CADER (ON BEHALF OF RASHID KAHAN) vs. OFFICER-IN-CHARGE NARCOTICS BUREAU

012-SLLR-SLLR-2006-V-3-CADER-ON-BEHALF-OF-RASHID-KAHAN-vs.-OFFICER-IN-CHARGE-NARCOTICS-BUREAU.pdf


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CADER (ON BEHALF OF RASHID KAHAN)vs
OFFICER – IN – CHARGE NARCOTICS BUREAU
COURT OF APPEAL.
BALAPATABENDIJ. (P/CA)
BASNAYAKEJ.
CA 123/2005.
HC CHILAW HCBA 144/2004.
DECEMBER 8, 2005.
APRIL 24,2006.
Poisons, Opium & Dangerous Drugs Ordinance amended by Act No. 13 of1984 sections 54A, 54B 83-Bail refused by High Court – No exceptionalcircumstances – Period in remand-ls it a ground constituting an exceptionalcircumstance?-Bail Act – Does the suspect have a right of appeal againstthe refusal of bail by High Court? – High Court (Special Provisions) Act, 19of 1990- Constitution-Article 154 P (3), Code of Criminal Procedure Actsection 331-When does revision lie?
The petitioner seeks to revise the order of the High Court Judge refusingbail and to have the suspect released on bail. The charge was under thePoisons, Opium and Dangerous Drugs Ordinance for possession of 1490Kg of heroin.
HELD:
Bail with regard to persons suspected or accused of offencesinvolving possession of heroin is set out in section 83 where theaccused could be released on bail in exceptional circumstances.
Exceptional circumstances have not been defined in the statute.
Provision has been made in the Bail Act to release persons on bailif the period of remand extends more than 12 months – No suchprovision is found in the Poison, Opium and Dangerous DrugsOrdinance.
CA
Cader (on behalf of Rashid Kahan vs ,
Officer in Charge Narcotics Bureau (Eric Basnayake. J.)
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per Eric Basnayake. J.:
"These type of offences affect the society at large. The law shouldnot be made impotent that it does not serve the Society and the anti-social elements should not be given licence to create havoc inSociety."
Orders refusing to grant bail are considered as final Orders againstwhich appeals lie. No appeal was filed in these cases and noreasons are given why he did not lodge an appeal. The petition wasfiled after four months and twenty days after the High Courtpronounced its order and no exceptional circumstances have beenmentioned.
Per Eric Basnayake. J.:
“Revision like an appeal is directed towards the correction of errors,but it is supervisory in nature and its object is due administration ofjustice and not primarily or solely the relevancy of grievances of aparty. Revisionary powers should be exercised where a miscarriageof justice has occurred due to a fundamental rule of procedure beingviolated, but only when a strong case is made out amounting to apositive miscarriage of justice”.
APPLICATION in revision from an order of the High Court of Chilaw.
Cases referred to :
Milroy Fernando vs. A. G. CA Bail 542/90- H. C. Chilaw AB 2/89
O. /. C. Police Narcotics Bureau vs Kanahala Gamage Suneetha(CA Rev. 3/2002, H.C. Colombo – BA 454/02)
Gurusamy vs Ramalingam CA 119/2000,HC Colombo 322/02
Nevile Fernando vs. O. I. C. Terrorist Investigation Unit CA 44/02,HC Negombo B 24
Abdul Cader Mohamed vs O. /. C. Police Narcotics Bureau CAPHC APN 209/2003
Mohamed Siddik vs. O.l. C North Crime Division Peliyagoda CA(PHC) APN 150/2003) HC Colombo 1488/03
In re Charles Rose 14 Times LR 213
Hikayat Singhe Vs Emperor MR. 1932 pg 209
Ram Chandra vs State AIR 1952 MB 203 at 204
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State vs Veerapandy 1979 cr. L. J. 455 at 458 (Mad)
Emperor vs H. L. Hatchinson ALR 1931 ALL 356 at 358
Nagendra Nath vs King Emperor AIR 1924 Cal 476
Queen vs Liyanage 65 NLR 2
Madan Mohan Singhe vs State of Uttra Pradesh 1986 Cr LJ 1441at 1444 (All)
Abdul Hamidkhan Pathan & etc vs State of Gujarat and Others1989 Cri L. J. 468 at 476 Guj
Anuruddha Ratwatte and Others vs A. G. 2003 2 SLR 39
AG vs Gunawardana 1996 2 SLR 149 at 156
Colombo Apothecaries Ltd and Others vs. Commissioner ofLabour 1998 3 SLR 320
In Re the Insolvency of Hayman Thornhill 2 NLR 105
Rustom vs Hapangama & Co 1978 – 79 – 80) I SLR 356
Gunawardena vs Orr 2 ACR 172
Ameer vs Rasheed 6 CKLW 8
Perera vs Silva 4 ACR 79
Alima Nachiya vs Marikar 47 NLR 82
Fernando vs Fernando 72 NLR 549
Hotel Galaxy (Pvt.) Ltd. Vs. Mercantile Hotels (Management Ltd1987 1 SLR 5
Vanik Incorporation Ltd vs Jayasekera 1997 2 SLR 365
M. Jiffry for Petitioner.
Anoma de Silva SC. for Attorney General.
