order for a period. The Order in this case dated 16 June 1997 does not specify the period of detention. The order is therefore not in accordance with the procedure prescribed by law for the arrest and detention of persons on the orders of the Secretary. Article 13(1) of the Constitution states that "No person shall be arrested except according to procedure established by law". The arrest and detention of Mr. Cooray on the 16th of June was therefore unconstitutional. In paragraph 9 of his affidavit, the Secretary states as follows: "... In view of the seriousness of the material contained in the intelligence reports, it was my intention to detain the detenu initially for a period of three months commencing 16 June 1997. Subsequently, I have by way of an amendment to the said Detention Order P1, made Order stating that the Order marked P1 referred to

above would be effective for a period of three months commencing 16th June 1997. 1 produce a certified copy of the amending Order and an affidavit from ; Abeyweera who served the said Detention Order on the detenu marked 1 R 2(a)." Mr. Abeyweera states in his affidavit that he served the amended order on Mr. B. Sirisena Cooray and that Mr. Cooray accepted that order. The amending order is dated 2nd July 1997. In it the Secretary states that he amends the order dated 16 June 1997 "by stating that the said order is effective from 16th June 1997 for a period of three

275  months. This amendment is to be considered as forming part and parcel of the said order dated 16 June 1997." In my view, the effect of the amendment is merely to specify the period of detention, as required by law. That was done belatedly on the 2nd of July 1997. By stating that the amending order was to be regarded as "forming part and parcel" of the order, the defect in the order of the 16th of June does not stand remedied. Therefore the detention from the 16th of June to the 2nd of July 1997 was unconstitutional. I hold, however, that the Detention Order was ex facie valid from the 2nd of July 1997 on the question of duration. The basis of the Secretary's decision required by Regulation 17(1). Regulation 17(1) requires the Secretary to arrive at his decision to order the detention of a person 'upon the material submitted to him or upon such additional material as may be called for by him'. What was (1) the unsolicited material submitted to the Secretary or (2) additional material called for by him that satisfied him that the order of detention was necessary? The unsolicited material submitted to the Secretary Initially, there were three unsolicited reports submitted to the Secretary. The first was from the Inspector-General of Police (the second respondent); the second was from the Director of the National Intelligence Bureau; the third was from the Deputy Inspector General of Police, Criminal Investigation Department. The first report With regard to the first report, the Secretary, in his affidavit, states as follows: ... on 9.6.97 I received information in writing from the 2nd Respondent that certain persons who had been arrested in connection with a spate of armed robberies in the Gampaha police

276 area had in the course of interrogation stated that members of a group involved in the commission of dangerous criminal acts led by Arambalage Don Ranjit Upali alias Soththi Upali (presently in remand) had been making inquiries about the visit of Her Excellency the President to Nithambuwa (Sic.), Horagolla and Attanagalla. I was also

informed that Soththi Upali was a close associate of {Mr. Cooray). The 2nd Respondent also informed me that his intelligence unit had received reliable intelligence that the detenu has had discussions with certain members of the said group about assassinating or causing physical harm to Her Excellency the President and to create unrest in the country." About which visit of the President were the inquiries being made? From whom had such inquiries been made? If the statements were made - they have not been produced before this Court - what sort of credibility should be attached to statements made by a gang of robbers? How could Soththi Upali who had been in prison custody for over a year be leading the group alleged to have been "involved in the commission of dangerous criminal acts"? The Inspector-General of Police had informed the Secretary that Soththi Upali was a close associate of Mr. Cooray and that Mr. Cooray had had discussions with certain members of Soththi Upali's group about assassinating or causing physical harm to the President and creating unrest in the country. What was the evidence? What steps were taken to check the accuracy of the information? On the other hand, in his affidavit dated the 15th of July 1997, Mr. Cooray has categorically denied that he had any connection whatever with any members of the so called Soththi Upali group. He also states that the averment that he was a close associate of Soththi Upali is "false and made without any basis". He explains that he became acquainted with Soththi Upali as one of several workers sent to him by the late President R. Premadasa to assist him as Campaign Manager in connection with the Presidential and Parliamentary elections of 1988 and 1989. However, he states: "I have had no dealings with Soththi Upali and have not met or spoken to him since I ceased to be the General Secretary of the United National Party in 1994." The respondents have not challenged Mr. Cooray's averments either by way of affidavit or through the submissions of their counsel.

277 The second report With regard to the second report, the Secretary, in his affidavit, states as follows: ... the Director of National Intelligence Bureau by report dated 11th June 1997 informed me that he had reliable intelligence that [Mr. Cooray] and three persons viz. U. L. Seneviratne, Wathudula Bandulage Somaratne alias Malwatte Some, Janaka Priyankara Jayamanne alias Sudu Mahatmaya and some other unidentified persons have had discussions about assassinating or causing physical harm to Her Excellency the President in the near future..." The Secretary filed a copy of a letter dated the 3rd of July 1997 sent by him to the Chairman of the Advisory Committee appointed under Regulation 17(5) to enable the Chairman to communicate the "reasons" for the arrest and detention: (Paragraph 11 of the Secretary's affidavit). In that letter, the Secretary states that he had issued Detention Orders on Mr. B. Sirisena Cooray, Mr. U. L. Seneviratne, Mr. W. B. Somaratne and Mr. J. P. Jayamanne. The Secretary states as follows: "These Detention Orders have been issued by me after being satisfied on the material submitted to me by the D.I.G., C.I.D. to the effect that Mr. Sirisena Cooray has sought the assistance of certain persons to cause harm or to assassinate Her Excellency the President. Some of the persons allegedly identified are Upali de Silva, U. L. Seneviratne, W. B. Somaratne and J. P. Jayamanne. Further it is reported that some persons have been enlisted as Reserve Police Officers and given training in sophisticated weapons. Whereabouts of some such persons trained in weapon use are not traceable today. Any conspiracy to cause acts in furtherance of

such a purpose was considered a serious threat to national security." In his affidavit, Mr. Cooray emphatically denies that he had "any discussions with any person whomsoever about assassinating or causing harm to Her Excellency the President. The said allegation is utterly and completely false." What steps had the Director of the National Intelligence Bureau taken to check the correctness of the information? What was the basis for regarding the information as "reliable"? What is the connection between the Soththi Upali group

278 and the persons mentioned in the second report? After all, the conspiracy was supposed to be between Mr. Cooray and a gang of criminals led by Soththi Upali who 'directly or indirectly' had acquired properties close to the ancestral home of Her Excellency the President to harm or assassinate Her Excellency. The other person who were supposed to have participated in discussions with Mr. Cooray were said to be "unidentified", and so they could not be said to belong to the Soththi Upali group. Mr. Cooray states in his affidavit that he was questioned about his connections .with the persons mentioned in the Director's report after his arrest. He states: "I was questioned about a visit made to me at my residence after my return by U. L. Seneviratne, member of the Western Provincial Council and ex M.M.C., and what we had discussed. I stated that the said U. L. Seneviratne called on me once complaining bitterly about his arrest and detention for a long period which he said was unlawful. I was questioned whether I knew Sudu Mahattaya, to which I answered in the negative. Subsequently, on 8th July I was asked whether I knew Malwatte Some. I answered I did not know him by name but if I am shown him it may be that I had met him casually." The respondents have not challenged Mr. Cooray's averments either by way of affidavit or through the submissions of their counsel. The third report With regard to the third report, the Secretary, in his affidavit, states as follows: "I state that T. V. Sumanasekera Deputy Inspector-General of Police, Criminal Investigation Department by a report dated 14.6.97 addressed to me informed me that he had received reliable intelligence that [Mr. Cooray] had sought assistance of certain members of a group involved in the commission of dangerous criminal acts to cause harm to or assassinate Her Excellency the President." Which group was this? Was it Soththi Upali's group? If so why was it not named? The Secretary's request for further information The Secretary states in his affidavit that, by his letter dated the 14th of June 1997, he "sought further clarifications from the Deputy 

279 Inspector-General of Police, Criminal Investigation Department on certain matters referred to in his report. I annex hereto marked 1R1 the said letter dated 14.6.97." 1R1 states as follows: "I refer to your letter dated 14th June on the above subject. Please identify the manner in which the persons mentioned in your report would be a threat to National Security."

 Learned counsel for the petitioner submitted that this letter was written because the material furnished did not satisfy the Secretary that there were grounds for arresting Mr. Cooray. Learned Counsel for the respondents stated that Mr. Cooray had been a Mayor of Colombo and a former Cabinet Minister. Therefore the Secretary was acting cautiously, and wrote 1R1. I shall refer to this letter again, but I should like to dispose of one matter immediately. The Secretary, in exercising his powers of arrest, should always act cautiously, for the liberty of one citizen is no less important than that of any other, whatever his station in life was, is, or expected to be. The response to the letter of the Secretary With regard to the response he received, the Secretary, in his affidavit, states as follows:"[The] Deputy Inspector-General of Police, Criminal Investigation Department by way of further report dated 16.6.97 confirming his earlier intelligence report about [Mr. Cooray] ... brought to my notice that the said Soththi Upali had either directly or through members of his group purchased lands in close proximity to the Horagolla Walauwa, the ancestral residence of Her Excellency the President and that two houses had already been constructed and another is presently under construction in these lands. He also informed me that his intelligence revealed that the said properties were acquired as part of a[n] elaborate conspiracy to cause physical harm to Her Excellency the President." The secretary in his affidavit adds as follows:

"... the investigations conducted by the Criminal Investigation Department has now confirmed the correctness of the intelligence  

280 regarding the acquisition and construction of houses in the said land (sic.) referred to above. Deputy Inspector-General of Police, Criminal investigation Department in the said report among other details also brought to my notice that he received reliable intelligence that [Mr. Cooray] was planning to commit various acts of violence with the view of discrediting the Government and in this connection he has sought the assistance of some retired service personnel." The author of the third report and the report of the 16th of June 1997, Mr. T. V Sumanasekera, Deputy Inspector-General of Police, Criminal Investigation Department, in his affidavit dated the 8th of July 1997, states that the Inspector-General of Police, the author of the first report, had informed him, of the matters set out in the first report; and that in response to the directions given to him by the Inspector-General of Police, he instructed Inspector of Police Jagath Fonseka, the Officer in Charge of the Central Intelligence Unit of the Criminal Investigation Department to inquire into the matter. He states that he also directed his intelligence unit "to gather intelligence about the involvement of [Mr. Cooray] regarding a conspiracy to assassinate or cause physical harm to Her Excellency the President." Mr. Sumanasekera goes on to state as follows: "7. I state that my intelligence sources revealed that certain members of the group involved in the commission of dangerous criminal offences headed [by] ... Soththi Upali (presently in remand) has had discussions with [Mr. Cooray] about assassinating or causing physical harm to Her Excellency the President ... My inquiries also revealed that the said Soththi Upali had either directly or through his relatives purchased properties in close proximity of the Horagolia Walauwa, the

ancestral residence of Her Excellency the President. I annex hereto marked A2 the inquiry notes conducted by the intelligence regarding the purchase of the land referred to above in close proximity to the ancestral residence of Her Excellency the President. It has now transpired that these properties are situated within 1 km. from the ancestral residence of Her Excellency the President. I produce marked A3, A4 and A5 respectively the reports forwarded to me by Inspector of Police Jagath Fonseka, Officer in Charge of the Intelligence Unit and an affidavit from the said Jagath Fonseka under confidential cover for perusal of Your Lordships Court.

281 8. I state that on the intelligence and the information gathered by me I submitted a report dated 14.6.97 to [the Secretary] and in response to certain queries made by him I also submitted another report dated 16.6.97. I am advised that the said reports are being produced by [the Secretary] under confidential cover for your Lordships' perusal. 9. I state that according to the intelligence I have received ... Soththi Upali has masterminded and overseen a large number of murders, robberies and disappearances of persons carried out through a group of criminals led by him. 10. I state that my intelligence sources also revealed that Uswatta Liyanage Seneviratne, Wathudula Bandulage Somaratne alias Malwatte Some and Janaka Priyankara Jayamanne alias Sudu Mahattaya were also identified as being persons concerned in the said conspiracy." As we have seen, Mr. Cooray has, in his affidavit, (1) dealt with the question of his alleged connections or discussions with the persons named by Mr. Sumanasekera as "persons concerned in the said conspiracy"; and (2) denied having had discussions with any person with a view to assassinating or causing harm to Her Excellency the President. As I have observed, Mr. Cooray's averments with regard to those matters have not been challenged in these proceedings. Although Mr. Sumanasekera in his affidavit states that the discussions about the plot to harm or assassinate the President were held with "certain members" of a group of criminals "headed ... by Soththi Upali", as I have observed, according to the Secretary, there is no reference in his report dated the 14th of June 1997 to either Soththi Upali or his group. Nor, according to the Secretary, does he state in that report that the persons named as having had discussions with Mr. Cooray were members of Soththi Upali's group. In his affidavit Mr. Sumanasekera states that the persons named by him "were also identified as being persons concerned in the said conspiracy", but he refrains from stating that they were members of Soththi Upali's group.

282 Nor, according to the Secretary, is there a reference in Mr. Sumanasekera's report dated the 14th of June 1997 to the question of the acquisition of properties anywhere. However, as we have seen, the Secretary in his affidavit states that Mr. Sumanasekera had in his report dated the 16th of June 1997 referred to the acquisition of properties by Soththi Upali "either directly or through members of his group", "in close proximity to Horogolla Walauwa, the ancestral residence of Her Excellency the President ... acquired as a part of an elaborate conspiracy to cause physical harm to Her Excellency the President." Sketch plans and investigation reports of police officers deployed by Mr. Jagath Fernando, Inspector of Police, on the instructions of Mr. Sumanasekera, have been

filed for the confidential perusal of the Court. There is nothing in the material furnished to show that Soththi Upali "either directly or through members of his group" purchased lands in close proximity to the ancestral residence of the President. In any event, if the lands were purchased, as the Secretary states he was told by Mr. Sumanasekera, "as a part of an elaborate conspiracy", it would have been of crucial importance to state when the lands were acquired - a matter that could easily have been ascertained by asking the owners of the properties or by visiting the Land Registry. Mr. Cooray states in his affidavit that (after his arrest) he was questioned by the Police as to whether in his capacity as Minister of Housing and Construction he allotted any land to Soththi Upali in Horogolla. He had replied that he had no recollection of having done so. That again is a matter that could have been easily ascertained by asking the Government authority concerned. In any event, if a land had in fact been so allocated, how could that ever have been evidence of a conspiracy to assassinate Her Excellency the President? When Mr. Cooray was the Minister, Her Excellency the President had not yet been elected to office. The conspiracy, according to the Secretary, was not to harm or assassinate Mrs. Kumaratunga at the time when Mr. Cooray was a Minister: the conspiracy was to assassinate Her Excellency the President. The Deputy Inspector-General, Mr. Sumanasekera, in his affidavit states as follows: "My inquiries also revealed that certain persons who had been enlisted to the Reserve Police Force at the instance of [Mr. Cooray] when he was a Cabinet Minister in the previous  

283 government had been given intensive training by the Special Task Force (STF). I also received intelligence that some of the persons who were so recruited had deserted their posts and their present whereabouts are unknown." Mr. Cooray in his affidavit states as follows: "... during the period 1989 to 1991, there was severe threat to Cabinet Ministers and other persons holding public office from the J.V.P. movement which was at its height. Accordingly, security officers attached to my security, and I believe also to the security of other high ranking personnel, were enlisted into the Reserve Police Force and trained by the Special Task Force in order to provide adequate security. I state that out of the eight security personnel recruited to the Reserve Police, four have reverted to their substantive posts in the Colombo Municipal Security Service, and four have retired ..." The respondents have not challenged Mr. Cooray's averments either by way of affidavit or through the submissions of their counsel. And so there was, after all, nothing very alarming or mysterious about the former security staff of Mr. Cooray. What was the relevance of the averments made by the Deputy inspector-General to the conspiracy theory? The Secretary stated in his affidavit that the Deputy Inspector General of Police had in his report dated the 16th of June 1997 brought it to his notice that he received reliable intelligence that "the detenu was planning to commit various acts of violence with a view of discrediting the Government and in this connection he has sought the assistance of some retired service personnel." The allegation relates to acts aimed at discrediting the government and not a conspiracy to assassinate or harm the President. The Secretary states that he "formed the opinion" that it was necessary to detain Mr. Cooray "having considered the matters referred to above and the material contained in the reports referred to above pertaining to a conspiracy to assassinate or cause harm to Her Excellency the President and its grave implications for National Security and Public Order." We are concerned in these

proceedings with the grounds upon which the Secretary ordered the arrest and detention of Mr. Cooray; and those grounds, according to the Secretary, related

284 to a conspiracy to assassinate or harm the President. In any event, Mr. Cooray denies the allegation that he was planning to commit any acts of violence to discredit the government. The respondents have adduced no evidence or offered any submissions through their counsel on that matter. Information supplied for confidential perusal by the Court  In addition to the facts and information referred to in his affidavit, the Secretary also placed the following documents before the Court for confidential perusal: (i) The report of the Inspector-General of Police dated 9 June 1997;(ii) The report of the Director of the National Intelligence Bureau dated 11 June 1997;

(iii) The report of the Deputy Inspector-General of Police, Criminal Investigation Department dated 14 June 1997

(iv) The report of the Deputy Inspector-General of Police, Criminal Investigation Department dated 16 June 1997. The Secretary expressly states in his affidavit, that he was `satisfied' on the basis of material contained in those reports. Those reports do not materially add anything to the narration of their contents in the affidavit of the Secretary. Was the Secretary "satisfied"? Mr. Cooray was arrested and detained upon an order issued by the Secretary under the powers conferred on the Secretary by regulation 17(1). The opening words of the regulation state that such an order may be issued "where the Secretary is satisfied." The Secretary has declared in his affidavit that he was "satisfied and farmed the opinion that it was necessary to detain... B. Sirisena Cooray to prevent him from acting in any manner prejudicial to the national security and the maintenance of public order." The regulation is framed in a subjective form. However, his own declaration is not

285 conclusive, for the decision does not relate merely to "a matter of pure judgment" per Lord Wilberforce in Secretary of State for Education and Science v. Tameside Borough Council(1) or to a matter where he had to be satisfied on "a matter of pure opinion". (Per Lord Denning in Tameside at 1025 C.A.). The opening words of regulation 17(1) "Where the Secretary is satisfied" do not, in my view, confer an absolute discretion on the Secretary; they serve "as a condition limiting the exercise of an otherwise arbitrary power: If the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power, 'the value of the intended restraint is in effect nothing.": per Lord Radcliff in Nakkuda Ali v M. F. de S. Jayaratne(2). The words do not mean "Where the Secretary thinks"; nor do they mean "Where the Secretary believes". They mean that the Secretary was satisfied on reasonable grounds which were capable of supporting the Secretary's decision; and (2) the Secretary should not have misdirected himself on the law in arriving at his decision: Secretary of State for Education and Science v. Metropolitan Borough

of Tameside (Supra); Attorney-General of St. Christopher, Nevis and Anguilla v Reynolds.(3)

The Secretary had to be satisfied that it was necessary to detain Mr. Cooray to prevent him from acting in a manner prejudicial to national security and public order by causing harm to or assassinating Her Excellency the President. It is open to Mr. Cooray to show that the Secretary was not legally entitled to be satisfied. A person is legally entitled to be "satisfied" if he is "reasonably" satisfied: Director of Public Prosecutions v Head.(4)

 As Wade (p. 401) points out: "Taken by itself, the standard of unreasonableness is nominally pitched very high: 'so absurd that no sensible person could ever dream that it lay within the powers of the authority' (Lord Greene MR); 'so wrong that no reasonable person could sensibly take that view' (Lord Denning); 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it' (Lord Diplock). "Our task is not to find whether the Secretary had taken leave of his senses, but whether he was "reasonably satisfied". In doing so, we must have regard to the scheme and purpose of the relevant regulations made under the law for the time being  

286 relating to public security - the Emergency (Miscellaneous Provisions and Powers) Regulations No. 4 of 1994 in this case; the applicable provisions of the general law of the land, including those contained in the Code of Criminal Procedure; and the "Supreme Law" - the Constitution. We should remind ourselves that Article 13(5) of the Constitution declares and recognizes that "Every person shall be presumed innocent until he is proved guilty". We should also bear in mind that "The principle of personal freedom that every man should be presumed innocent until he is found guilty applies also to the police function of arrest... For that reason it is of importance that no one should be arrested by the police except on grounds which the particular circumstances of the arrest really justified the entertainment of a reasonable suspicion,": per Scott LJ in Dumbell v. Roberts,(5) followed in Muttusamy v. Kannangara(6) per Gratiaen J; Faiz v. Attorney-General(7) per Perera J; and in Faurdeen v. Jayetilleke and others(8) per Perera, J; Channa Pieris v. Attorney-General.(9)

A person is "reasonably satisfied" if his decision is reasonable, "or can be supported with good reasons, or at any rate be a decision which a reasonable person might reasonably reach": per Denning MR in Tameside cited with approval in Siriwardene v. Liyanage(10). "if a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary... alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account": per Lord Wilberforce in. Tameside at 1047 followed in Siriwardene at 328-329. In Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation(11) at 229 Lord Green MR said: "It is true that discretion must be exercised reasonably. Now what does that-mean? Lawyers familiar with the phraseology used in relation to the use of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It

has frequently been used as a general description of the things that must be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the

287 matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matters to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, there may be something so absurd that no sensible person could dream that it lay within the powers of the authority. Warrington LJ in Short v. Poole Corporation(12) gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another." Commenting on Lord Greene's famous passage, Wade (7th Ed. 400-401) states as follows: "it explains how "unreasonableness", in its classic formulation, covers a multitude of sins... Unreasonableness has thus become a generalized rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as 'irrelevant considerations', and mistakes and misunderstandings which can be classed as self misdirection, or addressing oneself to the wrong question..." On the other hand, the Court will not usurp the discretion of the Secretary and substitute its own views for that of the Secretary. Indeed, as Lord Hailsham observed: "Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable... Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions with which no Court should seek to replace the individual's judgment with its own.": In re H (An lnfant)(13). When the Secretary "honestly takes a view of the facts or the law which could reasonably be entertained then his decision is not to be set aside simply because thereafter someone thinks that his view is wrong. After all this is an emergency procedure. It has to be set in motion quickly, when there is no time for minute analysis of facts or law. The whole process would be made of no effect if the (Secretary's) decision was afterwards to be conned over word by word, letter by letter, to see if he has misdirected himself. That cannot be right ...": per Lord Denning in Secretary of State v. ASLEF (14). The prevailing situation in the country will obviously be a matter that the Court will not ignore:

288 Cf. per Wanasundera, J. in Joseph Perera v. Attorney- General (15); per Kulatunga, J. in Wijewardena v. Zain(16); Dissanayake v. Superintendent Mahara Prison(17). The Court also appreciates the difficulties inherent in the investigation and prosecution of certain offences, such as terrorist crimes or conspiracies to assassinate political leaders, and the need for acting quickly where national security or public order is involved. Yet, the exigencies of dealing with such crimes cannot justify switching the notion of reasonableness to the point where the essence of the safeguard secured by Article 13 (1) of the Constitution may be abrogated: Cf. Brogan v. U. K. ECHR (18), Fox Campbell & Hartley v U.K. European Court of Human Rights(19). The question for determination is whether, on the material before him, the Secretary was "satisfied" that Mr. Cooray should be arrested and detained. As we have seen, there were many mistakes and misunderstandings based on misleading advice as a result of which he misdirected himself. Moreover, the grounds on which he was supposed to have formed his judgment did not exist: What was the evidence that

Soththi Upali was a 'close associate' of Mr. Cooray - that the members of Soththi Upali's gang held discussions with Mr. Cooray about assassinating the President - that Soththi Upali had 'directly or indirectly' purchased lands in close proximity to the ancestral home of the President as a part of "an elaborate conspiracy" to harm or assassinate the President? The police had their suspicions and hoped that some evidence might turn up to make their suspicions reasonable. However, vague, general suspicions and the fervent hope or even confident assumption that something might eventually turn up to provide a reasonable ground for an arrest will not do: Channa Pieris (Supra) at p.51. I hold that the Secretary was not legally entitled to be satisfied. Other factors motivating the Secretary The material in the reports (as conveyed to us through the Secretary's affidavit), as we have seen, did not provide grounds for the arrest. Why, then did the Secretary come to form his opinion that it was necessary to arrest and detain Mr. Cooray? The Secretary in his affidavit states as follows:

289 "... the Criminal Investigation Department, the National Intelligence Bureau and the 2nd Respondent had on several occasions forwarded intelligence reports regarding matters affecting the security of the State and Public Order. I also state that most of the intelligence set out in these reports have been subsequently found to be accurate. :.. I had no reason to doubt the reliability of the intelligence reports submitted to me regarding the matter in question. :.. in the recent past there had been a number of political leaders including Heads of State who had been assassinated. Investigations have revealed that these offences had been committed in pursuance of carefully planned conspiracies. ... I state that having considered the matters set out above and the material contained in the reports referred to above pertaining to a conspiracy to assassinate or cause physical harm to Her Excellency the President and its grave implications for National Security and Public Order I was satisfied and formed the opinion that it was necessary to detain the said B. Sirisena Cooray to prevent him from acting in any manner prejudicial to the National Security and the maintenance of Public Order. In the circumstances. t made (the) Order which has been produced marked P1..." Self-misdirection Learned counsel for the respondents submitted that the Secretary acted upon material placed before him by senior responsible officers and therefore believed in good faith that he had reasonable cause to believe that Mr. Cooray was involved in a conspiracy. In Liversidge v. Anderson(20), the majority of the House of Lords decided that the words "if the Secretary of State has reasonable cause to believe" meant "if the Secretary of State thinks that he has reasonable cause to believe" provided he acts in good faith. However, Lord Atkin, in his celebrated dissenting speech, held that the words "if the Secretary of State has reasonable cause to believe" meant what they said, namely that they gave only a conditional authority to the Secretary to detain any person without trial, the condition being that he had reasonable cause for the belief which leads to the detention order. The decision

290 

of the majority in Liversidge supports the submission of learned counsel for the respondents, but as Lord Reid dissmissively ob served in Ridge v. Baldwin(21) at 73, it was a "very peculiar decision" and is not regarded with favour. However, although Lord Scarman said in the same case that the ghost of the decision in Liversidge need no longer haunt the law, it seems to have now made another appearance. And perhaps in the hope that this Court would not exorcise that evil spirit, Mr. De Silva, whose arguments were all most vigorously but fairly and ably presented, cited the decision of the Supreme Court in Janatha Finance and Investments v. D.J. Francis Douglas Liyanage and Others(22). In that case, the Competent Authority appointed under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 3 of 1982 made an order under regulation 14(7) thereof sealing the petitioner's printing press. The petitioner alleged that the order was null and void as it constituted an infringement of Articles 12(1) and 12(2) of the Constitution which declare and recognize the right to equality. Ranasinghe, J. (as he then was), (Sharvananda, J. - as he then was - and Victor Perera, J. agreeing) at p. 396 said: "The question that arises is whether the material so available to the 1st respondent could be said to have been sufficient to justify the 1st respondent's action in making the Order P2? Was it reasonable for the 1st respondent to have decided to do what he did upon such material? It has to be remembered that the material placed before the 1st respondent was so placed before him by senior responsible officers, officers whose sense of responsibility and bona fides the 1st respondent would have had no reason to doubt. The 1st respondent could not himself have personally undertaken an investigation. Time was a decisive factor. If meaningful action was to be taken, it had to be speedy enough to prevent the mischief apprehended. Against this background is it possible to say that the 1st respondent was wrong in doing what he did ...? It may be that another might have waited for more material before proceeding to act. The question, however, is whether the decision of the 1st respondent to act in the way he did was such that no reasonable person would have done what he did? Was his decision to act so very unreasonable? Was his exercise of his judgment so hopelessly indefensible? Has the exercise of the discretion vested in him been wholly unreasonable and capricious? I

291 think not. May be another would not have done what the 1st respondent did; but the 1st respondent cannot be said to have done what no reasonable person would have ever done in such circumstances. The good faith of the 1st respondent, though attacked on the grounds of political vengeance, improper motives, failure to exercise his discretion, acting on the dictation of the President, and partiality has not been shaken. In this view of the matter, .I am of opinion that the Order P2 (and also P1) is valid ..." In my view, a decision of the Secretary, does not become reasonable merely because the source of his information are the reports of senior police officers. It is evident from the affidavit of the Secretary that he was aware that those officers themselves had not personally gone into the matter; despite the extraordinarily seriousness of the matter, but were merely reporting that there was information from "reliable sources". The facts established in these proceedings, which were easily ascertainable before or soon after the arrest, show how unreliable they were. Are the so-called informants of the "intelligence" services solely sneaks concerned with furtively providing fault-finding information? Are there no police officers or informants who are independent and straightforward who might provide other information? How is it that in this ease a great deal of material that might have been quite easily found

out escaped the notice of the "intelligence" arm of the police? Is the "intelligence" service concerned with fact-finding or fault-finding? Be that as it may, the question in issue is not whether the Secretary's decision was based on information furnished by senior police officers; nor is it whether his decision was "hopelessly indefensible" or "wholly unreasonable and capricious" or simply wrong: What has to be decided by us is not whether the Secretary thought or sincerely believed that Mr. Cooray was conspiring to harm or assassinate the President, but that he was personally satisfied on reasonable grounds based upon the three initial reports submitted to him and the additional report submitted to him, that it was necessary to arrest and detain Mr. Cooray to prevent him from assassinating or causing harm to Her Excellency the President and thereby acting in a manner prejudicial to national security and/or public order.

292 Learned counsel for the respondents, Mr. De Silva, referred to the reasons given in the affidavit of the Secretary and submitted that in the light of the material contained in the reports, the Secretary was not only justified in issuing the Detention Order, but that he would have been guilty of a dereliction of duty had he refrained from doing so. On the other hand, learned counsel for the petitioner, Mr. Choksy, submitted that the material placed before the Secretary did not convince, and at any rate could not have reasonably persuaded, the Secretary to be satisfied that it was necessary to detain Mr. Cooray and that in the circumstances, the Secretary was not acting according to the procedure prescribed by Regulation 17(1) and was therefore acting in violation of Article 13(1) of the Constitution which states that no person shall be arrested except according to procedure established by law. I agree that the Secretary was not obliged to carry out the investigations himself: But he had to satisfy himself, not merely on the material submitted to him but also upon "such further additional material as may be called for by him": (Regulation 17(1). He had the power to call for, and the duty to consider additional material. He was obliged to make his decision upon a proper self-direction of the facts upon which his judgment was based. He was obliged to call his own attention to the matters he was bound to consider. He failed to do so. It is of significance that whereas regulation 17(1) of the 1989 regulations states that "Where the Secretary to the Ministry of Defence is of opinion ...... the corresponding current (1994) regulation states that "Where the Secretary is satisfied upon the material submitted to him, or upon such further material as may be called for by him ...". Admittedly, there was nothing to prevent the Secretary calling for and considering additional material under the earlier regulation. However, the 1994 regulation specifically draws the attention of the Secretary to what he might do. The possibility that there might be two sides to the story did not prompt the Secretary to direct that Mr. Cooray's version be ascertained either from "intelligence" sources or from Mr. Cooray himself. The Secretary in his affidavit admits that Mr. Cooray was neither questioned nor was his statement recorded prior to his arrest, but he adds that Mr. Cooray's statement was recorded after the Detention

293 Order had been issued. Mr. Cooray was arrested on the 16th of June 1997 and he was interrogated and his statements recorded on the 17th, 18th, 19th, 20th, 23rd and 24th June and on the 8th and 11th of July. He had been abroad from the 24th of June 1996 and returned to Sri Lanka on the 28th of April 1997. He was questioned about his family and his activities and movements after his return. However, although he was arrested and detained because he was supposed to have been involved in a conspiracy to assassinate the President, no questions were put to him with regard to

that matter until Mr. Cooray himself had raised the matter with the officers interrogating him on the 23rd of June 1997. He had read an article (produced and marked in these proceedings as document P3) appearing on the front page (and continued on page 5) of the Sunday Times of the 22nd of June under a banner headline stretching across the page "Plot against the President in which the first four paragraphs state as follows: "The detention of former UNP strongman Sirisena Cooray - in the headlines for the past six days with widespread conjecture and speculation - took a sensational turn last night when state television and radio announced that he was being grilled regarding an alleged plot to kill President Kumaratunga. Soon after the bombshell announcement, CID chief T.V. Sumanasekera told The Sunday Times last night that they had received some information regarding an alleged plot against the President and every aspect was being probed. "There is a little bit of evidence and we are continuing investigations on this line, " he said. The state run media last night said Mr. Cooray had been arrested following information about a plot to assassinate the President, but Mr. Sumanasekera declined to confirm the state media reports." The report goes on to speculate as to other reasons why Mr. Cooray was arrested. It may or may not explain why the matter of the alleged conspiracy was not pursued. I make no comment on that matter.

294 Mr. Cooray had also read an article (produced and marked in these proceedings as document P3 (a)) appearing on the front page of the Daily News of the 23rd of June under a banner headline stretching across the page "Plot will be disclosed soon" in which it was stated as follows: "The details of the alleged plot to harm President Chandrika Bandaranaike Kumaratunga, uncovered recently, will be disclosed in the next few days," CID sources said yesterday. The evidence pertaining to this plot uncovered during CID investigations into the activities of former UNP Minister B. Sirisena Cooray are now being put together, these sources added. Following the discovery of this plot, the CID also arrested another suspect who is considered an expert marksman over the weekend. The CID said the suspect was able to fire on target using two pistols simultaneously. CID sources said evidence showed that attempts had been made to hire underworld criminals to execute this plot. Two other suspects said to be notorious underworld characters have also been taken into custody in this connection and the CID was looking out for firearms which had been in their possession. CID sources said they were able to elicit more evidence from these two suspects during interrogation following their arrest. 

Police Headquarters sources said a UNP politician released from remand custody had held a grand dinner which was attended by several underworld criminals as well as some leading businessmen. The CID had earlier received snatches of information regarding an alleged plot to harm the President. The plot became more evident when the CID followed up. The evidence gathered during interrogation of Mr. Cooray (sic.). Informed sources said Mr. Cooray had been arrested on information about an alleged political conspiracy. Mr. Cooray is alleged to have had meetings with several suspects released from jail recently.

295 CID sources said they hoped to reopen investigations into several earlier investigations, into several earlier incidents involving the underworld in an effort to unravel the mystery behind those incidents. Several opposition politicians too are to be questioned in this connection and two more underworld characters, to be arrested soon, will be produced as prosecution witnesses." Mr. Cooray states in his affidavit - and this has not been controverted - that on the 23rd of June he drew the attention of the officers who were interrogating him on that day to these two news reports. During the afternoon of the 24th of June, and only upon that occasion, was Mr. Cooray asked whether he was involved in a plot to assassinate or harm the President. The petitioner denied any involvement in such a conspiracy and requested specific particulars of the information alleged to have been received by the police against him so that he might respond; but he was not furnished with such information. The Court had earlier on that day granted the petitioner leave to proceed in this matter. What is the explanation for this extraordinary anxiety to be uninformed? Mr. De Silva submitted that it was a matter of police "technique" to first ascertain peripheral matters and then come to the relevant question. If those were his instructions, I must say that, placing myself in the position of a "reasonable man", I am quite surprised that it took over a week to get over the peripheral matters;. and that it is a matter of amazement that when, according to the Secretary's affidavit, the Director of the National Intelligence Bureau had in his report of the 11th of June stated that the President was to be assassinated or injured "in the near future", no question was put to Mr. Cooray until he himself had raised the matter on the 24th of June. If the report in the Sunday Times that Mr. Sumanasekera had said that there was no more than "a little bit of evidence" is accurate, how does one reconcile that statement with what Mr. Sumanasekera reported to the Secretary? He has not filed an affidavit contradicting the accuracy of the Sunday Times report which was an item of evidence in this case. There were, as we have seen, many things said in each of the reports of the police officers relied upon by the Secretary that were vague and suspicious. The Secretary did not call for any clarification

296 on the report of the Inspector-General of Police, nor on the report of the National Intelligence Bureau. With regard to the report of the Deputy Inspector-General of Police dated the 14th of June 1997, however, he says he sought clarification. But what did he ask?: "Please identify the manner in which the persons mentioned in your report would be a threat to national security." Surely, if the Secretary did believe the allegation that "the detenu had sought [the] assistance of certain members of a

group involved in the commission of dangerous criminal acts to cause harm to or assassinate Her Excellency the President", there should have been no doubt in his mind that there was a threat to National Security? Why did he not also ask him whether it would have been a threat to public order when in the Detention Order and in his affidavit he states that the detention was ordered to prevent a threat to both national security and public order? They are two different things although they may co-exist. In his letter to the Chairman of the Advisory Committee the Secretary states that the arrest was made because of an alleged "threat to national security". There is no reference to public order. The Secretary of the Ministry of Defence required no education on the issue whether a conspiracy to assassinate or harm the President would affect national security? Surely, there was no need for him to be instructed by any person on that matter?. The decision whether certain activities of a citizen constitutes a threat to National Security is a matter for the Secretary and not for a police officer, whatever his rank might be. The power of the Secretary given by regulation 17(1) concerns the physical liberty of persons, including those who have not yet, nor ever, committed an offence. It is therefore an exceedingly great power, indeed an awesome power, that must be exercised with a corresponding degree of responsibility. There is public respect for the independence and impartiality of the Secretary, albeit tinged with latent reverential fear. The Secretary must fulfil public expectations and be independent and impartial. Obviously, in appropriate circumstances, as for instance, in the Janatha Finance and Investments case (Supra), the Secretary may, rely upon the opinions, conclusions and recommendations of senior police officers. Each case, however, must depend on its own circumstances; but the cardinal, invariable principle in each case is that the person making the order of detention must be "satisfied".

