021-SLLR-SLLR-1991-V2-DISSANAYAKA-V.-SUPERINTENDENT-MAHARA-PRISION-AND-OTHERS.pdf
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Dissanayaka v. Superintendent Mahara Prison and Others
247
DISSANAYAKA
V.
SUPERINTENDENT MAHARA PRISON AND OTHERS
SUPREME COURT,
BANDARANAYAKE, J. FERNANDO, J. AND KUI.ATUNGA. J.
S.C. (Spl.) 6/90
NOVEMBER 26, 1990, DECEMBER I?, 1990 and FEBRUARY 05, 1991.
Fundamental Rights – Detention under S. 9 of Prevention of TerrorismAct – Application of objective test – Illegal arrest – Unlawful detention -Compensation – Article 13 (1) and (2) of the Constitution – Section 6(1), 9(1)and 31 of the Prevention of Terrorism Act,
The Petitioner was arrested on 08.03.1989 and kept ait Galnewa PoliceStation initially for 72 hours and thereafter on 06.04.89 order was made tosend him to the Boossa Detention Camp in-terms of S. 9 (1) of the Preven-tion of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA).
However he was kept at Galnewa Police Station until 23.05.1989 onwhich date he was sent to Boossa. The detention order was extended fromtime to time. On 12,02.1990 the petitioner was produced before the HighCourt on a charge of possessing a gun and a cartridge only while the origi-nal allegations against him were involvement in the robbery of a roneomachine and a typewriter from the Galnewa Provincial Council Office, a tri-ple murder on 15.02.89, intending to cause violence to one Jayawardena andpossession of a gun and a cartridge. On 12.02.1989 the petitioner wasremanded to Fiscal's custody but even thereafter the Minister made twofurther extensions to his detention at Boossa by orders dated 02.04.90 and01.07.90.
This was a period of insurgent activity and the petitioner who was ridinga bicycle in the company of another tried to escape on seeing the Police, Thepetitioner’s companion had a document which indicated a plan to murderone Jayawardena.
Though the detention order issued on 06.04.89 specified the place of det-ention as Boossa it was only on 23.05.89 that the petitioner was taken there-the excuse being security problems attending transport to Boossa.
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Held:—
The petitioner's arrest when he was trying to make a getaway was law-ful and not violative of Article 13(1) of the Constitution.
There can be no objection to the initial detention for 72 hours at thePolice Station in terms of s. 6(1) of the PTA.
After his arrest on 08.03.1989 the petitioner was kept in unlawful cus-tody at the Galnewa Police Station for nearly a month before applicationwas made for a detention order on 04.04.89.
The detention order made on 06 04,89 on the basis of the initial appli-cation of the Polite was lawful.
The detention at Galnewa Police Station from 06.04.1989 to 23.05.89was unlawful for failure to comply with the requirement regarding place ofdetention namely, Boossa.
Per. Kulatunga, J:
“I am of the view that the entire order covering the detention, the placeof detention and conditions thereof is mandatory and non-compliance can-not be excused save on exceptional grounds such as impossibility in givingeffect to it”.
The Police themselves applied for the detention order on 04.04.89. Iftwo days later, the situation had deteriorated, a variation as to the place ofdetention could have been obtained. This was not done,
The first detention order was made by the Minister on 06.04.89 validfor the maximum period of three months. Extensions were made on06.07.89, 25.09.89 and 28.12.89. In the absence of averments to the con-trary by the State, the detention of the petitioner under the Prevention ofTerrorism Act after 25,09.89 cannot be upheld. The objective test is thecorrect test to apply. The detention from 25.09.89 to 12.02.90 when thepetitioner was remanded by order of Court, was unlawful.
The petitioner’s detention from 08.03.89 to 25.05.89 and thereafterfrom 25.09.89 to 12.02.90 constitutes an infringement of his fundamentalrights enshrined in Article 13(2) of the Constitution.
Per Kulatunga, J.:
"The expression "unlawful activity” as defined in S. 31 of the (Preven-tion of Terrorism) Act is of wide import and encompasses any person
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Dissanayaka v. Superintendent Mahara Prison and Others
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whose acts "by any means whatsoever" are connected with "the commis-sion of any offence under this Act”. This would include a person who hascommitted an offence under the Act".
