020-SLLR-SLLR-1999-V-2-GNANAMUTTU-v.-MILITARY-OFFICER-ANANDA-AND-OTHERS.pdf
sc
Gnanamuttu v. Military Officer Ananda and Others
213
GNANAMUTTU
v.MILITARY OFFICER ANANDA AND OTHERS
SUPREME COURT
G. P. S. DE SILVA, CJ.,
WIJETUNGA, J. ANDBANDARANAVAKE, J.
S.C. APPLICATION NO. 152/98MARCH 15, 1999
Fundamental rights – Investigation of terrorist activity – Arrest on the ground offailure to possess a "Police Registration Form" – Articles 12 (1) and 13 (1) ofthe Constitution.
The petitioner a Civil Engineer by profession was a passenger in a bus proceedingto Borella. The bus was stopped at an Army check-point at Stanley WijesunderaMawatha around 8.15 am on 13.02.98. When the identity of the passengers waschecked the petitioner produced his National Identity Card, Driving Licence anda Student Identity Card issued to him by the Bandaranaike Centre for InternationalStudies. Notwithstanding, such proof of identity the petitioner was detained by the1st respondent for not possessing a "Police Registration Form", while the restof the passengers were released. Around 9.30 am "two men in civils" arrived ina police jeep and took the petitioner to the Cinnamon Gardens Police Stationwhere he was kept in a room. The petitioner was finger-printed and producedbefore the Magistrate's Court, Hulftsdorp, around 4 pm on a "B" Report whichstated that he was suspected of “terrorist activities". On 20.2.98, he wasdischarged by the Magistrate.
Held:
The documents produced by the petitioner were more than sufficient to ascertainhis identity. There was no basis for the 1st respondent to have detained thepetitioner, and no basis for the 2nd respondent to have produced him before theMagistrate'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 Jayawardeneand Kamal Nissanka for petitioner.
Harsha Fernando SC for respondents.
Cur. adv. vult.
214
Sri Lanka Law Reports
[1999) 2 Sri LR.
May 5, 1999.
SHIRANI A. BANDARANAYAKE, J.
The petitioner is 42 years and a Civil Engineer by profession. He hasbeen resident in and around Colombo for the last 29 years and since1987 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
am to proceed to his work place at Rajagiriya. After attendingto a money transaction at the Automatic Teller Machine, StandardChartered Bank at Bambalapitiya (P4) he had boarded a No.154 busfrom the Bullers Road bus halt intending "to transfer to a Rajagiriyabound bus from Borella Junction". While the bus was proceeding toBorella, it was stopped at an Army checkpoint at Stanley WijesunderaMawatha around 8.15 am and “the passengers were asked to dis-embark". The petitioner had produced his identity card, his drivinglicence and a student identity card issued to him by the BandaranaikeCentre for International Studies (P5). The 1st respondent after check-ing these documents had asked the petitioner to produce his "PoliceRegistration Form". He had told the 1st respondent that “there wasno legal requirement to possess such a form" (P6). The 1st respondenthad then addressed the petitioner rudely and had queried as towhether the form in question is so heavy that it cannot be carriedon his person. Thereafter, the petitioner was detained while the restof the passengers were released. The petitioner was kept standingon the road near the Army check-point in full view of the public and"suffering considerable humiliation in the process". A police jeeparrived around 9.30 am with "two men in civils" and the petitionerwas taken to the Police Station, Cinnamon Gardens. At the PoliceStation, the petitioner was interrogated by the 3rd respondent. Aftera while his identification documents together with his diary and hismoney were taken from him and he was put inside a cell. Around12.30 pm the petitioner was taken to the Police Station, Bambalapitiya,in order to be photographed. He was kept in a room at the PoliceStation and after about two and a half hours he was informed thatthe required photographs cannot be taken as the police photographerhad not turned up. At this point the petitioner was informed that asthere was a transport problem he would have to walk upto the GalleRoad. He was waiting there with a policeman "in civils", when thepetitioner noticed a colleague of his and a member of the Instituteof Engineers walking along the Galle Road. The petitioner had apprisedhim of the situation and he had given him a telephone card with which
sc
Gnanamuttu v. Military Officer Ananda and Others
(Bandaranayake, J.)
215
the petitioner had informed a fellow-worker in his office that he hasbeen arrested. After making the telephone call he had discovered thatthe policeman who was with him was not there and he had foundout that he had gone to the Police Station, Cinnamon Gardens. Thepetitioner had no money with him as all his belongings were takenby the Police. As there was no other option, the petitioner hadproceeded on foot to the Police Station, Cinnamon Gardens. Hereached the Police Station around 4.00 pm Thereafter, the petitionerwas told that he had to be finger-printed and following which, all hisbelongings, except the National Identity Card was returned to him.He was then taken to the Magistrate's Court, Hulftsdorp, where anAttorney-at-law had said that he would appear for the petitioner andhad demanded Rs.1,500 for the said purpose. To the surprise of thepetitioner he had found his National Identity Card, which was handedover to the Police that morning, in the possession of the said Attorney-at-law. The petitioner had refused this offer saying that he did nothave any money with him. Then the Attorney-at-law had becomehostile. The Magistrate had directed that the petitioner could sign apersonal bond and reappear in Court on 20.02.1998 (P7). He wasdischarged by the Magistrate when he appeared on 20.02.1998 (P7).