297 It should be pointed out that in his letter dated the 3rd of July 1997 to the Chairman of the Advisory Board appointed in terms of Regulation 17(5), to enable the Chairman to inform the persons detained of the "reasons" for their arrest, the Secretary states that the Detention Orders on Mr. Cooray and three other persons "have been issued after being satisfied on the material submitted to me by the D.I.G., C.I.D. to the effect that Mr. Sirisena Cooray has sought the assistance of certain persons to cause harm to or to assassinate Her Excellency the President." The representations or submissions to the Advisory Committee made by a person arrested would be directed to responding to the stated grounds for the arrest. The grounds to be challenged would depend on the basis for the Secretary's order: The Secretary's letter very clearly indicates that there was but one source of information he relied on - the material submitted to him by the D.I.G., C.I.D. I am inclined to think, upon a reading of the Secretary's narration of what was contained in the reports referred to by him, that the Secretary was in fact persuaded by the D.I.G., C.I.D. to issue the Detention Order and that the opinion formed was not that of the Secretary. In the matter before us, the Secretary in my view abdicated his authority and mechanically signed the Detention Order. As I have pointed out, the Secretary's decision was not reasonable in the sense that it was not supported with good reasons, and therefore it was not a decision which a reasonable person might have reasonably reached. His decision was not only wrong, but in my view unreasonably wrong. This happened because he did not satisfy himself but allowed himself to be misled. It was not his opinion: Malinda Channa Pieris (Supra) at p. 58. The matter before us is a good illustration of what Wade (p.401) describes as "self-misdirection" and therefore a case in which the Secretary cannot be held to have been "satisfied". Taking a person into custody and detaining him in pursuance of such a decision is

not in accordance with "procedure established by law" and it is therefore in violation of Article 13(1) of the Constitution: Sasanasiritissa Thero and others v be Silva and Others(23) Weerakoon v. Weeraratne(24) Somasiri v. Jayasena and Others(25)

Dissanayake v. Mahara Prisons (Supra) Channa Pieris v. Attorney-General (Supra), at p. 59.

298 The form and contents of Detention Order suggests it was mechanically issued. The Secretary states in the Detention Order dated the 16th of June 1997 that he was making the order 'being of opinion and with a view to preventing the person specified and residing at the place mentioned in Column 1 of the Schedule to this order from acting in any manner prejudicial to National Security or to the maintenance of public order', it is necessary so to do ... The order is set out in a standard, pre-prepared, form: the only variations between one case and the other relate to information, furnished at the bottom of the page of the order in a schedule, concerning (1) the date of the order; (2) the name and address of the person to be detained; and (3) the place of detention. The standard form used in this case follows the forms used when the 1989 Emergency Regulations were in operation when the Secretary was required to be of the 'opinion' that the detention was necessary to prevent the person ordered to be arrested and detained from acting in any manner prejudicial to national security or to the maintenance of public order: The Regulations introduced by Gazette Extraordinary 606/4 of 18 April 1990 substituted the word 'satisfied' for the word 'opinion'. Due to judicial interpretation, there may be no practical difference in the use of the terms: Channa Pieris and Others v. Attorney-General and Others, (Supra) at p. 58. But, the retention of the older term in the Form suggests a lack of spontaneity that one would expect from an individual acting in accordance with the specific obligation of being personally satisfied imposed on him by the provisions of the law he invokes: the form used suggests that the Secretary was driven not by his own thoughts but by the stimulus derived from an outside source: the letter to the Chairman of the Advisory Committee indicates that the Secretary relied on the report of the D.I.G. Moreover, the use of the words 'acting in any manner', borrowed from Regulation 17, rather than the specific manner in which the person ordered to be detained was suspected of being likely to act in a manner prejudicial to the National Security or to the maintenance of public order, raises doubts as to whether the Secretary did in fact give his mind to the question whether the person ordered to be arrested and detained was likely to act in a manner prejudicial to National Security or to the maintenance of public order:

299 had he been convinced, what was the difficulty in specifically stating his grounds, if he had any? In my view, he did not state any grounds because he had no grounds. The Police officers who advised the Secretary might have been hoping that some evidence might turn up; but at that stage all they had was mere suspicion based on what Mr. Sumanasekera had described in his interview reported in the Sunday Times of June 22 1997 - six days after the arrest in pursuance of the Detention Order - (which was filed as evidence in this case by the petitioner and not controverted) as "a little bit of evidence." Regulation 17(1) empowers the Secretary to detain a person for the specific purposes laid down therein including the prevention of persons from acting in any manner prejudicial to the national security or to the maintenance of public order. As

pointed out in Kishori Mohan v. The State of West Bengal (26) national security and public order are two different things. Admittedly, in the circumstances of a particular case, the Secretary might be satisfied that both national security and public order were in jeopardy. In such an instance, he should clearly indicate that that was the case. However, where he states, as in this case, that it was necessary to detain the person to prevent him from acting in a manner "prejudicial to the national security or to the maintenance of public order" (the emphasis is mine), the satisfaction of the Secretary, in the words of Shelat, J. in Kishori Mohan (Supra), "was on the disjunctive and not conjunctive grounds, which means that he was not certain... If he felt the necessity to detain the (person) from the activities described by him in the grounds of detention on the ground that those activities affected or were likely to affect both the public order and the security of the State he would, no doubt, have used the conjunctive "and" not the disjunctive "or" in his order. But, as the order stands, it would appear that he was either not certain whether the alleged activities of the (person ordered to be detained) endangered public order or the security of the State, or he did not seriously apply his mind on the question whether the said alleged activities fell under one head or the other and merely reproduced mechanically the language" of the regulations empowering detention. On the face of it, the order suggests that the Secretary of the Ministry of Defence was acting mechanically without due regard to  

300 the circumstances of the particular case in respect of which he was issuing the order of detention. As we have seen, orders signed mechanically show that the person making the order was not "satisfied" that the arrest was warranted. If he is not "satisfied", the Secretary is not empowered to issue a Detention Order. If he nevertheless issues such an order, an arrest made in pursuance of such an order is not according to procedure established by law and, therefore, contravenes Article 13(1) of the Constitution and is unlawful and invalid. Was Mr. B. Sirisena Cooray given reasons for his arrest? Article 13(1) of the Constitution not only states that no person shall be arrested except according to procedure established by law, but it also states that "Any person arrested shall be informed of the reason for his arrest." The petitioner in his affidavit states that (1) the Detention Order did not state any reason for the arrest; (2) the Police Officers who made the arrest did not give Mr. Cooray any reasons for his arrest; (3) the Police Officers were not able to state any reasons upon being questioned; and (4) the Police Officers declined to record a statement of Mr. Cooray to, the effect that be inquired from them as to how he was said to be acting in a manner prejudicial to the national security or the maintenance of Public Order. This is confirmed by Mr. Cooray in his affidavit. The Secretary in his affidavit states that (1) the Detention Order "sets out the purposes for which [Mr. Cooray] was taken into custody and detained"; and that (2) Superintendent of Police Sisira Mendis who served the Detention Order has stated in his affidavit that he had informed Mr. Cooray of "the purpose" for which he was taken into custody and detained. The Secretary later states that he had by his letter dated the 3rd of July 1997 informed the Chairman of the Advisory Committee appointed in terms of Regulation 17(5) of "the reasons for the detention of [Mr. Cooray] to enable him inform [Mr. Cooray] of the same in terms of Regulation 17(9) of the said Regulations. "As we have seen, the information furnished to the

301

 Chairman were not "reasons"; they were merely inferences. The letter to the Chairman of the Advisory Committee relates to Detention Orders served on Mr. Cooray and the three others who constituted a threat to national security by conspiring to cause harm to or assassinate the President. The Detention Order does indeed set out the purposes for which Mr. Cooray was being arrested and detained: It states that the Secretary deemed it necessary to take into custody and detain Mr. Cooray "being of opinion and with a view to preventing ... [him] from acting in any manner prejudicial to the National Security or to the maintenance of public order." Mr. Mendis who executed the order also states that he informed Mr. Cooray of the "purpose" of the arrest. Article 13(1) of the Constitution, however, states that "Any person arrested shall be informed of the reason for his arrest." Arguably, having regard to the letter of the Secretary to the Chairman of the Advisory Committee, the Secretary appreciated the difference. However, he seems to have assumed that the task of giving reasons was the duty of the Chairman of the Advisory Committee when the arrest was one that was made in terms of Regulation 17(1) and that it was sufficient for him and the officer making the arrest to state the purpose of the arrest. The whole scheme of the criminal law assumes it to be a basic need that an accused should clearly understand what he is supposed to have done. Section 23(1) of the Code of Criminal Procedure (CCP) states, inter alia, that "In making an arrest the person making the same ... shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested. "Section 53 states that "the person executing the warrant of arrest shall notify the substance thereof to the person arrested and, if so required by the person arrested, shall show him the warrant or a copy thereof signed by the person issuing the same." A magistrate holding a preliminary inquiry in a case triable by the High Court is required by section 146 CCP "to read over to the accused the charge or charges in respect of which the inquiry is being held." If at the end of that inquiry the magistrate does not discharge him, section 150 CCP requires the magistrate to "read the charge to the accused and

302 explain the nature thereof in ordinary language." Section 164 CCP provides, inter alia, that every charge shall state the offence with which the accused is charged and that it should be "read to the accused in a language which he understands." Section 165 CCP provides that particulars of the commission of the offence must be so stated as to give an accused sufficient notice of the matter with which he is charged. At a summary trial, the magistrate is required by section 182 CCP to frame a charge and read such charge to the accused. At a High Court trial, section 195 CCP requires that a copy of the indictment be served on the accused, and sections 196 and 204 CCP require that "the indictment shall be read and explained to the accused." Article 13(1) of the Constitution elevates a principle that was a part of the ordinary law to the status of a fundamental right. When the relevant provision of the Indian Constitution were being discussed in the Constituent Assembly, Dr. Ambedkar - the moving spirit behind the draft - explained to the Assembly on September 15, 1949 that this was being done because the right to be informed of the reasons for one's arrest was one of the "most fundamental principles which every civilized country follows". Article 14 of the International Covenant on Civil and Political Rights states that among the "minimum guarantees" everyone is entitled to is the right "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him."

 Mr. S. Sharvananda, retired Chief Justice, in his treatise on Fundamental Rights at page 141 (cited with approval in Channa Pieris v. Attorney-General (Supra) at p.67) explains why it is necessary that reasons should be given and why the reasons should be promptly given: He states as follows: "The requirement that a person arrested should be informed of the reason for his arrest is a salutary requirement. It is meant to afford the earliest opportunity to him to remove any mistake, misapprehension or misunderstanding in the mind of the arresting authority and to disabuse the latter's mind of the suspicion which triggered the arrest and also for the arrested person to know exactly what the allegation

303 or accusation against him is so that he can consult his attorney-at-law and be advised by him: Mariadas v. Attorney-General(27). All the material facts and particulars must be furnished to the arrested person because they are the reasons or grounds for his arrest to enable the arrested person to understand why he has been arrested ... The necessity to give reasons serves as a restraint on the exercise of power and ensures that power will not be arbitrarily employed." It is insufficient for the person arrested to be given the purpose or object of the arrest, such as those set out in Regulation 17(1) and reproduced in the Detention Order in this case: Selvakumar v. Douglas Devananda and Others (28). He must be given the reasons, i.e. the grounds - all the material and pertinent facts and particulars that went to make up the mind of the Secretary and not merely the inferences arrived at by the Secretary: Shalini Soni and Others v. Union of India and Others(29). For it is then that the person will have information that will enable him to take meaningful steps towards regaining his liberty, e.g. by showing that there was a mistake or by rebutting a suspicion or explaining a misunderstanding, with the result that, perhaps after further inquiries, he may be saved from the consequences of false accusations: Gunasekera v. De Fonseka(30); Wickramabandu v. Cyril Herath(31) ; Munidasa v. Seneviratne(32); Channa Pieris v. Attorney-General (Supra) at p. 68; Faurdeen v. Jayetilleke (Supra); Kumarasena v. Sriyantha(33); Christie v. Leachinsky(34). Mr. De Silva submitted that there Was no requirement under the Emergency Regulations to give reasons for an arrest and in support of that view he cited the dictum of Kulatunga, J. in Sasanasiritissa Thero and Others v. De Silva and Others. (Supra) at 363-364 which followed the decision of this Court in Vijaya Kumaranatunga v. G. V.P Samarasinghe and Others(35). In Kumaratunga, Soza, J. (Ranasinghe, agreeing) observed: "The contents of the order 'A' sufficiently apprised the petitioner that he was being arrested in contravention of Regulations 23 and 24 of the Emergency Regulations. Among the offences specified in Regulation 24 there are the offences of arson and theft which are offences under the Penal Code for which arrest without a warrant is justifiable under the

304 Criminal Procedure Act. So here we have an arrest by a Police Officer with reasons given and despite the fact that he was acting under the authority of the detention order marked 'A', his action can be justified under the powers vested in him under the Code of Criminal Procedure. Such an arrest is in accord with the provisions of Article 13 (1)." The emphasis is mine. The petitioner in that case, according to Soza, J. was given reasons in the Detention Order. Soza, J. however, stated that Article 13(1) of the Constitution was subject to such restrictions as may be prescribed by

law, including the Emergency Regulations. These regulations, he said, "overshadow the fundamental rights guaranteed by Articles 13(1) and (2) of the Constitution. Soza, J. went on to state as follows: "... the communication of the reasons for the arrest at the time of the arrest is not imperative when the emergency regulations are in operation. This is obviously because if reasons are disclosed at the time of taking a person into custody, it may enable counteraction to be taken to frustrate the very purpose of the arrest and hamper and hinder the steps taken by the Government to protect the community and prevent grave public disorder. No doubt, a person being arrested must know why he is arrested. During times of national emergency, this requisite has to be satisfied in accordance with the Emergency Regulations at a later stage and soon enough for the detenu to make representations against his arrest and detention. According to Regulation 17(4) it is obligatory for one or more Advisory Committees to be set up consisting of persons appointed by the President. Any person aggrieved by an order made against him under Regulation 17 may make his objections to the appropriate Advisory Committee. It is the duty of the Chairman of the Committee to inform the objector of the grounds on which the order under this regulation has been made and to furnish him with such particulars as are in the opinion of the Chairman sufficient to enable him to present his case. It is, therefore, always open to the detenu to apprise himself of the grounds of arrest. The express provision in our Regulation stipulating that the Chairman of the Advisory Committee should inform the detenu of the grounds of detention implicitly makes a communication of reasons at the time of arrest unnecessary."

305 

Mr. De Silva also referred to the judgment of Kulatunga, J. in Wickremabandu v. Cyril Herath and Others (Supra). Kulatunga, J. at P. 381 stated as follows: "As a matter of principle the requirement in Article 13(1) that an arrested person shall be informed of the reason for his arrest may no longer be limited to a person accused of a crime. In the context of the freedom from arbitrary arrest it can extend to a person arrested under any law for preventive detention. However, at Common Law the right was given to a person accused of a crime - Christie v. Leachinsky, (Supra); Muttusamy v. Kannangara, (Supra). The information of the ground of the arrest or of the offence has to be given, inter alia, to afford to the suspect an opportunity to show that there is some mistake as to identity - Gunasekera v. Fonseka, (Supra). It is this right which has been elevated to a fundamental right. Viewed in this background there can be no objection to a restriction of this right in its application to a person in preventive detention who is not arrested on suspicion for an offence, even though a total denial of the right may be questioned. Presumably for this reason laws for preventive detention including our Regulation 17 do not insist on the requirement to notify the ground of suspicion at the time of arrest ... Accordingly, I am of the view that Regulation 17 does not amount to a denial of the fundamental rights enshrined in Article 13(1) of the Constitution." After setting out the provisions of the regulations relating to Advisory Committees appointed under Regulation 17, Kulatunga, J. at pp. 384-385 states as follows: "Although there is no provision in Regulation 17 for serving on a detenu a copy of the order at the time of his arrest I am of the view that the detenu should at least be informed of the fact of his arrest on such order except where the exigencies of the case preclude it. A copy of the detention order should be given to the detenu. Under Article 22(5) of the Indian Constitution, the duty to afford the detenu the earliest

opportunity of making representations against the order as well as to inform him of the grounds of the order are in the Authority making the order. The Supreme Court has held that in order

306 to make the right of making representations effective, the detenu should also be furnished with particulars of the grounds of his detention sufficient to enable him to make a representation: Shibban Lal Saksena v State of U.P (36).

 Under Regulation 17(6) the duty of giving the grounds of the order and sufficient particulars is placed on the Chairman of the Advisory Committee to be complied with at a meeting to consider the detenu's objections. No doubt this procedure would hamper the formulation of his objections but since the regulation clearly contemplates the giving of such grounds and particulars at the commencement of the inquiry, I do not think that it will lead to injustice. If upon such communication the detenu applies for time to prepare his case, the Advisory Committee should grant a postponement. Further the fact that the sufficiency of particulars is made subject to the opinion of the Secretary cannot be construed as giving the Chairman an arbitrary power to withhold particulars which are vital to a fair hearing. However, the Secretary may decline to furnish particulars which he cannot disclose in the public interest." Neither Soza, J. nor Kulatunga, J. stated that the communication of reasons was unnecessary when a person was arrested under the Emergency Regulations: what they did say was that the reasons need not be given at the time of the arrest and could be given later. Article 22(1) of the Indian Constitution states that "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest." Article 13(1) does not provide for a time. That aspect of the matter is governed by the general law. Section 23(1) of the Code of Criminal Procedure states as follows: "In making an arrest the person making the arrest shall actually touch or confine the body of the person to be arrested unless there be submission to the custody by word or action and shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested." It is plain that the charge or allegation should be made known at the time of the making of the arrest and not subsequently. The fact that at the time of the hearing by the Advisory Committee the Chairman is required to inform the person objecting to his detention of the grounds on which the order of detention has been

307 made, does not carry with it the corollary that the person arrested should not be informed of the charge or allegation at the time of his arrest: As we have seen, judges in the criminal courts are required to explain the charges; but that does not mean that the obligation to state the charge or allegation prescribed by section 23(1) of the Code of Criminal Procedure is to be discarded. Soza, J. stated that "The express provision in our Regulations stipulating that the Chairman of the Advisory Committee should inform the detenu of the grounds of detention implicitly makes a communication of reasons at the time of detention unnecessary". As I have pointed out, the fact that the Chairman is required to communicate reasons does not lead to the conclusion that the person arrested need not be informed at the time of his arrest of the reasons for his arrest. They are matters apart. There are two rights: (i) the Constitutional right to be informed of the reason for arrest guaranteed by Article 13(1) of the Constitution; and (ii) the right to be informed of the grounds of arrest given by Regulation 17. The first is to enable a person arrested at the time of his arrest to obtain his freedom immediately by showing good cause for his release. The second is to enable him subsequently to make a case to the Advisory Committee for his release. They are quite separate and distinct rights and the provision of the

second does not in my view wipe out or restrict the first. Regulation 17(5) provides for the appointment of an Advisory Committee "for the purpose", it is said, of "this regulation". Presumably, it means "for the purpose of hearing objections to detentions made under this regulation", for Regulation 17 deals with various matters, including matters other than those concerned with Advisory Committees. Regulation 17(7) states that "Any person aggrieved by an order against him under this regulation may make his objections to such Advisory Committee". Regulation 17(8) states that "Any person aggrieved by an Order under this regulation is entitled to be informed of his right to make objections in writing to such Advisory Committee as aforesaid." Naturally, every person who is imprisoned would be hurt in spirit and have cause to complain of the infliction of wrong, oppression, or distress, real or supposed, caused by the order of imprisonment. Was Mr. Cooray informed of his

308 right? All that the Secretary states he did was to inform the Chairman of the Advisory Board the "reasons" the Chairman could give Mr. Cooray for his arrest. Assuming that a person detained necessarily feels aggrieved, what are the objections he would want to make to the Advisory Committee in terms of Regulation 17(7)? They relate to objections against the order of detention. How could he make meaningful, specific, objections unless he knows the grounds on which the Detention Order was issued? After stating that it is the duty of the Chairman of the Advisory Committee to inform the person objecting to his arrest of the grounds on which the order of detention was made, Soza, J. states: "it is, therefore, always open to the detenu to apprise himself of the grounds of arrest." With great respect, this is a non-sequitur: How is it 'always open' to a person arrested and detained to inform himself of the reasons for his arrest merely because the Chairman of the Advisory Committee is obliged to give him reasons? Reasons will be given only when the Committee meets. The duty of the Chairman of the Advisory Committee to inform the person detained arises when there is a meeting of the Committee held to consider the objections of the person detained: Regulation 17(9). Meetings of the Committee are held to hear objections: Regulation 17(9). How can the person detained make meaningful objections unless he has before him the reasons for his arrest? Kulatunga, J. did appreciate the problem, but His Lordship was of the view that after the intimation of reasons, further time should be granted to enable the person detained to prepare his case. That, with great respect, does not solve the problem: Regulation 17(7) states that "Any person aggrieved by an order against him under this regulation may make his objections to such Advisory Committee. Regulation 17(9) states "At any meeting of an Advisory Committee to hear such objections as aforesaid shall be presided over by the Chairman. It shall be the duty of the Chairman to inform the objector of the grounds on which his order under this regulation has been made against him and to furnish him with such particulars as are in the opinion of the Chairman sufficient to enable him to present his case." The meeting is convened in the first place to hear the objections of the objector. In order to make objections so that a meeting may be convened, the person detained must have the grounds upon which the order was made.

309 In any event, could the Advisory Committee have at any time given Mr. Cooray the reasons for his arrest? The Secretary did write a letter to the Chairman of the Advisory Committee on the 3rd of July in which he refers to the Detention Orders of Mr. Cooray and three others. He states: "These Detention Orders have been issued by me after being satisfied on the material submitted to me by the D.I.G., C.I.D. to the effect that Mr. Sirisena Cooray has sought the assistance of certain persons to

cause harm or to assassinate Her Excellency the President. Some of the persons allegedly identified are Upali de Silva, U.L. Seneviratne, W.B. Somaratne and J.P. Jayamanna. Further it is reported that some persons have been enlisted as Reserve Police Officers and given training in sophisticated weapons. Whereabouts of some such persons trained in weapon use are not traceable today. Any conspiracy to cause acts in furtherance of such a purpose was considered a serious threat to national security. This letter is sent to you for the purpose of ER 17 (9) published in Gazette Extraordinary No. 843/12 of 4.11.1994. "Assuming that this information was communicated by the Chairman to Mr. Cooray (in fact it was not so done), what could Mr. Cooray have done: Obviously, he was not going to have any objection to the conclusion that a conspiracy to assassinate the President was a threat to national security. But what could he say about "some persons" who were supposed to have been enlisted as Reserve Police Officers and trained in the use of sophisticated weapons? Who were these persons? How were they linked to Mr. Cooray or to the conspiracy? How was Mr. Cooray responsible for the fact that the whereabouts of those persons was not known? With regard to the statement that Mr. Cooray had sought the assistance of the persons named and others to harm or assassinate the President, Mr. Cooray could have baldly denied it, but he was not placed in a position in which he could object to the conclusion arrived at by the Secretary, for although the Secretary says that he gave the-"reasons" for the arrest in his letter to the Chairman of the Advisory Committee, he did not in fact do so. As we have seen, Kulatunga, J. in Wickremabandu said that the Chairman should give the "grounds" and furnish the "particulars" on which the Secretary's decision was made so that the person detained could state his case. This is plainly stated in Regulation 17(9). When he stated that Mr. Cooray had conspired with certain persons to harm or assassinate the President, the Secretary was stating his inference

310 from certain facts: His duty was not merely to state his inference but also the grounds on which the inference was based. In India, Article 22 (5) of the Constitution states: When any person is detained in pursuance of an order made under any law for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." There is no corresponding provision in the Constitution of Sri Lanka. The procedure for objection in Sri Lanka is set out in Regulation 17 (5) - (11). With regard to Article 22 (5), in Shalini Soni and Others v. The Union of India and Others, (Supra) the Supreme Court of India stated as follows: "The Article has two facets: (1) the communication of the grounds on which the order of detention has been made: (2) opportunity of making a representation against the order of detention. Communication of the grounds presupposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say pertinent and proximate matters in regard to each individual case and excludes the element of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds

communicated, that is, the grounds so made known, should be seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went to make up the mind of the statutory functionary and not merely the inferential conclusion ... The matter may also be looked at from the point of view of the second facet of Article 22 (5). An opportunity to make a representation  

311 

against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that "grounds" in Article 22 (5) do not. mean mere factual inferences but mean factual inferences plus. factual material which led to such factual inferences. The "grounds" must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the "grounds" must be supplied to the detenu as part of the "grounds". The Court referred to the decision of the Supreme Court of India in ICCU Devi Choria v. Union of India (37), where it was stated that "if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds cannot be said to be complete without them..." (per Bhagwati, J. for the Court). In that case, it was held that if the requirement to give grounds of detention and furnish the materials relied upon had not been complied with, the continued detention of the detenu would be "illegal and void". The Secretary has not stated the grounds of detention. He has merely stated an inference which he states was based on the report of the Deputy-Inspector General of Police. In the circumstances, it was imperative that that report should have been made available to Mr. Cooray. If the report contained material that was not in the public interest to disclose, the Secretary was at liberty not to give that report, provided that he did not state, as he did, that that report was the sole basis for his inference. What he was obliged to do was to state the grounds: he did not do that, but referred to the report as his grounds. The failure to comply with the requirements of Regulation 17 with regard to the matter of informing Mr. Cooray of the grounds of detention makes his continued detention illegal and void and violates Article 13 (1) of the Constitution.

312 Admittedly, the exercise and operation of the fundamental rights declared and recognized by Article 13 (1) of the Constitution, including the right to be informed of the reason for arrest, are "subject to such restrictions as may be prescribed by law in the interests of national security, public order" and certain other matters specified in Article 15 (7) of the Constitution. "Law", for this purpose includes regulations made under the law for the time being relating to public security and would, therefore, include the Emergency Regulations. Soza, J. in Kumaranatunga v. Samarasinghe (Supra) at p. 359 stated that the Emergency Regulations "overshadow the fundamental rights guaranteed by Articles 13 (1) and 13 (2) of the Constitution". If he meant that the Emergency- Regulations towered above the Constitutional rights guaranteed by Articles 13 (1) and 13 (2) and cast those rights into the shade so as to obscure those rights with complete darkness, I would, respectfully, disagree with him. It comes as no surprise that the Emergency Regulations do no such thing.

Why? Because it cannot do such a thing: An amendment or repeal of Constitutional provisions can only be effected in accordance with the provisions of Chapter XII of the Constitution. Emergency Regulations may, in terms of Article 155 (5), override, amend or suspend the operation of any law, except the provisions of the Constitution. On the other hand, if Soza, J. meant that the Emergency Regulations overspread the Constitutional rights with some influence by imposing certain restrictions on the operation and exercise of such rights, I would then, respectfully, agree with him. However, although such restrictions on fundamental rights may be imposed, they cannot be restricted to a point of denial: per Kulatunga, J. at p. 380 and p.' 381; cf. per H. A. G. de Silva, J. (Fernando, J. agreeing) at p. 359 in Wickremabandu (Supra). Moreover, Emergency Regulations restricting the exercise and operation of fundamental rights may be made only for the reasons specified in Article. 15 (7) of the Constitution and must be confined to those reasons in their construction and interpretation. "When provisions affecting the liberty of the subject are in question inroads into them must be strictly scrutinized and construed.": per Samarakoon, CJ in Kumaranatunga v. Samarasinghe (Supra). As an organ of government, the role of the judiciary is clear: Article 4 (d) of the Constitution states that "the fundamental rights which are by the Constitution declared and recognized shall be respected, secured

313 and advanced by all organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided." Any restriction of the exercise and operation of the fundamental rights declared and recognized by Article 13 (1) can only be made by "law": Article 15 (7). We are obliged to respect, secure and advance fundamental rights. We cannot impose restrictions on any fundamental right guaranteed by the Constitution: Such restrictions may only be prescribed by law - by an Act of Parliament or by regulations made under the law relating to public security. No such restriction has been imposed: Channa Pieris v. Attorney-General, (Supra) at p. 63. In India, a distinction is drawn between ordinary arrests and arrests relating to preventive detention. Article 22 of the Indian Constitution makes its guarantee of the right to be informed of the grounds of arrest as soon as may be, inapplicable to any person who is arrested or detained under any law providing for preventive detention. There is no such distinction recognized by our Constitution. And as far as I can see, there is no law (including Emergency Regulations) that restricts the exercise and operation of the right to be given the reason for arrest declared and recognized by Article 13 (1) of the Constitution: Channa Pieris v. Attorney-General, (Supra) at p. 63. And although the Emergency Regulations expressly make inapplicable certain provisions of the Code of Criminal Procedure, section 23 of that Code is not one of those provisions. Therefore, persons who are arrested - whether under the provisions of the ordinary law or under the Emergency Regulations - have a Constitutional right to be informed of the reason for the arrest (Channa Pieris v. Attorney-General, (Supra) at p. 63); and a statutory right at the time of arrest to be informed of the nature of the charge or allegation upon which he is arrested. Mr. De Silva submitted that preventive detention related to cases in which no offence had yet been committed, and that, therefore, no reasons could be given in such cases and, therefore, the law was that in cases of preventive detention no reasons were required to be given. He referred to the judgment of Kulatunga, J. in Wickramabandu v Herath and Others (Supra). At page 381, Kulatunga, J. states as follows: "The right of a person arrested to be brought before the

314 

judge of a competent court is much more associated with a person accused of an offence for it is by such Court that he will be eventually tried. Such Court would also have the power to enlarge him on bail. These considerations do not apply to a person in preventive detention and hence such person may not be brought before a judge of a competent court." With great respect, I am unable to agree. The constitutional right of a person to be brought before the judge of the nearest competent court according to procedure established by law has no necessary connection with the Court that will eventually try him. The Court that may eventually try him, will in respect of serious offences, be the High Court. Nevertheless, in accordance with the procedure established by law, after his arrest, a person would have to be brought before a magistrate, regardless of the fact that, by reason of the nature of the offence, the person may have to stand his trial in the High Court. Nor is the question of bail relevant. For instance, in respect of the offence of waging war or abetting the waging of war against the Republic (section 114 Penal Code), or in respect of the offence of giving false evidence with intent to procure the conviction of a person of a capital offence (section 191 Penal Code), or in respect of the offence of murder (section 296 Penal Code), a magistrate (nor for that matter a judge of the High Court) cannot release a person on bail except with the sanction of the Attorney-General: Section 403 Code of Criminal Procedure. Nevertheless, in accordance with procedure established by law, after his arrest, a person would have to be brought before a magistrate, regardless of the fact that, by reason of the provisions of law, including I might say the Emergency Regulations, the magistrate has no power to release the person on bail. I am unable to agree with the submission of learned counsel for the respondents that there is no requirement to give reasons for arrest to a person ordered to be detained under Regulation 17 (1) because it is not possible since he has not yet committed an offence. It would not be possible to charge a person with the commission of an offence if no offence had been committed, but it is both possible and necessary to inform him of the nature of the allegation against him (Section 23 Criminal Procedure Code), and the grounds on which the Secretary was satisfied that it was necessary to take that person into custody: See the observations of the Supreme Court of India,

315 with which I respectfully agree, in Shalini Soni and Others v. Union of India and Others cited earlier in my judgment. In this case, the Secretary states in his affidavit that he did convey to the Chairman of the Advisory Committee the "reasons" for the detention which he was expected to convey to Mr. Cooray in due course. That was not really so - but that is another matter. At least he stated his inference, which however Mr. Cooray did not know until, after he had read the allegation reported in the newspapers, he was able to drag it out of his interrogators. Mr. De Silva also overlooked the fact that regulation 24 (b) states that whoever, inter alia, " conspires to murder ... the President ... shall be guilty of an offence notwithstanding anything in any other law, and shall upon conviction before the High Court be liable to be punished with death or rigorous imprisonment for a period not less than five years and not exceeding twenty years and shall forfeit all his property." And so there was an offence he was supposed to have committed and there ought to have been grounds for that conclusion. Although the Secretary issued the detention order on the 16th of June 1997, because he says he was satisfied that Mr. Cooray was involved in a conspiracy to assassinate or harm Her Excellency the President, yet, as we have seen, it was only on the 24th of June that he was asked about the alleged conspiracy, and that too after Mr. Cooray had read about it in the newspapers and drawn the attention of the police officers interrogating him to the news items. Even assuming that the duty to

give reasons does not include the duty to give reasons at the time of arrest, the reasons must be given at the first reasonable opportunity: Mallawarachchi v. Seneviratne(3; Elasinghe v. Wijewickrama and Others(39) ; Chandra Kalyanie Perera v. Siriwardena(40); Lalanie and Nirmala v. De Silva and Others (41). In my view, there. was a failure in this case to give reasons at the first reasonable opportunity. The Alleged Violation of Article 13 (2) of the Constitution. The petitioner was granted leave to proceed for the alleged violation of Mr. Cooray's rights declared and recognized by Article 13 (2) of the Constitution.

316 Article 13 (2) states as follows: "Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law." This Court has over and over again referred to that as a "salutary provision to ensure the safety and protection of arrested persons": See the decisions cited in Channa Pieris v. Attorney-General, (Supra) at p. 75. It was not in dispute that Mr. Cooray had not been brought before a judge after his arrest. Mr. De Silva submitted that Mr. Cooray had been detained on a Detention Order made by the Secretary under Regulation 17 (1) of the Emergency Regulations and that therefore there was no obligation to produce him before a judge. He cited the following observations of Kulatunga, J. in Wickremabandu v. Cyril Herath (Supra) in support of his submission: "if as I have shown, rights under Article 13 (1) and (2) may be restricted by regulation in the interest of national security or public order, the next question is whether the provisions of Regulation 17 (1), (2) and (3) which by necessary implication deny the right of the detenu to be brought before a judge of a competent court or the provisions of Regulations 17 (4) and (5) would result in a "denial" of his rights under Article 13 (1) and (2) which is not permitted by Article 15 (7)."  If, as Article 15 (7) no doubt permits, the exercise and operation of the rights under Article 13 (2) may be restricted by regulations made under the law relating to public security, "the next question", in my view, is whether there are such regulations restricting the rights declared and recognized by Article 13 (2) of a person arrested on an Order of Detention issued by the Secretary by virtue his powers under Regulation 17 (1). There were no such restrictions imposed by the Regulations of 1989 which were applicable to the decision in Wickremabandu (1990); nor are any such restrictions to be found in the Emergency Regulations made on 04 November 1994 under which the Order of Detention was issued in the matter before us.

317 (There are some differences between the provisions of Regulation 17 of 1989 and 1994; but for the purposes of considering the dictum of Kulatunga, J. it is not necessary to go into those matters in detail). Learned counsel for the respondents, citing the judgment of Kulatunga, J. in Wickremabandu v. Herath and Others (Supra), submitted that the right of Mr. Cooray to be produced before a judge in terms of Article 13 (2) of the Constitution had been taken away. Kulatunga, J. said nothing to support such a proposition: What he did say. (see pages 379-380) was that the regulations applicable at the relevant time

had not taken away the right of a person detained under regulation 18 of the Emergency Regulations to be brought before a judge. This is also the position today under the Regulations applicable to the case before us. Kulatunga, J. however, did say (see page 379) that in terms of the decision in Edirisuriya v. Navaratnam(42), "the right of an arrested person could be taken away". Kulatunga, J. himself, however, seemed to be of the view, (see pages 380 and 381) and with that view, I respectfully, agree, that although restrictions could be imposed by regulations, there could be no denial by such regulations. However, Edirisuriya v Navaratnam did not state that "the right of an arrested person could be taken away". Kulatunga, J. quotes the following words of Wanasundera, J. in that case immediately before his interpretation of the decision in that case:"If it is intended to restrict the requirement of 13 (2) - which undoubtedly can be done by a suitable wording of the regulation so as to have a direct impact on Article 13 (2) itself, when national security or public order demands it - this must be specifically done. Article 13 (2) cannot be restricted without a specific reference to it. But this has not been done. Instead, we have a restriction imposed on the operation of sections 36-38 of the Code. In the result, the constitutional requirement that a detained person "shall be brought before the judge of the nearest competent court" remains unaffected. Though it will continue to exist in a truncated form still being a constitutional requirement: it must be complied with in a reasonable way within a reasonable time."