"Where the power to arrest without a warrant is couched in the lan-guage of s. 6(t) of the PTA it is well settled that the validity of the arrestis determined by applying the objective test. This is so whether the arrest is
under the normal law, under the Emergency Regulations or under
the P.T.A However, it is not the duty of the Court to determine
whether on the available material the arrest should have been made or not.The question for the Court is whether there was material for a reasonableofficer to cause the arrest..,, Proof of the commission of the offence is ndtrequired; a reasonable suspicion or a reasonable complaint of the commis-sion of the offence sufficesThere is also the consideration that during a
period of emergency a wider discretion is vested in the police in the matter
of arrest Nevertheless it is for the Court to determine the validity of
the arrest objectively. The Court will not surrender its judgement to theexecutive for if it did so, the fundamental right to freedom from arbitraryarrest secured by Article 13(1) of the Constitution will be defeated. Theexecutive must place sufficient material before the Court to enable theCourt to make a decision, such as the notes of investigation, including thestatements of witnesses, observations etc. without relying on bare state-ments in affidavits”.
Cases referred to:
Senthilnayagam v. Seneviratne [198JJ 2 Sri LR 187, 208
Muttusamy v. Kannangara 52 NLR 324, 327
Gunasekcra v. de Fonseka 75 NLR 246
Joseph Perera v. Attorney-Genera! SC Nos 107-109/86
SC Minutes of 25.05.1987
Somasiri v. Sub-Inspector Jayascna SC Application No. 147/88
SC Minutes of 01.03.1991
Withanachchi v. Cyril Herat Leelaratne v. Cyril Herat
SC Nos. 144-145/86 SC Minutes of 01.07.1988
Wickremabandu v. Cyril Herat SC Application No. 27/88
SC Minutes of 06.04.1990
Sudath Silva v. Kodituwakku [19871 2 Sri LR 119, 127
APPLICATION for infringement of Fundamental Rights under Article13(1) and (2) of the Constitution.
A.A. de Silva with K. Thiranagama for the petitioner,
Nihal Jayasinghe SSC with J. C. Jayasuriya S.C. for the State.
Cur.adv.vult.
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March 28, 1991.
KULATUNGA, J.:
Pursuant to a complaint dated 26.12.89 addressed to HisLordship The Chief Justice by the petitioner complainingabout the conditions of his detention at the Boossa DetentionCamp, this Court afforded to him the opportunity of prefer-ring a formal application for relief against the alleged infrin-gement of his fundamental rights by reason of his arrest anddetention in early 1989. In view of the fact that his freedom toseek redress had been hampered for some time by the condi-tions of his detention, this Court is able to entertain his appli-cation.
At the time of his arrest the petitioner was an undergradu-ate in the Faculty of Agriculture of the Peradeniya University.After his arrest, he was kept at the Galnewa Police Stationand thereafter sent to the Boossa Detention Camp in terms ofan order under S.9(l) of the Prevention of Terrorism (Tem-porary Provisions) Act, No. 48 of 1979 (P5) which wasextended from time to time by further orders (X7, X8 and X9).On 12.02.90 he was brought before the High Court ofColombo, in case No. 4068/89 charged with certain offencesand was remanded to Fiscal Custody at the Mahara Prisonwhere he is presently detained pending his trial.
The petitioner alleges that he was arrested by a party ofpolice officers on 08.03.89, at Kalankuttiya and was taken tothe Galnewa Police Station with his hands tied. He was notinformed of the reason for his arrest. He was then blindfoldedand assaulted. Thereafter, he was put into a room which wasdamp and which he later found to be a lavatory. On occasionshe was taken out and assaulted and then returned to the room.On 26.03.89 there was a visitor whom he could not see as hewas blindfolded; later he learnt that it was his father. On
and 03.04.89 his mother visited him when he wastaken to the Inspector’s room and was shown to her. On
SC Dissanavaka v. Superintendent Mahara Prison and Others (Kulatunga. J.)251
he was locked up in the Police cell. An order dated
under S.9(l) of the P.T.A. was then issued authorisinghis detention at the Boossa Detention Camp (P5). However, hewas not transferred to Boossa. Instead, he was kept at theGalnewa Police Station until 23.05.89 on which date he wassent to Boossa.
The detention order against the petitioner was made on theground that the Minister had reason to suspect that the peti-tioner is connected with or concerned in unlawful activity towit —
Robbery of the property of the government via. Roneomachine from Galnewa Provincial Council office.