The petitioner submitted that there was no basis for the 1strespondent to arrest him and for the 3rd respondent acting under theauthority of the 2nd respondent to detain him. He was never informedof the charges against him. The petitioner alleges that his arrest wasarbitrary, unreasonable, unlawful and illegal and was in violation ofhis fundamental rights guaranteed under Articles 12 (1), 13 (1) and13 (2) of the Constitution.
This Court granted leave to proceed in respect of the allegedviolation of Articles 12 (1) and 13 (1) of the Constitution.
The 2nd respondent had averred that on 13.02.1998, around 9.15am the 1 st respondent, who was on duty at the road block at StanleyWijesundera Mawatha had handed over the petitioner to one PCJayasinghe, who was on duty, on suspicion that the petitioner maybe connected to or involved in terrorist activities. On the instructionsgiven by the 2nd respondent, the officer on duty has telephoned theNational Information Bureau and the Security Co-ordination Unit andgiven the particulars of the petitioner in order to ascertain whetherthere were any reports, evidence or other facts suggesting and/or
216
Sri Lanka Law Reports
[1999] 2 Sri LR.
linking the petitioner to any terrorist related activities. The 2nd respond-ent averred that around 9.45 am with the consent of the petitioner,a detailed statement was recorded. According to him, thepetitioner was produced before the Magistrate on a B report bearingNo. B 6591/1, in the Magistrate's Court in Hulftsdorp at 10.45 amon 13.02.1998.
The 1st respondent had made a statement at the Police Station,Cinnamon Gardens, on 13.02.1998 at 9.15 am (2R1). He had statedthat the officers on duty at the check-point on Stanley WijesunderaMawatha, had taken the petitioner into custody as he did not havea "Police Registration Form".
The 2nd respondent in paragraph 9 of his affidavit has averredthat:
"… at the point of accepting the petitioner into custody fromthe 1st respondent, PC Jayasinghe has recorded that the petitionerhas been arrested by the 1st respondent for not possessing, apolice report and that the 1st respondent has handed over thepetitioner to police custody to (sic) further inquiry."
It is thus common ground that the petitioner was arrested as hedid not possess the "Police Registration Form". Learned State Counselrightly conceded that an arrest cannot be made on the basis that thepetitioner did not possess a "Police Registration Form". His positionwas that the police should have released him immediately. However,the police had acted differently. B Report No. B 6591/1 (2R7) statedthat the petitioner was produced before the Magistrate as he wassuspected of "terrorist activities". The 2nd respondent had furtherstated in the said B Report that he was conducting inquiries to findout 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 respondentat a security check-point on Stanley Wijesundera Mawatha. At thattime 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 hisIdentity Card, as proof of his identity at the check-point. The petitionerhad also produced his Driving Licence and a Student Identity Cardissued by the Bandaranaike Centre for International Studies (P5).
sc
Gnanamuttu v. Military Officer Ananda and Others
(Bandaranayake, J.)
217
If the purpose at the security check-point was to ascertain the identityof the person travelling in that bus, these documents in my view, weremore than sufficient.
Learned State Counsel for the 2nd to 4th respondents, submittedthat the Magistrate should have noticed the lapse on the part of the2nd respondent and should have released the petitioner forthwithwithout making an order for the petitioner to sign a personal bondand to appear in Courts on 20.02.1998. I find it difficult to agree withthis submission. The Magistrate made his Order on the basis of theB Report submitted by the 2nd respondent. As mentioned earlier, theB Report stated that the petitioner was produced before the Magistrateas he was suspected of terrorist activities. The Magistrate had to actaccording to the documents produced before him. In such a situationI do not think the Magistrate had acted unfairly or unreasonably.
According to the submissions made by the petitioner, he wasproduced before the Magistrate only around 4.00 pm. The 2ndrespondent, however, averred that the petitioner was produced beforethe Magistrate around 10.45 am (paragraph 6 (e) of the 2nd respond-ent's affidavit). The IB extracts show that the petitioner was taken toCourt at 10.45 am on 13.02.1998 (2R6). That officer, however, hadreturned to the Police Station only at 7.02 pm (2R6 A). On thematerial placed before us, the version given by the petitioner is moreacceptable.
On a consideration of the totality of the material placed before us,I hold that the 2nd respondent has violated the petitioner's fundamentalrights guaranteed under Articles 12 (1) and 13 (1) of the Constitution.There was no basis for the 1st respondent to have detained thepetitioner. The 2nd respondent, as the officer-in-charge of the PoliceStation, should have released the petitioner immediately. There wasno basis at all for the 2nd respondent to have caused the petitionerto be produced before the Magistrate's Court on a B Report. I,
I, accordingly, hold that the petitioner is entitled to a sum ofRs. 50,000 as compensation and costs, out of which Rs. 42,500 mustbe paid by the State and Rs. 7,500 personally by the 2nd respondent.These amounts must be paid within three (3) months from today.
218
Sri Lanka Law Reports
[1999] 2 Sri LR.
The Registrar of the Supreme Court is directed to send a copyof this judgment to the Inspector-General of Police.
G. P. S. DE SILVA, CJ. – I agree.
WIJETUNGA, J. – I agree.
Relief granted.