318 Regulation 19 (1) states that the operation of sections 36, 37 and 38 of the Code of Criminal Procedure Act shall not apply to and in relation to any person arrested under Regulation 18. This does not mean that the procedures set out in sections 36, 37 and 38 of the Code have been repealed with regard to arrests made under Regulation 18. Even with regard to arrests made under that regulation, the provisions of sections 36-38 of the Code "must be complied with in a reasonable way within a reasonable time": Edirisuriya v Navaratnam (Supra). What is a "reasonable way" and a "reasonable time" is a matter for the Court to decide in the circumstances of a particular case. Moreover, where, in the opinion of the Court, a purported arrest under Regulation 18 cannot in law have been made under that Regulation, sections 36, 37 and 38 of the Code would be applicable.  In Channa Pieris v. Attorney-General, (Supra) at p. 102-104 the Court found that the petitioners could not have been arrested under Regulations 17 or 18, because there were no reasonable grounds, and that therefore the provisions of the Code of Criminal Procedure were applicable. In the circumstances, the failure to produce the petitioners before a judge within a reasonable time and not later than twenty-four hours was in violation of the procedure established by the Code, and consequently, a violation of Article 13 (2) of the Constitution. The Court said (at pp. 103-104): "Even if a person has been incarcerated following a procedure established by law, that does not completely terminate his or her right to liberty. That is a very basic and fundamental principle enshrined in the Constitution and supported by reason and abundant precedent. In the matters before us, the petitioners were not arrested under a procedure established by law; they were arrested on grounds of vague suspicion, in circumstances that showed a reckless disregard for their right to personal liberty, so that their right to be brought before a judge was particularly urgent. In failing to comply with the salutary provision relating to the production of the petitioners before a judge of the nearest competent court in this way, the respondents transgressed the rights conferred on them by Article 13 (2) of the Constitution."

 In Kumara v. Rohan Fernando and Others(43), the respondents stated that the petitioner had been arrested under Regulation 18. (1)  

319 for violating regulations 45 and 46. Regulation 45 created no offence. Regulation 46 created an offence, but in terms of the respondents' affidavits, the arrests had nothing to do with that offence. The Court held that in the circumstances the arrests were not made in accordance with the procedure prescribed by Regulation 18 (1). Perera, J. said: "The suspension of the operation of the provisions of the Code of Criminal Procedure is conditional upon the person being arrested under Regulation 18. Where a person is not arrested and kept arrested in pursuance of Regulation 18, Regulation 19 has no applicability. In such a case, the procedure established by law for the purposes of Article 13 (2) of the Constitution is the procedure prescribed by section 37 of the Code of Criminal Procedure." Accordingly, it was held that the failure to produce the petitioner before a magistrate within a reasonable time but not exceeding twenty-four hours, was a violation of Article 13 (2) of the Constitution. In Ansalin Fernando v. Sarath Perera and Others(44), where a person was purported to have been arrested under Regulation 18 (1) although the ground for arrest was murder. Kulatunga, J. said that murder "as such" was not an offence under the Emergency Regulations and that therefore "it was an offence in respect of which an arrest can only be made under section 23 of the Code of Criminal Procedure in which event the suspect has to be produced before a Magistrate in terms of section 36 and within section 37 of the Code." The question remains whether the rights declared and recognized by Article 13 (2) were, as suggested by Kulatunga, J. in Wickramabandu (Supra) at p.380 (see also Weerakoon v. Mahendra(45); Fernando v. Kapilaratne(46), taken away by "necessary implication" by the provisions of Regulation 17 (1), (3) - earlier (2) - c and (4) - earlier (3). Regulation 17 (1) empowers the Secretary, if he is satisfied - earlier "if he was of opinion" (I have already adverted to this matter) - that in order to prevent a person from acting in one or more of the ways specified it is necessary to do so, to order the detention of that person. Regulation 17 (3) authorizes any police officer or member of the armed forces to carry into effect an order made under Regulation 17 (1). Regulation 17 (4) provides that; any person so detained shall be deemed to be in lawful custody and shall be detained at a place authorized by the Secretary (earlier, the Inspector-General of Police).

320 With great respect, why, as a matter of 'necessary implication', do those regulations take away the right of a person arrested to be produced before a judge? In my view, the supposed restriction is neither involved in what is expressed in the sub-paragraphs of regulation 17 of the 1989 regulations referred to by Kulatunga, J., nor in the corresponding sub-paragraphs of the Regulations applicable to the matter before us. If restrictions are to be made on fundamental rights, they can only rest on the authority of a law plainly expressed by Parliament, or in regulations made under the law for the time being relating to public security. Such rights cannot be swept away by "implication" ... Why? Because the Constitution state in Article 15 (7) that restrictions on the exercise and operation of fundamental rights declared and recognized by Article 13 (1) and 13 (2) may only be those prescribed by law. "Constitutional guarantees cannot be removed or modified except in accordance with

the Constitution. That, I believe, is a proposition that commends itself to general acceptance. I believe it is still a well-established and universally conceded principle. One might say that it is axiomatic":; Channa Pieris, (Supra) at p. 81. As judges, we have our duties cut out for us: As an organ of government, the Constitutional duty imposed on the judiciary by Article 4 (d) of the Constitution is to respect, secure and advance fundamental rights. In Wickramabandu, (Supra) at pp. 379-380, Kulatunga, J. states: "The restriction of the requirement to produce the detenu before a Magistrate is presumably in consequence of policy and not on account of any absolute right to production." The right, as a matter of policy, may be restricted, but it has not been done. As Wanasundera, J. observed in Edirisuriya v. Navaratnam, (Supra): "it is intended to restrict the requirement of 13 (2) ... this must be specifically done. Article 13 (2) cannot be restricted without a specific reference to it. But this has not been done ... In the result, the Constitutional requirement that a detained person shall be brought before the judge of the nearest competent court remains unaffected ...". The Constitutional right to be produced remains "untouched", as G. P. S. de Silva, J. (as he then was) observed in Joseph Silva and Others v. Balasuriya and Others(47). What has been done is to suspend the operation of sections 36, 37 and 38 in respect of persons arrested under Regulation 18. Therefore, although a person must be brought

321 before a Judge, he may be brought within a reasonable time, although that may be in excess of the twenty-four hour limit prescribed by section 37 of the Code of Criminal Procedure. If such rights are to be restricted, that, in the homely words of a plain man, is not our business, for policy is not within our purview. Whereas the 1989 regulations empowered the Secretary to order the taking into custody and the detention of a person, the current (1994) regulations go on to qualify that power by stating that the Secretary may make order that the person be taken into custody and detained "for a period not exceeding three months and any such order may be extended from time to time for a period not exceeding three months at a time. Provided however that no person shall be so detained upon an order under this regulation for a period exceeding one year. The period of detention of such person may be extended if such person is produced before a magistrate prior to the expiration of his period of detention, accompanied by a report from the Secretary setting out the facts upon which the person is detained and the reasons which necessitate the extension of such period of detention. Where the magistrate is satisfied that there are reasonable grounds for extending the period of detention of such person he may make order that such person be detained for a further period of time as specified in such order, which period should not exceed three months and may be extended by the magistrate from time to time." The following new subsection (2) was added in the 1994 Regulations (resulting in the renumbering of the subsections referred to above): "Where a person is produced before a magistrate in compliance with the provisions of paragraph (1) the magistrate shall examine the material placed by the Secretary in his report. The report shall be prima facie evidence of its contents. The Secretary shall not be required to be present or called upon to testify before the Magistrate." Mr. De Silva submitted that the "procedure established by law" in the case of a person arrested and detained on an order made by the Secretary under Regulation 17 (1) was the procedure prescribed in Regulations (1) and (2). Consequently, such a person need not be brought before a magistrate unless and until it became necessary to extend the period of detention beyond one year.

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I am unable to accept that submission: the provisions introduced in 1994 were, in my view, intended to impose certain restrictions on the exercise of the power of arrest and detention conferred by regulation 17 (1) on the Secretary: the Secretary, in the first place, was empowered to make an order which had to specify the period of detention. (As we have seen, the Secretary failed to do so, but when he realized that he had issued a defective order, he issued an amending order.) The Secretary is permitted to extend the orders from time to time for a period not exceeding three months at-a time. That provision has the effect of compelling the Secretary to keep the matter of a detention under review so that if at any time he was satisfied that the detention was no longer warranted, he could order the release of the person imprisoned. (In this case the Secretary on the 3rd of July 1997 wrote to the Director of the National Intelligence Bureau as follows with regard to the orders he had issued in respect of Mr. Cooray and three other persons: "The Detention Orders have been issued for a period of three months. But the question of continued detention has to be kept under constant review. I would therefore like to have a fortnightly report on the progress of investigations into all these four Detention Orders, the first such report to be received preferably by Thursday 10th July 1997. Please make a note to send regular reports on the above basis thereafter.") The new provisions limit to one year the period of detention which the Secretary could eventually order. If in his opinion further detention is required, that must be upon the order of a magistrate to whom the Secretary must submit a report and before whom he must produce the person ; detained. The procedure established by those provisions relate to the question of the extension of a person's period of detention beyond a year and not with the procedure established by law for producing a person before a judge in accordance with the requirements of Article 13 (2) of the Constitution. The purposes contemplated by Article 13 (2) are altogether different. The scheme of the ordinary criminal law (e.g. see sections 32, 33, 35, 36, 37, 54, 58, 116 Code of Criminal Procedure) is that any person who is arrested should be brought before a neutral person - a judge - without unnecessary delay, so that such a person may apply his 'judicial mind' to the information placed before him and  

323 make an impartial determination of what course of action is appropriate in the light of the law applicable to the case: Channa Pieris v. Attorney-General, (Supra) at pp. 75-76 citing Sharvananda, Fundamental Rights at p. 142; Gerstein v. Pugh(48); the decisions of the European Court on Human Rights reported in Vincent Berger's Case Law of the European Court of Human Rights in the Schiesser case, ECHR Decision on 04.12.79, the Skoogstrom case, ECHR Decision on 02.10.84 the McGoff case, ECHR Decision on 26.10.84; and per Goonewardene, J. in Mohammed Faiz v. Attorney-General (49). The right to be brought before a judge recognized by the Code of Criminal Procedure was elevated to the status of a fundamental right. It happened in this way: The makers of the Indian Constitution were under pressure from certain groups to provide for "due process" in order to secure the personal liberty of citizens. When the Indian Constitutional Adviser, Sir B. N. Rau consulted Justice Frankfurter of the United States Supreme Court on the matter, he was advised to use the phrase "procedure established by law", because the phrase "due process" was imprecise, although in the context of the USA, by judicial interpretation over a century, the principles had become well established. The proposal of the Indian Drafting Committee to follow this advice was not enthusiastically received. As a compromise, it was decided, in the words of Dr. Ambedkar in his speech to the Constituent Assembly on September 15, 1949, to provide for "the substance of due process". This was done, as Dr. Ambedkar explained by "lift(ing) from the provisions of the Criminal Procedure Code two of the

most fundamental principles which every civilized country follows as principles of international justice." The two principles were the right to be informed of the reasons for arrest and the right to be produced before a judge in accordance with procedure established by law. Dr. Ambedkar said: "it is quite true that these two provisions ... are already to be found in the Criminal Procedure Code and therefore probably it might be said that we are really not making any fundamental change. But we are, as I contend, making a fundamental change because what we are doing by the introduction of Article 15 A is to put a limitation upon the authority both of Parliament as well as of the Provincial Legislature not to abrogate these provisions because they are now introduced in our Constitution itself. It is quite true that the enthusiasts for personal

324 liberty are probably not content with the provisions of clause (1) and (2). They probably want something more by way of further safeguards against the inroads of the executive and the legislature upon the personal liberty of the citizen. I personally think that while I sympathize with them that probably this Article might have been expanded to include some further safeguards, I am quite satisfied that the provisions contained in Article 15 A are sufficient against illegal or arbitrary arrests." Article 13(1) and 13(2) broadly followed the Indian model. The right to be produced before a judge, as Wanasundera, J. observed in Edirisuriya v. Navaratnam, (Supra), "is more than a mere formality or an empty ritual, but is recognized by all communities committed to the Rule of Law as an essential component of human rights and fundamental freedoms", and it "behoves us therefore to see that provisions such as this, safeguarding human rights and freedoms, are exactly complied with." In Nallanayagam v Gunatilake(50), Colin Thome, J. said: "Article 13 (2) embodies a salutary principle safeguarding the life and liberty of the subject and must be exactly complied with by the executive. In our view this provision cannot be overlooked or dismissed as of little consequence or as a minor matter." In Brogan v. The United Kingdom (Supra), in considering Article 5 (3) of the European Convention - which deals with the right to be promptly produced before a judge - in the context of terrorist cases, stated that the Article "enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty." The Court said that "Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5 (3) which is intended to minimize the risk of arbitrariness." It stated that "Judicial control is implied by the rule of law, one of the fundamental principles of a democratic society." Neither the right to appeal to the Advisory Committee given by regulation 17, nor the fact that in terms of regulation 18 (6) there is a duty on the officer-in-charge of places of detention to ensure that every person detained therein, otherwise than by an order of a Magistrate, to produce such persons before a magistrate is what is contemplated by Article 13 (2) of the Constitution.

325 A right granted by the Constitution can only be removed by the Constitution and not by any other law. And so, in India, Clause 3 (b) of Article 22 of the Constitution provides that the Constitutional right to be produced before a judge is not available to a person who is arrested or detained under any law providing for preventive detention. The makers of the Constitution of Sri Lanka, however, did not write such an exception into its Constitution. That is essentially a matter of policy. There is nothing intrinsically special about preventive detention that makes it necessary to dispense with the requirement of production before a judge. Article 5.3 of the European Convention for the Protection of Human Rights and Fundamental

Freedoms states that "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge ...". Paragraph 1 (c) deals with (1) the case of persons lawfully arrested or detained "for the purpose of bringing him before the competent legal authority on a reasonable suspicion of having committed an offence"; and (2) a case in which a person has been arrested and detained .,when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so." The emphasis is mine. Admittedly, Article 15 (7) permits the restriction of the operation and exercise of the rights guaranteed by Article 13 (2), in certain specified circumstances, by law, including Emergency Regulations. Regulation 19 (1) states: "The provisions of sections 36, 37 and 38 of the Code of Criminal Procedure Act No. 15 of 1979 shall not apply to, and in relation to, any person arrested under Regulation 18." Mr. Cooray was ordered to be arrested and detained under Regulation 17. Sections 36 and 37 of the Code of Criminal Procedure therefore remain applicable to him. Those sections prescribe the procedure established by law that the officer carrying out the Secretary's order should have followed. Section 36 states: "A peace officer making an arrest without warrant shall without unnecessary delay and subject to the provisions contained as to bail take or send the person arrested before a Magistrate having jurisdiction in the case." Section 37 states: "Any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the

326 case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate." Mr. Cooray has been in detention from the 16th of June 1997 without being brought before a magistrate. This is in violation of his fundamental right to be produced before a judge of the nearest competent court guaranteed by Article 13 (2) of Constitution. For the reasons set out in my judgment, I declare that Mr. Bulathsinghalage Sirisena Cooray's fundamental rights guaranteed by Article 13 (1) and 13 (2) of the Constitution have been violated and that his arrest and detention is unlawful and illegal. I direct the first respondent, the Secretary, Ministry of Defence, to forthwith order the release of the said Mr. Bulathsinghelage Sirisena Cooray from custody and detention. The State shall pay the said Mr. Bulathsinhalage Sirisena Cooray a sum of Rs. 200,000/- as compensation and costs. WIJETUNGA, J. - I agree.  GUNAWARDENA, J. - I agree.  Relief granted.

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246

 Present : H. N, G. Fernando, C. J., G. P. A. Silva, S. P. J.,and Alles, J.

Mrs. SITA GUNASEKERA, Petitioner, and A. T. DE FONSEKA (Assistant Superintendent of Police) and 2 others, Respondents

S. C. 411 of 1971-In the matter of an Application for a Mandate in the nature of a Writ of Habeas Corpus under Section 45

of the Courts Ordinance

Public Security Ordinance-Emergency Regulations No. 6 of 1971 made thereunder- Regulations 18, 19, 20, 21 (2), 55-Power of arrest, without warrant, under Regulation 19-Meaning and effect of the words " whom he has reasonable ground for suspecting "-Criminal Procedure Code, ss. 32 (i) (6), 53-Penal Code, ss. 5, 92-Courts Ordinance, s. 45-Habeas corpus.

Although Regulation 19 of the Emergency Regulations No. 6 of 1971 (published in Gazette of 15th November 1971) empowers any officer mentioned therein to arrest without warrant a person whom he has reasonable ground for suspecting to be concerned in an offence punishable under any Emergency Regulation, a condition precedent for such arrest is that the officer who arrests should himself reasonably suspect that the person arrested had been concerned in some offence under the Emergency Regulations. Accordingly, where an Assistant Superintendent of Police has purported to arrest a person under Regulation 19 merely because he had orders to do so from his superior officer, the Superintendent of Police, and was not personally aware of the actual offence of which the person arrested was suspected by the Superintendent of Police, such arrest is liable to be declared in habeas corpus proceedings to have been unlawful.

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APPLICATION for a writ of habeas corpus.

P. B. Tampoe, with Prins Rajasooriya and Lakshman Guruswamy, for the petitioner.

V. S. A. Pullenayegum, Deputy Solicitor-General, with Ian Wikramanayake, Senior Crown Counsel, and S. Sivarasa, Crown Counsel, for the respondents.

Cur. adv. vult.

January 21, 1972. H. N. G. FERNANDO, C. J.-

This was an application for a Writ of Habeas Corpus in respect of one P. C. Gunasekera, who was arrested by the Assistant Superintendent of Police, Galle, at about midnight on 4th December 1971. The Petitioner, who is the wife of Gunasekera, averred in an affidavit that the arrest and consequent detention were illegal and wrongful, and in addition that the arrest was made mala fide and in revenge for certain actions and statements regarding the policies of the Government and the actions of the Police which had been made by a Member of Parliament Mr. Prins Gunasekera, who is the brother of the corpus Gunasekera.

Notice of the application to this Court was issued on the Assistant Superintendent who arrested him and also on the Superintendent of Prisons, Mahara, and the Commissioner of Prisons. There were then filed in this Court affidavits of the Assistant Superintendent of Police and the Commissioner of Prisons, and also an affidavit from A. Navaratnam, Superintendent of Police, Southern Division.

The affidavit of the Superintendent of Police (hereinafter referred to as " the S. P. ") contained averments-

, (a) that the corpus Gunasekera had been arrested on 18th March 1971 on suspicion of being concerned in a conspiracy to overthrow the Government, and that he then had in his possession certain documents indicative of his involvement in

such a conspiracy but that he was released as the evidence appeared to be insufficient;

(b) that in the course of further investigations into the conspiracy referred to above, statements of various persons were recorded on certain dates in June, July and December 1971;

(c) that the documents and statements referred to above gave to the Superintendent of Police reasonable ground for suspecting that the corpus had been concerned in committing an offence punishable under Regulation 22 (sic. 21) of the Emergency Regulations.

The Superintendent further stated that on the night of 4th December 1971 he instructed the Assistant Superintendent of Police from Colombo to arrest the corpus and to produce him at the Galle Police Station for interrogation. The affidavit of the A. S. P. averred that the instruction

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to him was to take Gunasekera into custody "under the Emergency Regulations ", and the position for the Crown at the hearing of this application has been that the corpus was duly arrested under Regulation 19 of the Emergency Regulations. The corpus was held in custody at the Galle Police Station until 18th December 1971, when he was produced before the Magistrate, Galle, who then made an order that he be detained in Prison. It was conceded for the Crown during the hearing that the Order for detention made by the Magistrate under Regulation 20 was purely administrative, and that such an Order cannot validly authorize the detention of a person, unless the person had been validly arrested under the powers conferred by Regulation 19.

I must here mention that the learned Deputy Solicitor-General did propose to argue that Regulation 55 of the Emergency Regulations had ousted the jurisdiction of this Court to inquire into the validity of an arrest purporting to have been made under Regulation 19. We however indicated to him that there is no possibility of our doubting the correctness of the opinion to the contrary which was held unanimously by the Bench which decided the case of Hirdaramani (Application No. 354/71-S. C. Minutes of 30.12.71) 1[ 1 (1971) 75 N. L. R. 67.]

It was averred by the petitioner that at the time of the arrest of Gunasekera, the A. S. P. merely stated that he had orders from Colombo to arrest Gunasekera, and that he was not able to furnish any information other than that he was acting on orders from Colombo. These averments of the petitioner were not contradicted in the affidavit of the A. S. P., but we accepted as correct his averment that he had informed Gunasekera that he was arresting him " under the Emergency Regulations ". In the result it was clear from the affidavits of the S. P. and the A. S. P. that the corpus was arrested because the S. P. suspected that he had been concerned in some offence, and that the A. S. P. who arrested him had no such suspicion and could not and did not inform the corpus of the particulars of the alleged offence.

The S .P. in his affidavit denied that he had ordered the arrest of the corpus in bad faith. It was not however necessary for us to make any inquiry into the petitioner's allegation of bad faith, since her application for the writ had to succeed on a ground of law.

Regulation 19 (1) of the Emergency Regulations confers powers on any police officers, any member of the Ceylon Army, Royal Ceylon Navy or Royal Ceylon Air Force, or the Commissioner of Prisons or any Superintendent, Assistant Superintendent or Probationary Superintendent of a Prison, or any Jailor or Deputy Jailor, or any Prison Guard, or Prison Officer, or any other person authorized by the Prime Minister to act under this regulation. It provides that any one of these numerous persons mentioned therein may search, detain for purposes of such search, or arrest without warrant, any person :-

(a) who is committing an offence under any Emergency Regulation; or

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(b) who has committed an offence under any Emergency Regulation; or

(c) whom he has reasonable ground for suspecting to be concerned in or to be committing or to have committed an offence under any Emergency Regulation.

Any of these numerous officers will of course know that he has a power of arrest under Regulation 19 ; but there is something else as important, or even much more important, which such an officer must know, namely, whom can he lawfully arrest ? It is clear that he can arrest a person who is committing an offence under any Emergency Regulation, and that he can also arrest a person who has committed such an offence. If an Army Private does arrest a person and is subsequently called upon to justify the arrest, whether in a Court of Law or before some military superior, he can justify the arrest by establishing a fact, namely, that the person was com-mitting an offence at the time of the arrest or had committed such an offence before his arrest. In both these instances an individual becomes liable to arrest because of something he is doing or something he has done. It is not however the case for the Crown that the ground for the arrest in the present case was that Gunasekera was committing or had committed an offence under any Emergency Regulation.

Regulation 19 also expressly contemplates a third instance in which an officer empowered by the Regulation may make a lawful arrest, namely the arrest of a person " whom he has reasonable ground for suspecting ".The case for the Crown was that the arrest in the present case was lawfully made on this ground.

The language of Regulation 19 has the plain meaning that the third instance in which the Regulation empowers an officer to arrest is where HE reasonably suspects something concerning an individual. On the facts of the present case therefore, Regulation 19, according to its plain meaning, did not authorize the A. S. P. to arrest Gunasekera, because on the averments in the affidavits it was the Superintendent, and not the A.S.P. himself, who suspected that Gunasekera had been concerned in some offence under the Emergency Regulations. Indeed there are also extrinsic reasons for adhering to this plain meaning.

In Muttusamy v. Kannangara 1 52 N. L. R. 324 and in Corea v. The Queen 2 55 N. L. R. 457, this Court held that when a Police Officer arrests a person without a warrant, he should, save in certain exceptional cases, inform the suspect of the true ground of arrest. This duty to inform a person of the grounds for his arrest is no mere arbitrary requirement. A citizen has a right to resist an unlawful arrest; but he can only exercise that right if he is informed of the grounds upon which he is being arrested. In the case of Christie v. Leachinsky 3 (1947) A. C. 583, Lord Simon said " Is citizen A bound to submit unresistingly to arrest by citizen B in ignorance of the charge

against him I think that cannot be the law of England". Recognition in Ceylon of the  English Law on this matter is found in a. 53 of the Criminal Procedure Code. Even when a person is arrested under the authority of the warrant of a Court of law, s. 53 requires the arresting officer to inform the person of the substance of the warrant, which of course includes reference to the offence which the person is alleged to have committed. I am entirely in agreement with the observation of Gratiaen J. in Muttusamy v. Kannangara that this requirement applies a fortiori where a person is arrested without a warrant.

1 (1951) 52 N. L. R. 324

2 (1954) 55 N. L.R. 457.

3 (1947) A. C. 583.

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There is every justification, in common sense, for this requirement. It is only if a person is informed of the ground for his arrest, or (in other words) of the offence of which he is suspected, that he will have an opportunity to rebut the suspicion or to show that there is some mistake as to identity. If, for instance, he is told that he is suspected of having committed some offence in Colombo on a particular day, he may be able immediately to produce perfect proof that he was not in Colombo on that day; if he is told that the person wanted on suspicion is XYZ Perera, he may be able to establish by production of his driving licence that he is not that person. In such circumstances, the officer might well desist from taking the person into custody.

According to the decisions which I have cited there are exceptional cases in which the requirement will not apply, particularly cases in which it is obvious in the circumstances that a person must necessarily know why ha is being arrested. Examples of such cases are found in paragraphs (a), (c), (e) and (f) of s. 32 (1) of the Criminal Procedure Code. So also if a person is arrested under Regulation 19 of the Emergency Regulations when he is committing an offence, then the requirement that he be informed of the ground for his arrest may not apply. But the present case does not fall within these exceptions.

This requirement obviously cannot be complied with unless the arresting officer himself knows the grounds for arresting a particular person. Since the A. S. P. in the present case did not have that knowledge, he was clearly unable to comply with this requirement.

The learned Deputy Solicitor-General submitted that the decisions reported in Muttusamy v. Kannangara 1 52 N. L. R. 324, and in Corea v. The Queen 2 55 N. L. R. 457, have wrongly applied the English law and should therefore be reconsidered. In support of this submission Counsel could only refer to s. 92 of the Penal Code which provides that there is no right of private defence against an act done by a public servant acting in good faith under colour of his office. This only means however, that a person cannot use force to resist what appears to be a lawful arrest; but s. 92 surely does not deprive a person of his right to avoid arrest if he can do so without resort to force or violence. In any event, apart from Counsel's bare pronouncement that our section 92 is different from the English Law, he made no attempt to show either by argument or by reference to case law or text books, that the English Law on the

1 (1957) 52 N. L. R. 324.

2 (1954) 55 N. L. R. 457.

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point is different from that contained in s. 92. Counsel failed to adduce any good reason for his suggestion that the two cited cases were wrongly decided.

I do not say that the omission to inform a person of the grounds for his arrest will necessarily render an arrest unlawful. But the existence of the requirement that in a case such as the present one a person must be informed of the grounds for his arrest confirms the plain meaning of the relevant language in Regulation 19, namely that the officer who arrests a person suspected of an offence must himself entertain the suspicion.

The circumstances of the Indian case of Deshpande 1 (1945) A. I. R. Nagpur 8, are important and relevant in the present context. Rule 129 of the Defence of India Rules provided that

" Any Police Officer.............. may arrest without warrant any person whom he reasonably suspects of having acted.......

(a)............. in a manner prejudicial to the public safety or to the efficient prosecution of the war."

The High Court of Nagpur held that it was for the Police Officer making an arrest under this Rule to show that he had reasonable ground for suspicion. It was not enough for some other authority (in that case the Provincial Government) to furnish by affidavit the grounds for the arrest. The Court observed as follows:-" The only affidavit we have on the side of the Crown is one which tells us about the suspicions entertained by the Provincial Government, not by the police officer making the arrest. But what we have to determine here is what were his suspicions, and were they reasonable, and not what the Provincial Government's suspicions are". The decision was affirmed by the Privy Council in King Emperor v. Deshpande 2 (47 Criminal Law Journal of India (1946) p. 831).

Thus in the instant case the fact that the Superintendent of Police entertained some suspicion regarding the corpus Gunasekera did not justify the arrest. The A. S. P. had no power to make the arrest unless he himself suspected that the corpus had been concerned in some offence.

The Deputy Solicitor-General repeatedly submitted that the language of Regulation 19 has the meaning that because the S. P. suspected the corpus of some offence the Regulation empowered him not merely to arrest the corpus but also to cause him to be arrested. In my understanding, the principal ground on which he supported this construction of the Regulation was that if a person is in fact committing an offence he may lawfully be arrested under Regulation 19 even by an officer who does not actually see him committing the offence. He suggested as an example a case where a Military Officer seated in the front of a vehicle sees persons laying explosives under a bridge with the object of destroying it; he submitted that if the officer then ordered other personnel in the vehicle

1 (1945) A. I. R. Nagpur 8.           

2 47 Criminal Law Journal of India (1946); p. 831.

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to arrest those persons, such an arrest would be lawful even though the other personnel do not themselves see the persons laying the explosives. I agree that arrests by the other personnel would be lawful; but the liability to arrest arises in this example not because a person is seeing laying the explosives but because in fact he is commuting an offence. Regulation 19 does not in such a case require that the officer who makes the arrest should himself have seen the commission of the offence. The ground for the arrest in such a case is not the same as the ground relied on in the instant case.

I have pointed out in the judgment in the case of Hirdaramani that Regulation 19 confers powers of arrest on literally thousands of members of the Police, Prisons or the Armed Services. But the Deputy Solicitor-General's construction means that, in addition, any person whosoever can lawfully make an arrest if any of the thousands of the members of those Services orders or requests the arrest to be made. I am quite unable to agree that Regulation 19 was enacted with any such drastic intention.

Section 32 (1) (6) of the Criminal Procedure Code provides that a Peace Officer may without a warrant arrest any person " against whom a reasonable suspicion exists of his having been concerned in any cognizable offence." Let me assume that under that section it is lawful for a subordinate Police Officer to effect an arrest upon an order given by a superior officer, although the subordinate officer does not himself entertain a suspicion. But when Regulation 19 is compared with s. 32 (1) (6), it is apparent that there has been a deliberate departure from the language of s. 32 (1) (6). Regulation 19 does not refer to the existence of a suspicion; it clearly provides for an arrest by an officer who himself has reasonable grounds for suspecting............ In the face of this deliberate departure from the language of s. 32 (1) (6), it would be in my opinion quite unjustifiable for a Court to give to Regulation 19 the same wide meaning as can be probably be given to s. 32 (1) (6).

Consequent upon certain observations of my brother Silva, there was suggested from the Bench this possible construction of Regulation 19 : If a senior Police Officer reasonably suspects that some person has been concerned in an offence and communicates that suspicion to a subordinate officer, can it be said that the subordinate then " reasonably suspects " the same thing within the meaning of Regulation 19 ? The learned Deputy Solicitor-General did not however adduce any argument in support of this construction; we accordingly had at the least to assume that, on the facts of the instant case, the arrest of the corpus could not have been justified on the suggested construction of Regulation 19.

In construing Regulation 19, I have referred to the English text of the Emergency Regulations as published in the Government Gazette of August 15, 1971. But reference was made during the hearing to the Sinhala text of Regulation 19 as published in the same Gazette, because

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of some suggestion that its language might support the construction contended for by the Crown. It was found however that, according to the Sinhala text, there is

power to arrest a person only for the limited purpose of searching him. The Deputy Solicitor-General had to admit that, if the Sinhala text of an enactment has to be accepted as authentic by reason of the provisions of the Official Language Act, then the arrest in the instant case was manifestly unlawful.

I was satisfied for the reasons which have now been stated that the arrest of the corpus was unlawful because the officer who arrested him did not reasonably suspect that he had been concerned in some offence under the Emergency Regulations.

G. P. A. SILVA, S.P.J.-

The circumstances of the complaint which gave rise to this application are set out in detail in the judgment of My Lord the Chief Justice with which I agree. I should, however, wish to add a few words myself on certain aspects that have come up for consideration in this application.

In the recent application for a writ of Habeas Corpus for the production of B. P. Hirdaramani [ 1 (1971) 75 N.L.R. 67.] before this Court, while there was a difference of opinion as to the justiciability of a detention order under Regulation 18 of the Emergency Regulations, the full Court expressed the view that the detention of a person under the powers conferred by Regulation 19 was justiciable and that the test to be applied under that Regulation was an objective test. I see no reason to deviate from that view in regard to Regulation 19 which we are concerned with in the present application.

Two questions arise for consideration in this application, namely, whether the officer who took the detainee, P. C. Gunasekera, into custody had reasonable grounds for suspecting him to be concerned in or to be committing or to have committed an offence under any Emergency Regulations, and, if so, what material constituted such reasonable grounds. The affidavit of the Superintendent of Police, Southern Division, Mr. Navaratnam, was to the effect that he ordered the Assistant Superintendent of Police, Mr. Fonseka, from Colombo, to take P. C. Gunasekera into custody. The latter proceeded to a house at Ahangama and complied with the order of his superior officer. The affidavit indicates that so far as the person arresting was concerned he did not have any material before him on which he could base any reasonable grounds of suspicion nor was he aware of any such grounds. Once this admission is made, it seems to me that the condition precedent to the arrest and detention of the corpus under Regulation 19 ceases to exist.

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I shall now examine the legal position which compels this conclusion. The section of the Criminal Procedure Code which relates to arrests without warrant is section 32 the relevant portion of which reads :-

" 32. (1) any peace officer may without an order from a Magistrate and without a warrant arrest-

. . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned;"

 (The underlining is mine.)

It is not unreasonable to think that whoever was responsible for promulgating the Emergency Regulations modelled Regulation 19 on Section 32 of the Criminal Procedure Code. The construction of the relevant portion of this section which strikes one at first sight is that any person making an arrest under this section need not himself have reasonable grounds of suspicion, the words being " a reasonable suspicion exists ". If it was necessary for a person arresting to have such reasonable grounds the legislature may well have used different language to convey that requirement. This power may have been expressed in this way partly because such power was exercisable by a limited, class, namely, the peace officers as defined in the Criminal Procedure Code, the number being comparatively small at the time of the introduction of the Criminal Procedure Code, and there was little risk of the few officers acting outside the law. Even with the use of these words it is of course possible to contend that a person making an arrest must himself entertain a reasonable suspicion. This is for the reason that it is a generally accepted principle supported by judicial interpretation that a police officer who would otherwise be justified in arresting a man without a warrant under Section 32 of the Criminal Procedure Code nevertheless acts illegally if he does so without informing the suspect of the nature of the charge upon which he is arrested. The exceptions to this rule are that the arrest should be made in such circumstances that the man arrested must know the general nature of the offence for which he is arrested or that the man himself produces the situation which makes it practically impossible for the officer arresting to inform him-vide Muttusamy v. Kannangara 1 52 N. L. R. 324, and Corea v. The Queen 2  55 N. L. R. 457. The person arresting will not be able to inform the person arrested of the reasons for the arrest unless he is himself aware of the facts leading up to the arrest which produced in his own mind reasonable grounds for suspicion that the person arrested had committed an offence which would warrant the latter's arrest without a warrant.

While these are the two possible interpretations of Section 32 of the Criminal Procedure Code, the wording of Regulation 19 to my mind permits only one construction, namely, that the person taking another

1 (1951) 52 N. L. R. 324.

2 (1954) 55 N. L. R 457

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into custody must himself have reasonable grounds for suspecting the person arrested to be concerned in or to be committing or to have committed an offence under any Emergency Regulation. In the first place this is the plain meaning that a Court would have to give to the words "he has reasonable grounds for suspecting to be concerned.. ", if the Regulation stood alone without any historical background. It has to be remembered however that arrest without a warrant and subsequent detention was not unknown to our law as would appear from Section 32 of the Criminal Procedure Code which I have cited above and which dates back to 1898. The departure therefore in Regulation 19 of the Emergency Regulations which says "......... whom he has reasonable grounds for suspecting to be concerned in....... "in place of the words of the earlier section 32 "... if a reasonable suspicion exists . . . " compels the inference that the change has been deliberate. A court is therefore obliged to give to the words of the regulation a meaning different from that which is

given to the earlier section, namely, that while the earlier section contains no requirement, that the officer arresting must be personally satisfied that there are reasonable grounds for suspecting, Regulation 19 must be given the construction that such satisfaction is an essential condition precedent. If of course one gives the second meaning to the provision in section 32, which I have referred to above, supported as it is by judicial pronouncements, a fortiori there is no escape from construing Regulation 19 to mean that the person arresting must personally have reasonable grounds of suspicion.

The departure from section 32 of the Criminal Procedure Code in Regulation 19 is not without a good reason therefor. Under the regulation, the number of persons who are vested with the power of arrest would be numerically very large. It includes the entire Police Force, the Army, Navy and Air Force, all Prison Officers and others specially authorized under the regulation. It is reasonable to think that when such a large number is vested with the power of arresting or detaining a person, the law would provide the additional safeguard that the person arresting should be personally satisfied that he has reasonable grounds of suspicion and that he should not merely be guided by the satisfaction of a third party with whose judgment in the matter the person who actually arrests may not agree if he is apprised of the facts.

There is one view of the matter on which it is possible to argue that the reasonable grounds of suspicion can be based either on information of which he is himself aware or on information available to another officer. This would be the situation where, for instance, a superior officer makes inquiries himself or examines the available material placed before him and is satisfied that there are reasonable grounds for suspecting the person whose arrest is desired to be concerned in or to be committing or to have committed an offence under the Emergency Regulations; and merely communicated his suspicion to a subordinate officer and that subordinate officer, on the faith of the suspicion of the superior officer, himself forms his own suspicion of the person concerned. In

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such a case, the subordinate officer, if he is detailed to arrest the person concerned, will even be able to communicate to him the reason for such arrest and to comply with the principle laid down in the cases referred to earlier. Even though this possible argument was indicated by me to the learned Deputy Solicitor-General, he did not appear to be enthusiastic to pursue the argument presumably because the facts in this case did not enable him to do so, or he had some other good reason not to adopt that argument. The affidavit of the Superintendent of Police however showed that, so far as he was concerned, he had sufficient material to base a suspicion that the corpus was concerned in some way in an offence contemplated in the Emergency Regulations. Had he himself made the arrest therefore, or communicated even briefly to the Assistant Superintendent the reasons for the proposed arrest, it would not have been difficult to see the justification for the arrest of the corpus by any one of them.

The argument advanced by the learned Deputy Solicitor-General, which did not find favour with the court, has been dealt with by my Lord the Chief Justice and there is nothing further which I can usefully add.