Being in possession of leaflets. intended to cause the
commission of acts of violence.
The petitioner is presently indicted for possession of a gunand a cartridge said to have been found with him at the timeof his arrest. However, he states that the police have not atany stage questioned him about the allegations contained inthe detention order and that there is no evidence whatsoeverto connect him with the alleged offences. He also denies thathe was in possession of any weapon or other offensive articleat the time of his arrest.
In a supporting affidavit (PI) his father, Abevratne Banda(a Grama Sevaka) states that the petitioner left home on themorning of 06.03.89. On 12.03.89 he learnt that the petitionerhad been arrested by the Galnewa Police, whereupon heobtained leave for 12th and 13th and visited the Police Stationbut did not see his son in the Police Station. The police offic-ers advised him to make search in other areas. On 13.03.89 hesought the assistance of Mr. Mahinda Abeykoon, Member ofParliament, Kandy District who promised to telephone theGalnewa Police and Mahendra Adikari, Member of Parlia-ment, Anuradhapura District. He then visited the GalnewaPolice on 21.03.89 but the officers again denied that the peti-
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tioner was there; whereupon once again he contacted the twoMembers of Parliament. Thereafter, he obtained leave from25th to 27th and visited the Galnewa Police on 26.03.89. Onthat occasion the Officer-in-Charge of the Police Station tookhim behind the station remarking that some influence hadbeen used and showed him the petitioner and another boyboth of whom were blindfolded.
The petitioner’s mother Yaso Manike’s affidavit (P2) alsosupports him. The petitioner has also produced an extractfrom the “Divaina” newspaper of 11.04.89 (P3) containingparticulars of detained students, being representations made toHon. Hameed, Minister of Higher Education by the Students’Organisation. In P3 the petitioner is described as having beenarrested on 12.03.89 and in detention at the Galnewa PoliceStation. Mahinda Abeykoon M.P. in his affidavit (P4) saysthat on information supplied by the petitioner’s father on
about the detention of his son, he telephoned Mr.Mahendra Adikari M.P. and the O.I.C., Galnewa Police. Laterthe petitioner’s father met him to say that the police hadshown the petitioner to him and to thank him for it.
In an affidavit filed on behalf of the respondents, Sub-Inspector of Police Senapathi who was a member of the Policeparty which arrested the petitioner, states that he was arrestedon 04.04.89 and not on 08.03.89 as alleged by him; and that hewas arrested along with another person after they had taken totheir heels on seeing the police. The petitioner had with him agun and a cartridge. The other person also had a gun and acartridge and a document relating to the planned murder ofone Jayawardena for giving information against and contraryto the interests of “Deshapremi”. This document (X) which ishand written and is in Sinhala contains on one side two revo-lutionary verses, intera alia exhorting the taking up of arms.On the other side it contains certain information which readsthus when translated —
SC Dissanayaka v. Superintendent Mahan Prison and Others CKulatunga, J.)253
“C. D. Jayawardena,
Kurakappitiyawa,
Viyaluwa.
giving information to the police against “Deshapremis”;
getting his henchmen to assault Deshapremis;
arrest and handing over of a Deshapremi to the Superin-tendent on false charges;
plying a vehicle without authority during the strike;
unreasonable criticism;
failure to deliver the things ordered by way of punish-ment.
Senapathi has also produced marked XI a copy of theapplication dated 04.04.89 made to the Senior Superintendentof Police, Anuradhapura by the O.I.C. Galnewa Police Stationrequesting the authorisation of the detention of the petitionerand the other suspect at the Galnewa Police Station for 72hours from 04.04.89 in terms of S.7(l) of the P.T.A. and theirdetention at Boossa for 90 days in terms of S.9(l) of theP.T.A., pending the completion of investigations into the fol-lowing allegations.
Planned murder of Jayawardena. This allegation isbased on the document ‘X
Possession of two guns and cartridges.
A triple murder by shooting at Pattinigama whichoccurred on 15.02.89.
Robbery of a Roneo machine and a type-writer from theGalnewa Provincial Council Office on 12.12.88.
Senapathi^ admits that the petitioner is presentlyindicted in H.C. Colombo case No. 4068/89 for possession ofa gun and a cartridge on 04.04.89. He has also produced
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marked X2 a copy of the authorisation to detain the petitionerat the Galnewa Police dated 05.04.89 by the Superintendent ofthe Police Station for 72 hours and a copy of the detentionorder dated 08.04.89 for his detention at Boossa marked X3(same as P5).
