MOSELEY J.—Gunaioardena and Kandy Police.
1949Present: Moseley S.P.J.GUNA WARD ENA, Appellant, and KANDY POLICE,
274—M. C. Kandy, 6,308.
Defence (Miscellaneous No. 3)Regulations—Arrestofaccused—OmissionUr-
set oitt grounds of belief in order for arrest—Validity of order—Regula-tion (1) 1.
Where a person is detained on an order made by His Excellency theGovernor in pursuance of the powers vested in him by regulation (1)1
of the Defence (Miscellaneous No. 3) ^Regulations it is not essential to thevalidityof the order that itshouldsetoutthe conditions precedent
to the making of the order, viz., that the Governor has reason to believethat acertain state of thingsexistedandthatby reason thereof it is
necessary to exercise control over the accused.
It is desirable, however, to include in the order the Governor’s beliefon reasonable grounds as to the category into which the detainee fell.
^y^PPEAL from a conviction by the Magistrate of Kandy.
H. V. Perera, K.C. (with him S. Nadesan and N. Nadarasa), for the-aeeused, appellant.
Walter Jayawardene, C.C., for A.-G.
Cur. adv. vult.
June 20, 1944. Moseley J.—
The appellant was convicted of an offence punishable under section?220a of the Penal Code in that he escaped from custody in which he was
MOSELEY J.—Gunawardena and Kandy Police.
lawfully detained on an order made by His Excellency the Governor,in pursuance of powers vested in him by regulation 1 (1) of the Defence(Miscellaneous No. 3) Regulations, dated June 3, 1940.
The relevant sub-regulation is as follows:-—
“ 1 (1) If the Governor has reasonable cause to believe any personto be of hostile origin or associations or to have been recently concernedin acts prejudicial to the public safety or the defence of the Island or inthe preparation or instigation of such acts and that by reason thereofit is necessary to exercise control over him, he may make an orderagainst that person directing that he be detained.'’
On June 18, 1940, the Governor made the following order: —
In pursuance of the powers vested in me by Regulation 1 of theDefence (Miscellaneous No. 3) Regulations published in Gazette No. 8,619of June 3, 1940, I, Andrew Caldecott, Governor of Ceylon, do herebyorder that Don Philip Rupesinghe Gunawardena, M.S.C., reputed to beresident at Boralugoda, Kosgama, and Buller’s Road, Colombo, bedetained in accordance with the instructions set out in the succeedingparagraphs of this order.
I instruct the Inspector-General of Police to cause the saidDon Philip Rupesinghe Gunawardena, M.S.C., to be detained anddelivered to the custody of the Inspector-General of Prisons in orderthat the Inspector-General of Prisons may give effect to the instructionsto him which appear in paragraph 3.
I instruct the Inspector-General of Prisons, upon such deliverylo cause the said Philip Rupesinghe Gunawardena, M.S.C., to bedetained at Welikada Prison or at such other place as I may authorisefrom time to time and in accordance with such instructions as I mayissue from time to time.
Given under my hand in triplicate at Colombo, this eighteenthday of June, 1940.
Sgd. A. Caldecott,
On July 7, 1940, a further order was made directing that the appellantDe removed to the appropriate prison at Kandy. During the night ofApril 7, 1942, he escaped from that prison. The fact of escape wasadmitted by the appellant in an unsworn statement from the dock.He has appealed on the ground that the custody from which he escapedwas not lawful.
The point taken by his Counsel is that the order for detention, on theface of it, is invalid in that it does not set out the conditions precedentto the making of such an order, that is to say that the Governor hadreasonable cause to believe that a certain state of things existed and thatby reason thereof it was necessary to exercise control over the appellant.Alternatively, he contended that there is no proof of the existence ofsuch conditions and that consequently an element of doubt as to theirexistence remained. That being so the prosecution cannot be said to haveproved its case beyond reasonable doubt.
3JOSELEY J.—Gunatrardena and Kandy Police.
To me it seems that the whole case depends upon the validity of theorder. It is either valid or invalid. If it is invalid, it cannot be saidthat the custody of the appellant was lawful. If it is valid, the onuslaid upon the prosecution has been discharged. I find it difficult tovisualize the circumstances in which the alternative position taken upby Counsel for the appellant can arise.
No authority exactly in point has been brought to my notice. InRex v. Brixton Prison (Governor) ex parte Pitt-Rivers 1 an order fordetention was made by the Some Secretary under regulation 1 (1a)which set out a belief that the detainee was engaged in certain activitiesbut ^pitted a recital that the Secretary of State had reasonable causeto believe it to be necessary to exercise control over him. It was heldthat the absence of such recital did not invalidate the order. Counselfor the appellant, however, sought to distinguish between the natureof the two conditions precedent. He described the belief—that the belief,for example, as to a person’s activities as subjective, the belief as to thenecessity for control as objective. I cannot think that this is a distinctionof any substance. It seems to me that the existence of eaeh conditiondepends upon the state of mind of the Secretary of State. With thatground of distinction out of the way, can it be said that there is anythingattaching to the first condition which does not attach to the second ?That is to say, if the absence of a recital as to the existence of the secondcondition has been held not to invalidate a similar order, what is there toprevent me from holding a similar view in the present case where neithercondition is recited ? In the case above cited Humphreys J. dealingwith the matter from the point of view of prejudice, said: —
“ The applicant cannot be prejudiced in any way by the omissionof a recital that the Home Secretary had reasonable cause to believethat it was necessary to exercise control over the applicant- The factof his detention was the plainest intimation to him that the Secretaryof State considered it necessary to exercise control over him, and theinsertion of the words omitted would have added nothing to hisinformation on the subject.”