ALLES, J.

The petitioner, who was the wife of the corpus made an application for a mandate in

the nature of a Writ of Habeas Corpus for an order praying that the respondents produce before this Court the body of her husband P. C. Gunasekera, the brother of Prins Gunasekera, the Member of Parliament for Habaraduwa, to be dealt with according to law. At the close of the argument we made order directing the 2nd and 3rd respondents to have the corpus released from custody and this was done accordingly.

The corpus (hereinafter referred to as the detainee) was arrested by the 1st respondent, the Assistant Superintendent at Galle, about midnight on 4th December 1971 at his parental home at Ahangama. At. the time several members of the family of P. C. Gunasekera, including Prins Gunasekera, had come to the parental home for a family reunion in connection with an intended marriage for another brother of P. C. Gunasekera. According to the petitioner, the 1st respondent did not show any order or warrant but only stated that he " had orders from Colombo to arrest and remove the said P. C. Gunasekera to the Galle Police Station". The 1st respondent in his affidavit stated that he received instructions from his immediate superior, the Superintendent of Police, Galle, to take the detainee into custody under the Emergency Regulations made under the Public Security Ordinance and that, acting on these instructions, he arrested him and explained to him that he was being so taken into custody. The detainee was detained at the Galle Police Station until 18th December 1971, when he was produced before the Magistrate, Galle, who directed his detention at the Galle Prison and thereafter at the Mahara Prison. The Superintendent of Police, Galle, has sworn an affidavit in which he states that the detainee had previously

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been arrested on 18th March 1971 on suspicion of being concerned in a conspiracy to overthrow, other than by lawful means, the Government established by law; that he was subsequently released and that he directed further investigations to be made into the detainee's activities. It is now a matter of common knowledge that early in April last year there were widespread acts of insurgency all over the Island in an attempt to overthrow the lawfully constituted Government of this country and that this insurrection had to be suppressed with considerable loss of life. The affidavit of the Superintendent of Police, Galle, further revealed that as a result of investigations conducted by him, he had reasonable grounds for suspecting that the detainee was concerned in these insurgent activities, details of which he has set out in his affidavit, and that the detainee became liable for a contravention of Regulation 21 (2) of the Emergency Regulations published in Ceylon Government Gazette 14,984/7 of 15th November 1971.

The main question that arose for consideration in this application was the legality of the arrest and the subsequent detention of the detainee. This is an issue which raises questions of considerable importance affecting the Liberty of the subject and the right of the Executive to arrest persons without a warrant in tunes of Emergency. The Emergency Regulations No. 6 of 1971 made under the Public Security Act in Part 4 gives wide powers to the Executive to supervise, search, arrest and detain persons, and under Regulation 55 the writ of habeas corpus available to the subject under Section 45 of the Courts Ordinance has been suspended in respect of any person detained or held in custody under the Emergency Regulations. The scope of Regulation 55 was recently considered by this Court in Hirdaramani's case 1 [1 (1971) 75 N. L. R. 67.] and I have had the advantage of reading the judgment of My Lord the Chief Justice where he has drawn the distinction between Regulation 18 and Regulation 19. I am in agreement with the view of the learned Chief Justice that

when a Detention Order, valid on the face of it, is produced before the Courts, it can only be challenged if it can be established that it was made with an ulterior motive or it can be proved that the stated reason was incorrect or untrue or if the Detention Order itself is manifestly absurd or perverse. In the case of a valid Detention Order it would be immaterial, even if the Permanent Secretary was mistaken in his opinion, provided it cannot be established that he acted in bad faith. Section 45 of the Courts Ordinance enshrines the valuable right of the citizen to invoke the assistance of the Court " when any person is illegally or improperly detained ". It is however not necessary to consider in this application the effect of a valid Detention Order in relation to the writ of habeas corpus. This is a matter which has been fully dealt with by the Judges who heard Hirdaramani's case.

The Court which delivered the order in Hirdaramani's case agreed- a view with which I respectfully concur-that the language used in Regulation 19 was intended to enable the Courts to review the validity of an arrest under Regulation 19. If the arrest was illegal it necessarily

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followed that the subsequent detention was unlawful. The language used in Regulation 19 indicates clearly, inter alia, that the " reasonable suspicion of the person arresting " is a matter for review by the Courts. An examination of the facts in the present case reveal that the 1st respondent did not arrest the detainee because " he had reasonable ground for suspecting the detainee to be concerned in or to be committing or to have committed an offence under any emergency regulation".

Any such reasonable ground was within the knowledge of the Superintendent of Police who directed the 1st respondent to arrest the detainee but who apparently did not communicate this knowledge to the 1st respondent. The 1st respondent only informed the detainee that he was being arrested under the Emergency Regulations. Offences under the Emergency Regulations are of a wide and varied character. It may extend from a breach of a curfew order to the sale of a price controlled article above the controlled price. The 1st respondent, not being aware of the actual offence under the Emergency Regulations for which he was arresting the detainee, the learned Deputy Solicitor-General was constrained to argue that knowledge need not be personal to the officer effecting the arrest, provided the superior officer was aware of the grounds of suspicion, even though such grounds were not conveyed to his subordinate. The language used in Regulation 19 makes it abundantly clear that it is the " objective " test that has to be applied in deciding whether the arrest was valid or not. It might have been possible for Counsel to found an argument on the basis, that if the knowledge of the superior officer was conveyed to his subordinate, that knowledge might be ascribed to the subordinate officer as well, but no submission of such a kind was made and there was no evidence to support it. The submission of the learned Deputy Solicitor-General that the knowledge need not be personal to the person effecting the arrest is subject to two infirmities. Firstly, such a view is completely at variance with the plain language contained in the Regulation. Secondly, it must be borne in mind that we are here dealing with a penal provision of the law which has the effect of depriving the subject of his liberty, and therefore the general principle of law stated in numerous decisions of the Court, both here and in England, should be adopted that such a Regulation must be strictly construed.

It is pertinent in this connection to examine the language found in Section 32 (1) (6) of the Criminal Procedure Code. That subsection empowers a police officer to arrest any person, inter alia, against whom a reasonable suspicion exists of his having

been concerned in the commission of a cognizable offence. It does not necessarily predicate that the police officer arresting the offender must act on his own personal knowledge. He may obtain the information on which he bases his reasonable suspicion on information given to him by a third party. The objective test being the proper one that is applicable in effecting an arrest Under Regulation 19, I think the observations of Lord Atkin in his dissenting judgment in Liversidge v. Anderson 1 [(1942) A. C. 206.]are

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relevant in the context of an arrest effected under Regulation 19. Although Lord Atkin thought that the " objective " test may properly be applied to a Detention Order under Regulation 18B of the Defence Regulations-a view that was not shared by the other distinguished Law Lords who were in the majority-he made the following observations at p. 228 in regard to the powers of arrest:-

" The power of arrest is confided by the common law both to constables and to private individuals. The constable has power within his district to arrest a person on reasonable suspicion of his having committed a felony. The private individual has power on two conditions: (1) that a felony has actually been committed; (2) that there is reasonable and probable cause of suspecting the person arrested. In these cases the grounds for suspicion must be brought before the court, the onus is on the person who arrested to prove the reasonable grounds, and the issue whether the cause is reasonable or not is to be determined by the judge."

and again at p. 231 :-

" Can any person doubt that in respect of these powers given by statute to arrest for suspicion or belief of offences or intentions to commit offences other than felonies the constable is in exactly the same position as in respect of his common law power to arrest on reasonable suspicion of felony, and that there is an ' objective' issue in case of dispute to be determined by the court ? No other meaning has ever been suggested."

Learned Counsel for the petitioner relied on two judgments of the Supreme Court in support of the proposition that when a police officer arrests without a warrant on reasonable suspicion the facts disclosed must be matters within the police officer's own knowledge or on statements by other persons in a way which justify him in giving them credit.- Muttusamy v. Kannangara 1[1 (1954) 52 N. L. R 324 ] and Corea v. The Queen 2 [2 (1951) 55 N. L. R. 457.] In Muttusamy v. Kannangara Gratiaen J. held that it had not been affirmatively proved that the police officer " reasonably suspected " that the line rooms, he claimed the right to search without a warrant, did contain stolen property. Therefore the charge of obstructing the police officer in the lawful discharge of his duties had not been proved. In Corea v. The Queen at p. 463 Gratiaen J. observed that-

" A police officer acts illegally in Ceylon (as in England) if he arrests a man without a warrant on a mere ' unexpressed suspicion' that a particular cognizable offence has been committed-unless, of course, 'the circumstances are such that the man must know the general nature of the offence for which he is detained' or unless the man 'himself produces the situation which makes it practically impossible-%o inform him'."

260

It will be noted that in both Muttusamy v. Kannangara and Corea v. The Queen it was open to the police officer to arrest on reasonable suspicion if the police officer had knowledge of " statements by other person in a way which justify him in giving them credit " or " circumstances were such that the man must know the general nature of the offence for which he is detained" or the arrested person" produce the situation which makes it practically impossible to inform him ".

These observations might postulate that it does not necessarily follow that in the case of an arrest by a police officer under the common law, the police officer must act on his own personal observations in acting on reasonable suspicion but is entitled to act on information received from a third party.

The language however, used in Regulation 19 is narrower and leaves no room for any test other than the strictly " objective " test. The two cases decided by Gratiaen J. also lay down another fundamental principle which has not been followed in this case and which could not have been followed having regard to the admitted facts, namely," that a police officer who arrests private citizens with or without a warrant is equally obliged to notify the arrested person of the reason for interfering with his personal freedom. A recognition of this fundamental rule (which owes its origin to the English common law) is demonstrably implicit in the scheme of the Code".-per Gratiaen J. in Corea v. The Queen at page 462. In both these cases Gratiaen J. followed the decision of the House of Lords in Christie v. Leachinsky (1947) A. C. 573.

I am unable to agree with the learned Deputy Solicitor-General that the principles of the English law have no application to the law of Ceylon. In my view the principles laid down in Muttusamy v. Kannangara and Corea v. The. Queen do no more than affirm the principle stated in Section 53 of the Criminal Procedure Code." On the facts in the present case there was no evidence that the detainee had committed or was committing an offence under the Emergency Regulations and the only ground on which he could have been lawfully arrested was the personal knowledge of the 1st respondent based on reasonable suspicion (which might include information conveyed to him by the Superintendent of Police) that he had committed or was committing an offence under the Regulations.

A case very much in point and similar to the facts of the present case is Deshpande v. Emperor 1[ 1 A. I. R. (1945) Nagpur 8.] decided by the High Court of Nagpur and reported in A. I. R. (1945), p. 8. In that case Deshpande was arrested and detained under Section 129 of the Defence of India Rules by a police officer on reasonable grounds of suspicion. Dealing with the suspicions of the Police Officer who effected the arrest the High Court made the following observations at p. 26 :-

" The only affidavit we have on the side of the Crown is one which tells us about the suspicions entertained by the Provincial Government, not by the police officer making the arrest. But what we have to

261

determine here is what were his suspicions, and were they reasonable, and not what the Provincial Government's suspicions are; moreover, under E. 129 the Court has to determine whether the suspicions were reasonable and not the Provincial Government."

The decision of the Nagpur High Court which held that Deshpande's arrest and

detention was unlawful was upheld by the Privy Council 1- (1946) A. I. R. Privy Council. p. 123. Adopting the principles in the above cases to the facts of the present case it is apparent that the arrest of the detainee and his subsequent detention were unlawful and that he was entitled to be released from custody.

Before I conclude I wish to make some reference to the case of Wiltshire v. Barrett 2 (1965) 2 A.E.R. 271 cited by the learned Deputy Solicitor-General, where the words " committing an offence " in Section 6 (4) of the Road Traffic Act 1961 was held to mean " apparently committing an offence ", with the result that if any police officer reasonably came to the conclusion by reason of the conduct and condition of the driver and of other evidence that the driver was unfit to drive through drink, his arrest was justified and accordingly the arrest was lawful notwithstanding that the suspected offence was not committed. The observations of the Court of Appeal would be apposite to the case under consideration because in order to make the provision of the law effective the police officer had necessarily to be given the power to arrest a driver whom he reasonably suspects of being under the influence of liquor. As Davies L.J. said in the course of his judgment at p. 278-

" If a policeman who arrests under that section is to be liable to an action for damages unless he can prove that the arrested person is actually guilty of the offence, the police might well be chary of exercising the power. Even if a policeman were to find a motorist hardly able to stand, smelling of drink and almost unconscious, his condition might subsequently prove to have been due to causes other than drink or drugs. If the police were to refrain from exercising this power, the results might be serious indeed. Drunken motorists might be permitted to continue on their way, with all the dire possibilities which that would entail; and the chances of a successful prosecution would be seriously diminished, for by the time that a warrant had been obtained, the man might well have disappeared or become sober. It is obviously essential in the public interest that in such circumstances the power of arrest should be exercisable forthwith without fear of a subsequent action for damages for assault or false imprisonment."

1 (1946) A. I. R. (P. C.) 123.

2 (1965) 2 A. E. R. 271.

262

Similar observations were made by Lord Wright in the House of Lords in the other case cited by Counsel-Barnard v. Gorman 1 (1941) A. C 378 where the Court held that an " offender " under Section 186 of the Customs Consolidation Act, 1876, includes a person who is suspected on reasonable grounds to have committed the offence and therefore a person 'so suspected, though in fact not guilty, may be detained. The reason for such an attitude on the part of the Court was stated by Viscount Simon at p. 387-

" when the question arises whether a statute which authorizes arrest for a crime should be construed as authorizing arrest on reasonable suspicion, that question has to be answered by examining the contents of the particular statute concerned rather than by reference to any supposed general rule of construction."

and Lord Wright at p. 394 stated this :-

" The legislature may well have thought that when they give the power to arrest

without warrant for particular conduct, the power should be limited to the case of particular categories of persons whose previous conduct or character or reputation renders them peculiarly open to suspicion......... "

Such arrests have been held to be lawful in the case of a person suspected to be a " common prostitute or night watcher loitering or importuning persons for the purpose of prostitution"-Bowditch v. Baldin 2 5 Ex. 378 or a person suspected to be an " offender " and to have contravened the provisions of the Customs Consolidation Act-Barnard v. Gorman or a person charged under Section 6 (4) of the Road Traffic Act who appeared to the police officer to be apparently committing an offence-Wiltshire v. Barrett. These decisions therefore cannot support the submissions of the learned Deputy Solicitor-General in a case where a person is arrested without a warrant in his parental home at a late hour of the night in the company of his near relatives on the ground that the police officer arresting reasonably suspects him of committing an offence under the Emergency Regulations, information of which is not known to the officer arresting and consequently cannot be communicated to the person arrested. Unlike the English cases here there is not even evidence that he was apparently committing an offence.

I therefore agree that the arrest was illegal and the subsequent detention of the corpus unlawful.

Application allowed

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SLR - 1991 Vol - 2    Add to iNote

 SLR - 1991 Vol.2, Page No - 97

97 

SIRISENA AND OTHERSv.

EARNEST PERERA AND OTHERS 

SUPREME COURT,BANDARANAYAKE, J. FERNANDO, J. ANDKULATUNGA, J. S. C. APPLICATION NO. 14/90,MAY 07 & 08,1991. 

Fundamental Rights, Articles 11 and 13 of the Constitution -Compensation for infringement - Liability of State and Public Officer

 A Pajero jeep belonging to one Ariapala a businessman collided on 04 April

1990 with a car driven by a lady who died of her injuries sustained in the collision. The 1st and 2nd Petitioners were engaged in carpentry work at Ariyapala's residence in Bullers Lane between 02 and 08 April. The 3 rd, 4th and 5th Petitioners were arrested by the Police when they visited the Coroner's Court at the General Hospital Colombo on 21 April 1990 to see the 1st and 2nd Petitioners who had been arrested by the Police and produced before the Coroner to give evidence at the inquest. The 3 rd to 5th Petitioners were detained by the Police and so deprived of their liberty from 11.30 a.m.

 The 3rd respondent assaulted the first two Petitioners and threatened them

and wanted them to implicate Ariyapala's son Indika as having driven the jeep. In view of the assaults they made the statement. On 22 April 1990 they were released. On the basis of the evidence led at the inquest the Police obtained an order from the Coroner to arrest the driver Weeraratne and Indika Ariyapala. The 2nd and 3rd

respondents denied the allegations that the 1st and 2nd Petitioners were detained or subjected to torture by the Police. Held: 

(1)        The allegation of torture is subject to infirmities but the petitioners had established infringement of their rights by illegal arrest and detention (under Articles 13 (1) and (2) of the Constitution) by the 2nd

and 3rd respondents. 

98 

            (2)        Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases. According to the plain meaning of the provisions of Article 13 (1) and (2) the rights claimed by the Petitioners are not limited to persons arrested on suspicion of having committed or being concerned with an offence. The protection against arbitrary arrest and detention is the central feature or the core of these provisions.

 Per Fernando J :

 "Article 13 (1) thus contains a prohibition on deprivation of liberty __

no person shall be arrested. However, there is an exception, that such deprivation of liberty may be effected "according to the proce-dure established by law" (and this is certainly more restrictive than the phrase "except in accordance with the law"). Further even if a person is arrested in accordance with the procedure established by law, he must nevertheless be informed of the reason for his arrest". 

(2)               In addition to the State, in appropriate cases, the public officer concerned may also be held concurrently liable in respect of the infringement and he may be ordered to pay compensation where the Court considers such an order to be just and equitable.

 Cases referred to: 1.         State of Punjab v. Ajaib Singh AIR 1953 S. C. 10 2.         Namasivayam v. Gunawardena [1989] 1 Sri LR 394

3.         Somawathie v. Weerasinghe S. C. Application No. 227/88 Supreme Court Minutes of 20.11.1990 4.         Saman v. Leeladasa [1989] (1) Sri LR 7 5.         Thadchanamoorthi v. Attorney-General 1 FRD 129  6.                  Velumurugu v. Attorney-General 1 FRD 180, 212, 213

 7.                  Ratnasara Thero v. Udugampola 2 FRD 364  8.                  Mariadas v. Attorney-General 2 FRD 397  9.                  Vivienne Goonewardena v. Perera 2 FRD 426, 439  10.                  Kapugeekiyana v. Hettiarachchi (1984) 1 Sri LR 153  11.                  Piyssiri v. Fernando [1988] 1 Sri LR 173  12.                  Spicer v. Holt [1976] 3 All ER 71, 77 __ 78  13.                  Karunaratne v. Rupasinghe S. C. 71/90, S, C. Minutes of 17.6.1991 APPLICATION for relief against infringement of fundamental rights. Faiz Mustapha P. C. with A. Panditharatne and Gaston Jayakody for Petitioners, C. R. de Silva D. S. G. with V. Kodagoda S. C. for respondents. 

Cur.adv.vult.

99 August, 26,1991 FERNANDO, J .             On 4.4.90 there was collision between a car driven by a young lady and a jeep owned by a businessman named Ariyapala. There were four persons in the jeep: Ariyapala's minor son, his driver Weeraratne, and the 1st and 2nd Petitioners (carpenters who had been engaged shortly before to effect some repairs to Ariyapala's residence). The young lady, the other passenger in the car, and others who witnessed the collision were not able to say who was driving the jeep. Weera-ratne drove the jeep to the Bambalapitiya Police Station, while Ariyapala's son went home to inform his family. The 1st and 2nd Petitioners say that they too went to the Police Station, but that they were not questioned by the Police. Weeraratne's statement and the notes of investigation have not been produced, and hence we do not know whether he (or anyone else) had disclosed the fact that there had been others in the jeep, and their identity. There was no reason for Weeraratne to withhold the names of the Petitioners. A few days later the young lady died in consequence of the injuries sustained in the collision, and the Police investigations took a drastically different turn, giving rise to this application. According to the 3rd Respondent (the Officer-in-charge of the Traffic Branch of the Bambalapitiya Police), investigations revealed that the 1st and 2nd Petitioners had been in the jeep, and that they were working under Ariyapala; he also received reliable information that it was not Weeraratne but Ariyapala's son who had driven the jeep. On 14th, 15th, 17th and 18th April he visited the Ariyapala residence, but Ariyapala and the Petitioners were not present. On the 18 th he asked Mrs. Ariyapala to convey a message to the Petitioners to come to the Bambalapitiya Police. According to A. S. P. Anthony of the Colombo City Traffic Headquarters, several days after the accident he too received reliable information that it was not 

100 Weeraratne out Ariyapala's son who had driven the jeep: and that the latter was a young boy not competent to drive motor vehicles. On the 18th, he says, he "enlightened the 2nd and 3rd Respondents", and instructed them to conduct investigations as to the identity of the driver; these instructions were not given immediately on receipt of the "reliable information", but only after he heard (on the 17th) that the young lady had died. No one mentions any attempt by the Police to question Ariyapala's son. I assume that as a matter of routine the statements of the persons who gave this "reliable information" would have been recorded; or, if there was some compelling reason not to record their statements, that appropriate entries would have been made in some official record. In any event, notes of investigation should also have been made, regarding the progress of the investigation, the instructions given by A.S.P. Anthony and the several visits to the Ariyapala residence. No such statements, notes or entries have been produced, and this tends to cast grave doubt as to the nature of the information and investigations. 

If by the 18th the Respondents had reason to believe that it was not Weeraratne but Ariyapala's son who had driven the jeep, both could have been questioned. If they feared that such questioning might result in an attempt to influence the two Petitioners to support the version already given by Weeraratne,

then I would have expected the Respondents to attempt to contact the Petitioners direct, and as soon as possible, instead of asking the Ariyapala's to produce them; if, as the Respondents say, they did not have the addresses, they should have attempted to obtain from Mrs. Ariyapala either the addresses or the name and address of the person who introduced the Petitioners to her. The fact that on the 18 th

the 3rd Respondent asked Mrs. Ariyapala to inform the Petitioners to come to the Bambalapitiya Police suggests that there was then no fear that the Petitioners might be influenced. According to Ariyapala's affidavit, when Mrs. Ariyapala had said that she did not have their addresses, the 3rd Respondent had threa-

 

 101 tened that if they were not produced, Ariyapala would be taken into custody: this was not denied by the 3rd Respondent. Mrs. Ariyapala went in search of the person who had brought the Petitioners, obtained their addresses, went to the 1st  Petitioner's residence and left a message for the two Petitioners. The threat made to his wife probably induced Ariyapala not to be content with merely asking the Petitioners to go to the Police Station; instead, on the 19 th he took them himself so that his compliance with the Police directive could not have been doubted. He then left the Police Station. The 3rd Respondent states that on questioning the Petitioners he suspected that they were suppressing vital information on the advice and instigation of Ariyapala. Obviously, they maintained that Weeraratne had driven the jeep. Their statements were not recorded, and no entry was produced indicating that they had been questioned at the Police Station. 

The principal complaint of the 1st and 2nd Petitioners is that they were not allowed to leave the Police Station on 19.4.90 and that they were unlawfully detained till 22.4.90. The Respondents' position is that they were not detained on the 19 th, but were asked to report again at the Police Station the next day. According to the Petitioners, they were threatened by the 3rd  Respondent in an endeavour to induce them to implicate Ariyapala's son; they were detained overnight; since they had not returned home even by 8 p.m., the 3rd Petitioner (the wife of the 1st) and the 4th and 5th Petitioners (the parents of the 2nd) contacted the Ariyapala's, since it was Mrs. Ariyapala who had conveyed the message the previous evening. Ariyapala came to the Police Station at about 9 a.m. on the 20th to inquire about the two Petitioners; he saw the two Petitioners there; while waiting for the 3rd Respondent, the 2nd

Respondent abused and threatened him; when the 3rd Respondent arrived, he directed that Ariyapala's statement (as to why he came to the Police Station) be recorded; this was done at 9.40 a.m. and Ariyapala went away; this statement too has not been produced. If produced,

 102

 this would have indicated whether the complaint that the Petitioners had been detained from the previous day had been made as early as 20.4.90. The Respondents' position is that the Petitioners came to the Police Station on the 20 th

morning; that the 3rd Respondent saw them at about 8.30 a.m.; that the Respondents had reason to believe that Ariyapala was taking steps to hamper the investigation, and hence was required to make a statement; since the 3 rd  Respondent was engaged in special traffic duties, he instructed the Petitioners to come again at 2.30 p.m. The latter reason is contradicted by a contemporaneous note of investigation made by him at 9.50 a.m. to the effect that when questioned further, it appeared that the Petitioners were concealing the truth. Further, if the Petitioners had come at about 8.30 a.m., there was ample time to question them between 8.30 and 9.50 a.m.

It is difficult to understand why the 3rd Respondent wasted time recording Ariyapala's statement at 9.40 a.m., but apart from that he had one hour to question the Petitioners. Yet another possible reason for the failure to question the Petitioners emerges from A.S.P. Anthony's affidavit: that on 20.4.90 (at what time he does not say) he instructed the 3rd Respondent to inform the Petitioners to meet him or Chief Inspector Ranjit Perera at the Crime Detective Bureau ("C.D.B.") Headquarters, but the time is not mentioned. This was because, says A.S.P. Anthony, by this time he had been informed by the 2nd and 3rd Respondents that Ariyapala had come to the Banbalapitiya Police Station to hamper the investigation. These instructions must have been given after the Petitioners left the Police Station, because otherwise the direction to return to Bambalapitiya at 2.30 p.m. would have been pointless. The Respondents do not say whether the Petitioners did return at 2.30 p.m. but say that an officer was instructed to inform the Petitioners to proceed to the C.D.B. (again, the time is not mentioned). According to A.S.P. Anthony, the Petitioners arrived at 7 p.m. There is no explanation, in the Respondents' version, as to what happened between 2.30 p.m. and 7 p.m.; it is not suggested that the Petitioners came to  

103 Bambalapitiya several hours later than directed, and it is most unlikely that they would have dared to do this; in any event, I cannot assume that they would deliberately have waited till late evening to present themselves for questioning, for it would have been natural to have preferred to return to their homes before dark. The lst and 2nd Respondents claim that the Petitioners were not detained on the 20th; that having come to the C.D.B. at 7 p.m. they made voluntary statements; after these were recorded they left at 10.30 p.m. Apart from their own affidavits, they point to the absence of any entry relating to the Petitioners in the detention register as proof that the Petitioners were not detained.

 There are a number of infirmities in the Respondents' version. They claim

that Ariyapala was attempting to hamper the investigation by influencing the Petitioners; even on the 19th morning. Having directed Ariyapala, under threat of taking him into custody, to produce the Petitioners, it seems ironic that his presence at the Police Station should be construed as an attempt to hamper the investigation. However, accepting that they did actually entertain such a fear, did they think that Ariyapala's malign influence would cease if the Petitioners remained at liberty? Or would they have sought to exclude Ariyapala's influence by keeping the Petitioners in Police custody? The fact that the 3rd Respondent gave contradictory reasons for not questioning the Petitioners and recording their statements on 20.4.90 tends to support the Petitioners position that they were being kept in custody until they became more amenable to disclose what the Respondents considered to be the truth. The failure to produce all the statements recorded and the notes of investigation adds to the infirmities in the Respondents version. The only entries produced are notes of investigation made by the 3rd Respondent (a) at 8.50 a.m. to the effect that he met the Petitioners at the entrance to the Police Station and asked them to wait inside, and (b) at 9.50 a.m. that he questioned them further and found that they were concealing the truth. Apart from the slight discrepancy of 20 

104  minutes as to the time at which he saw the Petitioners, these entries appear to have been a rejoinder to the statement made by Ariyapala that he came to inquire about the fate of the two Petitioners who had not returned home the previous night after their visit to the Police Station __ an attempt to suggest that the Petitioners had not

been detained overnight, but came again on the 20 th morning. In view of the failure of the Respondents to place all the material, in the form of statements, notes and other entries, before this Court, I am unable to accept these entries as reliable. Next, how did the Petitioners know at what time they should report to the C.D.B.? According to Chief Inspector Ranjit Perera, A.J.P. Anthony asked him to be present at 7 p.m. Obviously therefore if the A.S.P. communicated with the Respondents, he would have stipulated the time, and the Respondents should in turn have caused the Petitioners to be informed that they come to the C.D.B. at 7 p.m.; if not, they may have turned up later, thus keeping senior officers waiting. But nowhere do the Respondents claim that the Petitioners were informed of the time at which they should report to the C.D.B. The only situation in which it would not have been necessary to inform the Petitioners was if they were already in custody, and could be taken wherever, anti whenever, the Respondents chose. Finally, the Petitioners say they were released only at 9 a.m. on the 22nd, after they had pleaded with Inspector Wijeratne, the Officerin-Charge of the Bambalapitiya Police. The 2nd and 3rd

Respondents deny this, the former adding that none of the Petitoners were detained on the 21st, and the latter adding that he does not see how they could have met Inspector Wijeratne on the 22nd since they were not at the Bambalapitiya Police Sta-tion that day. If Inspector Wijeratne did not order their release on the 22nd, it would have been perfectly simple to have produced an affidavit from him, but there is no such affidavit. In these circumstances, I have no hesitation in rejecting the Respondents' version. The 1st and 2nd Petitioners' version is consistent, is supported by the affidavits of the other Petitioners and Ariyapala, and is intrinsically more probable. I hold 

105 that they were deprived of their liberty from 9 a.m. on the 19th until 9 a.m. on the 22nd. 

The Petitioners were kept in custody obviously to persuade them to make statements different to those made on the 19th and again on the 20th, and implicating Ariyapala's son. It is their case that on the 20th in addition to threats and abuse, they were hit, kicked, and dragged by their hair; that the assult was of such a serious nature that they had wounds on their elbows and knees, their faces were swollen, and there was blood all over their bodies. Their clothes would have been bloodstained, and even the next morning there would have been visible signs of the assault. They were produced before the Coroner on the 21st, and the 1st Petitioner gave evidence at the inquest; there is nothing to indicate that the Coroner noticed anything unusual. The affidavit of the Attorney-at-law who represented Ariyapala's son and driver was produced, but I do not take this into consideration as the Petitioners had not served a copy of this affidavit on the Respondents, whose Counsel became aware of it only in the course of the hearing. The Petitioners obtained medical treatment on the 22nd, but no medical evidence is forthcoming as to their condition. In these circumstances, while I accept that the Petitioners were subjected to harsh and unlawful treatment, there is not the required degree of proof that it amounted to torture or cruel, inhuman or degrading treatment.

 The 3rd to 5th Petitioners claim that at about 11.30 a.m. on the 21st, after the

conclusion of the inquest proceedings, they were arrested by the 2nd Respondent and detained at the Bambalapitiya Police Station till 8 p.m. Ariyapala and a hospital employee support this allegation. The 2nd Respondent denies this. I have set out the reasons why the 2nd Respondent's affidavit cannot be acted upon, and I prefer to act on the affidavit of the 3rd to 5th Petitioners. I hold that the 3rd to 5th Petitioners were deprived of their liberty from 11.30 a.m. to 8 p.m. on the 21st .

 106

 It is clear that the 1st and 2nd Petitioners were deprived of their liberty

because the Respondents wished to interrogate them, and not because they were suspected of any offence. The learned Deputy Solicitor-General submitted that such a deprivation of liberty was not an "arrest" within the meaning of Article 13(1), and would only be an actionable civil wrong. An arrest, he submitted, is a deprivation of liberty based upon an allegation of the commission of an offence; i.e. as contem-plated by the law relating to criminal procedure. When it was pointed out to him that the law made provision for "arrests" in other circumstances (e.g. for preventive detention, for deportation and under section 298 of the Civil Procedure Code), he modified this definition, submitting that an arrest was a deprivation of liberty for the purpose of being dealt with under the law; he gave the example of a Police Officer who compelled an able-bodied citizen to clean the precincts of a Police Station, which, he said, would not be an arrest within the meaning of Article 13(1). Having in mind the disastrous consequence of this line of reasoning, I inquired whether a Police Officer who deprived one candidate of his liberty in the course of an election campaign, solely in order to enhance the prospects of a rival candidate, would be infringing Article 13(1). His reply was that this would not be an arrest. He relied on State of Punjab v Ajaib Singh (1), Somawathie v Weerasinghe (3), and extracts from an article by Dr. Glanville Williams entitled "Requisites of a valid arrest", (1954) Criminal Law Review 6:

 "............. obviously it is not every imprisonment or arrest that constitutes an

arrest. To be an arrest, there must be an intention to subject the person arrested to the criminal process - to bring him within the machinery of the criminal law; and this intention must be known to the person arrested. Arrest is a step in law enforcement, so that the arrestor must intend to bring the accused into what is sometimes called the custody of the law ..........."

  

107 

Since this contention was advanced, and pressed on behalf of the State (despite the decision in Namasivayam v Gunawardena, (2), approved in Piyasiri v Fernando, (11)), it is necessary to deal with it fully. 

Dr. Glanville Williams was not dealing with the concept of an "arrest" in relation to fundamental rights; he was not even purporting to define an "arrest" for the purpose of the criminal law. Rather, he was seeking to clarify the requisites of a valid arrest. Thus the intention of the arrestor, and its communication to the arrestee, are not ingredients of an arrest; rather, they are the conditions essential to the validity of an arrest. "Arrest" in Article 13(1) does not refer to a valid arrrest, but rather to a defacto arrest; indeed, it is difficult to conceive of situations in which an arrest which is valid would contravene Article 13(1). In common usage, "arrest" connotes a physical act: to stop (growth, motion, moving person or thing) or to seize (person or ship) especially by legal authority (Concise Oxford Dictionary). Some of its synonyms given in Roget's International Thesaurus (3rd edition, sections 132, 144, 269, 728, 758, 759) are stop, stay, detain, confine, restrain, take captive, take prisoner, apprehend, capture, seize. In Spicer v Holt (12), the phrase "arrested under section 5........." had to be construed. It was held that if the word "arrested" had stood alone, then it had to be given its natural meaning; but since it was followed by the words "under section 5.......", it meant an arrest authorised by section 5 and so must

mean a lawful arrest. Arrest according to Halsbury's Laws of England (Vol, 11, 4 th

edition, pare 99) "consists in the seizure or touching of a person's body with a view to his restraint; words, however, amount to an arrest if, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion." Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases.

 108

             Article 13(1) thus contains a prohibition on deprivation of liberty -no person shall be arrested. However, there is an exception, that such deprivation of liberty may be effected "according to the procedure established by law", (and this is certainly more restrictive than the phrase "except in accordance with the law"). Further, even if a person is arrested in accordance with the procedure established by law, he must nevertheless be informed of the reason for his arrest. Thus Article 13(1) clearly and unambiguously prohibits the arbitrary deprivation of liberty, and it is unnecessary to consider the very different language of the corresponding Indian provisions and the Ajaib Singh case. Reference to Somawathie v Weerasinghe (3), is superfluous, since "arrest" does not now appear to my brother Kulatunga as it appears to have appeared to him then.

 I must add that had there been any ambiguity in regard to the meaning of

Article 13(1) there are two reasons why I would have preferred the wider meaning of the word "arrest". Article 13(1) recognises a basis human right; it is not absolute or unqualified, as the law may prescribe the "procedure" for arrest; and Article 15(7) permits certain restrictions. In these circumstances, any ambiguity must be resolved in favour of the liberty of the: citizen, by preferring that interpretation which enhances the right rather than another which diminishes it, thereby complying with Article 4(d) which directs the Judiciary to "respect, secure and advance" fundamental rights, and not to "abridge, restrict or deny" them. A consideration of relevant international declarations and covenants - although these may not be a source of municipal law -reveals a general trend in the protection and advancement of fundamental rights which it would be legitimate to consider in dealing with a doubt or difficulty. The Universal Declaration of Human Rights proclaimed that no one shall be subjected to arbitrary arrest, detention or exile; the International Covenant on Civil and Political Rights recognised that everyone has the right to

 

109 liberty and security of person, and that no one shall be subjected to arbitrary arrest or detention. When these, as well as other instruments to which Sri Lanka is not a party, indicate that the law of nations is progressing towards a general recognition as a basic right of the freedom from arbitrary deprivation of liberty, it would be a retrograde step to give Article 13(1) the restrictive interpretation contended for.

 The arbitrary deprivation of the liberty of the Petitioners was caused by the

2nd and 3rd Respondents, not because they bona fide suspected that the Petitioner was involved in the commission of an offence, but for the wholly improper and illegal purpose of extracting statements containing what they conceived to be the truth. They have .thereby infringed the fundamental rights of the Petitioner, for which Article 126 makes them liable; the circumstances do not warrant them being excused or exempted from liability. For the reasons set out in Karunaratne v Rupasinghe, (13), I am of 'the view that relief should be granted against them personally.

 Accordingly, I grant the Petitioners the following reliefs: 

(1)        (a)        a declaration that the fundamental rights of the 1st and 2nd  Petitioners under Articles 13(1) and 13(2) were infringed by the 2 nd

and 3rd Respondents by reason of their arrest on 19.4.90, and their detention from 19.4.90 to 22.4.90;

 (b)        compensation in a sum of Rs. 3,000/- each to the 1st and 2nd

Petitioners, payable by the State; 

(a)                compensation in a sum of Rs. 500/- each to the 1st and 2nd

Petitioners, payable by the 2nd and 3rd Respondents; (2)        (a)        a declaration that the fundamental rights of the 3rd, 4th and 5th 

Petitioners under Articles 13(1) and 13(2) were infringed by the 2 nd

Respondent by reason of their arrest and detention on 21.4.90; 

110             (b)        compensation in a sum of Rs. 500/- each to the 3rd, 4th and 5th

Petitioners, payable by the State; 

(c)        compensation in a sum of Rs. 250/- each to the 3rd, 4th and 5th

Petitioners, payable by the 2nd  Respondent; and 

(3)        one set of costs in a sum of Rs. 2,000/- payable by the State. 