On 25.04.89 Assistant Superintendent of Police, Wijesekerarecorded a statement of the petitioner in terms of S.16 of theP.T.A. The A.S.P.’s record as well as S.I. Senapathi describethis statement as a confession. This statement has been pro-duced marked X4. Therein the petitioner gives personal par-ticulars about himself and proceeds to state that in March1988 the University was closed; that he is a student activistwho campaigned on issues such as the arrest of University stu-dents and school children and the nationalisation of the Pri-vate Medical College; that they worked for the establishmentof a united front of all political groups opposed to thegovernment including the Janatha Vimukthi Peramuna to putforward Mrs. Bandaranayake as their common candidate atthe Presidential Election; that they were disappointed when shesubmitted her nomination on her own, otherwise than as acommon candidate; that in November 1988 there was an allIsland general strike for which too he campaigned; that inDecember 1988 he decided to join the J.V.P. and engage inpolitical activities in Galnewa along with one Jayaweera; thatat the instance of Trishantha an area leader of the militarywing of the Deshapremi movement he engaged in politicalactivities in Kalankuttiya; but he did not participate in theactivities of the military wing; nor did he use any weaponsagainst anybody; that he knew nothing about the documentwhich the police recovered from the other person (one SunilDissanayake) at the time of the arrest; and that at that time hedid not have anything in his possession.
Mr. Kumarasiri, S.S.P. Anuradhapura states that on theapplication of the O.I.C. Galnewa Police he ordered the deten-tion of the petitioner at the Galnewa Police Station for 72
SC Dissanayaka v. Superintendent Mabata Prison and Others (Kulatunga, J.)255
hours and submitted the material sent to him by the GalnewaPolice to the Deputy Inspector General of Police (Ranges) byletter (X6); subsequently he received the detention order fromthe Minister which he handed over to the O.I.C., Galnewa.The Minister states that on the material submitted by thepolice he made the detention order against the petitioner andextended it from time to time by subsequent orders.
From the fact that the petitioner was detained in terms ofS.7(l) of the P.T.A. it has to be presumed that he was arrestedwithout a warrant under powers contained in S.6(l) of theP.T.A. According to S.I. Senapathi the arrest was effected bylate S.I. Ratnapriya who led the police party. S.6(l) empowersthe arrest by that officer if he had been authorised in writingin that behalf by a Superintendent. In the absence of any chal-lenge, I shall assume the existence of such authority. Such anofficer may arrest any person “connected with or concerned inor reasonably suspected of being connected with or concernedin any unlawful activity”. The expression “unlawful activity”as defined in S.31 of the Act is of wide import and encom-passes any person whose acts "by any means whatsoever” areconnected with “the commission of any offence under thisAct”. This would include a person who has committed anoffence under the Act. Senthilnayagam v. Seneviratne (1).
Senapathi has alleged four offences against the peti-tioner.
These are —
the robbery of roneo machine and a type-writer beingthe property of the government on 12.12.88;
a triple murder on 15.02,89;
intending to cause violence to one Jayawardena shownby the possession of document ‘X’; and
possession of a gun and a cartridge.
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These would constitute offences under S.2(l)(d), (a), (h)and (g) respectively of the Prevention of Terrorism Act.
Where the power to arrest without a warrant is couched inthe language of S.6(l) of the P.T.A. it is well settled that thevalidity of the arrest is determined by applying the objectivetest. This is so whether the arrest is under the normal lawMuttusamy v. Kannangara (2), under the Emergency Regula-tions Gunasekera v. de Fonseka (3), Joseph Perera v.Attorney-General (4) or under the P.T.A. Somasiri v. Sub-Inspector Jayasena, (5). However, it is not the duty of theCourt to determine whether on the available material thearrest should have been made or not. The question for theCourt is whether there was material for a reasonable officer tocause the arrest. Withanachchi v. Cyril Herat, Leelaratne v.Cyril Herat (6). Proof of the commission of the offence is notrequired;, a reasonable suspicion or a reasonable complaint ofthe comniission of the offence suffices. Joseph Perera v.Attorney-General (supra).
