i£. N. G. FERNANDO, J.—Jaraki v. Goonetillelce
Present: H. N. G. Fernando, J.*
M. A. JARAKI, Petitioner, and T. GOONETILLEKE (Inspector ofPolice, C. I. D.), Respondent
S. C. 488—Application for Bail in M. C. Colombo 46,461/A
Bail—Non-cognizable offence—Power of Court to remand accused—Criminal Pro-cedure Code, SS. 33 (2), 129 (1), 289, 394, 396—Exchange Control Act, No. 24 of1963,s.51(6).
A person accused of committing a non-eognizable offence cannot be detained. in custody under the provisions of section 33 (2) of the Criminal Procedure Codeunless there is some proof of acts of preparation by him for imminent departurefrom Ceylon or of intention so to depart.
Application for bail.
F. N. Qmtiaen, Q.G., with C. S. Barr Kumarakulasinghe and T. IP.Rajaratnam, for the petitioner.
St. C. B. Jansze, Q.C., with J. W. Svbasinghe, Crown Counsel, forthe respondent.
Cur. adv. vult.
November 12, 1957. H. N. G. Febnando, J.—
The petitioner is stated to be the holder of a Syrian Republic Passportwho arrived in Ceylon in July 1957. The circumstances in which heseeks release from remand ordered by the learned Chief Magistrate ofColombo have to be referred to in some detail. •
According to the affidavit of one Goonetilleke (Inspector of Police,Colombo), who is the respondent to this application, he obtained anorder under section 129 (1) of the Criminal Procedure Code to investigate
H. N. G. FERNANDO, J.—Jaraki v. GoonetiUeke
certain non- cognizable offences alleged to have been committed againstthe Exchange Control Act, No. 24 of 1953, by a person whom I will refer
to as the first suspect. In the course of the investigation the Inspectorarrested the petitioner on 24th August 1957 having “ reason to believethat the petitioner had no permanent residence in the Island and thathe was about to leave the Island ' ’. Thereafter, according to the affidavit,the Inspector produced the petitioner before the Chief Magistrate ofColombo who, on an application purporting to be made under section33 (2) of the Criminal Procedure Code, ordered the petitioner to be re-manded till 20th September 1957. The record of the proceedings in theMagistrate’s Court shows that on subsequent occasions also the Magis-trate, acting under section 33 (2) of the Code, ordered the remand of thepetitioner, the first suspect and another person referred to as the secondsuspoct. While in custody in pursuance of these orders, the petitionermoved the Magistrate to be released on bail, but his applications wererefused, and on 3rd October 1957 the present application under section396 of the Criminal Procedure Code was made to this Court. At thattime no action had yet been taken under section 148 of the Code. Butbefore the application was listed for argument in this Court, to wit onthe 19th October 1957, a report was filed under section 148 (1) (b) allegingthe commission by the first two suspects and the present petitioner ofcertain offences under the Exchange Control Act in connection with analleged attempt to take away from Ceylon a large amount in foreigncurrency. The charges against the present petitioner were of conspiracyand abetment. On 25th October another application was made to theMagistrate for bail and was refused “ for the same reasons already given ”.Having regard to previous orders the reason for keeping the petitioner onremand is that the Magistrate was satisfied that he should be remandedunder section 33 (2) of the Criminal Procedure Code pending the trialof this case. A further remand until 19th November 1957 was orderedon the 1st November after the charges had been read over. The caseis now fixed for inquiry under Chapter XVI of the Criminal ProcedureCode because there is special provision in the Exchange Control Act(section 51 (6) ) empowering a Magistrate to take non-summary proceed-ings. It will be seen that although the question of remanding the peti-tioner or of releasing him on bail during the course of the inquiry couldhave been determined under section 289 of the Code, the authority forthe remand both prior to the filing of the application to this Court andat the present stage has been section 33.
It was contended on behalf of the petitioner that he was taken into .custody some days prior to his being produced for the first time beforethe Magistrate and that therefore the several orders made under section33 (2) were irregular. It is not necessary to resolve the questions of factand of law involved in this contention since the jurisdiction of this Courthas now been invoked with a view to obtaining an order under section 396.The question whether or not the orders of remand hitherto made by theMagistrate are valid is not directly involved in this application.
The principal matter argued was that the conditions specified insection 33 (2) are not satisfied, and that that section should thereforenot be utilised in relation to the petitioner.