I further direct the 1st Respondent, the Inspector General of Police to hold a full inquiry into the allegations made by the 1st and 2nd Petitioners in respect of the treatment meted out to them from 19th to 22nd April 1991, and to submit to this Court a report in respect of such inquiry within four months of the date of this order; the case will be called on 16th January 1992 to consider that report.

 Bandaranayake, J. 

I have read the judgements of my brothers Fernando, J., and Kulatunga, J., and agree with the orders made by them.

 Where the fundamental rights of a petitioner are found to have been

infringed by a public officer, acting under colour of his office, I agree that in addition to the State, in appropriate cases, such public officer may also be held concurrently liable in respect of such infringement, and that he may be ordered to pay compensation where the Court considers such an order to be just and equitable.

 Kulatunga, J. The 1st and the 2nd Petitioners are carpenters, the 3rd Petitioner is the wife of the 1st

Petitioner and the 4th and 5th Petitioners are the parents of the 2nd petitioner. They complain of unlawful arrest by the 2nd and 3rd Respondents. The 2nd Respondent is an Inspector of Police who functioned as the Officer-in-Charge of the Bambalapitiya Police Station and 

111 the 3rd respondent is a Sub-Inspector of Police who was the O.I.C. Traffic Branch of that Police Station, during the relevant period. The Petitioners also complain of unlawful detention at the Bambalapitiya Police Station and elsewhere subsequent to their arrest. The 1st and the 2nd Petitioners allege that during their detention they were subjected to torture or cruel, inhuman or degrading treatment by the Police. They pray for a declaration that by the said acts their rights under Articles 11 and 13 of the Constitution have been infringed and for damages totalling Rs. 300,000/-. 

The case for the Petitioners which I shall presently refer to in greater detail is that the 1st and the 2nd Petitioners were arrested by the Police in order to, procure their evidence regarding an accident which had occurred on 04.04.90 when a Pajero jeep belonging to one Ariyapala a businessman who is ensued in the sale of motor vehicles collided with a car causing serious injuries to a lady who drove the car. A few days thereafter, she succumbed to the injuries and died. The 3rd, 4th and 5th

Petitioners were arrested by the police when they visited the Coroner's Court at the General Hospital Colombo on 21.04.90 to see the 1st and the 2nd Petitioners who had been arrested by the Police and produced before the Coroner to give evidence at the inquest.

 The first two Petitioners were engaged in carpentry work relating to repairs

to Ariyapala's residence in Bullers Lane between 2nd to 8th April. On the morning of the 4th they went to Ariyapala's stores in Bambalapitiya in a jeep driven by the driver one Weeraratne to obtain timber required for their work but returned without timber as the Security guard of the stores was not available at the time. They made a second trip when Ariyapala's son Indika Ariyapala who is about 16 years old accompanied them in the jeep which according to them was driven by Weeraratne. Indika was seated in the front seat. When they were going along Duplication Road, a black car emerged from Vajira Road when the jeep collided with it. The

 

112 lady driver of the car .was thrown out of the car. She and another passenger were seriously injured and rushed to the hospital.

 Two policemen arrived. As required by them Weeraratne drove the jeep to

the Bambalapitiya Police Station while one of the policemen drove the car involved in the collision to the Bambalapitlya Police Station. Indika left for home to inform his parents about the accident. The two Petitioners also claim to have gone to the Police Station and state that they saw the driver seated on a bench and that after about half an hour they all returned to the residence of the said Ariyapala.

 On 05.04.90 the driver Weeraratne was produced before the Magistrate and

was bailed out. Neither the passenger of the car nor the witness who had been present at the scene and whose statements had been recorded by the police were able to identify the person who drove the jeep at the time of the accident. The statements of the two Petitioners had not been recorded though they claim to have, gone to the Police. It appears from their averments that even if they had gone to the Police they had not identified themselves as witnesses and the police had probably not been aware of fact that they had travelled in the jeep.

 Subsequently, on the instructions of the police Ariyapala sent for the two

Petitioners who lived in Battaramulla and when they arrived at his house took them to the Bambalapitiya Police Station on the morning of 19.04.90 and left them there. At about 10.00 a.m. the 3rd respondent took them in a police jeep to the City Traffic Police, Mihindu Mawatha, Pettah There the 3rd Respondent threatened them to implicate Indika saying that the police were aware that he drove the jeep at the time of the collision; however they were not prepared to make a statement to that effect. In the afternoon they were brought back to the Bambalapitiya Police Station. Whilst they were thus detained the 3rd Respondent again threatened them and  

113 unsuccessfully attempted to record their statements on the desired lines after which they were detained at the Bambalapitiya Police Station that night. 

As the first two Petitioners failed to return home on the 19 th the 3rd, 4th and 5th

Petitioners got a relation of Ariyapala resident in Battaramulla, to telephone Ariyapala and inform him about their failure to return home. Consequently on 20.04.90 Ariyapala visited the Bambalapitiya Police Station and saw the two Petitioners there. On that occasion the 2nd Respondent abused Ariyapala for visiting the Police Station and had his statement recorded by the 3rd Respondent before he was allowed to leave the Police Station.

 At about 10.30 a.m. on the 20th the 3rd Respondent took the Petitioners in a

jeep to the Mihindu Mawatha City Traffic Police Station. There, the 3rd  Respondent had them blind folded and took them in a jeep in the company of others whom they believed were police officers to an unknown destination. Later they came to know it to be the Crime Detective Bureau, Gregory's Road, Colombo 7. On the way and at the Bureau the 3rd Respondent and the other Police Officers abused them; they also threatened the Petitioners with death by burning on tyres, and assaulted and kicked them. As a result there was blood all over their bodies; they were bleeding from their lips; they had wounds on their elbows and knees and their faces were swollen. They screamed and pleaded with the 3rd Respondent and finally agreed to make a statement implicating Ariyapala's son as required by the 3 rd Respondent. Thereafter the 3rd Respondent left. At about 9.30 p.m. three Police Constables made them to sign two statements which were not read over to them or explained. They spent that night at the Bureau and were asked to sleep on benches.

 On 21.04.90 at about 7.30 a.m. they were taken by Police Officers to the

Traffic Headquarters at the Secretariat building, Fort and later at about 10.30 a.m. to the Coroner's Court General Hospital, Colombo. The 2nd and 3rd respondents and 

114 two Assistant Superintendents of Police were there. One of them (A.S.P. Karunaratne) called the 1st Petitioner to testify at the inquest and led his evidence by a series of leading questions. The lst Petitioner fainted twice and was sobbing in the witness box; at about 11.30 a.m. the 2nd Respondent arrested the 3rd, 4th and 5th

Petitioners at the General Hospital and handed them over to several Police Constables. At about 12.30 p.m. the 1st and 2nd Petitioners were brought to the Traffic Headquarters, Fort and kept there till about 7.30 p.m. and at about 8.00 p.m. they were taken to the Bambalapitiya Police Station where they saw the 3 rd to 5th

Petitioners who were released at about 8.00 p.m.; however, the lst  and 2nd Petition-ers were detained at the Police Station and they were required to lie on benches

throughout the night. 

On 22.04.90 they met Mr. Wijeratne O.I.C. of the Bambalapitiya Police Station and pleaded for their release. He permitted them to go home but with instructions to report at the Police Station again at 5.00 p.m. However, they did not comply with the said instructions. Instead they went to the Government Hospital, Thalangama for treatment. But when they said that they had received injuries by a police assault the Medical Officer at the O.P.D. refused to examine them for want of a police report. As such, they obtained treatment from a private medical practitioner without disclosing the fact of the police assault.

 On the basis of the evidence led at the inquest the police obtained an order

from the Coroner to arrest the driver Weeraratne and Indika Ariyapala. They were accordingly produced before the Magistrate and were remanded until they were sub-sequently enlarged on bail.

 In support of their case the Petitioners have produced several affidavits in

particular from Ariyapala senior, a hospital labourer Kumara Perera and Ananda Malalgoda the Attorneyat-Law who watched the interests of Indika Ariyapala and the driver Weeraratne at the inquest (Pl, P3 and P4). Ariyapala

 

 115 senior states that on 19.04.90 he accompanied the two Petitioners to the Bambalapitiya Police; that they were at the Police Station on the 20 th when he went there; and that on the 21st when they were brought to the Coroner's Court by the Police they appeared to be in pain. He also speaks to the arrest of the 3 rd, 4th and 5th

petitioners by the 2nd respondent at the Coroner's Court on the 21st . Kumara Perera states that he saw the 1st Petitioner limping and walking with

difficulty when he was being brought to the Coroner's Court by the police. He had also seen the 3rd Petitioner and two others weeping and wailing there and that they were arrested and taken away by Police Officers on the orders of the 2nd

Respondent. Mr. Malalgoda, Attorney-at-law states that he watched the interests of Indika

Ariyapala and the driver Weeraratne at the inquest; that the 1st Petitioner was helped into the witness box; he was crying, appeared to be weak and unsteady on his feet and on two occasions assumed a crouching position in the witness box; and that the proceedings in the Coroner's Court ended in confusion.

 On behalf of the Respondents affidavits have been made by the 2nd and 3rd

Respondents, A.S.P. Harold Anthony who was in overall charge of investigations into the fatal accident, Chief Inspector of Police Ranjit Perera who recorded the statements of the 1st and 2nd Petitioners at the Crime Detective Bureau on the 20th

and A.S.P. Karunaratne who led evidence at the inquest on the 21st into the death of the deceased Miss Deepani Premaratne.

 The case for the Respondents is that several days after the accident the

driver of the motor car Miss Deepani Premaratne died of injuries sustained in the collision and it became necessary to further investigate to identify the driver who drove Ariyapala's Jeep at the time of the accident. Such investigations had become important presumably for the reason that

 

116 neither the other passenger who travelled in Deepani's car nor the persons who were at the,scene of the accident had been in a position to identify the driver. In the meantime the police had information that the lst and 2nd Petitioners who had been employed by Ariyapala were in the jeep at the time of the accident. Consequently, the 3rd Respondent made several efforts from about the 14th of April to trace the Petitioners and for this purpose visited Ariyapala's residence and failed to meet Ariyapala or the Petitioners. 

By the 18th A.S.P. Harold Anthony had information that it was not Weeraratne who drove the jeep at the time of the accient but Indika Arivapala although Weeraratne had reported the accident and admitted to the police to have driven the jeep. On the 18th the A.S.P. directed the 2nd and 3rd Respondents to investigate the matter and the 3rd Respondent visited Ariyapala's residence and as Ariyapala was again not present requested his wife to send a message to the Petitioners to attend the Bambalapitiya Police Station. On the 19 th, Atiyapala brought the Petitioners. On being questioned they appeared to suppress vital information on the advice of Ariyapala and hence the 3rd  Respondent told them to come next day by themselves. They came on the 20th at about 8.30 a.m. but as the 3rd Respondent was on special traffic duty, they were told to come at 2.30 p.m. the same day. On the instructions of A.S.P. Harold Anthony the Petitioners were instructed to proceed to the Crime Detective Bureau, Gregory's Road, Colombo 7.

 The A.S.P. says that he shifted the place of inquiry as the 2nd and 3rd

Respondents had reported that Ariyapala was interfering with the investigations. At the Bureau he himself questioned the Petitioners who admitted Indika Ariyapala hav-ing driven the jeep at the time of the accident. Their statements were recorded by Chief Inspector Ranjit Perera, at about 10.30 p.m. on the 20 th after which he instructed them to leave and to attend the Coroner's Court the next day. On the 21 st

when the 1st Petitioner was giving evidence before the 

117 Coroner suspect Indika Ariyapala and his father were seen pointing their fingers at the witness who then appeared to be frightened and confused whereupon the Coroner offered him a seat. A crowd of about 10 (believed to have been instigated by Ariyapala senior) created a disturbance in the Coroner's Court. After the inquest the Petitioners were permitted to leave with instructions to give evidence when noticed by Court. Subsequently, both of them left. 

The Respondents deny the allegation that the 1st and 2nd Petitioners were detained or subjected to torture by the police; they also deny the allegation that they were at one stage taken to the City Traffic Police Quarters, Mihindu Mawatha. It is their position that this application has been filed at the behest of Ariyapala as the police had taken action against his son.

 It is apparent that the interests of the prosecution and of Indika Ariyapala in

the investigations into the death of Miss Deepani Premaratne were evenly matched. The investigations by the police were carred out under the direction of A.S.P. Harold Anthony to establish the complicity of Indika Ariyapala. The suspect's father would be naturally interested in doing everything to safeguard his son including by assisting the Petitioners in this application. This is evident from the fact that he has given an affidavit to the Petitioners together with a supporting affidavit from one of his

customers (P2); Mr. Malalgoda, Indika's Attorney-at-Law has also given an affidavit. The Petitioners contend that the accusation against the suspect Indika is false and engineered by the police without justification. The Respondents contend that it is based on a reasonable suspicion and that they were only interested in ascertaining the truth.

 The police have no record of the information on which they suspected Indika.

If the police acted on mere conjecture their conduct in suspecting Indika would be totally unjust or liable to impeachment on the ground of actual malice. However, their suspicion is also attributable to the fact that

 

118 although Indika had been in the jeep at the time of the accident, he was admittedly not at the scene when the police visited the scene. It also appears that the 1st and 2nd

Petitioners who were witnesses to the accident and who claim to have gone to the Police Station with the driver Weeraratne had not presented themselves as witnesses; and the police had not been aware of their existence immediately after the accident. As such, their statements were not recorded and there was no witness who was in a position to identify the person who drove the jeep at the time of the accident. It was in this background that the police decided to interrogate the Petitioners as to the possible involvement of Indika in the accident and hence I am unable to regard the conduct of the police as being altogether unjust or affected by actual malice.

 The Respondents have produced marked X and Y the statements of the

Petitioners recorded on 20.04.90. Even if these statements were made under duress they describe in detail the events on the day of the accident. The Petitioners say that as they were leaving the house on the 4 th of April to bring timber, Indika asked the driver to first go to the place where the air-conditioner had been given for repairs. The jeep was then driven to a place near the railway track in Castle Street when the driver got down and went up to the gate of a house. He spoke to a man. At this stage Indika got into the driving seat. When the driver returned, he found Indika at the wheel and therefore occupied the front seat and Indika drove the jeep until it met with the accident. After the accident Indika went to inform his parents, a shortwhile thereafter Ariyapala returned with Indika, and said that he would attend to the accident and asked the two Petitioners to go home and attend to the work which they did.

 I am satisfied that the above statement (whether they state the truth or not)

have been made under duress through fear of the police in whose custody the Petitioners had been unlawfully detained from the 19th to 22nd of April 1990; In the cir- 

119 cumstances of this case, I am unable to accept the Respondents' version that when the Petitioners were brought to the Bambalapitiya Police Station on the 19 th they were instructed to call over the next day and that on the 20 th they went to the Crime Detective Bureau on their own as instructed by the police. The Respondents have not produced any information book extracts of the notes of investigation which would give credence to their version; and I accept the position that the Petitioners were in continuous detention and were taken by the police to the several places mentioned by them in order to procure their statements and were kept in police custody even

after the conclusion of the inquest on the 21st. I am also satisfied that the 3rd, 4th and 5th Petitioners have been arrested by

the police in the Coroner's Court on the 21st and were detained at the Bambalapitiya Police Station until their release the same evening. The evidence shows that they were agitated by the detention of the 1st and 2nd Petitioners by the police and were weeping and wailing. The inquest itself ended in confusion. In normal circumstances, the police might have arrested any person committing a breach of the peace there but here the position is different. These Petitioners were the wife of the 1st Petitioner and the parents of the 2nd Petitioner respectively. I do not think that their conduct warranted arrest and detention for a breach of the peace. I therefore hold that their arrest and detention is unlawful.            It must be noted that the over enthusiam of the respondents in investigating the offence has been counter productive and has thwarted the successful prosecution of the offender. What is more it has led to an allegation of the infringement of rights under Articles 11 and 13 of the Constitution. 

For the reasons I shall presently elaborate I am satisfied that the Petitioners have established an infringement of their rights under Articles 13 (1) and (2) of the Constitution. However, the evidence as regards the alleged infringement of Article 11 is not sufficiently cogent and is affected by certain

 120

 infirmities. Thus the averment that the 1st and 2nd Petitioners had blood all over their bodies and that they were bleeding from their lips or the statement that they had wounds on their elbows and knees and that their faces were heavily swollen by the police assault is not supported by the evidence of Mr. Malagoda, Attorney-at-Law. If the conditions spoken to existed in the night of the 20 th Mr. Malalgoda should have observed them next morning. The Petitioners were produced to the Coroner's Court from police custody and presumably in the same clothes as they had on them the previous night; but Mr. Malalgoda does not refer to any blood stains or injuries. There is also no medical evidence of injuries although the Petitioners did obtain treatment from a Medical Practitioner. Having regard to the competing interests and influences in the case, exaggeration of the petitioners' case in this respect is probable. Mr. C. R. de Silva, Senior State Counsel pointed out to the fact that the affidavits are in English and have not been read out and explained to the Petitioners some of whom have signed them in Sinhala whilst one has placed his thumb impression. It would not be safe to act on bare allegations contained in such affidavits unless they can be regarded as intrinsically true in the circumstances or are corroborated by other evidence. I hold that the alleged infringement of Article 11 has not been established.

 I now revert, to the alleged infringement of rights under Article 13 (1) and (2)

of the Constitution. In response to certain questions by me during the hearing the learned Senior State Counsel submitted that in the event of this Court holding that the Petitioners had been taken into custody by the police he would submit that it would not entitle the Petitioners to relief for an infringement of Article 13 (1) and (2) of the Constitution. On the authority of State of Punjab v. Ajaib Singh (1) he submitted that such taking and detention did not constitute "arrest" and "detention" within the meaning of the said article because there was no allegation or accusation of an offence by the Petitioners or an intention on the part of

  

121

 the respondents to subject the Petitioners to the process of law. He contends that the remedy of the Petitioners is limited to claiming civil damages whilst the officers liable for such unlawful conduct may also become liable for an offence; but the Petitioners cannot seek relief for violation of fundamental rights. Mr. Faiz Musthapha, P.C. for the Petitioners submitted that there is no justification for such a restrictive interpretation of Article 13. He cited in support the decision of this court in Namasivayam v. Gunawardena (2). 

In Ajaib Singh's case (supra) the taking into custody of an abducted person by a Police Officer and the delivery of such person by him into the custody of the Officer-in-Charge of the nearest camp under S.4 of the Abducted Persons (Recovery and Restoration) Act, 1949 was challenged on the ground of conflict with certain fundamental rights provisions of the Indian Constitution. It was alleged inter alia, that S.4 was in conflict with and violative of the provisions of Article 22(1) and (2) of the Constitution which provide

 22 (1) _          "No person who is arrested and detained in custody shall be detained

in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice."

(2) _          "Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate."

 Das J. held (p. 15) -

 "The language of Article 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than  

122 

                        under a warrant issued by a Court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi criminal nature or some activity prejudicial to the public or the State interest".

 The Court was of the opinion that the protection which has been made a

matter of substantive fundamental right (with improvements) is the protection which is contained in the Criminal Procedure Code. Thus under S.56 an arrested person is entitled to be informed of the grounds for his arrest. This right is enshrined in Article 22(1). As regards Article 22(2) Das J. observed (p.15) __

 

"It is also perfectly plain that the language of Article 22(2) has been practically copied from Sections 60 and 61 of the Criminal Procedure Code which admittedly prescribe the procedure to be followed after a person has been arrested without warrant". 

The petitioners before us have invoked Article 13(l) and (2) of the Constitution which reads ___

 13(1) ___           "No person shall be arrested except according to the procedure

established by law. Any person arrested shall be informed of the reason for his arrest".

     (2) ___               "Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the Judge of the nearest competent Court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such Judge made in accordance with procedure established by law".

 According to the plain meaning of these provisions the rights claimed by the

petitioners are not limited to persons arrested on suspicion of having committed or being concerned

 

 123 with an offence. The protection against arbitrary arrest and detention is the central feature or the core of these provisions. Under the Indian Constitution such protection is afforded by Article 21 which reads ___

 "No person shall be deprived of his life or personal liberty except according to the procedure prescribed by law".

 Article 22(1) and (2) of that Constitution provides protection to persons

arrested without a warrant in the circumstances set out in Ajaib Singh's case (supra). Article 13 of our Constitution enshrines the rights provided by Articles 21 and 22(1) and (2) of the Indian Constitution.

 The 1st and 2nd Petitioners complain of arbitrary arrest and detention by the

police for the purpose of procuring their evidence against Indika Ariyapala. The other Petitioners also complain of arbitrary arrest and detention when they came to the Coroner's Court. I am of the opinion that such arrest and detention are violative of Article 13(1) and (2) of she Constitution. Neither the facts nor the constitutional provisions which came in for consideration in Ajaib Singh's case (supra) have any application to this case whilst the decision of this Court inNavasivayam's case (supra) is exactly in point. I wish to add that having listened to a full argument on the point I have changed the view which I expressed (obiter) in my separate judgment in Somawathie v. Weerasinghe (supra) on the scope of Article 13. Accordingly I determine that the 2nd and 3rd Respondents have infringed the fundamental rights of the Petitioners secured by Article 13(1) and (2) of the Constitution. 

The 2nd and 3rd Respondents have by their acts made the State liable to pay compensation to the Petitioners. However, the evidence establishes that these Respondents are personally responsible for the impugned acts. I am, therefore, of the view that this is an appropriate case to make the order for relief

 124

 against them and the State. Before making my order, I wish to consider the decision of this Court in Saman v. Leeladasa (4), in which the majority of the Judges ordered

compensation only against the State. After examining the previous decisions Amerasinghe J. said (p. 38) __ 

 "It is therefore the State that is liable to pay compensation to the Petitioner". 

Fernando J. however, awarded compensation against the 1st Respondent and the State jointly and severally applying the common law principle of delictual liability against master and servant. He said (pp.23-24) __

 

"Article 126 does not define an ingredient of an infringement of fundamental rights; it merely ousts the jurisdiction of other Courts and tribunals in respect of one category of such infringements namely those committed by executive or administrative action".

   The question is whether the decisions of this Court prior to Saman v. Leeladasa (supra) preclude relief under Article 126 being granted against a Respondent who is found personally responsible for the infringement of fundamental rights and the State. In Thadchanamoorthi v. Attorney General (5), the alleged torture (infringement of Article 11) was held to have been not proved for want of cogent material. Wanasundara J. proceeded to consider the preliminary objection taken on behalf of the State that an act of a State functionary would not constitute "executive or administrative action" unless it is done within the scope of the powers given to him, which means that if it is an unlawful or ultra vires act, it would not be considered State action but only as the individual act of the person concerned. He agreed that such a test would make Article 11 a dead letter and held that an act of a public officer under the colour of office would constitute State action except when it ought to be considered purely as an individual or private act. This exception is subject to the qualification that even such acts would entail State liability if their exception is 

125 subject to the qualification that even such acts would entail State liability if there is an administrative practice sanctioning or tolerating them.

 In Velumurugu v. Attorney-General (6), it was held (Sharvananda J. (as he

then was) and Ratwatte J. dissenting) that the evidence failed to establish the alleged torture of the Petitioner. In this case, the State took up the position that an act of an officer would constitute "executive or administrative action", if it is performed in the course of his duties and under colour of authority and in support relied on decisions on vicarious liability of a master for the acts of his servant in the sphere of the law of tort. Wanasundera J. said (p.210) __

 "We are here dealing with the liability of the State under public law, which is a new liability imposed directly on the State by the constitutional provisions. While the decisions relating to the vicarious liability of a master for the acts of his servant may be useful to the extent that all cases where a master can be held liable in tort would undoubtedly fall also within the liability of the State under the constitutional provisions, the converse need not be true unless we are to give a restricted interpretation to the constitutional provisions. The Common Law test of tortious liability therefore cannot provide a sufficient test and we have to look elsewhere for the appropriate principles". 

He expressed the view that all acts done under colour of office including ultra

vires acts or acts in disregard of a prohibition would raise State liability; and that the concept of "administrative practice" would help to extend such liability viz. State liability would arise if the acts complained of are attributable to a general situation created by negligence or indifference of those in authority (pp. 212, 213).  

In the above decisions the Court was concerned with defining State liability for infringement of fundamental rights in the widest possible terms. The Court had no occasion to go into

 126

 the nature of the liability for such infringements by private persons not subject to public law e.g. liability arising under Article 12(3) by exclusion of any person from a shop etc. on the ground of race, religion, language, caste or sex; nor did the Court consider whether compensation may be awarded against both the offending officer and the State which is a question relating to the scope of the redress an applicant would be entitled to under Article 126. 

In Ratnasara Thero v. Udugampola (7) a Divisional Bench of this Court ordered the 1st Respondent (a Superintendant of Police) to pay the Petitioner a sum of Rs. 10,000/- for infringement of Article 14(1)(a) by the seizure of certain pamphlets.

 In Mariadas v. Attorney-General (8), the State was ordered to pay

compensation in a sum of Rs. 5,000/- for infringement of the Petitioner's rights under Article 13(1) whilst the 1st Respondent was ordered to pay the Petitioner the costs of the application. The Court said it would not make an order against Sub Inspector Godagama who was also found responsible for the infringements as he was not a party to the proceedings.

 Sharvananda J. said (p. 404) __ 

 "The protection afforded by Article 126 is against infringement of fundamental rights by the State, acting by some public authority endowed by it with the necessary coercive powers. The relief granted is principally against the State, although the delinquent offi-cial may also be directed to make amends and/or suffer punishment". 

In Vivienne Goonewardena v. Perera (9) this Court adopted the above dicta as to the nature and the scope of the liability for infringement of fundamental rights by the State. The officer who was responsible for the wrongful arrest of the Petitioner was not a party to the application. Accordingly, the Court awarded Rs. 2,000/- as compensation against the State for infringement of Article 13(1).

 

127 

In Kapugeekiyana v. Hettiarachchi (10), the 1st and 2nd Respondents were ordered to pay Rs. 10,000/- as compensation for violation of the Petitioner's rights under Article 13(2) by illegally detaining him on the fourth floor of the Criminal Investigation Department for three days.

 With great respect, there is nothing in these decisions which would support

the implication of the majority opinion in Samara v. Leeladasa (supra) that a determination under Article 126 would enable the grant of relief only against the State. In fact relief has been freely granted previously not only against the State but also against Respondents who were found to have been personally responsible for infringement of fundamental rights. Even if the liability is not based on delict but liability sui generis under public law, this Court has the power under Article 126(4) read with Article 4(d) to grant relief against the offending public officer and the State. That Article reads __ 

 "The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstances in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article .......... " "Executive or administrative action" would make the State primarily liable for

such action viz. independently of the state officer concerned and as a matter of public law. But Article 4(d) which provides that fundamental rights shall be respected, secured and advanced by all organs of government would make the offending public officer being a member of the executive organ also liable for the infringement of such rights; and Article 126(4) would empower this Court to grant relief against the State and such officer. It is necessary that such relief should be just and equitable. Giving relief against individual officers in addition to the State in appropriate cases would also help to curb any tendency on the part of State officers to violate fundamental rights in the belief that the State alone is liable for such violation.

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 In ordering relief to the Petitioners before us, I wish to emphasize that whilst

it is the duty of the police to investigate offences using all lawful powers, they are not entitled to arrest or detain persons in the course of investigations in the manner disclosed in these proceedings. As already pointed out such overzealous conduct would only impede the successful prosecution of offenders and give rise to complaints of violation of fundamental rights. In all the circumstances, I think it just and equitable to make order that the 1st and 2nd Petitioners are each satisfied to compensation in a sum of Rs. 3,000/- (Rupees Three Thousand) payable by the State. The 1st and 2nd Petitioners will also be entitled to compensation in a sum of Rs. 500/- (Rupee Five Hundred) each payable by the 2nd and 3rd Respondents respectively. The 3rd, 4th and 5th Petitioners will each be entitled to Rs. 500/- (Rupees Five Hundred) as compensation payable by the State. Each of them will also be entitled to compensation in a sum of Rs. 250/- (Rupees Two Hundred and Fifty) payable by the 2nd and 3rd Respondents respectively. I direct the payment of these amounts accordingly by the State and the 2nd and 3rd Respondents together with one set of costs in a sum of Rs. 2,000/- (Rupees Two Thousand) payable by the State. I also agree to the making of the further direction as stated by my brother Fernando J. in his judgement whereby the Inspector General of Police is required to inquire and report on the allegations made by the 1st and 2nd Petitioners.

 Compensation ordered against State and  Public officers concerned for illegal arrest.

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SLR - 2009 Vol - 1    Add to iNote

 SLR - 2009 Vol.1, Page No - 213

213

BANDULASAMARASEKERAVS.

VIJITHA ALWIS, O.I.C., GINIGATHHENA

POLICE STATION AND OTHERSSUPREME COURTDR. SHIRANI BANDARANAYAKE,J.EKANAYAKE,J.ANDIMAM,J.S.C. (FR.) APPLICATION NO. 107/2007JANUARY 30TH,2009

Fundamental Rights-Article 11 - Freedom from torture or cruel, inhuman or discriminatory treatment or punishment -Article 13(1) Failure to communicate reason for arrest to arrestee - Article 13(2) -Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the Judge of the nearest competent Court.- Criminal Procedure Code - Section 32(1)b - An arrest could be made not on vague reasons, but only on a reasonable suspicion that the person in question has been concerned in a cognizable offence - Section 37 - Person arrested not to be detained more than 24 hours.

The petitioner had filed this application in the Supreme Court alleging that his fundamental rights guaranteed in terms of Articles 11, 12(1), 13(1) and 13(2) of the Constitution were violated by the 1st and / or 2nd Respondents.

The Supreme Court granted leave to proceed for the alleged infringement of Articles 11,13(1) and 13(2) of the Constitution.

Held:

(1) Section 32(1)b of the Code of Criminal Procedure Act, had clearly stipulated that an arrest could be made not on vague reasons, but only on a reasonable suspicion that the person in question has been involved in any cognizable offence.

(2) An arrest take place when a person is either taken into custody or placed under restraint.

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Per Dr. Shirani Bandaranayake, J.

"Although Section 37 of the Criminal Procedure Code refels to a period of 24 hours as the period a person taken withoutla warrant could be kept in custody without, producing him before the Magistrate, this does not mean that a person could be kept for a maximum period of time under arrest without taking necessary steps to produce him before the learned Magistrate.What Section 37 of the Code of Criminal Procedure Act had contemplated is that, a person who has been taken into custody without a warrant should be produced before the learned Magistrate as early as possible and without any unnecessary delay. The time taken should be considered on the circumstances of each case.

(3) Where there is a complaint against a police officer alleging that the complainant had been assaulted, it cannot be rejected merely because the police deny such allegation. Whether any such allegation is in violation of Article 11 of the Constitution would depend on the facts and circumstances of the case.

Per Dr. Shirani Bandaranayake, J.

"However, in order to establish alleged allegation of torture it would be necessary for an aggrieved party to corroborate his averments against the respondents and for such corroboration it would be necessary .to produce evidence including medical evidence.

" It is the duty of a police officer to use his best endeavour and ability to prevent all crimes, offences and public nuisances and more importantly to preserve the peace. In order to carry out his duties. efficiently and effectively, it would be necessary to have the trust and respect of the public. It is not easy to command that from the public and in order to earn such trust and respect, the police officers must possess a higher standard of moral and ethical values than is expected from an average person.

(4) The Petitioner's fundamental rights guaranteed in terms of Article 11,13(1) and 13(2) of the Constitution had been violated and the 1st Respondent is responsible for the said violation of Article 11 and 13(1) of the Constitution.

Cases referred to:-

(1) Kushan Indika V. Ranjan Wijesekera, D.LC. Police Station, Pitigala,

(2) S.C. (Application) No.129/2007- S.C. Minutes of 31.8.2009.

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(2) Pelawattage (Attorney-at-law) for Piyasena V. D.Le. Wadduwa and Others- s.c. (Application) 433/93 - S.C. Minutes of31.8.1994.

(3) Gamlath Vs. Neville Silva and Others 1991 2 Sri L.R. 267

(4) Muttusamy V. Kannangara (1951) 52 N.L.R.324

(5) Veeradas V. Controller of Immigration and Emigration and Others (1989) 2 S.L.R.205

(6) Holgate - Mohammed V. Duke (1984) 1 A.E.R. 1056

(7) Ansalin Fernando V. Sarath Perera and Others 1992 1 Sri L.R. 411

(8) Namasivayam V. Gunawardena 1989 1 Sri L.R. 394

(9) Amal Sudath Silva V. Kodituwakku 1987 2 Sri L.R. 10

APPLICATION complaining of infringement of fundamental rights.

J.C. Weliamuna with Maduranga Ratnayake and Pasindu Silva for Petitioner.

W. D. Weeraratne for 15tto 3rdRespondents.

K. A. P. Ranasinghe, S.S.C. for 4th Respondent.

September 14, 2009

DR. SHIRANI BANDARANAYAKE, J.

The petitioner had filed this application in this court alleging that his fundamental rights guaranteed in terms of Articles 11,12(1), 13(1), and 13(2) of the Constitution were violated by the 15tand / or 2nd respondents. This court had granted leave to proceed for the alleged infringement of Article 11, 13(1) and 13(2) of the Constitution. The facts of this application, as submitted by the petitioner, are as follows:

The petitioner had been an employee at Brown and Company 1979 -1996 and thereafter was engaged in facilitating sales of vehicles. His wife is a retired teacher in English who was the Head of the English Division of the Advanced Technical Institute, Kandy. Their son Sahan, was 24 years of

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age at the time of this incident and was engaged in a mobile phone shop in Kandy.

In 2005, the petitioner and his wife had learnt that Sahan was having an affair with a married woman. In the best interest of their son, the petitioner and his wife had advised Sahan not to continue with the said affair, which Sahan had ignored. Both of them had made several attempts through their friends and relatives to advise Sahan against the said affair to no avail.

On 02.12.2006, Sahan had left the petitioner's residence stating that he would be thereafter living on his own and later the petitioner had become aware that Sahan was living with the said married woman in a rented house at Ampitiya. At that point,

the petitioner and his wife in a desperate attempt to change Sahan's mind had decided to retain the services of a local exorcist (Kattadiya). Accordingly the petitioner had obtained the services of one P.G.Pemaratne of Katugastota, a retired Grama Niladhari, who was said to be skillful in exorcism. The said exorcist had informed the petitioner that the exorcizing rituals must be scattered on the compound of the house, where Sahan was living. The exorcist had also told the petitioner to bring incense, camphor, flowers of five (5) kinds, beetle, coconut oil, an egg, frankincense, mustard and clay lamps for the exorcism.

Thereafter on 28.02.2007, around 7.00 in the evening the exorcist had commenced the exorcizing rituals at the petitioner's residence. Mter that performance, around 10.00 p.m., the petitioner, a friend of Sahan and the exorcist had set off in the jeep bearing No.31 Sri 9734 to Sahan's house. After scattering charmed mustard on the compound of Sahan's house, the petitioner along with the others had proceeded back home around 10.45 p.m.

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Soon after within matters of 5-10 minutes drive from Sahan's house another vehicle had approached from the opposite direction and the lane had been too narrow at that point for the two vehicles to move forward. The petitioner had stopped his jeep and then the driver of the other vehicle had alighted from his vehicle and had asked the petitioner if he could reverse the jeep. By that time the petitioner had also got off from the jeep and whilst trying to get into his jeep he had said that he would reverse the jeep. Just as the petitioner was getting into his jeep, the 1st respondent, who was seated in the front passenger seat of that vehicle got off and came close to the petitioner stating that,

Thereafter, the 18trespondent had snatched the ignition key of the jeep. The petitioner at that stage had stated that he was going to reverse the jeep and therefore there was no need to create any difficulty. No sooner the petitioner had stated the above, the 18trespondent had jumped forward and dealt several severe blows on the petitioner's face and had assaulted him. Thereafter having seen in the jeep the remaining items used for the rituals such as incense, camphor etc., the 18t respondent had started shouting stating that,

Having stated that, the 18t respondent had assaulted the exorcist and Sahan's friend, who were in the jeep. The 18t respondent according to the petitioner was smelling of liquor and the vehicle he came was driven by a member of a Pradeshiya Sabba, whom he could not identify. Thereafter the 18t respondent had got into the driver's seat of the jeep, threatened the petitioner and the two others

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that they would be killed if they shout and had driven them to the Kandy Police Station. The petitioner, due to the brutal assault, was bleeding from his nose and his face and his right eye was swollen. He had also realized that his gold bracelet and the chain were missing. He had however managed to call his wife on his mobile phone and had told her briefly that he was arrested and being taken to the Kandy Police Station. When they reached the Kandy Police Station, the 18trespondent has told the petitioner and the two others to follow him and had made certain entries in a book at the Police Station. After stating that

he had left the Police Station. The officers of the Kandy Police Station had remanded the petitioner and the two others.

Soon after the petitioner's wife and the daughter had arrived at the Kandy Police Station with an Attorney-at- Law (PI, P2 and P3). Around 2.00 a. m. the officers of the Kandy Police Station had taken the petitioner and the other two persons to the Judicial Medical Officer. However his injuries were not attended to by the said Medical Officer. On 01.03.2007 around 9.00 a.m, a Police Officer had obtained statements from the petitioner and the other two persons and thereafter around 12.00 noon they were taken to Dr. A. B. Seneviratne, who was Judicial Medical Officer; the said Judicial Medical Officer had referred them to the E. N. T. clinic of the Kandy Hospital and thereafter necessary X-rays had been taken by them (P4).