There is also the consideration that during a period ofemergency a wider discretion is vested in the police in the mat-ter of arrest Joseph Perera v. Attorney-General (supra).Nevertheless it is for the Court to determine the validity of thearrest objectively. The Court will not surrender its judgementto the executive for if it did so, the fundamental right to free-dom from arbitrary arrest secured by Article 13(1) of the Con-stitution will be defeated. The executive must place sufficientmaterial before the Court to enable the Court to make a deci-sion, such as the notes of investigations, including the state-ments of witnesses, observations etc. without relying solely onbare statements in affidavits. In the instant case, no suchmaterial has been produced; and the best evidence consists ofa mere statement of allegations contained in the report toSenior S.P. (XI) and the document ‘X’ which was found notwith the petitioner but with the other suspect. No notes ofinvestigations relating to the alleged offences of murder or
SC Dissanayaka v. Superintendent Mahara Prison and Others (Kulatunga, J.)257
robbery or the recovery of offensive articles from the peti-tioner have been produced. The need to furnish such materialwas emphasised by Gratiaen J. in Muttusamy’s case (supra)when he said —
“Inspector Kannangara has nowhere in the course of hisevidence referred to any complaint or information orsuspicion the reasonableness of which could have beentested by the learned Magistrate, whose function it wasto inquire into the officer’s state of mind at the time thathe ordered the arrest”.
Even though no material of this sort was forthcoming, Iam not inclined to declare the arrest to be unlawful havingregard to the admitted circumstances of the arrest. This was aperiod of insurgent activity; at the time of the arrest the policeparty were going about investigating subversive activity whenthey sighted the petitioner and another on bicycles. (In hispetition the petitioner admits that he was riding his bicycle);on seeing the police they took to their heels; one of them hadthe document ‘X’; as it is evident from his statement X4, thepolice had later questioned the petitioner about this document;even though it was not in the petitioner’s possession, the factof their running away could give sufficient justification to thepolice to have arrested them. I therefore hold that the peti-tioner’s arrest is lawful and not violative of Article 13(1) of theConstitution.
As regards the petitioner’s detention, I see no objection tohis initial detention for 72 hours at the Police Station in termsof S.6 (1) of the P.T.A. What really requires scrutiny is thedetention which followed commencing on 06.04.89 followed bythe order of the Minister under S.9(I); but before I considerthat question, I must make a decision on the allegation thatthe petitioner was arrested on 08.03.89. If that is proved, hisdetention which is not covered by the detention order will beper se unlawful.
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In his complaint to His Lordship The Chief Justice andthere after the petitioner has consistently maintained that hewas arrested on 08.03.89. This is well supported by the affidav-its of his parents, the extract from the “Divaina” newspaperand the affidavit of Mr. Mahinda Abeykoon, M.P. (PI, P2, P3and P4). The learned Senior State Counsel for the respondentssubmitted that the alleged arrest on 08.03.89 has not beenproved; that the visits by the petitioner’s father to the GalnewaPolice Station were in April ’89; and that the M.P. cannot pos-sibly recall the events in March ’89. I cannot agree. To mymind the contents of the affidavits relied upon by the peti-tioner appear to be intrinsically true. The petitioner’s father, aGrama Sevaka speaks to having obtained leave on several daysto search for the petitioner. The State could have verifiedwhether such leave has been taken. If no such leave was taken,the petitioner’s version could have been impeached on thatground. The State has not checked the matter. It was submit-ted that the M.P.’s affidavit should not be acted upon becausehe did not explain therein how or why he remembers the dateon which the petitioner’s father contacted him. There is norequirement that such particulars be set out, and I am there-fore not prepared to reject the M.P.’s affidavit. The detentionorder dated 06.04.89 is subject to strict conditions inter aliaprohibiting access to the petitioner by visitors without thepermission of the Secretary, Ministry of Defence. It would benaive to assume that the police would have allowed anybodyto visit the petitioner or to see him in April ’89. Accordingly, Iam satisfied that the petitioner was arrested on 08.03.89 andkept in unlawful custody at the Galnewa Police Station fornearly a month before applying for a detention order.
The next allegation of the petitioner is that although theorder P5 dated 06.04.89 directed his detention at Boossa, hewas kept in continued detention at the Galnewa Police Stationuntil 23.05.89. S.I. Senapathi admits this and explains that thiswas because in the situation that prevailed it was impossible totransfer him to Boossa with adequate security until 23.05.89.