Cur. adv. vult.
March 16, 2006.
ERIC BASNAYAKE J.
The petitioner is seeking to revise the order of the learned HighCourt Judge dated 5.1.2005 and to have the suspect released on bail.The petitioner in his petition filed in the High Court of Chilaw statedthat the suspect was a driver by profession. While returning fromMannar the van driven by the suspect was stopped and searched bythe 1 st respondent and thereafter the suspect and another were taken
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Cader (on behalf of Rashid Kahan vs
officer in Charge Narcotics Bureau (Eric Basnayake. J.)
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in to custody while two others who travelled in the van escaped. Thesuspect was thereafter produced before the Magistrate of Puttalamand remanded on a charge of possession of heroin. The petitionersubmitted that the suspect did not have in his possession anydangerous drugs. The petitioner alleged that the suspect had madearrangements to marry. Further that the suspect has no previousconvictions and is a person of good character. The learned High CourtJudge refused bail on the ground that there were no exceptionalcircumstances to release the suspect on bail.
The suspect was arrested on 12.08.2004 by the 1 st respondent ona charge under the Poisons, Opium and Dangerous Drugs Ordinanceas amended for possession of 1,490 kg of heroin. The pure quantity issaid to be 334 grams. The petitioner states that the suspect is 26years of age and the bread winner of the family and his dependentsincluding his mother is undergoing immense hardship and sufferingdue to the incarceration of the suspect. The petitioner does not mentionany grounds to revise the order of the learned High Court Judge.
The principles relating to bail in heroin cases
Bail with regard to persons suspected or accused of offensesinvolving the manufacturing, trafficking, importing or exporting orpossession of heroin, cocaine, morphine or opium is set out insection 83 of the Poisons, Opium and Dangerous Drugs Ordinance asamended by Act 13 of 1984 which is as follows:
“No person suspected or accused of an offence underSection 54a or Section 54b of this Ordinance shall bereleased on bail, except by the High Court, inexceptional circumstances”
The exceptional circumstances have not been defined in the statute.I shall mention here some cases where bail has been granted. In MilroyFernando vs. Attorney General(1> the accused was taken in to custody
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with three others for possession of 14 kilo grams of heroin. The followingfacts transpired in this case, namely:
Heroin was found among the bales of textiles stored in a boat.
The suspect was merely a workman in the boat.
The suspect had been in remand for a period of 16 months.
The Government Analyst’s report is not as yet available.
Therefore the indie tment cannot be ready in the near future.
The suspect was released on Rs. 100,000/- cash bail with severalother conditions. In O. /. C. Police Nacotics Bureau vs. KanahalaGamage Suneetham the suspect was released on bail in a sum of Rs.
100,000/- in addition to other conditions. The facts are as follows:-
The suspect was arrested with 134.1 grams of heroin
The suspect was in remand for a period of over one year.
Indictment had already been sent.
There were neither previous convictions nor pending cases.
The husband of the suspect too had been in remand.
The six year old child was left behind unattended.
The court considered as a special circumstance the fact that bothparents had been in remand and their child was left unattended.
In Gurusamy vs. Ramalingam(3) the facts are as follows:
The quantity of heroin in possession – 6.2 grams.
The period of remand – 23 months.
The Government Analyst’s Report was sent on 31.07.2001
There were neither previous convictions nor pending cases.
The indictment had not been sent although the State Counsel wasgiven five dates to forward the same.
The Court of Appeal in their Order did not refer to any of the abovefacts constituting exceptional circumstances, but bail in a sum of
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Rs. 100,000/- cash bail “considering the long period of remand”. InNeville Fernando vs. O. I. C. Terrorist investigation Uni^ the Court ofAppeal on 6.2.2003 enlarged the suspect on cash bail in a sum ofRs. 50,000/- in addition to other conditions. The facts in this case are:
The suspect was taken in to custody with 14 Kilo grams of heroin
The suspect had been on remand for a period of one year ten months.
The Indictment had already been despatched to the relevant HighCourt
The learned Counsel for the suspect submitted to court that trial wouldnot be taken for at least five months due to the heavy trial roll. HisLordship Justice Edirisuriya held that “ends of Justice will be met bygranting bail” and again the court dos not refer to any of the abovefacts constituting exceptional circumstances.