Around 5 p.m. on 01.03.2007, all three were produced before the Magistrate's residence and were released on surety of Rs. 100,000/- for each of them.

The petitioner had made a complaint to the Human Rights Commission of Sri Lanka and to the National Police Commission regarding the aforesaid incident (P6 and P7). His position was that he had to undergo continuous treatment for the injury caused to his eye and the said incident had caused him severe pain of mind.

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When this matter came up on 27.07.2007, an application had been made by the learned Counsel for the 2ndrespondent to discharge the 2nd respondent from these proceedings. Learned Counsel for the petitioner on that date had submitted that the petitioner had not claimed any relief against the 2nd respondent. In the circumstances, this Court had discharged the 2ndrespondent from these proceedings.

The 18th respondent in his affidavit had averred that he had received a message on 24.02.2004 for him to attend the Magistrate's Court, Kandy on 28.02.2007 to lead evidence in M. C. Case No. 61908 (lR1). On 28.02.2007, after attending the duties in Court, he had returned to his residence in his private vehicle at 190/4, Pallegama, Ampitiya around 10.30 p. m. As he was around 100 meters away from his house he had noticed a commotion and there was a gathering of a big crowd near a jeep, where some were shouting.

Referring to the said incident the 1st respondent had averred in his affidavit that,

"I noticed those three people were been man handled by the crowd. I shouted at them to disperse the mob and asked the crowd to hand them over to me. The

people then brought the petitioner and two others to me and informed that they were suspected as treasure hunters."

Thereafter he had handed over the suspects to the Police Sergeant Padmasiri attached to Kandy Police Station to take necessary action. His contention was that he had not assaulted any body and that he had noticed that the petitioner had sustained some marks on his left eye.

In support of his contention, the 18t respondent had annexed a certified copy of the notes entered by him in the Police Station, Kandy (lR2). The contention of the pt respondent was that the petitioner with two others had been

220

at that particular place on the night of 28.02.2007 for the purpose of treasure hunting and in support of his contention he had referred to the items in the petitioner's possession at the time of his arrest.

The petitioner's position, as stated earlier, had been that his arrest and detention had been unlawful and that he was assaulted by the 1at respondent at the time of his arrest. The 1at respondent's version was that the civilians of the area had surrounded the petitioner and the two others and thereafter the 1st respondent had arrested the petitioner and had brought him to the Kandy Police Station. In support of this position he had filed a copy of his entry made at the Kandy Police Station at 11.50 p. m. on 28.02.2007 (IR2) and an affidavit filed by one Jegan Navaratne Raja (IR9), a resident of No. 35A, Wewathena Road, Ampitiya, Kandy. The said Navaratne Raja's position was that he had been returning from the construction site of his house situated at Pallegarna around 10.30 p.m. on 28.02.2007 and he had witnessed the incident related by the 1at respondent.

Article 13(1) and 13(2) of the Constitution refer to freedom from arbitrary arrest and detention and read as follows:

"13(1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest.

13(2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent Court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law. "

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It is to be borne in mind that the 1at respondent had contended that the petitioner and the three others were arrested by the villagers and thereafter they were handed over to him. The procedure for the arrest of any person by private person is dealt with in Section 35 of the Code of Criminal Procedure Act, No. 15 of 1979. According to the said Section 35, that,

"Any private person may arrest any person who in his presence commits a cognizable offence or who has been proclaimed as an offender, or who is running

away and whom he reasonably suspects of having committed a cognizable offence, and shall without unnecessary delay make over the person so arrested to the nearest peace officer or in the absence of a peace officer take such person to the nearest police station. If there is reason to believe that such person comes under the provisions of Section 32 a peace officer shall re-arrest him. . . .. If there is no reason to believe that he has committed any offence he shall be at once discharged. "

The situation which prevailed at the time the 1st respondent had arrested the petitioner was vividly described by him in his affidavit, where he had averred that, ". . . as I was approaching around one hundred meters close to my house where there is a small bridge I heard a big noise from a crowd; some were shouting and some were screaming centering a pajero with three people. I noticed that those three people were being man handled by the crowd. I shouted at them to disperse the mob and asked the crowd to hand them over to me. The people then brought the petitioner and two others to me and informed that they were suspected as treasure hunters."

According to his affidavit, the 1atrespondent had arrested the petitioner as he was suspected as a treasure hunter.

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However, in his own entry entered at 11.50 p.m. at the Kandy police Station it had been stated that the 1st respondent had arrested the petitioner not for any other reason, but for the petitioner's own safety.

When one considers the averment of the 1st respondent in his affidavit tendered to this Court and the entry entered by him on 28.02.2007 at 11.50 p.m., it is quite clear that there is clear contradiction in the two versions given by the 1st respondent.

Learned Counsel for the 1st respondent contended that the petitioner was a treasure hunter and therefore the 1st respondent had to arrest him as the petitioner had got caught to the people of that area. However, no material was produced before this Court to indicate that the area in question had any places of archaeological value. A police officer of the Kandy Police Station had investigated into the incident in question and according to his report about 200 meters away from the place, where the petitioner was arrested on the night of 28.02.2007 there had been a place with a stone stairway leading to a house and the said stairway, which consisted of 27 stone steps had a historical value. It was further stated in the police officer's Report that during the period of King Rajasinghe, in one of his visits, the King had rested for a while in the house near the said stone stairway. However, this place is about 200 meters away from the place of the incident in question (IR7) and the owner of the house to which the stone stairway leads to had categorically stated that no one had visited their house on the night of the incident. Further the said

owner had not referred to any

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archaeological importance being attributed to the said stone stairway. More importantly, the Deputy Director (Movable and Immovable Property) of the Archaeological Department by his letter dated 25.04.2007 had informed the Head Quarters Inspector of the Police Station, Kandy that on an examination of the place in question, it is ascertained that the particular place has no archaeological value.

On the basis of the letter of the Deputy Director of Archaeological Department the Officer-in-Charge of the Police Station, Kandy had submitted to the Magistrate's Court, Kandy that as there is no material against the petitioner and the other two suspects, that they be discharged from the proceedings.

As referred to earlier, Section 32(I)b of the Code of Criminal Procedure Act, had clearly stipulated that an arrest could be made not on vague reasons, but only on a reasonable suspicion that the person in question has been concerned in any cognizable offence.

In Kushan Indika v Ranjan Wijesekera, Officer-in Charge, Police Station, Pitigala!l),the question of arresting a person according to the procedure established by law in terms of Article 13(1) and Section 32 ofthe Code of Criminal Procedure Act, was examined in detail. Considering the rationale in decisions of Pe}awattage (A.A.L.) for Piyasena v a.I.c. Wadduwa and other(2), Gamlath v Meville Silva and others(3) Muttusamy v Kannangara(4) and Veeradas v Controller of Immigration and Emigration and others(5), it was clearly stated that,

"It is therefore abundantly clear that although a person could be arrested without a warrant in terms of section 32(I)b of the Code of Criminal Procedure Act, for such

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action to be taken it is necessary that there should be a reasonable suspicion that such person had committed the offence in issue" (emphasis added).

Accordingly, the question which arises at this juncture is whether there was a reasonable suspicion against the petitioner at the time he was arrested by the 1st respondent. As referred to earlier, the contention of the 18t respondent was that he had suspected him to be a treasure hunter. However, as has been already described, the Assistant Director of the Archaeological Department in his letter had categorically stated that according to the report issued on the basis of the examination of the site in issue, that the area in question is not a place with any archaeological value. Furthermore the owner ofthe house, where the stone stairway was located has stated that no person had come near their house in that night. In those circumstances it is apparent that the petitioner could not have committed the alleged offence.

Accordingly I hold that the petitioner's fundamental rights guaranteed in terms of Article 13(2) had been violated by the 18t respondent.

The 3rdrespondent, who was the Officer-in-Charge of the Divisional Crime Prevention Unit, Police Station, Kandy had averred that at the time the petitioner was brought to the Kandy Police Station on 28.02.2007, he was not in the Police Station as he had left the Police Station around 4.00 p.m. on 28.02.2007 and reported for duty only on 01.03.2007 at 2.00 p. m. and had attended to duties until 10.00 p.m. in the mobile duty car (3R2).

The B report dated 01.03.2007 had been prepared by the police officer, who was on duty at the time and not by the 3rd respondent. 

SLR - 2003 Vol - 1    Add to iNote

 SLR - 2003 Vol.1, Page No - 196

196DHANAPALA FERNANDO

v.ATTANAYAKA, OFFICER-IN-CHARGE,

KANDANA POLICE STATION AND OTHERS 

 SUPREME COURT FERNANDO, J. ISMAIL, J. ANDWIGNESWARAN, J. SC NO. 330/2002 (FR) 22nd JANUARY, 2002 Fundamental Rights - Search of a licened restaurant and arrest of its guests and Manager - Power of arrest and search by police - Sections 32 and 33 of the Code of Criminal Procedure Act - Sections 65 and 68 of the Police Ordinance - Articles 12 (1) and 14 (1) (g) of the Constitution. The plaintiff and his sister owned a partnership business called Jayasiri Restaurant and Inn ("the Inn") at Kandana registered under the Business Names Statute of the Western Provincial Council and licensed by the Ja-Ela Urban Council. The business consisted of a restaurant, a reception hall for weddings and parties and an inn with guest rooms. On the orders of the 1st respondent, the 2nd respondent Sub Inspector of Police who was armed with a revolver raided the Inn on 3.6.2002, 9.6.2002, 13.6.2002 and 16.6.2002 and searched it apparently at gun point and hence without the consent of the Manager of the Inn.

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On 3. 6. 2002, the 2nd respondent questioned three couples who were occupying

rooms. They disclosed their names and addresses. They were not asked to show their identity cards. One of the couples was married, another had intended to get married; and third couple married but not to each other. As per IB extracts, the Manager had told the police that a licence had been obtained for the business but he was not told to produce the licence. The Manager himself was arrested allegedly for failing to establish the identity of the couples. The 2nd respondent told the Manager that the business cannot be operated without a licence from the Tourist Board. The Manager and couples were taken to the Kandana Police Station and released the same day after questioning.

The subsequent raids by the 2nd respondent were to re-check whether the Inn was functional. During these visits the 2nd respondent once told the Manager to close up the business if a licence from the Tourist Board had not been obtained and the 2nd respondent threatened to assault the Manager if rooms were let.

On 27.6.2002 when the restraining order against the police instructions to close up the business came up for renewal the State Counsel submitted to court that in view of the licence obtained from the local authority the police had no power to prohibit the petitioner from operating his licence.

However, the State Counsel argued that, the impugned arrests and search could be defended in terms of sections 32 and 33 of the Code of Criminal Procedure Act, and sections 65 and 68 of the Police Ordinance.

Held :

Per Fernando, J. 1 " ...The respondents tried to justify the arrests upon numerous grounds - that the

three couples were reasonably suspected of an offence, cognizably or otherwise and / or of underworld or of criminal activities; that they were taking precautions to conceal their presence; that there was a need to investigate their possible involvement in such offences or activities, that they were found in a place reasonably suspected of being a resort of loose and disorderly characters; that the police had reason to believe that the names and addresses given by them were false and needed verification; and that they had given contradictory reasons for their presence at the Inn. The respondents have totally failed to establish any factual basis whatsoever for any of these allegations. That the arrest had really nothing to do with such matters and was an arbitrary and high handed infringement of liberty and invasion of privacy is manifest.

2. Whilst there was evidence of rising crime in the area, the search was unlawful because the respondents had no reasonable suspicion but only a vague general suspicion that criminals from outside lodge in guest

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houses in order to commit crimes and then leave the area. Further, the search was effected not with the consent of the Manager but by forcing him to submit to the search by the 2nd respondent showing his weapon.

3. The petitioner's fundamental rights under Articles 12(1)(g) have been infringed by the 1 st and 2nd respondents for which the State and the said respondents were liable.

APPLICATION for relief for infringement of fundamental rights.

Case referred to :

(1) Bandaranayake v Rajaguru - (1999) Sri LR 104

D. Premaratne, PC. with Hemantha Situge for petitioner.

Rajiv Goonatilleke, State Counsel for 1st to 4th respondents. 

Cur. adv. vult

March 19,2003

FERNANDO, J.

The Petitioner and his sister are the partners of a business called "Jayasiri Restaurant and Inn" ("the Inn") registered in terms of the Business Names Statute of the Western Province, and licensed by the Ja-ela Urban Council. The business is carried on in premises at Kandana, and consists of a restaurant, a large reception hall given on hire for weddings and parties and an Inn with rooms given out to guests. The Petitioner alleges that the 1st and 2nd Respondents (the Officer-in-Charge and a Sub-Inspector, respectively, of the Kandana Police) infringed his fundamental rights (s) under Article 12(1) by conducting three illegal searches of the premises on and after 3.6.2002 and (b) under Article 14(1)(g) by compelling the closure of his business from 3.6.2003.

 

It is not disputed that (as shown by the Information Book ("IB") extracts) at 10.45 a.m. on 3.6.2002 on the 1st Respondent's orders, the 2nd Respondent left the Kandana Police station, armed with his gun, together with a party of Police officers in a private

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 vehicle, ostensibly to investigate information received regarding an underworld gang. At 11.00 a.m. they came to the Inn and searched it. While the Petitioner claimed that the 2nd Respondent forcibly searched the premises after showing the Manager of the Inn a revolver, the 2nd Respondent denied that allegation and claimed that the search was with the Manager' consent. Thereafter the 2nd Respondent got the Manager to open up the rooms of the Inn, and took into custody three couples, who were occupying three rooms, on the ground (as averred in his affidavit) that they were "unable to satisfactorily establish their identity," as well as the Manager as he too was unable to establish their identity. The "Visitors Book" of the Inn was also taken. According to the 1st Respondent's affidavit it had not been duly maintained after 28.4.2002 and was retained as a production. That Book was not produced but only a photocopy of the "last entered page" which contained an entry for 24.5.2002. Although that Book was not returned, nevertheless (according to the 2nd Respondent) the 1st Respondent had warned the Manager to maintain that Book. It was not pleaded that any shortcoming in the maintenance of that Book was one of the reasons for the arrest. After further questioning at the Kandana Police station, the three couples and the Manager were released at about 2.15 p.m. One of the matters elicited in the courses of the Manager's statement was that licences had been obtained for the business, but his statement does not refer to any request to

produce those licences.

 

The Petitioner claimed that the 2nd Respondent had told the Manager that the business cannot be operated without a licence from the Tourist Board, and had ordered its closure - all of which the Respondents denied.

 

At 6.30 p.m. on 9.6.2002, on the 1st Respondent's orders, the 2nd Respondent left the station, armed, with a Police party to investigate information that a suspect couple had obtained accommodation in an (unspecified) guest-house. According to the IB extracts, the Police party visited the Inn, questioned the Manager, searched the Inn but found neither guests nor suspicious activity, and returned at 7.05 p.m. without having attended to any other duties.

 

The Petitioner claimed (but the Respondents denied) that at 10.00 a.m. on 13.6.2002 the 2nd Respondent had again come to

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the Inn and had asked the Manager to come to the station at 5.00 p.m., at which time the 1st Respondent had told him to close the business, threatening to assault him if rooms were let.

 

According to the IB extracts, at 3.00 p.m. on 16.6.2002, on the 1st Respondent's orders, the 2nd Respondent left the station, armed, with a Police party to investigate information that underworld gangs were meeting in guest-houses in the area to organize themselves. At 3.15 p.m. they came to the Inn and found all five rooms empty, and recorded a brief routine statement from the Manager - among the matters elicited in that statement was that the approval of the Tourist Board had not been obtained for the Inn. At 3.35 p.m. they visited another guest-house where they arrested four couples and the Manager, and returned to the station at 4.00 p.m.

 

I must note at this point that although the 2nd Respondent claimed that all three searches were with the Manager's consent, the relevant IB extracts did not record any such consent.

 

The Petitioner made a complaint at Police Headquarters on 18.6.2002. Having referred to the Police searches and arrests, he stated that the 1st Respondent had ordered the closure of the Inn; that the Police had told the Manager to get Tourist Board approval; and that the threats and harassment by the Police were making it impossible to carry on his business, and were affecting bookings which he had already obtained. He asked for an inquiry and that he be allowed to carry on his business. An inquiry was held by an Assistant Superintendent of Police. Although the Inspector-General of Police was the 3rd Respondent in this case, we were not informed of the result of that inquiry.

 

This application was filed on 19.6.2002, and leave to proceed was granted on 25.6.2002. The Petitioner had pleaded that he had bookings for 25th, 26th and 27th June and despite the lack of notice to Respondents in view of the urgency, an interim order was made, permitting the Petitioner to carry on business, and directing 1st to 3rd Respondents not to interfere with the running of his business. That order was operative until 28.6.2002, and the question of renewal was to be considered on 27.6.2002. The journal entry of 27.6.2002 reads thus:

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"Learned State Counsel submits to Court that the licence to operate to petitioner has been granted by the Ja-ela Pradeshiya Sabha, and in the circumstances the Police have no legal rights to prohibit the petitioner from operating or (to cancel) his licence".

 

In his affidavit the 1st Respondent implied that it was only after this application had been filed that he became aware that the Inn was licensed. He complained that no such licence had been produced to the Police - perhaps forgetting that the Petitioner and the Manager had not been asked to do so. He went on to set out the background to the searches and arrests. There had been a rise in armed robberies and crimes in the area. A number of crimes had been committed in places close to guest-houses and it was sus-pected that criminals from outside lodge at guest-houses, commit crimes, and leave the area. He had therefore ordered patrols and searches, including checks on guest-houses, to ascertain if any suspicious or underworld characters had taken lodging there. Other guest-houses besides the Petitioner's had been searched.

 

Based on those averments, learned State Counsel contended in his written submissions that it was not "unreasonable for the Police to take in persons for questioning to ascertain their identity when their identity could not be established, (a) because the Manager.... was unaware of the identity of the persons occupying rooms, (b) because the persons found there could not establish their identity, (c) because on initial questioning the couples had contradictory explanations for their presence". In the background of high crime in the area, the circumstances "warranted the Police to consider them to be either concealing their identity or of loose character". He argued further that often offenders are found by chance, when they are unable to establish their identity or to explain their presence at some place, and asserted that if the police were to be censured for requiring a person to attend the Police station to establish his/her identity, it would greatly thwart the ability of law enforcement agencies in a civil society to deter persons of loose character and detect offenders and criminals... it is often said that it is the badge of secrecy that is the badge of a criminal. In any event the persons taken to the Police station had not complained of unlawful arrest and detention and had not even given supporting

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affidavits. Learned State Counsel relied on sections 32 and 33 of the Code of Criminal Procedure Act and sections 65 and 68 of the Police Ordinance.

 

Learned State Counsel further submitted, correctly, that the Petitioner had made no allegation of malice or ill-will against the Respondents, and that the allegation that they

had acted under pressure from his business rivals was wholly unsubstantiated. He referred to IB extracts showing that other guest-houses had been raided and suspects taken for questionning. He contended that the Petitioner had failed to prove that the 1st and 2nd Respondents had ordered the closure of the Inn, apart from the allegation made at Police Headquarters, and that since evidence in fundamental rights applications is by affidavit, there being no opportunity for cross-examination, when it is word against word, neither party can be believed or disbelieved. Finally, he urged that in any event the peti-tioner had failed to quantify his loss with evidence of occupancy rates or past profits.

Before dealing with those submissions, it is necessary to ascertain more precisely the circumstances in which the three couples were arrested, taken to the Police station, and questioned, as appearing from the IB extracts relied on by the Respondents. The 2nd Respondent had made his notes at 11.50 a.m. on 3.6.2002 at the Inn itself, and these showed that all six did give their names and addresses. Although there is nothing to suggest that they were asked a single question regarding their identity or residence, and no record of any reason to doubt the information given, he nevertheless noted that since they had not produced any identity cards or documents to establish their identity he was arresting them in order to ascertain their identity and to investigate further whether they were involved in any offences.

 

The 2nd Respondent's "In" entry made at 1.00 p.m. gave the names and addresses of all "suspects", which thus confirms that they had already given their names and addresses at the Inn itself; and no reason for disbelief was recorded. The "suspects" were then detained, while awaiting the 1st Respondent's instructions. Their statements were recorded - and no mention was made of identity cards, or the lack of them. While the Respondents claim that the three couples were released after ascertaining their identity and

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 that they were not engaged in underworld activities, they did not explain how the brief statements recorded could possibly have satisfied them on those two points.

 

The statements recorded show that the "suspects" were all adults, who fell into three categories. One couple was married while the second was intending to get married. The other two persons were married but not to each other. The first couple explained that, having no place to stay while their house was nearing completion, they had been lodging at the Inn for about 20 days. Both of them were recorded as saying that, they had not informed the Police that they were staying at the Inn - for which the wife went on to beg pardon from the police! She also stated that she was pregnant. Instead of even a formal expression of regret by the Police, the statements of that couple included an assurance that they had nothing to say against the Police! They were not asked anything about their identity cards, or why they did not have them, or about underworld or criminal activities.

Arrest

Learned State Counsel submitted that sections 32 and 33 of the Code of Criminal Procedure Act authorize the arrest of a person suspected of committing a cognizable

offence, or found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence. Any such person can be taken to a Police station for questioning to ascertain his name and address.

That submission does not help in the circumstances of this case. Under section 32(1 )(b) a mere suspicion is not enough. A reasonable suspicion or credible information is required. Likewise section 32(1 )(h) applies only where there is "reason to believe" that a person is taking precautions with a view to committing a cognizable offence. There was no such suspicion, information or reason justifying the arrest of the three couples and the Manager. Section 33 applies to a person accused of a non-congnizable offence in the presence of a Police officer who either refuses to give a Police officer his name and residence or gives a name or residence which such officer has "reason to believe" to be false: such a person may be arrested for the purpose of ascertaining his name or residence. The IB extracts show that when questioned at the Inn all six "sus

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pects" gave their names and addresses, and the Respondents have not established that they had "reason to believe" that any of these were false.

Learned State Counsel also relied on section 65 of the Police Ordinance, which, he contended, authorized the "arrest of persons without warrant for the ascertainment of names and addresses." Section 65 provides:

"Every person taken into custody by any police officer without a warrant (except persons detained for the mere purpose of ascertaining their name and residence) shall forthwith be delivered into the custody of the officer-in-charge of a station in order that such person may be secured until he can be brought before a Magistrate..."

 

That is not a provision which confers a power of arrest without warrant, but merely prescribes the procedure for dealing with persons after being taken into custody. The parenthetical clause merely serves to exclude from that procedure the persons therein described, but creates neither any new offence nor a new power of arrest. That clause would therefore apply to persons arrested under section 33 of the Code of Criminal Procedure Act, but does not in any way widen the ambit of that section.

 

Finally, learned State Counsel claimed that section 68 of the Police Ordinance enables "the police to enter a place without warrant on suspicion inter alia of it having a person of loose character" In so far as is relevant to this case, section 68 empowers a Police officer without warrant:

 

"... to enter and inspect all drinking shops, gaming houses and other resorts of loose and disorderly characters, all premises of persons suspected of receiving stolen property, any locality, vessel, boat, or conveyance in any part whereof he shall have just cause to believe that crime has been or is about to be committed... and then and there to take all necessary measures for the effectual prevention of crime..."

 

Learned State Counsel's submission appears to be that "persons of loose character" include couples having extra marital or pre-marital relations, and that upon

"suspicion" that there were

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 such couples at the inn, the Respondents were entitled to enter and search the Inn and arrest any such couples because they could not establish their identity to the satisfaction of the Police and/or because they gave contradictory explanations for their presence at the Inn. Such an interpretation would give the Police unacceptably wide powers to enter a great many establishments and make numerous arrests. However, such conduct is not criminal, although it may constitute a matrimonial offence or (in some circumstances) misconduct attracting disciplinary action under the Establishments Code. It does not justify search and arrest by the Police. Further, even if "loose character" can be given the wide meaning suggested by learned State Counsel, section 68 only applies if the place in question is a resort of persons of "loose and disorderly character": and the only power which the police have is to take measures for the prevention and detection of crime, and nothing else. The Respondents had, and have no evidence or information that the Inn was such a place.

 

To sum up, the Respondents tried to justify the arrests upon numerous grounds - that the three couples were reasonably suspected of an offence: cognizable or otherwise, and/or of underworld or criminal activities; that they were taking precautions to conceal their presence; that there was a need to investigate their possible involvement in such offences or activities; that they were found in a place reasonably suspected of being a resort of loose and disorderly characters; that the Police had reason to believe that the names or addresses given by them were false and needed verification; and that they had given contradictory reasons for their presence at the Inn. The Respondents have totally failed to establish any factual basis whatsoever for any of these allegations. That the arrests had really nothing to with such matters and was an arbitrary and high-handed infringement of liberty and invasion of privacy is manifest. Thus it was that a pregnant wife was forced, as the price of avoiding further detention, humiliation and inconvenience, to beg pardon from the Police for failing to inform them that she and her husband were lodging in a licensed guest-house. The arrest of the other two couples was equally wrongful, although the circumstances of aggravation were less.

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Learned State Counsel seized upon the fact that the Manager and the couples did not petition this Court in respect of their arrest. Clearly, the Petitioner was not entitled to complain of those arrests, as such. But if those arrests, directly or indirectly, impaired his own fundamental rights, as for instance his right to carry on a lawful business, he was certainly entitled to complain: The successful running of a guest-house requires a Manager, staff, and, of course, guests. If the wrongful acts of a Police officer in relation to Manager, staff and/or guests, prevents or deters them from discharging their duties or from patronizing the guest-house, and thereby impedes the successful running of the guest-house, the proprietor is entitled to complain of the infringement of his own rights. I hold that the Petitioner is entitled to complain that the unlawful arrest of his Manager and customers impaired his own fundamental right under Article 14(1 )(g).

Search 

The Respondent's contention was that, having regard to the deteriorating crime situation, the Petitioner's Inn was searched to ascertain whether suspicious or underworld character were lodging there; that other guest-houses were similarly searched; that the Police had no malice against the Petitioner; and that the searches were with consent.

As for the other guest-houses most of the IB extracts produced referred to arrests of couples, and no instance was cited of any other guest-house being searched three or four times within a fortnight. It is true that the Petitioner has not proved malice.

However, while the Respondents have produced evidence of rising crime rates, they merely pleaded a vague general suspicion that criminals from outside lodge in guest-houses in order to commit crimes, and then leave the area. The Respondents not only failed to adduce any material whatsoever which gave them reason to believe, in general, that criminals did lodge in guest-houses, but they also failed to establish that they had any reason to believe in particular, that they were lodging at the Inn.

 

In Bandaranaike v Rajaguru (1) the petitioner's house was searched allegedly upon information (of which some particulars were disclosed) received by the Inspector-General of Police from a

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long-standing and reliable informant. Nevertheless, after scrutinizing the material relied on, this Court held that the respondent had failed to discharge his burden of satisfying the Court that he had received reliable information, and that he had "reason to believe" that the search was justified; and further that it was more likely that the Respondent had acted "with some undisclosed purpose in mind." The present case is even more starved of evidence justifying the repeated searches of the Inn.

 

The fact that the Manager and the three couples were not questioned about underworld or criminal activities confirms that the search on 3.6.2002 was not connected with such activities.

 

As for consent, the 2nd Respondent's notes at 11.50 a.m. at the Inn, his "In" entry at 1.00 p.m. and the Manager's statement at 1.30 p.m. did not record that the search was with consent. It is very probable that the 2nd Respondent did draw attention to his weapon and left the Manager with no option but to agree to a search. Even the IB extracts relating to the subsequent searches do not mention consent.

I hold that the searches of the Petitioner's premises were arbitrary, without valid reasons, and without consent, and were therefore in violation of his fundamental right under Article 12(1).

Closure of Business 

The evidence establishes that the Petitioner's business was in fact closed from 3.6.2002 until interim relief was obtained on 25.6.2002. Indeed, the IB extracts of 9.6.2002 and

16.6.2002 recorded that all the rooms of the Inn were empty.

The natural and probable consequence of the arrests of the Manager and all six guests on 3.6.2002, their detention at the Police station, and the subsequent searches would have been to impair the carrying on of the Petitioner's business, in violation of Article 14(1) (g).

The available evidence further shows that the Respondents were disputing the Petitioner's right to carry on business, as indicated by the questions asked about licences and Tourist Board approvals, and not investigating criminal and underworld activities. The Petitioner's complaint to Police Headquarters on 18.6.2002 was the natural consequence of the Respondent's

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 orders to close his business; and so also the retention of the "Visitors" Book "as a production" although there was no charge in contemplation.

The Respondents' submission that this was a matter of word against word and that therefore neither party can be believed or disbelieved is not tenable. Although affidavit evidence cannot be tested by cross-examination, it can certainly be tested by reference to omissions, contradictions, inconsistencies, intrinsic improbability, etc. I have no hesitation in holding the Petitioner's version to be much more probable than the Respondents' which is subject to the numerous infirmities which I have already pointed out.

 

I hold that the 1st and 2nd Respondents, directly and indirectly, and without lawful justification, compelled the closure of the Petitioner's business from 3rd to 25th June 2002, in violation of his fundamental right under Article 14(1 )(g).

Loss and Damage While it is true that the Petitioner has not given details of the loss and damage suffered by him, there is evidence that he had mortgaged the premises for Rs. 250,000 which he was liable to repay in monthly instalments of Rs. 8,000, that he had eight employees, and that rooms were let at Rs. 350 per day. I consider it likely that he would have incurred a pecuniary loss of at least Rs. 50,000 until he was able to re-establish himself.

Order I grant the Petitioner a declaration that his fundamental rights under Articles 12(1) and 14(1)(g) have been infringed by the 1st a n d 2 n d R e s p o n d e n t s , a n d a w a r d h i m a s u m o f Rs. 100,000 as compensation payable by the State, and a sum of Rs. 30,000 as costs payable in equal shares by the 1st and 2nd Respondents personally. These payments shall be made on or before 31.5.2003.

ISMAIL, J. - I agree.

WIGNESWARAN, J. - I agree.

Relief granted.

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SLR - 1999 Vol - 2    Add to iNote

 SLR - 1999 Vol.2, Page No - 213

213

GNANAMUTTUv.

MILITARY OFFICER ANANDA AND OTHERS

SUPREME COURTG. P. S. DE SILVA,CJ., WIJETUNGA, J. ANDBANDARANAYAKE, J.S.C. APPLICATION NO. 152/98MARCH 15, 1999

Fundamental rights - Investigation of terrorist activity - Arrest on the ground of failure to possess a 'Police Registration Form' - Articles 12 (1) and 13 (1) of the Constitution.

The petitioner a Civil Engineer by profession was a passenger in a bus proceeding to Borella. The bus was stopped at an Army check-point at Stanley Wijesundera Mawatha around 8.15 am on 13.02.98. When the identity of the passengers was checked the petitioner produced his National Identity Card, Driving Licence and a Student Identity Card issued to him by the Bandaranaike Centre for International Studies. Notwithstanding, such proof of identity the petitioner was detained by the 1st respondent for not possessing a "Police Registration Form", while the rest of the passengers were released. Around 9.30 am 'two men in civils'' arrived in a police jeep and took the petitioner to the Cinnamon Gardens Police Station where he was kept in a room. The petitioner was finger-printed and produced before the Magistrate's Court, Hulftsdorp, around 4 pm on a "B" Report which stated that he was suspected of "terrorist activities". On 20.2.98, he was discharged by the Magistrate.

Held :

The documents produced by the petitioner were more than sufficient to ascertain his identity. There was no basis for the 1st respondent to have detained the petitioner, and no basis for the 2nd respondent to have produced him before the Magistrate's Court on a "B' Report. The petitioner's rights under Articles 12 (1) and 13 (1) of the Constitution were infringed by such action.

APPLICATION for relief for infringement of fundamental rights.

Dr. Jayantha de Almeida Gunaratne with Elmore Perera, Kishali Pinto Jayawardene and Kamal Nissanka for petitioner.

Harsha Fernando SC for respondents.

Cur. adv. vult.

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May 5, 1999.

SHIRANI A. BANDARANAYAKE, J.

The petitioner is 42 years and a Civil Engineer by profession. He has been resident in and around Colombo for the last 29 years and since 1987 he has been residing at

No. 66, St. Mary's Road, Mount Lavinia. According to the petitioner, on 13.02.1998, he left his residence around 7.00 am to proceed to his work place at Rajagiriya. After attending to a money transaction at the Automatic Teller Machine, Standard Chartered Bank at Bambalapitiya (P4) he had boarded a No.154 bus from the Bullers Road bus halt intending "to transfer to a Rajagiriya bound bus from Borella Junction". While the bus was proceeding to Borella, it was stopped at an Army checkpoint at Stanley Wijesundera Mawatha around 8.15 am and "the passengers were asked to disembark". The petitioner had produced his identity card, his driving licence and a student identity card issued to him by the Bandaranaike Centre for International Studies (P5). The 1st respondent after checking these documents had asked the petitioner to produce his "Police Registration Form". He had told the 1st respondent that "there was no legal requirement to possess such a form" (P6). The 1st respondent had then addressed the petitioner rudely and had queried as to whether the form in question is so heavy that it cannot be carried on his person. Thereafter, the petitioner was detained while the rest of the passengers were released. The petitioner was kept standing on the road near the Army check-point in full view of the public and "suffering considerable humiliation in the process". A police jeep arrived around 9.30 am with "two men in civils" and the petitioner was taken to the Police Station, Cinnamon Gardens. At the Police Station, the petitioner was interrogated by the 3rd respondent. After a while his identification documents together with his diary and his money were taken from him and he was put inside a cell. Around 12.30 pm the petitioner was taken to the Police Station, Bambalapitiya, in order to be photographed. He was kept in a room at the Police Station and after about two and a half hours he was informed that the required photographs cannot be taken as the police photographer had not turned up. At this point the petitioner was informed that as there was a transport problem he would have to walk upto the Galle Road. He was waiting there with a policeman "in civils", when the petitioner noticed a colleague of his and a member of the Institute of Engineers walking along the Galle Road. The petitioner had apprised him of the situation and he had given him a telephone card with which

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the petitioner had informed a fellow-worker in his office that he has been arrested. After making the telephone call he had discovered that the policeman who was with him was not there and he had found out that he had gone to the Police Station, Cinnamon Gardens. The petitioner had no money with him as all his belongings were taken by the Police. As there was no other option, the petitioner had proceeded on foot to the Police Station, Cinnamon Gardens. He reached the Police Station around 4.00 pm Thereafter, the petitioner was told that he had to be finger-printed and following which, all his belongings, except the National Identity Card was returned to him. He was then taken to the Magistrate's Court, Hulftsdorp, where an Attorney-at-law had said that he would appear for the petitioner and had demanded Ps. 1,500 for the said purpose. To the surprise of the petitioner he had found his National Identity Card, which was handed over to the Police that morning, in the possession of the said Attorney-at-law. The petitioner had refused this offer saying that he did not have any money with him. Then the Attorney-at-law had become hostile. The Magistrate had directed that the petitioner could sign a personal bond and reappear in Court on 20.02.1998 (P7). He was discharged by the Magistrate when he appeared on 20.02.1998 (P7).

The petitioner submitted that there was no basis for the 1st respondent to arrest him and for the 3rd respondent acting under the authority of the 2nd respondent to detain him. He was never informed of the charges against him. The petitioner alleges that

his arrest was arbitrary, unreasonable, unlawful and illegal and was in violation of his fundamental rights guaranteed under Articles 12 (1), 13 (1) and 13 (2) of the Constitution.

This Court granted leave to proceed in respect of the alleged violation of Articles 12 (1) and 13 (1) of the Constitution.

The 2nd respondent had averred that on 13.02.1998, around 9.15 am the 1st respondent, who was on duty at the road block at Stanley Wijesundera Mawatha had handed over the petitioner to one PC Jayasinghe, who was on duty, on suspicion that the petitioner may be connected to or involved in terrorist activities. On the instructions given by the 2nd respondent, the officer on duty has telephoned the National Information Bureau and the Security Co-ordination Unit and given the particulars of the petitioner in order to ascertain whether there were any reports, evidence or other facts suggesting and/or

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linking the petitioner to any terrorist related activities. The 2nd respondent averred that around 9.45 am with the consent of the petitioner, a detailed statement was recorded. According to him, the petitioner was produced before the Magistrate on a B report bearing No. B 6591/1, in the Magistrate's Court in Hulftsdorp at 10.45 am on 13.02.1998.

The 1st respondent had made a statement at the Police Station, Cinnamon Gardens, on 13.02.1998 at 9.15 am (2131). He had stated that the officers on duty at the check-point on Stanley Wijesundera Mawatha, had taken the petitioner into custody as he did not have a "Police Registration Form".

The 2nd respondent in paragraph 9 of his affidavit has averred that:

" . . . at the point of accepting the petitioner into custody from the 1st respondent, PC Jayasinghe has recorded that the petitioner has been arrested by the 1st respondent for not possessing, a police report and that the 1st respondent has handed over the petitioner to police custody to (sic) further inquiry."

It is thus common ground that the petitioner was arrested as he did not possess the "Police Registration Form". Learned State Counsel rightly conceded that an arrest cannot be made on the basis that the petitioner did not possess a "Police Registration Form". His position was that the police should have released him immediately. However, the police had acted differently. B Report No. B 6591/1 (2137) stated that the petitioner was produced before the Magistrate as he was suspected of "terrorist activities". The 2nd respondent had further stated in the said B Report that he was conducting inquiries to find out whether the petitioner is involved in such activities. He, therefore, moved that the petitioner be remanded until 20.02.1998.