SC Dissanaraka v. Superintendent Mahara Prison and Others (Kulatunga, J.)259
The learned Senior State Counsel submitted that what is man-datory under the detention order is the detention; that theplace of detention is direc tory only and in view of difficultiesfor transportation, the continued detention of the petitioner atGalnewa is not unlawful. I am of the view that the entire ordercovering the detention, the place of detention and conditionsthereof is mandatory and non-compliance cannot be excusedsave on exceptional grounds such as impossibility in givingeffect to it. The police themselves applied for the petitioner’sdetention at Boossa by an application dated 04.04.S9 (XI). Iftwo days thereafter the situation deteriorated this could havebeen reported to the Minister with a view to obtaining a varia-tion of the place of detention. This was not done. The^p is alsono evidence as to the situation which prevailed subsequent tothe detention order and up to 23.05.89. Hence the excuse givenby S.I. Senapathi for keeping the petitioner at Galnewa isuntenable. Accordingly, I hold that the petitioner has beenunlawfully detained at the Galnewa Police Station until
23.05.89.
I now turn to the validity of the petitioner’s detention since
The impugned order was made under S.9(l) of theP.T.A. which empowers the Minister to do so where he has“reason to believe or suspect that any person is connected withor concerned in unlawful activity”. The expression, “unlawfulactivity” though defined in wide terms has been held toinclude the commission of an offence under the Act and is notlimited to acts “on the outskirts of criminal liability”; it hasalso been held having regard to the language of S.9(l) thatthere must be objective grounds and a rational basis for theMinister’s belief or suspicion for making the order; that thisview is also correct having regard to the fact that —
“The primary purpose of detention under S.9 is to facili-tate further investigation and interrogation “of sus-pects” in order to achieve the object of Eradicating
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terrorism. S.9 is not intended merely as a negative formof preventive detention nor is it intended to be a pun-ishment”.
Vide Senthilnayagam’s case (supra) (1) at 208 and 205 andthe decision of this Court in Somasiri v. Sub-Inspector Jayas-ena (5). This Court observed —
“In other words detention under S.9 is an aid to investi-gation and its validity will be strictly adjudged by theapplication of the objective test as opposed to the sub-jective test applicable to a preventive detention orderwhich may be made in circumstances in which no chargeis preferred and no investigations are pending”.
This Court also observed —
“Even in respect of a detention order under Regulation 17of the Emergency Regulations which is made upon thesubjective satisfaction of the Secretary/Defence, a Benchof five Judges of this Court held in Wickremabandu v.
Cyril Herat (7) that the power to make the order is
not unfettered and that the test of reasonableness in thewide sense applies”.
Viewed in the light of the above principles, I see no objec-tion to the order P5 which was made on the basis of the initialapplication of the police and was effective for 3 months from 06.04.89.That order was lawfully made but as already determined thepetitioner was unlawfully detained at Galnewa until he wastransferred to Boossa on 23.05.89 where he remained in lawfuldetention until the expiry of the period of his detention on
His detention was then extended from time to timeby successive orders each of which granted an extension of 3months (being the maximum period permitted by S.9 at atime). These were X7 dated 06.07.89, X8 dated 25.09.89 andX9 dated 28.12.89. Thereafter the petitioner was producedbefore the High Court on 12.02.90 on which date he wasremanded to Fiscal Custody (see 1R1). The question which I
SC Dissanayaka v. Superintendent Mahan Prison and Others (Kulatunga, J.)261
have to consider is whether the entire period of his detentionon extensions up to 12.02.90 can be justified by the applicationof the objective test. In this connection it would also be rele-vant to ask how much of this extended detention was neces-sary to facilitate further investigation.
The following matters are relevant in determining the valid-ity of the extended detention —
Although the detention order was sought on the groundof four allegations, it was made only on the basis of twoof them viz. the alleged robbery of a roneo machine andthe possession of the document ‘X*;
The police recorded the petitioner’s statement (X4) on
According to that statement the police had notquestioned him about the alleged robbery but onlyabout the document ‘X’ recovered from the other sus-pect; and the petitioner has denied any knowledge the-reof;
The State has not produced any material as to thenature of the investigations which were pending thereaf-ter. However, I can assume that the indictment againstthe petitioner was under consideration. The indictmentwhich was eventually framed charged him with the pos-session of a gun and a cartridge which is not an offencedisclosed by the allegations contained in the detentionorder. This would show that those allegations had beenabandoned; but the Court has not been informed as towhen and in what circumstances such abandonmentoccurred;
The State has also not pleaded that the impugned deten-tion was being extended pending indictment. Yet havingregard to the unsettled conditions in the country duringthis period it would not be correct to weigh this in finescales. If so, a reasonable time should be given to theState to consider the charges against the petitioner.