In Abdul Cader Mohamed vs. O.l.C. Police Narcotics Bureau^ theaccused was charged for aiding and abetting the commission of theoffence. He was in remand for a period of one year and four months.As the State Counsel did not object to bail, the court without givingreasons, granted bail on 10.11.2003 in a sum of Rs. 100,000/- cashbail with two sureties who should be government servants. In MohamedSiddik vs.O.l.C North Crime Division, Peliyagoda<6) the suspect wasarrested with six others. Nothing was recovered from this suspect.Hence the court enlarged the suspect on bail in a sum of Rs. 75,000/- with other conditions. No reference was made to exceptionalcircumstances.
In the six cases mentioned above, it was only in one case the courtconsidered the facts constituting exceptional circumstances in grantingbail. In all the other cases the court refrained from referring to a specificground as constituting exceptional circumstances. Therefore, thequestion is, should the facts of those cases be considered asconstituting exceptional circumstances? In Milroy Fernando’s casethe court allowed bail after considering the extent to which the suspecthad been involving in the commission of the crime.
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Could we consider the period in remand as a ground constituting anexceptional circumstance? Provision has been made in the Bail Actto release persons on bail if the period of remand extends more than12 months.. No such provision is found in the case of Poison, Opiumand Dangerous Drugs Ordinance. Although bail was granted in someof the cases mentioned above. None of these cases refer to the timeperiod in remand as constituting an exceptional circumstance. Hencebail cannot be considered on that ground alone. It appears from thecases cited above that there is no guiding principle with regard to thequantity found either. The fact of despatching the indictment too cannotbe considered either for or against the granting of bail. In one of thecases mentioned above, the fact of not sending the indictment wasconsidered in favor of granting bail while in another case, sending theindictment was not considered to refuse bail.
Heroin has become a menace in our society. It is not easilydetectable. Due to the fact alone, the tendency to commit this kind ofcrime repeatedly has become feasible. The repetitive factor prevalentin this sort of crime and the difficulty of detection are significantlystrong reasons for refusing bail in this type of cases.
It appears that the above cases do not lay down a rule with regardto allowing or refusing bail. Therefore the rules that govern bail inother cases become relevant. In re Charles Rose(7>. granting or refusingbail, courts generally take in to consideration the following points:
The nature of the accusation;
The nature of the evidence in support of the accusation;
The severity of the punishment which conviction will entail;
The chances of the accused absconding if released on bail;
The character, means and standing of the accused;
The danger of the offence being repeated or
Whether the accused, if released on bail is likely to –
tamper with the prosecution evidence or
to get up false evidence in support of the defence
Larger interests of the public
QACader (on behalf of Rashid Kahan vs81
officer in Charge Narcotics Bureau (Eric Basnayake. J.)
These are not exhaustive or inflexible tests. It was held that save inexceptional cases persons accused of crimes with long terms ofimprisonment should not be relesed on bail. Hikayat Sinhe vs.Emperor<8> Ram Chandra vs. State(9> at 204.
If a prima facie case has been made out by theprosecution, and if there appear reasonable groundsfor believing that the person accused has been guiltyof an offence punishable with death or imprisonmentfor life, he shall not be released on bail pendingdisposal of the case, unless extraordinarycircumstances intervenue favouring the accused.
(State vs Veerapandy<10) at 458 (Mad)
The grant of bail should be the rule, refusal of bail should be theexception Per Mukerji J in Emperor vs. H. L. Hutchinson(11> at 358Nagendra Nath vs. King Emperor<12). Sansoni J in Queen vs. Liyanage(13>said, however that “it is not to be thought that the grant of bailshould be the rule and the refusal of bail, the exception, whereserious non bailable – offences of this sort are concerned; bail isin such cases granted only in rare instances and for strong andspecial reasons, as for instance where the prosecution case isprima facie weak”.
In Madan Mohan Singhe vs. State of Uttra Pradeshiu) bail wasrefused even after one year in remand, due to the nature of the offencecommitted, namely double murder and the nature of the evidence insupport. It should not be forgotten that in murder cases the accusedcommits the murder of one or more, comparatively few persons, whilethose persons dealing with drugs are causing the death of a numberof persons in the society and or ruining their lives. Thus they are ahazard to the society and if released on bail, they are likely to continuetheir nefarious activity of continuing the business of trafficking inintoxicants clandestinely. These types of offences affect the societyat large. The law should not be made so much impotent that it doesnot serve the society, and the anti social elements should not be given
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license to create havoc in society. Law should be interpreted in sucha manner that it gives protection to the society from anti – socialelements which create havoc. Otherwise lawlessness and anti – socialelements would affect the fibre of the society as a whole (AbdulHamidkhan Pathan and etc. vs. State of Gujarat and Others (,5)476.