It is conceded that the petitioner was arrested by the 1st respondent at a security check-point on Stanley Wijesundera Mawatha. At that time the petitioner was on his way to his place of work. The petitioner, along with the rest of the passengers in the bus, had produced his Identity Card, as proof of his identity at the check-point. The petitioner had also produced his Driving Licence and a Student Identity Card issued

by the Bandaranaike Centre for International Studies (P5).

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If the purpose at the security check-point was to ascertain the identity of the person travelling in that bus, these documents in my view, were more than sufficient.

Learned State Counsel for the 2nd to 4th respondents, submitted that the Magistrate should have noticed the lapse on the part of the 2nd respondent and should have released the petitioner forthwith without making an order for the petitioner to sign a personal bond and to appear in Courts on 20.02.1998. I find it difficult to agree with this submission. The Magistrate made his Order on the basis of the B Report submitted by the 2nd respondent. As mentioned earlier, the B Report stated that the petitioner was produced before the Magistrate as he was suspected of terrorist activities. The Magistrate had to act according to the documents produced before him. In such a situation I do not think the Magistrate had acted unfairly or unreasonably.

According to the submissions made by the petitioner, he was produced before the Magistrate only around 4.00 pm. The 2nd respondent, however, averred that the petitioner was produced before the Magistrate around 10.45 am (paragraph 6 (e) of the 2nd respondent's affidavit). The IB extracts show that the petitioner was taken to Court at 10.45 am on 13.02.1998 (2R6). That officer, however, had returned to the Police Station only at 7.02 pm (2R6 A). On the material placed before us, the version given by the petitioner is more acceptable.

On a consideration of the totality of the material placed before us, I hold that the 2nd respondent has violated the petitioner's fundamental rights guaranteed under Articles 12 (1) and 13 (1) of the Constitution. There was no basis for the 1st respondent to have detained the petitioner. The 2nd respondent, as the officer-in-charge of the Police Station, should have released the petitioner immediately. There was no basis at all for the 2nd respondent to have caused the petitioner to be produced before the Magistrate's Court on a B Report.

I, accordingly, hold that the petitioner is entitled to a sum of Rs. 50,000 as compensation and costs, out of which Rs. 42,500 must be paid by the State and Rs. 7,500 personally by the 2nd respondent. These amounts must be paid within three (3) months from today.

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The Registrar of the Supreme Court is directed to send a copy of this judgment to the Inspector-General of Police.

G. P. S. DE SILVA, CJ. - I agree.

WIJETUNGA, J. - I agree.

Relief granted.

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SLR - 1997 Vol - 1    Add to iNote

 SLR - 1997 Vol.1, Page No - 281

281MURIN FERNANDO

v. SERGEANT SUGATHADASA AND SEVEN OTHERS

  COURT OF APPEAL. YAPA, J.,C.A. 39/90 HABEAS CORPUSOCTOBER 26, 1995 JANUARY 15, 1997. Writ of Habeas Corpus - Arrested by Police - Whereabouts not known - Denied arrest and custody - Doubt regarding identity of the respondents - Exemplary costs. Held: (1) Having regard to the evidence available it has been clearly established that the 1st and 2nd respondents were responsible for the arrest of the corpus and that the 4th respondent was the officer-in-charge of the Police Station. Per Yapa J. "The Rule of Law, the freedom and the safety of the subject would be completely nullified, if any person in authority can cause the disappearance of an individual who has been taken into custody and then deny arrest or any knowledge of the person arrested." (2) In the circumstances, the arrest and the detention of the corpus falls into the category of cases where a person who has been arrested detained by the authority has disappeared thereafter. APPLICATION for a writ of Habeas Corpus. Case referred to: 1. Sebastian M Hongray v Union of India - 1984 1 AIR SC 1026 

A. A. de Silva with Nimal Punchihewa, M. Balatla and Jayalath Hissella for the petitioner. A. Wengappuli S.C., with P Kumaratnam S.C., for respondents.  

Cur adv vult. February 12, 1997 YAPA, J. This is an application for a writ of Habeas Corpus, filed by the petitioner in respect of W. Nandasiri Fonseka. The petitioner is the 

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mother of the corpus. According to the petitioner the corpus was arrested on 12.09.89 by some officers of the Kalutara North Police station and the Police party included the 1st and the 2nd respondents. After the arrest of the corpus, he was detained at the police station where the 4th respondent was the Officer-in-charge, till 16.09.89 and thereafter, the whereabouts of the corpus was not known. After this Habeas Corpus application was filed, notice was issued on the respondents on 22.08.90 ordering them to produce the corpus before this Court. Thereafter the 1st, 2nd, 3rd and 4th respondents filed their affidavits dated 21.12.90 denying the arrest and also having the custody of the corpus. In the circumstances on 20.03.91 this application was referred to the Magistrate of Kalutara for inquiry and report, in terms of the proviso to Article 141 of the Constitution. The learned Magistrate of Kalutara who held the inquiry has sent his report which is filed of record. In his report he has stated that there was a doubt in regard to the identity of the respondents who took part in the arrest of the corpus, but however he has held that having regard to the totality of the evidence, it has been established that the corpus fad been at the police station from 12.09.89 to 17.09.89. This Court having considered the material available against the respondents, the findings of the Magistrate, and the submissions made by Counsel on 26.10.95, issued a rule nisi on 29.05.96 against the 1st, 2nd, 4th and 5th respondents directing them to produce the corpus before this Court or that any information regarding his whereabouts be furnished to this Court on 31.07.96. Thereafter, time was obtained on behalf of the said respondents on several dates to file their affidavits and on 02.12.96 an affidavit was filed on behalf of the 4th respondent and on 08.01.97 an affidavit was filed on behalf of the 1st respondent, denying the arrest of the corpus. Thereafter Counsel for the petitioner and for the respondents made submissions, referring to the findings of the learned Magistrate and the denial of arrest repeated in the subsequent affidavits filed by the 1st and 4th respondents. It was also brought to notice of Court that the 2nd respondent in this application was dead. The facts relating to the arrest and detention of the corpus are as follows: In the affidavit filed by the petitioner, she has stated that the 1st, 2nd and 3rd respondents were responsible for the arrest and

283 

detention of the corpus and that the 4th respondent was the officer in charge of the Police station, where the corpus was detained from 12.09.89 to 16.09.89. She has specifically referred to the presence of the 1st respondent at the time of the arrest of the corpus. When she gave evidence before the Magistrate at the inquiry, she has

stated that the 1st and the 2nd respondents came to arrest the corpus on 12.09.89 at about 3.00 a.m. and at that time a lamp was burning in her house. She further stated that she visited the Kalutara North Police station in the morning at about 6.00 or 6.30 with her daughter and other members of her family and gave meals to the corpus. She has said on that occasion she saw the corpus seated on a bench at the rear side of the Police station and that the corpus was handcuffed with another. In her evidence, she has referred to the presence of Rani Silva, Gratian and Ajith at the Police station. She has also stated in detail how she went to the Police station carrying food and medicine to the corpus from 12th to the 15th September, 1989, and that on the 16th, the corpus was not there, and they were told that the corpus was taken to Boosa to record a statement. It has been her evidence that the 3rd respondent was not in the police party which came to arrest the corpus. Petitioner's position was that the 3rd respondent was included in her affidavit as a person who came to arrest the corpus, since the mother of another person who was arrested along with her son, had stated to her lawyer that the 3rd respondent was present. The daughter of the petitioner has given evidence and stated that she identified the 1st respondent as one of the persons who came to arrest the corpus. She has also stated that she could not identify the others in the police party. Her position has been that she knew the 1st respondent before and that there was a light burning in her house at the time of the arrest. She has further stated that she visited the Police station with her mother taking meals to her brother (the corpus) and that she has seen him at the Police station from 12.09.89 to 16.09.89. She has said on 17.09.89 she found that her brother, was not there at the Police station and they were told the corpus was taken away to record a statement. The third witness, Morin Fernando has given evidence and stated that on the night of 11.09.89 a Police party came in a van to the house where she was staying and at that stage she identified the 1st and the 2nd respondents. Thereafter, she has stated that she was

284 

taken with her aunt to her house and then from there to her sister's house where they were dropped. She has said later when they were returning home at about 5.30 a.m., she came across the said van in which she had seen the corpus, Gratian and Ajith, along with the 1st and the 2nd respondents. This witness has said, when he visited the Police station in the morning of 12.09.89 she has seen Gratian, Ajith, Rani, his brother Saman and the Corpus at the Police station. Her position has been that on 12.09.89 in the afternoon Gratian and Ajith were released. She has also stated that when she visited the Police station on several dates to see her brother, she had seen the corpus at the police station with her brother until 17.09.89, when she found that both of them were not there. Therefore, the evidence of this witness corroborates the evidence given by the petitioner and her daughter Malanee Fonseka with regard to certain matters. When the evidence of the petitioner, her daughter and Morin Fernando is considered in their totality, it establishes clearly the fact that the 1st and the 2nd respondents were responsible for the arrest of the corpus on 12.09.89, and thereafter, the corpus had been detained at the Police station where the 4th respondent was the officer in charge, from 12.09.89 to 16.09.89. Further, I find that there is no reason to disbelieve the evidence given by these witnesses. On the other hand the respondents did not give evidence and they relied on the affidavit filed by them in the Court of Appeal denying the arrest of the corpus. In addition, they had filed three affidavits from Ajith Dharmatillake, W. Gratian and Rani Silva who stated in their affidavits that when they were at the Kalutara Police station, the corpus and one Saman Fernando were not detained there. It appears that the Magistrate has not

acted on these affidavits. Further, in my view, it is not possible to act on these affidavits, as they do not reveal the date on which the said Dharmatillake, Gratian and Rani Silva were at the Police station but merely refer to the month of September 1989. Therefore, in this case, considering the evidence that is available, it is difficult to understand how the learned Magistrate came to the conclusion that there was some doubt with regard to the identity of the respondents who participated in the incident of arresting the corpus. In my view, having regard to the evidence available, it has been clearly established that the 1st and the 2nd respondents were responsible for the arrest of the corpus and that the 4th respondent

285 

was the officer in charge of the Police station, when the corpus was detained there from 12.09.89 to 16.09.89. It was the 4 th respondent's responsibility to see that persons who were arrested and detained at the Police station were safe. The Rule of Law, the freedom and the safety of the subject would be completely nullified, if any person in authority can cause the disappearance of an individual who has been taken into custody and then deny arrest or any knowledge of the person arrested. 

In the circumstances, the arrest and the detention of the corpus falls into the category of cases where a person who has been arrested and detained by the authorities has disappeared thereafter. In such a situation the question of an appropriate order that should be made was considered by this Court in H.C.A. 164/89, 171/89 and 166/89 decided on 02.12.94. In those applications it was decided by Court that the decision of the Indian Supreme Court in the case of Sebastian M. Hongray v. Union of India(1) should be followed and exemplary costs ordered against the respondents who have failed to account for the detention of the corpus. I therefore adopt in this case the reasons stated in the Judgment dated 02.12.94 referred to above and direct the 1st,and the 4th respondents to pay a sum of Rs. 25,000/- each as exemplary costs to the petitioner on or before 02.04.97. Since the 2nd respondent is now dead, I make no order against him. If these amounts are not paid by the 1st and the 4th respondents as directed, further action will be considered in this matter as to contempt of Court. I also direct the Registrar of this Court to forward copies of the proceedings recorded in the Magistrate's Court to the Inspector ,General of Police who is hereby directed to consider the evidence recorded as information of the commission of a cognizable offence. He will take necessary action to conduct proper investigations and to take steps according to law. The Registrar is also directed to forward a copy of the proceedings with this judgement to the Hon. Attorney General for appropriate action to be taken by him. The petition is accordingly allowed with costs to be paid as stated above by the 1st and the 4th

respondents. Application allowed. 

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 SLR - 1997 Vol.1, Page No - 113

113

VINAYAGAMOORTHY, ATTORNEY-AT-LAW(ON BEHALF OF WIMALENTHIRAN)

v.THE ARMY COMMANDER AND OTHERS

 SUPREME COURT. AMERASINGHE, J., WIJETUNGA, J. AND ANANDACOOMARASWAMY, J. S.C. APPLICATION NO. 26/94 NOVEMBER 25TH, 1996. Fundamental Rights - Articles 13(1) and 13(2) of the Constitution - Arrest and Detention - Emergency Regulations 17, 18 and 19. The detenu was arrested by the Army, without a warrant in the Kotahena area under Regulation 18 of the Emergency Regulations. He was then detained under Regulation 19(2) at the Panagoda Army Camp for the prescribed period Thereafter he was detained at the Panagoda Army Camp under Regulation 17(1), from where he was handed over to the Criminal Investigation Department where he continued to be detained. Held: (1) In deciding whether the arrest was in accordance with "procedure

established by law" the matter in issue is not what subsequent investigations revealed, but whether at the time of the arrest the person was committing an offence, or that there were reasonable grounds for suspecting that the person arrested was concerned in or had committed an offence.

 (2) The detenu was arrested on some vague, general suspicion, hoping That

some evidence would turn up that might provide justification for the arrest and not on any reasonable grounds of suspicion. Hence the arrest was not in accordance with the procedure established by Regulation 18(1). Consequently, the arresting officer could not have been able to give the detenu the reason for his arrest. The arrest was, therefore, violative of Article 13(1) of the constitution.

 (3) The detenu was arrested on 2.10.93 and not on 23.10.93 as stated by the

respondents. He was not handed over to the nearest police station as required by Regulation 18(1), but detained at the Panagoda Camp which was not an authorized place of detention in terms of Regulation 19(4). The Secretary was not in fact satisfied that the detention under Regulation 17(1) was necessary but acted mechanically in issuing detention orders. The respondents failed to produce the detenu before a Magistrate within the time prescribed by regulation 19(3). His detention was, therefore, violative of Article 13(2) of the Constitution. 

114 Per Amerasinghe, J. 

"In order to prevent or minimise "disappearances or abuses", it is of paramount importance that the requirements laid down by the regulations should be strictly observed. They were not intended for merely cosmetic purposes, but for the sake of fulfilling the basic obligation of the state to ensure the personal security and liberty of all persons". Cases referred to: 1. 1.                   Dumbell v. Roberts (1944) 1 ALL ER 326. 2. Mutthusamy v. Kannangara (1951) 52 N.L.R. 324. 3. Faiz v. Attorney-General (1995) 2 Sri L.R. 372. 4. Faurdeen v. Jayatileke S.C. Application 366/93, S.C. Minutes 8 September,1994. 5. Chandra Kalyani Perera. v. Siriwardena and Others (1992) 1 Sri L.R. 251,260. 6. Joseph Perera. v. Attorney-General and Others (1992) 1 Sri L. R. 199, 235. 7. Kumara. v. Rohan Fernando and Others S.C. Application 22/90 S.C. Minutes

21 July 1994. 8. Anura v. Rohan Fernando and Others S.C. Application 23/90 S.C. Minutes

21 July 1994. 9. Mahinda v. Rohan Fernando and Others S.C. Application 31/90 S.C.

Minutes 21 July 1994. 10. (a) Peiris and Others v. Attorney-General (1994) 1 Sri L.R. 1. 10. (b) Secretary of State v. Tameside 1976 3 ALL ER 665. 11. Fernando v. Silva and Others S.C. Application 7/89 S.C. Minutes 3 May

1991. 12. Hirdaramani v. Ratnavale (1971) 75 N.L.R. 67. 13. Sasanasiritissa Thera v. De Silva and Others (1989) 2 Sri L. R. 356. 14. Leelaratne v. Cyril Herath S.C. Application 145/86 S.C. Minutes 9 March

1987 15. Weerakoon v. Weeraratne S.C. Application 42/92 S.C. Minutes 16

November 1992. APPLICATION for relief for infringement of fundamental rights. R. K. W Goonesekera for petitioner. V. K. Malalgoda, S.S.C. for respondents. 

Cur. adv. vult. 

115 December 20, 1996AMERASINGHE, J.  

The petitioner, an Attorney-at-Law, filed an application under Article 126 of the Constitution on the 31st of January 1994 on behalf of Vijayam Wimalenthiran, alleging that the said Wimalenthiran's Fundamental Rights under Articles 11, 13(1), 13(2), 14(1)(g) and 14(1)(h) of the Constitution had been violated by the 1st, 2nd and 3rd respondents. 

On the 8th of February 1994, the Court directed that the application be referred to the Human Rights Task Force for inquiry and report in terms of the Monitoring of Fundamental Rights of Detainees Regulations 1991. The Court directed the Task Force to make an appropriate order under Regulation 9 and required the Task Force to report to Court on or before the 25th of March 1994. The directions of Court were communicated by the Registrar by his letter dated the 11th of February 1994. 

The Project Director of the Task Force in a report received by the Registrar on the 24th of March 1994 reported as follows: 

"Officers of the HRTF have visited the CID 4 th Floor and interviewed the detainee. He has been unable to identify or give names of any army officer who had inflicted bodily harm on him or treated him in a degrading manner as he says he was blindfolded. However our officers have reported that at present he appears to be in good health and he has no complain [ts].

 With regard to the arrest and detention of the petitioner the Army Intelligence Unit has been unable to give a plausible explanation. The petitioner has been in detention for 142 days without being produced to a Court of Law. We were therefore obliged to direct the Secretary, Ministry of Defence to revoke the detention order and release the petitioner from custody."

 When the report of the Task Force was considered by the Court on the 29th

of March 1994, the petitioner was represented by the  

116 Attorney-at-Law who had filed the application on his behalf, Mr. A.

Vinayagamoorthy, and the respondents were represented by Mr. S. Rajaratnam, State Counsel. The Court made the following order: 

"The Human Rights Task Force has reported that the Army Intelligence Unit has been unable to give a plausible explanation for the arrest and detention of the petitioner. State Counsel undertakes to revoke the detention order and to release the petitioner if no indictment is sent to an appropriate High Court on or before 15.05.94; and in any event if such indictment is sent State Counsel undertakes that the respondents will revoke the detention order and release the petitioner if he is acquitted or discharged or if a suspended sentence is imposed on him in the High Court. In view of that undertaking Counsel for the petitioner does not wish to pursue this application even in respect of Article 11.

 

The petitioner claims to have been blindfolded continuously for two months from 2nd October 93 till 11th December 93, and also kept in solitary confinement at a house, which, Counsel says, belongs to the Army Intelligence Unit situated behind the British High Commission, close to the sea beach at Colpetty. He was thereafter detained at the 4 th Floor of the Criminal Investigation Department.

 The Human Rights Task Force is directed to forward a report to this Court on or before 26th April 1994 as to whether these two places were visited by officers of the Human Rights Task Force during the period 2.10.93 to 24.3.94, whether those places were inspected and the persons detained there were given an opportunity to make complaints or representations in terms of Regulation 2 (a) of the Human Rights Task Force Regulations."

 The Registrar conveyed the directions of the Court to the Task Force by his letter dated the 18th of April 1994. In this report dated the 20th of April 1994, the Project Director of the Human Rights Task Force (HRTF) reported as follows: "The HRTF has had no knowledge of any house belonging to the Army Intelligence Unit which is situated behind the British High  

117 Commission. I wish to further respectfully submit that the HRTF has not received any complaints of persons being held at the given premises. As such no visits had been made to this premises. 

The 4th Floor of the Criminal Investigation Department has been visited by officers of the HRTF quite frequently and on a number of occasions during the period 02.10.93 to 24.03.94.

 The 4th Floor of the Criminal Investigation Department has been inspected periodically by officers of the HRTF. The persons detained at the 4 th Floor of the Criminal Investigation Department have been given access to meet officers of the HRTF and they are given the opportunity to make any complaints or representations to our officers in terms of Regulation 2(a) of the HRTF Regulations."

 In an undated communication received by the Registry of the Supreme Court on the 17th of June 1994, Mr. S. Rajaratnam, State Counsel for the Attorney-General, stated as follows: 

"I respectfully wish to inform Your Lordships' Court that an undertaking was given in the above Application on 29th March, 1994 that an indictment would be forwarded against the Petitioner on or before 15th May, 1994.

 This undertaking was given following a confession made by the petitioner stating that he was a member of a suicide squad directed by the LTTE to assassinate the late President Ranasinghe Premadasa.

 Whereas subsequent to the above undertaking, a dossier has been forwarded to the Attorney-General regarding the investigation in respect of the assassination, which reveals a network consisting of many persons who have been independent of each other, assigned the task of assassinating the late President in a suicide attack;

 

Most of the suspects forming part of this conspiracy have been arrested, but there are others who are still at large and therefore, the investigations have not been completed;

118 In the circumstances, the Attorney-General is not in a position to forward indictment against the Petitioner until persons who were involved in the said assassination plot are arrested."

 Although the petitioner had been willing to abandon his application in view of

the undertaking given by learned State Counsel on the 29 th of March 1994, having regard to the failure of the State to satisfy the conditions upon which such abandonment was proposed, the petitioner, with notice to the Attorney-General, on the 24th of June 1994 moved as follows: 

"I most respectfully request that the Court be pleased to call this application in open Court on 5.7.1994 to enable me to request that I be allowed leave to proceed with this application.

 In view of the report sent to this Court by the Project Director, Human Rights Task Force, I expected Vijayam Wimalenthiran to be released. The Director Human Rights Task Force has said in his report that he has directed the Secretary, Ministry of Defence to revoke the detention order and release him from custody. This has not been done so far. He has not been indicted as well."

 On the 5th of July 1994 the motion was considered by the Court. Mr.

Vinayagamoorthy appeared for the petitioner, and Mr. A. B. Meddegoda appeared for the Attorney-General. According to the journal entry in the record of the case, the Court decided as follows: 

"Although the State Counsel gave an undertaking on 29.3.94 that this petitioner would be released if an indictment was not sent to the High Court before 15.05.94, State Counsel informs court that subsequently the Attorney-General's Department became aware of materials suggesting the petitioner's involvement in offences other than those of which he was originally suspected. He states that it was under those circumstances that the petitioner was not released.

 Counsel for the petitioner moves that he be permitted to support his application for leave to proceed. He submits that the State  

119

 

should in these proceedings produce the relevant Detention Orders, and that he has no objection to any material, which is of a confidential nature, being disclosed by the respondents only to court.

 Support on 28.07.94."

 When the application was supported on the 28 th of July 1994, the Court

granted the petitioner leave to proceed "for the alleged violation of Articles 13(1) and 13(2) only". Hearing was fixed for the 10th of November 1994. However for the various reasons that are set out in the journal, hearing was postponed on several occasions, for which no blame could be attached either to the Court or to any of the parties. Eventually the Court heard the arguments of counsel on the 25 th of

November 1996. 

As we have seen, the petitioner was permitted to proceed with his application only in so far as it related to the alleged violation of Article 13(1) and Article 13(2) of the Constitution. 

Article 13(1) of the Constitution provides as follows: 

"13(1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest."

 There are two versions of the facts. The petitioner in his application and

affidavits on behalf of Vijayam Wimalenthiran, and confirmed by the affidavit of Wimalenthiran dated 3rd December 1994, set out his account of the events that took place as follows: 

Vijayam Wimalenthiran, aged twenty-three, was taken into custody on the 2nd

of October 1993 at about 3.30 a.m. at a lodge at No. 56 Old Moor Street, Colombo 12, by army officers, including Khan and Jayasuriya. He was blindfolded and taken to a house. He was detained in that place, blindfolded, till the 11 th of December 1994. At first, the exact place of detention was not known. Later, however, he came to know that it was a building behind the Indian High Commission. He was detained in that building with one Arulappu

120 Jude Arulrajah. Pictures of the building are to be seen in the report of Amnesty International of February 1994 entitled "Secret detention in Colombo. The case of Arulappu Jude Arulrajah." The report states that Arulrajah was arrested on 2nd

October 1993 from his lodge in Bambalapitiya. In another report of Amnesty International of February 1994 entitled "Balancing human rights and security; abuse of arrest and detention powers in Colombo", the following observations are made: 

Some Tamil people have been arrested by groups of armed men in military or civilian dress, blindfolded and taken to secret places of detention where they have been held for at least a week ... It appears that the army, and possibly other sections of the security forces, have held people in different secret locations in and around Colombo. Amnesty International believes that one secret place of detention is an army camp located by the sea, off Galle Road, Kollupitiya, behind the Indian High Commission and the American Information Center ... Arullappu Jude Arulrajah was arrested on 2nd October 1993 at about 1.30 a.m. at his lodge in Bambalapitiya, by armed men in civilian dress. He was blindfolded, handcuffed and driven to the army camp behind the Indian High Commission, referred to above. It is alleged that he was held at this location until being transferred on or about 10 th December to Panagoda Army Camp, which also does not appear to be in the list of authorized places of detention gazetted in June 1993. On or about 15 th

December he was transferred to the CID on the Fourth Floor, Colombo Police Headqaurters ..."

 The reports of Amnesty International were referred to by Wimalenthiran in his affidavit and produced by him and marked as P3. 

On the 11th of December, Wimalenthiran's blindfold was removed and he was taken to the Army Camp at Panagoda. On the 15 th of December 1993, he was handed over to the Criminal Investigation Department and remained in Police

custody. Wimalenthiran did not commit any offence nor was he concerned in the commission of any offence and there were no reasonable grounds for his arrest and detention. He emphatically denies the allegations made by Senior Superintendent of Police Hemachandra that he was a member of the

121 LTTE and that he was in close touch with LTTE members. He was not

informed of the reasons for his arrest. He was produced before a Magistrate on the 23rd of April 1994 and detained on the orders of the Magistrate. He was released on Bail on the 22nd of September 1995. 

On the 29th of November 1994, the respondents filed an affidavit from Mr. O. K. Hemachandra, Senior Superintendent of Police, dated the 21st of November 1994. That affidavit sets out the respondents' version, which is as follows: 

Wimalenthiran was taken into custody on the 23rd of October 1993 by the army at an army check point at Kotahena at 1730 hours. He was taken into custody "as there were reasonable grounds for suspecting him to be concerned in or to be committing or to have committed offences punishable under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 1993," and he was so informed at the time of his arrest. In support of the circumstances of the arrest, a statement of Sergeant K. Gunadasa of the Army who made the arrest was filed of record marked 2R1. Wimalenthiran was detained at the Army Camp at Panagoda pending further investigations in pursuance of a detention order (2R2) made under Regulation 19(2). "Consequent to further investigations and material revealed thereby", Wimalenthiran was further detained at the Army Camp, Panagoda, in pursuance of detention order 2R3 issued under Regulation 17(1). He was handed over to the Criminal Investigation Department (CID) by the Sri Lanka Army on the 14th of December 1993, and thereafter detained at the CID in pursuance of a detention order issued under Regulation 17(1) marked as 2R4. He was further detained at the CID in pursuance of a detention order issued under Regulation 17(1) marked as 2R6. Wimalenthiran was produced before a Magistrate of Colombo on the 23rd of April 1994 and remanded to fiscal's custody. "Consequent to investigations conducted ... the evidence against him clearly establishes that he was an active member of the LTTE ... Further investigations ... revealed that around January 1993 he had been assigned the task of collecting information relating to the movements of the late President Premadasa and had been introduced to other LTTE cadres including ...  

122 Babu who had been assigned the task of assassinating the President ... In

accordance with the evidence available it has been clearly established that Vijayam Wimalenthiran was closely associated with all the persons who had been entrusted with the task of assassinating the President and that he had collected and supplied information relating to the movements of the late President ..." 

As we have seen, Article 13(1) of the Constitution provides that no person shall be arrested except according to procedure established by law. The respondents maintain that Wimalenthiran was arrested in terms of regulation 18(1), inter alia, provides that `... any member of the armed forces may ... arrest without warrant, any person who is committing or has committed or whom he has reasonable ground for suspecting to be concerned in, or to be committing or to have committed, an offence under any emergency regulation ...".

 In decidng whether the arrest was in accordance with "procedure

establsihed by law", the matter in issue is not what subsequent investigations may have revealed, but whether at the time of the arrest the person was committing an offence, or that there were reasonable grounds for suspecting that the person arrested was concerned in or had committed an offence. Accepting, for the time being, the version of the respondents that Wimalenthiran was arrested at a check point by Sergeant Gunadasa of the Army, there was no evidence placed before the Court that the arrest was made either while Wimalenthiran was committing an offence, or that the Sergeant had any information that the person he was arresting had committed any offence, or that Sergeant Gunadasa had any reasonable ground for suspecting Wimalenthiran to be concerned in, or to have committed, an offence under any emergency regulation. The suspicions of Sergeant Gunadasa and his fervent hope, or even confident and honest assumption, that some evidence may eventually turn up to make his suspicions appear to be reasonable was not sufficient; Article 13(5) of the Constitution provides that "Every person shall be presumed innocent until he is proved guilty", and for that reason it is of importance that no person should be arrested under regulation 18(1) except on grounds in which the  

123 particular circumstances of the arrest justified the entertainment of a

reasonable suspicion. (Cf. per Scott LJ in Dumbell v. Roberts (1), followed in Mutthusamy v. Kannangara(2), Faiz v. AttorneyGeneral(3); Faurdeen v. Jayetilleke(4)). I am not suggesting that Sergeant Gunadasa should have had clear and sufficient proof of the commission of an offence under the Emergency Regulations, or that he ought to have had information that provided anything like a prima facie basis for conviction: Sergeant Gunadasa could, in terms of regulation 18(1), have arrested Wimalenthiran although he had no clear and sufficient proof of the commission of the offence which he suspected Wimalenthiran to have been concerned in or to have committed. However, Sergeant Gunadasa ought to have had reasonable grounds, taking into account the circumstances, including the prevailing situation at the relevant time, (e.g. see Chandra Kalyani Perera v. Siriwardena and Others (5), Joseph Perera v. Attorney-General and Others(6) objectively regarded, that should have induced him to reasonably suspect that Wimalenthiran was committing, or had committed, or was concerned in the commission of, an offence under the Emergency Regulations. (See Kumara v. Rohan Fernando and Others (7), Anura v. Rohan Fernando and Others (8), Mahinda v. Rohan Fernando and Others(9)). 

In paragraph 6 of the affidavit of Senior Superintendent Hemachandra it is stated that Wimalenthiran "was taken into custody as there were reasonable grounds for suspecting him to be concerned in or to be committing or to have committed offences punishable under the Emergency (Miscellaneous Provisions and Powers) Regulations ...". However, no evidence was placed before the Court to support that bald assertion: It is necessary that the Court should be furnished with the relevant material so that the Court may be able to objectively determine the reasonableness of the suspicion that led to the arrest. In the absence of such evidence, one might with justification, as I do in the matter before me, conclude that Wimalenthiran was arrested by Sergeant Gunadasa and ordered to be detained by the Deputy Inspector-General of Police who made the Detention Order dated the 23rd of October 1993, on some vague, general suspicion, hoping that some evidence would turn up that might have provided justification for the arrest. The arrest of a person 

124

 on a speculative basis is insufficient to comply with the procedure established by Regulation 18(1). In arresting Wimalenthiran merely on vague grounds of suspicion and not on reasonable grounds of suspicion, the officer making the arrest was not acting in accordance with the procedure established by Regulation 18(1) and was therefore acting in violation of Article 13(1) of the Constitution. (See Peiris and Others v. Attorney-General(10), followed in Kumara v. Rohan Fernando and Others (supra)). As we have seen, in its order of the 29th

of March 1994 relating to the case before us, the Court took notice of the fact that the Human Rights Task Force had reported that the Army Intelligence Unit had even at that date been "unable to give a plausible explanation" for the arrest and detention of Wimalenthiran. What then were the reasonable grounds Sergeant Gunadasa had in October 1993 - either on the 2nd or 23rd day of that month - for making the arrest? He had none. Consequently, he could not have been able to give Wimalenthiran a reason for the arrest as required by Article 13(1) of the Constitution.

 The Detention Order dated the 23rd of October 1993 conveys the impression

- it is not clearly expressed - that Wimalenthiran was being held in custody as a person who "had committed" "an offence in contravention of Regulation/s 25 read with 34 and 37" or that the officer issuing the detention order had "reasonable ground for suspecting" the person ordered to be detained as a person "concerned in or to be committing or to have committed an offence in contravention of Regulation/s 25 read with 34 and 37 of the said Gazette Extraordinary (sic.)..." However, the respondents did not, either through the affidavit of Hemachandra or in their submissions, claim that Wimalenthiran was arrested while he was committing any offence. The Detention Order issued on the 23rd of October 1993 is in a standard form previously prepared into which other information, whether true or false, appropriate or inappropriate, has been routinely inserted. In any event, had the person detained been furnished with a copy of the Detention Order, could he have understood why he was being detained? If he had been given a copy of the Emergency Regulations as well, he could have found that Regulation 25 provides that:

125

 

"Whoever (a) commits any offence punishable under Sections 114, 115, 116 or

117 of the Penal Code; or (b) commits the murder or conspires to murder or

attempts to murder, or wrongfully confines or conspires or prepares to wrongfully

confine, the President or a Member of the Parliament, or a police officer or a

member of the armed forces, or a public officer with the intention of inducing or

compelling the President, Member of Parliament, police officer or member of the

armed forces or public officer to exercise or refrain from exercising in any

manner any of the lawful powers of the President, Member of Parliament, police

officer, member of the armed forces or public officer; or (c) in any manner

overawes, influences, coerces, prepares or conspires or attempts to overawe,

influence or coerce, any person with the intention of inducing or compelling the

Government of Sri Lanka, the President, a Member of Parliament, a police

officer, a member of the armed forces or public officer, shall be guilty of an

offence..."

 What was it the person detained had done? 

According to the Detention Order, Wimalenthiran was detained for contravening Regulation 25 "read with" Regulations 34 and 37. Regulation 34 provides that: 

"No person shall knowing or having reasonable cause to believe that any other person is guilty of an offence under any   emergency regulation give such other person assistance with the intent thereby to prevent, hinder or interfere with the apprehension trial or punishment of such person for the said offence."

 What was the knowledge of the person detained? Who was the person

detained seeking to protect? What was the offence such a person was supposed to have committed? No evidence was adduced by the respondents on these matters. Regulation 37 provides: "(a) Whoever becomes aware of an intention or an attempt or a preparation to commit, or the commission of an offence  under any  

126 emergency regulation shall forthwith give information thereof to the nearest Grama Niladhari or to the officer-in-charge of the nearest police station; (b) any person who willfully fails or refuses to give the information referred to in paragraph (a) shall be guilty of an offence." What was the information that the person detained had and failed to disclose? 

The Detention Order dated 1st January 1994, is in terms similar to that of the Order issued on the 29th of October 1993, except that it lists the names of 122 persons, including the name of Wimalenthiran. The Detention Order issued on the 8th

of April 1994 lists the names of 121 persons including the name of Wimalenthiran. 

The treatment of persons detained, was, as it were, on a wholesale basis. This is evident from the Detention Orders dated the 1st of January 1994 and the 8th of April 1994. Such an approach does not enable the Secretary to discharge his duty under Article 13(1) of the Constitution to give a person he has directed to be arrested and detained the reasons for doing so, if his only method of communicating his reasons was the Detention Order. Nor does it enable a person detained to make a case for his release to the Advisory Committee appointed under Regulation 17(4); for

he must know the grounds upon which he is supposed to be a person who is likely to act in a manner prejudicial to the national security or the maintenance of public order. 

Neither the officers who made the arrest, nor the police, nor the persons issuing the Detention Orders seem to have had any clear idea why Wimalenthiran was detained. Nor was their position much better at the time the Fundamental Rights application was filed. In fact, as we have seen, learned State Counsel in his memorandum to Court stated that it was decided to indict Wimalenthiran "following a confession made by the petitioner stating that he was a member of a suicide squad directed by the LTTE to assassinate the late President Premadasa." That 'confession' was obtained after the filing of the Fundamental Rights application. The Attorney-General, who had

127 

sometime after State Counsel's undertaking given on the 29th of March 1994 to indict or release the prisoner, received a 'dossier' from the police, was not in a position to issue indictment even on the 17 th of June 1994 for lack of sufficient information. 

The Detention Orders issued under Regulation 17 on the 29 th of October 1993, the 1st of January 1994 and the 8th of April 1994 fail to give reasons for the detention: They merely state that "being of opinion and with a view to preventing the person specified and residing at the place mentioned in Column I of the Schedule to this order from acting in any manner prejudicial to the National Security or to the maintenance of public order, it is necessary so to do", the person concerned is ordered to be detained. All that the person detained was told were the general objects and purposes of the detention as set out in Regulation 17(1). Whether a person is arrested under Regulation 18(1) or ordered to be detained under Regulation 17(1), he or she must be given the grounds - the material facts and particulars - for his arrest and detention. It is only when a person has such information that he or she will have the opportunity to rebut the suspicion entertained by the person making the arrest or show that there was some mistake as to identity. It is only when a person has been given the grounds for his or her detention, that meaningful steps could be taken to apply to the Advisory Committee to obtain release from custody. In failing to state the grounds for arrest and detention, Wimalenthiran's fundamental right to such information guaranteed by Article 13(1) of the Constitution was violated. 