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Having made every allowance to the State 1 find it difficult,in the absence of any averment by the State to the contrary, touphold the detention of the petitioner under the P.T.A. after
by the application of the objective test. This meansthat the Minister has exercised his power under S.9 of theP.T.A. merely to impose “a negative form of preventive deten-tion” or as a mere matter of expediency. This is an unwar-ranted exercise of statutory power which is ultra vires the ena-bling provisions of the law. As observed by Wade"Administrative Law” 5th Ed. p. 748 —
“Acts of Parliament have sovereign force, but legislationmade under delegated power can be valid only if it con-forms exactly to the powers granted”.
Accordingly, I hold that the petitioner’s detention underthe impugned order after 25.09.89 is unlawful.
It is also relevant to note that even after the High Courtremanded the petitioner to Fiscal Custody on 12.02.90 theMinister has made two further extentions to his detention atBoossa by orders dated 02.04.90 (X10) and 01.07.90 (XIl)each for three months which period finally expired on
I do not think that the Minister has thereby intendedto countermand the Court order remanding the petitioner toFiscal Custody. In my view, it merely indicates that theseorders were being made mechanically without the Minister giv-ing his mind to the*necessity for making them.
For the foregoing reasons, I determine that the petitioner’sdetention from 08.03.89 to 25.05.89 and thereafter from
to 12.02.90 constitutes an infringement of his funda-mental rights enshrined in Article 13(2) of the Constitution byexecutive or administrative action which entitles him to com-pensation against the State.
Before I proceed to consider the relief to be granted to thepetitioner, I wish to record the fact that in a number of casesin which this Court has determined fundamental riehts to have
SC Dissanayzka v. Superintendent Mahara Prison and Others (Kulatunga, J.)263
been infringed it is observed that such infringements have beenthe result of lapses on the part of the officials who arerequired to advise the higher authorities or to scrutinise thenecessity for exercising extraordinary powers. The Statebecomes answerable for all such defaults and pays compensa-tion out of public funds. Unless there is adequate provision foridentifying the officers who are actually responsible for suchlapses in cases where blatant infringements have occurred andfor restricting the use of extraordinary powers as a matter ofexpediency, the drain on public funds will keep on increasingin proportion to the growth of public awareness of their con-stitutional rights. It would be ironical if the public themselveshave to pay for the infringement of their rights on such ascale.
Despite the situation referred to above this Court mustassess what relief may be just and equitable whenever aninfringement of fundamental rights is established regardless ofthe personal antecedents of the petitioner but in the light ofthe facts and circumstances of each case. As Colin Thome J.said in Senthilnayagam’s case (supra) at 208 —
“The Courts have been jealous of any infringement ofpersonal liberty and care is not to be exercised less vig-ilantly, because the subject whose liberty is in questionmay not be particularly meritorious”.
In Sudath Silva v. Kodituwakku (8) Atukorale J. said —
“The petitioner may be a hard-core criminal whose tribedeserve no sympathy. But if constitutional guaranteesare to have any meaning or value in our democratic set-up, it is essential that he be not denied the protectionguaranteed by our Constitution”.
The petitioner is a University student whose involvementwith student politics was perhaps the beginning of the processwhich led to his incarceration. In his statement X4 he has
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referred to his association with the “Deshapremi” movementand the J.V.P. The authorities have not preferred any criminalproceedings against him on that account. Hence it would seemthat there is no material to prosecute him; and if it is intendedto merely detain him, that must be done without transgressingthe Law. Under no circumstances, can this Court condone anydetention which is not permitted by law. The petitioner hasbeen unlawfully detained for 7 months 4 days. In all the cir-cumstances, I direct the State to pay him a sum of Rs.14,000/* (Rupees Fourteen Thousand) as compensation. Iorder no costs in his favour as Counsel supported his applica-tion as amicus curiae.
Bandaranayake, J. — I agree.
Fernando, J. — I agree.
Application allowed. Compensation ordered.