H. N. G. FERNANDO, J.—Jaraki v. Qoonetitteke
It is not denied that the petitioner has no permanent residence in theIsland and if, therefore, the other condition specified in section 33 (2) issatisfied there would be a discretion to remand the petitioner until histrial. The other condition is that a peace officer has reason to believethat the petitioner is about to leave the Island. The words “ reason tobelieve ” have been construed in a similar context in the case of Litten v.Perera *, where it was held thaf for the Court to see “ reason to believe ”there must be evidence upon which to found the belief. Althoughsection 33 (2) does not expressly refer to the Court “ having reason tobelieve ”, I think it is clear that a Magistrate would not act under thatsection unless there is evidence that a person is about to leave the Island.The grounds for this belief though not stated in any of the orders of theMagistrate can be culled from the documents filed of record in both Courts.They appear to be the following :—
The first suspect is alleged to have been detected while about to
emplane for Singapore on 22nd August in the act of attemptingto smuggle foreign currency out of Ceylon, and it is alleged thathe had with him at the time a cheque on a New York Bankdrawn by the petitioner with whom he had made contact duringhis stay of twenty-four hours in Ceylon.
It is alleged that there is evidence to support the charges of conspi-
racy and abetment of the offence of smuggling the currency outof Ceylon.
Since the charges, if proved, will render the petitioner liable to
imprisonment as well as to an exceptionally heavy fine, he wouldnaturally be most anxious to evade trial.
The petitioner is an extremely rich man and would have the means
to abscond even forfeiting any large sum which he may depositif released on. bail.
The petitioner had on his person when arrested a visa valid until
31st October and an open air travel ticket.
The learned Acting Attorney-General has argued that the matters Ihave enumerated prove not only that the petitioner was about to leaveCeylon when arrested in August, but also that he is at the momentabout to leave Ceylon. Indeed he expressed his personal opinion thatthe petitioner will in all probability abscond if given the opportunityby being released on bail. In seeking to ascertain whether section 33 (2)of the Code is applicable, the difficulty I encounter is that the sectionrequires evidence that the petitioner is about to leave Ceylon, and not merelythe existence of circumstances which indicate the probability of his desireto leave Ceylon. Any individual, citizen or foreigner, guilty or innocent,would naturally be anxious to avoid rather than to face a trial; but doesthat justify the inference that his anxiety would in all probability inducehim to abscond from justice if given the opportunify ? Such an inferencemust involve the assumption, in disregard of the presumption of inno-cence, that he is guilty of the offence charged. The fact that thepetitioner was in possession of an “ open ” air travel ticket does not in my 1
1 (190S) 11 N. L. R. 94.
Baddegama Piyaratana Nay aka Thero v.
Vagisvarachariya Morontuduwe Sri Naneswara Dhammananda The.ro
opinion assist the prosecution: such a ticket would normally be heldby many a visitor to a foreign country who has paid for his passagehome but is uncertain of the date of his return. In any event the prose-cution does not deny that the petitioner’s air ticket and his passport havebeen impounded by some official authority.
The reasonable construction of section 33 (2) is that there must be someproof of acts of preparation for imminent departure or of intention so todepart, and the material made available to this Court falls short ofconstituting such proof in relation to the petitioner. If the provisionsof section 33 (2) are inadequate to meet a situation which arises owingto the enactment of new currency restrictions with huge penalties andto the new facilities alleged to be provided by air travel, the remedydoes not lie within the powers of the Court.
The Attorney-General did not argue that section 289 of the Codewould be available although non-summary proceedings have nowcommenced. Bearing in mind that the offences with which the petitioneris charged are bailable, I do not on the available facts, particularly inview of the provisions of section 394, consider that a remand under section289 would be justifiable. The order I now make should not however betaken to preclude a future remand under that section or even undersection 33 (2) on new or adequate material. I should add that inview of the opinion I have formed I propose to act under section 394.
In accordance with the suggestion made by Counsel for the appellant,the bail will consist of the deposit of a sum of money. Having regard tothe provisions of section 51 of the Exchange Control Act I consider asum of Rs. 15,000 to be reasonable.
I direct the Magistrate to release the petitioner from custody if hedeposits a sum of Rs. 15,000 hypothecated by a bond conditioned for hisappearance at the inquiry pending in the Magistrate’s Court.
M. A. JARAKI, Petitioner, and T. GOONETILLEKE (Inspector of Police, C. I. D.)