There can hardly be disagreement with that view. So, in the casebefore me it must have been clear to the appellant that the Governorbelieved that it was necessary to exercise control over him. Cannot thematter be carried a step farther to the point that possessing that know-ledge, the appellant must have been aware of the reasons underlying thenecessity for control ? Humphreys J. thought that a document givingthe general reasons for detention was essential, as “it would be contraryto the dictates of natural justice that a person not accused of an offenceshould be imprisoned for even a day without being informed of thegeneral reasons for his detention”. This expression of opinion is obiterdictum since, in the case then under consideration, the reasons had beenset out in the order. It might be more correct to say that a variety ofreasons had been set out since the order contained a recital of each of thethree alternative reasons upon which an order made in pursuance ofregulation 1 (1a) might be founded. In the present ease, starting fromthe hypothesis that the appellant knew that the Governor thought it
1 (1942) E. B. Vol I. p. 207.
MOSELEY J.—Gunawardena and Kandy Police.
necessary to exercise control over him, the reference to the regulationunder which the order was made would convey to the appellant that theGovernor had reasonable cause to believe that he was of hostile origin orassociations or had been recently concerned in acts prejudicial to thepublic safety or the defence of the Island or in the preparation or instiga-tion of such acts. It seems to me that the appellant was no more pre-judiced than was Mr. Pitt-Rivers in the above-mentioned case. It should,be mentioned that regulation 1 (1a) was not made applicable to Ceylonuntil April 8, 3942, so that the recital that the Governor’s order was madepursuant to the powers conferred by regulation 1 had no reference to thepowers conferred later by regulation 1 (1a). Apart from the question ofprejudice it was held by the Court of Appeal in Rex v. Secretary ofState for Home Affairs ex -parte Less1 in which it was argued that the ordersetting out allegations in terms of regulation 1 (1a) in the alternativewas bad for duplicity, that there was “nothing in the point”. A similarpoint was taken later in the ease of Stuart v. Anderson and Morrison zwhere exception was taken to an order made by the Home Secretaryunder regulation 1 (1a) which recited each of the conditions set out in thatsub-regulation upon which a detention order might be made, and whichordered the detention of no less than 350 persons. Tucker J. following thedecision of the Court of Appeal, to which I have just referred, declinedto hold that the order was bad on the face of it.
In support of the view taken by-Humphreys J. in Rex v. Brixton Prison(Governor) ex parte Pitt-Rivers (supra) Counsel for the appellant cited thecase of Gossett v. Howard 3 in which it was held that “ in the case of specialauthorities given by statute to justices or others acting out of the ordinarycourse of the common law, the instruments by which they act, whetherwarrants to arrest, commitments, or orders, or convictions, or inquisitions,ought, according to the course of decisions, to show their authority on theface of them by direct averment or reasonable intendment ”. There has.Counsel contended, been no dissension from this principle. Even so,does not a recital of the number of the regulation under which the presentorder was made amount to a “direct averment” as contemplated by thelearned Judges of the Exchequer Chamber ? It seems to me that it does.
The position, I think, may be summed up in this way. It is fairlyclear that the order must be in writing. No form is prescribed. Theregulations themselves contain no requirement that the grounds formaking the order should be stated therein. On this point, in Rex v.Brixton Prison (Governor) ex parte Pitt-Rivers (supra) Wrotteslev J.thought that an order in writing purporting to be made under regulation18b (1) or (1a) without further ado could not be said to be in excess of thepowers of the Home Secretary, provided he had what he thought reason-able grounds for the necessary belief. He thought, however, that astatement of the Home Secretary’s belief on reasonable grounds as to thecategory into which the detainee feH, “a desirable thing to be includedin any order, since it gives the appellant early notice of the category”.With that desirability I respectfully and entirely agree, but I am quiteunable to say that the omission of such a statement is fatal to the validity
1 (1941) 1 K.B.-p 72.* (1941) A. E. R. Val. 2, p 665.
3 (1845) 10 Q. B. 411 at 452.
DE KRETSER J.—Siripina and Ekanaika
of the order. Further it would appear, from a perusal of the succeedingsub-regulations of Regulation 1, and particularly sub-regulation 5 thatat a certain later stage the detainee is to be furnished with “ the groundson which the order has been made against him ” whieh would appearto be an unnecessary proceeding if they had already been set out in theorder.
For these reasons I hold that the order for detention is valid. Theappeal is dismissed.
GUNAWARDENA, Appellant , and KANDY POLICE, Respondent