Where was Wimalenthiran arrested? According to him, he was arrested at a lodge at No. 56, Old Moor Street at which he was residing. On the other hand, Mr. Hemachandra, Senior Superintendent of Police, states in his affidavit that the arrest was made at an army check point at Kotahena. The Director of the Criminal Investigation Department in Annexure 'A' to his letter dated the 8th of September 1994 addressed to the Attorney-General with a copy to the Registrar of the Supreme Court, which has been filed of record, states that "The corpus was taken into custody at Navaraj Lodge, Colombo 13 by Sergeant K. Gunadasa of the Sri Lanka 

128 Army." Discrepancies of this nature cast doubts on the credibility of the respondents' version. 

At least this much is undisputed and clear: the arrest was made in Colombo and not in an administrative district within the Northern and Eastern Provinces, and

therefore, the procedure established by law for the arrest and detention of Wimalenthiran must be that which was applicable to a person arrested outside the Northern and Eastern Provinces. This has an important bearing on the procedures established by law which the persons making the arrest had to follow. 

Nor is it in dispute that the relevant law is that which was set out in the Emergency (Miscellaneous Provisions and Powers) Regulations of 17th June 1993 made by the President under Section 5 of the Public Security Ordinance and published in Gazette Extraordinary No. 77/16 of 17.06.1993. 

Regulation 18(1) states that "Any... member of the armed forces may... arrest without warrant, any person who is committing or whom he has reasonable grounds of suspecting to be concerned in, or to be committing or to have committed, an offence under any emergency regulation... Provided however that any person arrested or detained in any administrative district outside the Northern and Eastern Provinces by a member of the armed forces shall forthwith, and in any event before the end of the period of twenty-four hours from such arrest or detention be handed over to the custody of the officer-in-charge of the nearest police station." 

According to paragraph 13 of the affidavit of Wimalenthiran, and paragraph 3(e) of the affidavit of the Attorney-at-Law who filed the application on behalf of Wimalenthiran, Wimalenthiran was handed over to the CID on the 15 th of December 1993. However, Senior Superintendent Hemachandra in paragraph 9 of his affidavit states that Wimalenthiran was handed over to the CID on the 14th of December 1993. If Wimalenthiran and Arulrajah were dealt with, as far as detention was concerned, in the same way, the Amnesty International report supports the version of Wimalenthiran and that of the Attorney-at-Law.

 129 

Even if it is assumed that the arrest was made on the 23 rd of October 1993 and not on the 2nd of October 1993, there was a failure to comply with the mandatory requirement of Regulation 18(1) that the person arrested should have been handed over to the police "forthwith" and in any event, not later than twenty-four hours after the arrest. The safety of the citizen is better secured by ensuring that the custody of a person arrested should be with the civil, namely the police, rather than the military authorities; and it is best secured when custody is under judicial authority in an approved prison: For approved prisons are governed by laws, regulations and rules designed to protect persons admitted to them and are administered by trained personnel who are equipped to deal with incarcerated persons. Moreover, unlike the police, prisons officers have no interest in the success or failure of a prosecution and would, therefore, be less like to treat persons in custody without restraint for the purpose of eliciting information. Clearly the intention of Regulation 18(1) is that the person arrested should, as expeditiously as possible, be removed from the custody of the armed forces and placed in the custody of the appropriate civil authorities. In the circumstances, the propriety of the Deputy Inspector-General of Police, directing in his Detention Order of the 23rd of October 1993 that "Vijayan Wimalenthiran" (sic.) be detained for seven days at the Army Camp, Panagoda, rather than at a place of detention over which the Police had control, seems questionable. By detaining Wimalenthiran for more than twenty-four hours in military custody, the army officers failed to act in accordance with procedure established by law and thereby contravened the provisions of Article 13(1) of Constitution. 

Moreover, the duty of the army officers making the arrest was to hand him over to "the officer-in-charge of the nearest police station." If, as Senior Superintendent Hemachandra states in paragraph 5 of his affidavit, Wimalenthiran was arrested at a check point at Kotahena, he should have been handed over to the

officer-in-charge of the Kotahena Police Station and not to the Criminal Investigation Department. Senior Superintendent Hemachandra states in paragraph 9 of his affidavit that Wimalenthiran was handed over by the army to the Criminal Investigation Department. That was not what

130 Regulation 18(1) required, and therefore, the army officers were acting

contrary to the procedure established by law and thereby transgressing the provisions of Article 13(1) of the Constitution. 

The new regulations of June 1993 introduced several safeguards to ensure the security of persons who are arrested and detained under the Emergency Regulations. In order to prevent or minimize 'disappearances' and abuses, it is of paramount importance that the requirements laid down by the regulations should be strictly observed. They were not intended for merely cosmetic purposes, but for the sake of fulfilling the basic obligation of the State to ensure the personal security and liberty of all persons. 

Regulation 18(7) provides that when an arrest is made under Regulation 18(1) it shall be the duty of the arresting officer, where the arresting officer is a member of the armed forces, to report to the Commanding Officer of the area within which the arrest is made, within twenty-four hours of such arrest. It shall be the duty of such Commanding Officer to "forthwith" notify the Human Rights Task Force of such arrest, setting out all the information relating to such offence in the form prescribed for such purpose by the Secretary. 

Regulation 18(7) provides that where any person is taken into custody under the provisions of Regulation 18, it shall be the duty of the arresting officer to issue to the spouse, father, mother or any other close relative, as the case may be, a document in such Form as specified by the Secretary, acknowledging the fact of the arrest. 

Regulation 19(4) casts two imperative duties on the Secretary of the Ministry of Defence, namely, (1) to cause to be published in the Gazette a list of all places authorized by him as places of detention for the purposes of Regulations 17 and 19; and (2) to notify the existence and the address of such places of detention to the Magistrate within whose jurisdiction such places of detention are located. 

Regulation 19(5) requires the officer-in-charge of any place authorized by the Secretary as a place authorized for detention for purposes of Regulations 17 or 19 to furnish once every fourteen days

131 to the Magistrate within whose local limits of jurisdiction such place of

detention is located a list containing the names of all persons detained at such place. The Magistrate shall cause a list to be displayed on the notice board of the Court. 

Regulation 19(6) requires the Magistrate within whose jurisdiction any such authorized place of detention is situated, to visit such place of detention at least once in every month and it shall be the duty of the officer-in-charge of that place to secure that every person detained therein, otherwise than by an order of a Magistrate, is produced before such visiting Magistrate.

 Mr. Vinayagamoorthy in his affidavit of the 4th of December 1994 specifically

states that the respondents failed to comply with the procedures established by law

by (a) not handing over Wimalenthiran to the Kotahena Police immediately after his arrest; (b) failing to notify the Human Rights Task Force; and (c) failing to inform the relatives of the person arrested. I find myself in agreement with Mr. Vinayagamoorthy. Indeed, I go further in holding that there is no evidence that the requirements of Regulations 18(7), 18(8), and 19(4), 19(5), 19(6) were complied with in this case. 

Regulation 19(2) states that "Any person taken into custody in pursuance of the provisions of Regulation 18 may for the purpose of investigation of the offence in relation to which such person was arrested be kept in detention upon an order made by a police officer not below the rank of a Deputy-Inspector-General of Police ... in a place authorized by the Secretary ...". Regulation 19(4) provides that "The Secretary shall cause to be published in the Gazette a list, with the addresses of all places authorized by him as places of detention for the purposes of Regulations 17 and 19 ...". At the relevant time, the authorized places of detention were those published in Gazette Extraordinary No. 773/8 of June 29th, 1993. There were 343 authorized places including, prisons, police stations and certain army camps. The Panagoda Army Camp was not an authorized place of detention, and therefore, the detention order was bad in law, and since the detention under that order was not in accordance with the procedure established by Regulation 19, it was in transgression of

132 Article 13(1) of the Constitution. The Army Detention Camp, Panagoda, was

listed as an authorized place of detention in Gazette Extraordinary No. 806/6 published on the 15th of February 1994. Admittedly, the order of the Secretary of Defence listing the Panagoda Camp as an authorized place of detention is dated the 1st of October 1993; however, until it was published in the Gazette as required by Regulation 19(4), it had no force or avail: it was at the relevant time, no more than a private proposal of the Secretary, and the Army Camp at Panagoda, during the period of time relevant to the matter before us, fell into the category of unauthorized, secret places of detention at which no person arrested under Regulation 18 could be lawfully detained. 

Regulation 17(1) empowers the Secretary where he is satisfied upon the material submitted to him or upon such additional material as may be called for by him, with respect to any person, that with a view to prevent such person inter alia, from acting in any manner prejudicial to the national security or to maintenance of public order, it is necessary to do so, the Secretary may make order that such person be taken into custody and detained in custody for a period not exceeding three months ..." Regulation 17(3) provides that "Any person detained in pursuance of an order made under paragraph (1) of this regulation shall be deemed to be in lawful custody and shall be detained in such place as may be authorized by the Secretary and in accordance with instructions issued by him ...". The detention of a person at any place designated by the Secretary in a Detention Order issued by him does not make such a place one that is 'authorized by him'. Places 'authorized' by the Secretary for the purposes of Regulation 17 are such places as are specified by him as authorized, and of which public notice is given in the Gazette. This is very obviously the intention, for Regulation 19(4) provides as follows: "The Secretary shall cause to be published in the Gazette a list, with the addresses of all places authorized by him as places of detention for the purposes of Regulations 17 and 19 ...". Regulation 19(4) issued on the 17th of June 1993 clearly, in plain words, indicated that secrecy was to be displaced by publicity and openness: The Secretary to the Ministry of Defence in the exercise of the powers conferred on him by Regulation 17(1) may order the

133

 detention of persons at specified places provided that he had given

notification in the Gazette of those places. He cannot lawfully order that a person be detained at any other place. It is no defence that the Secretary at the relevant time was contemplating or had privately decided, that the Army Detention Camp at Panagoda was a suitable place for keeping persons in custody. The Army Camp at Panagoda, as we have seen, was not, at the time the Detention Order was issued nor during the period covered by that Order, namely a period of three months from 19th October 1993, a place authorized by the Secretary in accordance with the law. 

The law takes a -serious view of detention at unauthorized places: Regulation 19(8) provides that "No person shall be detained at any place other than a place of detention authorized by the Secretary and where any person had been detained contrary to this regulation the person or persons responsible for such detention shall be guilty of an offence under these regulations." 

Senior Superintendent of Police Hemachandra states in paragraph 9 of his affidavit that Wimalenthiran was handed over to the Criminal Investigation Department by the Army on the 14th of December 1993 and was "thereafter detained at the Criminal Investigation Department in pursuance of a Detention Order issued by the 3rd Respondent in terms of the powers vested in him under the provisions of Regulation 17(1) ...". This was not the case, for on the 14 th of December 1993 the Detention Order in operation was the one issued on the 29th of October 1993 in which the place of detention designated by the Secretary was the Panagoda Army Camp. In terms of Regulation 17(3) "Any person detained in pursuance of an order made under paragraph (1) of ... Regulation (17) ... shall be detained in such place as may be authorized by the Secretary and in accordance with instructions issued by him ..." Admittedly, as we have seen, the Panagoda Army Camp was not an 'authorized' place of detention when the Detention Order was made; but it was nevertheless the designated place of detention; and therefore, Wimalenthiran was not held, as required by Regulation 17(3), "in accordance with instructions issued by" the Secretary. Thus even the

134 Secretary defence, let alone members of Wimalenthiran's family, by looking

at the Detention Order would not have been able to say where the person ordered to be detained was between the 14th of December 1993 and the 31st of December 1993. It was in the Detention Order dated the 1st of January 1994 that the place of detention is accurately designated. 

The Detention Orders dated the 29th of October 1993, 1st January 1994 and 8th April 1994 were issued by the Secretary to the Ministry of Defence. Regulation 17(1) empowers the Secretary to the Ministry of Defence to order the detention of a person with a view to preventing such person from acting in any manner prejudicial to the national security or to the maintenance of public order. However, Regulation 17(1) confers the power "where the Secretary is satisfied upon the material submitted to him, or upon such further material as may be called for by him" that "it is necessary" to order the arrest and detention of the person. The Secretary of the Ministry of Defence is the third respondent. He did not state either in the Detention Orders or in an affidavit that he was satisfied upon the material submitted to him or upon such further material as may have been called for by him, that with a view to preventing Wimalenthiran from acting in any manner prejudicial to the national security or to the maintenance of public order, it was necessary to order his arrest and detention. 

Learned Counsel for the petitioner submitted that Wimalenthiran was arrested without grounds that justified the entertainment of a reasonable suspicion and that therefore the arrest in the first place was not in conformity with Regulation 18(1). Nor were there grounds, he submitted, for the making of a, preventive detention order. There was no explanation whatsoever by learned counsel who represented him why the Secretary issued the Detention Orders in the matter before us. All that we have is an affidavit from Senior Superintendent Hemachandra in which it is vaguely stated that "Consequent to further investigations and the material revealed thereby ... Vijayam Wimalenthiran was further detained at the Army Camp at Panagoda in pursuance of a detention order issued by the 3 rd respondent in terms of the powers vested in him under the provisions of Regulation

135 17(1) ... 2R3"; and that "... Wimalenthiran was handed over to the Criminal

Investigation Department by the Sri Lanka Army on 14.12.93 and thereafter detained at the Criminal Investigation Department in pursuance of a detention order issued by the 3rd respondent ...2R4"; and that "Wimalenthiran was further detained at the Criminal Investigation Department in pursuance of a detention order issued by the 3 rd

respondent ... 2R6." No evidence was placed before us as to the material that was placed before the Secretary that enabled him to arrive at his decision. All we have is a bald assertion in the Detention Orders, that the Secretary was of the opinion that it was necessary to detain Wimalenthiran and the equally unhelpful explanations of Senior Superintendent Hemachandra as to the reasons for the detention of Wimalenthiran. 

The Secretary may be said to be "satisfied" if his decision is reasonable in the sense that it is or can be supported with good reasons or at any rate be a decision which a reasonable person might reasonably reach. (Per Denning MR in Secretary of State v. Tameside(10b) Where the Secretary's Order is challenged, as it has been in the matter before us, he must take steps to have the relevant material placed before the Court and establish his averment by 'proof positive' that he was "satisfied" in the relevant sense. (E.g. see Kalyani Perera v. Siriwardena (supra); Fernando v. Silva and Others(11), Hirdaramani v. Ratnavale(12) cited with approval in Sasanasiritissa Thero v. De Silva and Others (13); Malinda Channa Pieris v. Attorney-General (supra)). If the information could not have been made public, the Court should have been so informed. Had the Court been informed, it would have indicated the procedure to be followed that would, on the one hand have enabled the Court to assess whether there was material upon which the Secretary could have been satisfied, while on the other, ensuring confidentiality in the public interest. The accepted procedure is that the material is made available to the Chief Justice who will make the information available to the Judges nominated to hear the matter. (See Leelaratne v. Cyril Herath and Others (14)). According to the Journal entry of the 5th of July 1994, learned counsel for the petitioner stated that he had "no objection to any material which is of a confidential nature being disclosed by the respondents only to the

136 Court." However, no material was placed before this Court to establish that

the Secretary was "satisfied" in the relevant sense before he made the Detention Orders. On the other hand, as we have seen, the Human Rights Task Force in its report received by this Court on the 24th of March 1994 stated as follows: 

"With regard to the arrest and detention of the petitioner the Army Intelligence Unit has been unable to give a plausible explanation. The petitioner has been in detention for 142 days without being produced to a

Court of Law. We were therefore obliged to direct the Secretary, Ministry of Defence, to revoke the detention order and release the petitioner from custody."

 Learned State Counsel in his memorandum to this Court, explaining the

reasons for the inability of the Attorney-General even in June 1994 to indict Wimalenthiran, nevertheless stated that the undertaking to indict the prisoner "was given following a confession made by the petitioner stating that he was a member of a suicide squad directed by the LTTE to assissinate the late President Ranasinghe Premadasa." In his affidavit dated the 21st of November 1994, Senior Superintendent Hemachandra does not state that Wimalenthiran was a member of a suicide squad, but merely that he was "closely associated with" three groups of persons who had been "entrusted with the task of assissinating the President and that he had collected and supplied information relating to the movements of the ...late President." In any event, on what material were these conclusions based? When were they discovered? Was the material placed before and considered by the Secretary to the Ministry of Defence? I do not know, for the respondents failed to place any material before the Court on those matters. 

The Supreme Court has on more than one occasion reminded the Secretary to the Ministry of Defence that he should be able to state that he himself came to form the opinion, and that the Secretary would not be acting in conformity with the requirements of Regulation 17(1) by acting mechanically as a rubber stamp at the behest of the police and signing Detention Orders without exercising his personal judgment in each case. (E.g. See Weerakoon v. Weeraratne(15);

137 Sasanasiritissa Thero and Others v. De Silva and Others, (supra); Malinda

Channa Pieris and Others v. Attorney-General and Others, (supra). I am of the view that in the absence of materials to establish that the Secretary was "satisfied", and in the absence of even a statement to the effect that he was satisfied set out in an affidavit, that the Secretary was not in fact "satisfied" and that he had acted mechanically in issuing the detention orders. There remains for consideration the question whether there was a violation of Article 13(2) of the Constitution which provides that: 

"Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law."

 Regulation 19(2) provides that a person taken into custody in pursuance of the provisions of Regulation 18: 

"may for the purposes of the offence in relation to which such person was arrested be kept in detention ... for a period not exceeding sixty days reckoned from the date of his arrest under that regulation, and should at the end of the period be released unless such person is detained under the provisions of Regulation 17, or is produced before a court of competent jurisdiction ... Provided, however, that when any person is arrested in pursuance of Regulation 18 in any administrative district outside the Northern and Eastern Provinces in respect of any offence committed in any such area, he shall not be detained under these provisions for a period in

excess of seven days and unless detained under the provisions of Regulation 17, shall be produced before a Magistrate before the expiry of such period of detention as is hereinafter provided or released from custody."

 Wimalenthiran's position was that he was arrested on the 2nd of October

1993 at No. 56, Old Moor Street in the presence of his father.138

 Learned Counsel for the respondents repeatedly stated that if the father was present, an affidavit by the father should have been filed, and that in the absence of such an affidavit the respondents' assertion that he was arrested on the 2 nd of October 1993 should be rejected. Mr. Goonesekere's simple explanation was that when the son was arrested, the father 'bolted' without trace of his whereabouts. Besides, there is other evidence supporting the version that the arrest was on the 2nd

of October. In the petition and affidavit filed by Mr. Vinayagamoorthy, Attorney-at-Law, on behalf of Vijayam Wimalenthiran, it is stated that Wimalenthiran was taken into custody at "a lodge at No. 56, Old Moor Street" and thereafter detained in a building behind the Indian High Commission. The respondents' maintain that the arrest was made at a check point at Kotahena on the 23 rd of October 1993 at 1730 hours. According to the Director of the Criminal Investigation Department, "the corpus was taken into custody on 23.10.93 at Navaraj Lodge, Colombo 13 by Sergeant K. Gunadasa of the Sri Lanka Army." According to Gunadasa's statement Wimalenthiran was arrested on the 23 rd of October 1993 at 1730 hours and Arulrajah was arrested at Kotahena at a check point on the 24 th of October 1993. According to the reports of Amnesty International referred to above, Arulrajah was arrested on 2nd October 1993. Learned Counsel for the respondents suggested that Wimalenthiran had obtained his date from the Amnesty International report. However, the 2nd of October was the date specified in the application to this Court embodying the instructions given by Wimalenthiran to his Attorney-at-Law. That application is dated the 31st of January and bears the date stamp of this Court marked "1994 - 1-31." The Amnesty International report was issued in February 1994. The report was submitted by Wimalenthiran with his affidavit of the 3 rd of December 1994. The Amnesty International account of the case of Arulrajah, both with regard to the date of arrest, the places of detention at various times, and the sequence of events, corroborates the version of his co-prisoner - Wimalenthiran. There is no reason why Amnesty International should have invented the dates mentioned by them. 

On the other hand, there was an understandable reason why the 1st, 2nd and 3rd respondents should insist that the arrest was on the

139  23rd of October: If the respondents admitted that the arrest took place on the

2nd of October, they would not have been able to explain the detention of Wimalenthiran from 2nd October - 23rd October, for they had no detention order covering that period. Learned Counsel for the respondents stated that it would have been possible for the Detention Orders to have been dated from the 2 nd of October: the necessary implication that dates are capable of manipulation is, to say the least, disturbing. According to the affidavit of Mr. Vinayagamoorthy dated the 31st of January 1994, Wimalenthiran was held at the secret place of detention by the sea till the 11th of December and then transferred to the Army Camp at Panagoda. On the 15th of December he was handed over to the CID. This is the sequence of events reported by Amnesty International with regard to Wimalenthiran's co-prisoner, Arulrajah. The Amnesty International report states that Arulrajah was arrested on the

2nd of October and detained at the army camp behind the Indian High Commission until he was transferred "on or about 10 December" to Panagoda Camp and handed over to the CID "on or about 15 December". I am of the view that Wimalenthiran was arrested on the 2nd of December 1993. 

The period of detention specified in the Order issued in terms of Regulation 19(2) was seven days. In terms of the proviso to Regulation 19(2) any person arrested outside the Northern and Eastern Province in respect of any offence committed in such area shall not be detained for a period in excess of seven days, and unless detained under the provisions of Regulation 17, shall be produced before a Magistrate before the expiry of such period as is hereinafter provided or released from custody. Detention Orders under Regulation 17 were therefore issued on 29th of October 1993, 1st January and 8th April 1994 to enable Wimalenthiran to be kept in detention without being produced before a Magistrate. Since Wimalenthiran was arrested on the 2nd of October, 1993, it was no defence that Detention Orders under Regulation 17 had been issued covering the period 29 th

October 1993 till 23rd April 1994 when he was produced before a Magistrate. In my view, in terms of Regulation 19(3), since, as we have seen, there was no reasonable cause for

140  further detention, Wimalenthiran should have been produced before a

Magistrate within forty-eight hours after the arrest on 2nd October 1993; or if, as the respondents contend, there was reasonable cause for detention, then within seven days from the 2nd of October 1993. Having failed to bring Wimalenthiran before a Magistrate within the prescribed time, whether the relevant time was forty-eight hours or seven days, the 1st, 2nd and 3rd respondents acted in violation of his Constitutional rights guaranteed by Article 13(2). 

For the reasons explained in my judgment, I declare that Vijayam Wimalenthiran's fundamental rights under Article 13(1) and Article 13(2) of the Constitution were violated by the 1st, 2nd and 3rd respondents. 

The State shall pay Vijayam Wimalenthiran a sum of Rs. 25,000/-as compensation and a sum of Rs. 5,000/- as costs. WIJETUNGA, J. - I agree. ANANDACOUMARASWAMY, J. - I agree. Relief Granted.

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SLR - 1995 Vol - 1    Add to iNote

 SLR - 1995 Vol.1, Page No - 242

242

HEEN MENIKE v.

THE COMMANDANT, R.D.F. CAMP AND OTHERS

COURT OF APPEALS. N. SILVA, J. (PRESIDENT) C.A.H.C.A. NO. 39/92DECEMBER 14, 1994

Habeas Corpus - Arrested corpus - Disappearance - Exemplary costs.

Held.

Where the arrest and detention of the corpus ,falls into the category, of cases where a person who has been arrested and detained by the authorities disappears thereafter exemplary costs should be ordered.

Case referred to:

1. Sebastian, M. Hongray v., Union of India AIR 1984 1026.

APPLICATION for writ of habeas corpus.

K. Tiranagama with M. V. Goonewardena for petitioner V. K. Malalgoda, SC. for Attorney-General

cur. adv. vult..

January 13, 1995.S.N. SILVA,J.

This is an application for a Writ of Habeas Corpus filled by the Petitioner in respect of Ratnayake Mudiyanselage Jinadasa (the corpus) The Petitioner is the wife of the corpus Who was the father of two children making his living by working as a driver. According to the Petitioner the corpus was arrested by group of Army Officers on 07 02.1990 and thereafter detained at the Beragala-Army Camp.

Upon this application being filed notice Was issued on the Respondents. The 5th Respondent filed an affidavit dated 28.07.1992. where, he stated that the corpus who was in the custody of lieutenant Susantha Attanayake of the Beragala Army Camp escaped from

243

custody on 12.03.1990. in the circumstances the mater was referred to the Chief Magistrate, Colombo for an report in terms of the proviso to Article 141 of the Constitutional, Learned Chief Magistrate has held a inquiry with notice to all parties and has made his report dated 27.04.1994. He has come to specific findings that the corpus was arrested and detained by Army officers attached to the Beragala Camp. He has held that the 2nd and 3rd are responsible for the disappearance of the corpus. He has also held that the 4th and 5th Respondents being the superior

officers should take responsibility for the acts of the Ad and 3rd Respondents. He has specifically disbelieved the evidence adduced by the Respondents that the corpus escaped from the custody. In view of these findings of the learned Chief Magistrate a rule nisi was issued by this Court on 12.07.1994 on the 1st Respondent and the Commander of the Sri Lanka Army directing that the corpus be produced before this Court or that information regarding his whereabouts be furnished to this Court on 05.09.1994. In response to the rule nisi the Commander of the Army has filed an affidavit dated 03.11.1994 that he has no information as to the arrest and detention of the corpus.

In the circumstances stated above, the arrest and detention of the corpus falls into the category of cases where a person who has been arrested and detained by the authorities disappears thereafter.

The matter of making an appropriate order in such a case was considered by this Court in H.C.A.164/89, 171/89 and 166/89 decided on 02.12.1992. in those applications, it was decided by Court that the decision of the Indian Supreme Court in the case of Sebastian M. Hongray v. Union of India (1) should be followed and exemplary costs ordered against the Respondents who have failed to account for the detention of the corpus. I adopt, in this case the reasons stated in the judgment dated 02.12.1994 referred above add direct the 1st Respondent to pay a sum of Rs.100,000/- as costs to the petitioner. The costs should be paid on or before 31.03.1995. If this amount is not paid as directed further action will be considered in this matter as to contempt of Court. I also direct the Registrar of this

244

Court to forward copies of the proceedings recorded in the Magistrate's Court to the, inspector General of Police to peruse the evidence recorded and to direct further investigations in the matter if there is evidence as to the commission of a cognizable offence The Registrar is also directed to forward a copy of the proceedings. with this judgment to the Hon'ble The Attorney-General for appropriate action to be taken by him. The Petition is accordingly allowed with casts to be paid as sued above by the 1st Respondent.

Petition allowed with costs.

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SLR - 2003 Vol - 1    Add to iNote

 SLR - 2003 Vol.1, Page No - 385

385AMARASENA AND ANOTHER

v.JAYARATNEM, OFFICER-IN-CHARGE, MT.LAVINIA POLICE

STATION AND OTHERS SUPREME COURTS. N. SILVA, CJ.BANDARANAYAKE, J. ANDEDUSSURIYA, J.SC (FR) APPLICATION NO. 290/200211TH SEPTEMBER, 2002 Fundamental Rights - Attempt by police officer to apprehend petitioners on a complaint given by mistake - Resistance by the petitioners - Articles 11, 13(1) and 13(2) of the Constitution - Prohibition on police against detaining a suspect for an unreasonable period without producing him before Magistrate. The 1st and 2nd petitioners were proceeding in a three wheeler to the Telecommunications office, Ratmalana when the police attempted to arrest them on information given by a person that they were concerned in an offence. It appeared that the informant was misled as to the identity of the petitioners. When a police officer attempted to apprehend them, the 1st petitioner became violent and bit off a portion of the police officer's ear lobe. The 2nd petitioner also got involved in the fray. They were both arrested for obstructing the police officer from discharging his functions and for causing grievous hurt to a constable. They were arrested at about 1.00 p.m. on 04.05.2002, detained overnight at the police station and produced before a Magistrate at noon the next day. The police had to use reasonable force in arresting them. Medical evidence disclosed an abrasion on the 1st petitioner. Held : The alleged infringement of Articles 11 and 13(1) were not established on the facts of the case. However, the arrest of the petitioner for obstruction and causing grievous hurt did not warrant the detention of the petitioners at the police station overnight. Such detention was unreasonable. Investigations could have been concluded swiftly and the petitioners produced before the Magistrate on the same day. There was a duty to produce the petitioners before a Magistrate within a reasonable time not exceeding 24 hours.

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2. In the circumstances there was an infringement of the petitioners' rights under Article 13(2) of the Constitution.

APPLICATION for relief for infringement of fundamental rights.

J.C. Weliamuna with Lavangi Weerapana and Charika Samarakoon for petitioners.

N. Srikantha with C. Jeya Devi Royappu and K.S. Balakrishnan for 1st, 2nd, 3rd and 4th respondents.

Viveka Siriwardene de Silva, State Counsel for Attorney-General.

Cur. adv. vult.

April 4, 2003

SARATH N. SILVA, C.J. 

The 1st petitioner is an Electrical Superintendent, employed in the Ceylon Electricity Board and the 2nd petitioner is a person who is working under him in a private capacity. The petitioners have been granted leave to proceed in respect of alleged infringement of their fundamental rights, guaranteed by Articles 11,13(1) and 13(2) of the Constitution.

 

The incident, which is the subject matter of this application took place on 4.5.2002. The 1st petitioner finished his work at a location in Wattala and came with the 2nd petitioner who is working as a cleaner in a lorry owned by him, to the Liberty Plaza Shopping Complex at Colpetty, at about 12 noon to get a switch key cut for the lorry. Thereafter he went to the Billing Centre at the Telecom office at Ratmalana. That being a Saturday, the Billing Centre was due to close at 1.00 p.m. and the petitioner had to rush to that place. He states that after parking the vehicle when he was walking hurriedly towards the gate of the Telecom office, a tri-shaw that was heading towards Moratuwa slowed down and a person asked whether he signalled before parking. He identified the 2nd respon-dent Sgt. Ediriweera as the person who spoke to him in this

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 manner. He claims that he answered the respondent saying that he did in fact signal and rushed towards the Telecom office. Before he could reach the gate of the Telecom office, he was apprehended by the 2nd respondent. At this stage he stated that he bit the ear of the 2nd respondent to free himself and the 1st and 3rd respondents came and assaulted him.

 

The version of the respondents presents a different aspect. The 1st respondent being the Officer - in - Charge of the Intelligence Unit of the Mt.Lavinia Police, has stated that he was engaged in an investigation to apprehend two suspects, namely Asiri Fernando and 'Army Jagath', who were wanted in connection with a number of robberies of motor vehicles. He received information that these two persons have been sighted and he set off together with the 2nd and 3rd respondents in a 3 wheeler to apprehend them. Whilst going along Galle Road they met the informant who stated that a person resembling the said Asiri Fernando was seen at the Liberty Plaza a short while earlier and was seen getting a key cut. The informant gave the number of the vehicle in which the wanted suspects were alleged to be travelling as 58-3264. When they were proceeding further along Galle Road, they saw the vehicle bearing that number near the Telecom office at Ratmalana.

 

The 3rd respondent signaled the driver to stop the vehicle but he did not heed the signal. They overtook the vehicle and stopped ahead of it. According to the 1st respondent, a person whom he subsequently identified as the 1st petitioner hastily got down from the

vehicle and rushed towards the Telecom office. They pursued the 1st petitioner. Then the 2nd respondent asked him to stop, which was ignored by the 1st petitioner. Then the 2nd respondent caught him by the hand and showed his official identity card. According to the respondents the 1st petitioner grappled with the 2nd respondent, biting off a portion of the left ear lobe of the 2nd respondent and spitting it out.

 

The 1st respondent states that at that point he delivered a blow on the 1st petitioner and since he was behaving violently used force to bring him under control. He explained to the 1st petitioner that he is being arrested for the offence of voluntarily obstructing a public servant in the discharge of his public functions. The 2nd petitioner who joined in the fray was also arrested on the same charge

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 and they were brought to the Mt. Lavinia Police Station in the three-wheeler.

 

According to the petitioners none of the police officers were in uniform. However, according to the police, the 3rd respondent being a police constable, was in uniform and others being officers of the Intelligence Unit were not clad in uniform.

 

The 1st and 2nd petitioners were produced before the Acting Magistrate on the following day and were released on bail around 1.30 p.m.

 

The hospital ticket R2 issued by a doctor at the Police Hospital and the Medico Legal Report Examination form 2R1 issued by a doctor at the Colombo South Hospital disclose that the 2nd respondent had a cartilage laceration on his left ear and that a portion of an ear lobe was missing. The injury is described as been grievous. The Medico Legal Report P10 in respect of the 1st petitioner reveals that he had one abrasion of 1/2 centimeter over the lateral aspect of the left upper neck, probably caused by a finger nail. The Consultant's opinion noted in the report is that the 1st petitioner suffered acute stress reaction due to assault. The medical report P10 does not support the allegation of the 1st petitioner that he was severely assaulted in the three wheeler and later at the police station, causing him to bleed from the nose and mouth.

 

The facts presented above disclose a misapprehension on both sides. The 1st petitioner had legitimately engaged in his chores and was rushing towards the Billing Center of the Telecom office to get there before closing time. The 1st, 2nd and 3rd respon-dents being officers of the Intelligence Unit were checking on information that had been received about 2 persons who were wanted in connection with several robberies of vehicles. It is probable that the informant was misled by the fact that the 1st petitioner got a key cut and hurriedly went towards Ratmalana.

 

The 1st respondent and the other officers had reasonable information to apprehend the 1st petitioner to check his identity. The 1st petitioner on the other hand being innocent of

any offence was rushing towards the Billing Center and would very probably have brushed aside the police officer in plain clothes, who was trying to apprehend him. However, from that point onwards the reaction

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  of the 1st petitioner descends to a level of being inhuman. His biting off of the ear lobe of the 2nd respondent and spitting it out in the manner graphically described by the respondents is something that can not be  condoned. If he paused for a while and revealed his true identity, subsequent events could have been avoided. Police officers should in the discharge of their duties take every step to detect offences and apprehend persons who have committed such offences. In this instance, it is clear that the officers of the Intelligence Unit had been following the information given by one of their informants. Considering the type of offences that were being investigated they could not possibly have used normal police vehicles or been clad in uniform. They had to take action swiftly, for which they cannot be faulted.

 

In the circumstances I am of the view that the 1st and 2nd respondents had reasonable grounds to arrest the petitioner. Admittedly, at the time of arrest the 2nd respondent had suffered a grievous injury which had been inflicted when they were discharging their official duties. There is no basis to doubt the version of theist respondent that the petitioners were informed of the reasons for the arrest. In the circumstances I am of the view that there has been no infringement of the fundamental right guaranteed by Article 13(1) of the Constitution.

 

As regards the infringement of Article 11, the allegation of the 1st petitioner is that he was assaulted severely at the place of the arrest, in the trishaw and thereafter at the police station. On the other hand the respondents have stated that they used force only at the place of arrest and that too after the 2nd respondent suffered injuries. The medical report P10 as noted above reveals only one injury, an abrasion 1/2 centimeter in the region of the neck which could have been caused by finger nails. This is supportive of the fact that the respondents used reasonable force to apprehend the 1st petitioner.

 

The opinion of the consultant that the 1st petitioner suffered acute stress due to assault does not take into account the fact that the 1st petitioner himself had bitten off a portion of the police officer's ear. That by itself is totally irrational behaviour. The mental stress referred to in the report is probably the cumulative result of the entire incident in which the 1st petitioner caused the more serious injury. In

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 the circumstances I am inclined to accept the version of the respondents regarding the injury that was inflicted on the 1st petitioner in the course of the arrest. There is no basis to come to any finding as to an infringement of Article 11 of the Constitution.

 

I have now to deal with the alleged infringement of Article 13(2) of the Constitution. Article 13(2) guarantees to every person held in custody the fundamental right to be brought before the Judge of the nearest competent court according to the procedure established by law. The procedure established by law is contained in section 37 of the Criminal Procedure Code Act, No. 15 of 1979, which reads as follows:

 

"Any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time nec-essary for the journey from the place of arrest to the Magistrate."

 

The petitioners were arrested at 1.00 p.m. and were brought before the Magistrate at about noon on the next day. They were detained overnight at the police station. When the facts relevant to the arrest and detention are objectively viewed, it is seen that the 1st petitioner was apprehended by the 1st respondent to verify his identity on the basis of information received with regard to a wanted suspect. However, the arrest was in connection with the offence of obstructing a public servant in the discharge of his public functions. In addition there is the offence of causing grievous hurt in view of the injury suffered by the 2nd respondent. It would have been obvious to the respondent that the initial apprehension was on the basis of mistaken identity. Therefore the subsequent detention is warranted only for the purpose of investigating the offences under sections 183 and 316 of the Penal Code.

 

These offences are alleged to have been committed in respect of police officers and the investigation could have been concluded swiftly. The limit of 24 hours laid down in section 37 of the Code of Criminal Procedure is the maximum period of detention. However, the section clearly provides that a person should not be detained in custody for more than the period that is reasonable under the circumstances of the case. In this instance, as noted above, the

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  investigation did not involve any ramifications and should have been concluded within a few hours. The petitioners could then have been produced before the Magistrate on the same day. It appears that the respondents have exceeded this period and kept the peti-tioners in custody overnight at the police station. This in my view amounts to an infringement of the fundamental right guaranteed to the petitioners under Article 13(2) of the Constitution and I grant a declaration to that effect. Considering the facts and circumstances of the case and in particular the conduct of the 1st petitioner referred to above, I am of the view that the petitioners are not entitled to any compensation in the matter. Further considering the fact that the 1st to 3rd respondents have acted in the lawful discharge of their functions and the nature of the infringement in respect of which a declaration is granted, I have to place on record that the granting of the declaration by itself will not affect the careers of the 1st to 4th respondents.

 

The State will pay a sum of Rs. 5000/- as costs to the petitioners.

BANDARANAYAKE, J. - I agree.

EDUSSURIYA, J. - I agree.

Relief granted.

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