When a person is found guilty of possessing heroin, anything morethan 2 grams, the mandatory punishment is either death sentence orlife imprisonment. The severity of punishment may be one reason tohave the suspects in remand until the conclusion of the trial. Anotherreason would be the repetition of the crime without detection. It is notpossible for the police to be behind a particular suspect. Unlike in anyother crime where the traces could be left behind; for example in amurder case, a dead body in the most likely circumstance would befound. In cases concerning heroin the offence can be committed withoutbeing detected as there wouldn’t be any traces. Therefore I am of theview that not having previous convictions and not having any casespending cannot be considered as grounds when considering bail.
Does the suspect have a right of appeal against the refusal ofbail by High Court?Orders refusing to grant bail are considered as final againstwhich appeals lie (Anuruddha Ratwatte and Others vs. The AttorneyGeneral /16)
High Court of the Provinces (Special Provisions) Act, No. 19 of 1990makes provision with regard to appeals. Section 9 of the Act is asfollows:
Section 9 : Any person aggrieved by (a)
(b) a final order, judgment or sentence of a High Courtestablished by Article 154P of the Constitution inthe exercise of its jurisdiction conferred on it by
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Cader (on behalf of Rashid Kahan vs
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paragraph (3) (a) or (4) of the Constitution mayappeal therefrom to the Court of Appeal.
Article 154P (3)(a) is as follows: Every such High Court shali-
exercise according to law, the original criminaljurisdiction of the High Court of Sri Lanka in respectof offences committed within the Province.
The procedure is laid down in section 331 of the Code of CriminalProcedure Act which is as follows : 331 (1) An appeal under thisChapter may be lodged by presenting a petition of appeal or applicationfor leave to appeal to the Registrar of the High Court within fourteendays from the date when the conviction, sentence or order sought to
be appealed against was pronounced (4) The petition of appeal
shall contain a plain and concise statement of the grounds of
appeal.
No appeal was filed in this case. Instead the petition in this casewas filed on 25.05.2005 that is four months and twenty days after theHigh Court pronounced its order. The petitioner in his petition does notmention any grounds under which he is callenging the learned HighCourt Judge’s order. He does not allege that the learned High CourtJudge failed to consider any exceptional circumstances. No suchexceptional circumstances have been mentioned.
The petitioner does not disclose any reasons why he did not exercisethe appellate jurisdiction of this court.
Does revision lie?Revision like an appeal, is directed towards the correction of errors,but it is supervisory in nature and its object is due adminstration ofjustice and not primarily or solely, the relieving of grievances of aparty. An appeal is a remedy, which a party who is entitled to it, mayclaim to have as of right and its object is the grant of relief to a party
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aggrieved, by an order of court, which is tainted by error. Revision isso much regarded as designed for cases in which an appeal does notlie. Attorney – General vs. Gunawardena{'7) at 156, ColomboApothecaries Ltd. and Others vs. Commissioner of Labour.1'*) Thepower of revision vested in this court is discretionary. The power willbe exercised when there is no other remedy available to a party. It isonly in very rare instances where exceptional circumstances arepresent that courts would exercise powers of revision in cases wherean alternative remedy has not been availed of by an applicant. In Rethe insolvency of Hayman Thornhill Rustom vs. Hapangama & Co (20>Gunawardena vs.Orr(21) Ameer vs. Rasheed<22> Perera Vs. Silva (23>Alima Nachiya vs. Marikad2*' Fernando vs. Fernando,25> Hotel Galaxy(Pvt) Ltd. Vs. Mercantile Hotels Management Ltd.(26>-
Dr. Ranaraja J. observed in the case of Apothecaries that (supra)“the petitioners have without seeking the remedy by way of appealavailable to them as of right, sought revisionary relief which this courtconsidered misconceived in the circumstances. The petitioners havefailed to satisfy this court that there has been a miscarriage of justiceor any exceptional circumstances requiring this court to exercise itsdiscretionary revisionary jurisdiction.” Revisionary powers should beexercised where a miscarriage of justice has occurred due to afundamental rule of procedure being violated, but only when a strongcase is made out amounting to a positive miscarriage of justice. (VanikIncorporation Ltd vs. Jayasekera).27
The petitioner in this case had failed to exercise the statutorypower that was available to him. He had failed to mention the groundsof appeal. He had also failed to mention any exceptionalcircumstances in order to come by way of revision. Due to the abovereasons this application is refused.
BALAPATABENDI J. — / agree.
Application refused.