Marian and Another v. Upasena
MARIAN AND ANOTHER
SUPREME COURTFERNANDO, J.,
WIJETUNGA, J. ANDBANDARANAYAKE, J.
S.C. APPLICATION NOS. 495 AND 496/96JUNE 26, 1998
Fundamental'rights – Possession of Political posters – Arrest and detention underemergency regulations – Articles 13 (1), 13 (2) and 14 (1) (a) of the Constitution.
The two petitioners were arrested by the 1st respondent the officer in-charge ofthe Wellawatta Police Station for possession of posters containing slogans statingthat “Chandrika" was responsible for making the May day a “black day" for whichshe should pay compensation and exhorting the public to fight against privatisation/war despite assaults by “Chandrika’s police". According to the 1st respondent hearrested the petitioners as the posters contained material “aimed at influencingthe Armed Forces from engaging in the war and also enticing the people to reactviolently against the President, the Government and the Police". The petitionerswere arrested under emergency regulations. The police failed to produce thembefore a Magistrate within the period prescribed by law.
The impugned posters appeared to be a legitimate exercise of the freedom ofexpression, and therefore, no offence; and there was no justification for delayingto produce the petitioners before a Magistrate.
AN APPLICATION for relief for infringement of fundamental rights.
D. W. Abeykoon P.C with Miss Chandrika Morawaka for the petitioners.
J. Jayasuriya, S.S.C for the respondents.
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri LR.
July 28, 1998.
These two applications, alleging infringements of Articles 13 (1), 13
, and 14 (1) (a), were taken up together as they related to a singleincident.
The 1st respondent, the Officer-in-charge, Wellawatte Police, saysthat he was on mobile duty near the Green Path traffic lights on22.5.96, when, at about 8.00 p.m. he noticed two persons (thepetitioners in the two applications) on a motor cycle; the pillion riderwas without a helmet, so he signalled the rider to stop; he becamesuspicious of them, and upon searching the pillion rider, found himto be in possession of a tin of paste, a brush, and 25 posterscontaining one or the other of the following slogans:
The 1st respondent believed that the posters "were calling uponthe public to act violently against actions of the Government and thePresident, and also attempting to influence the members of the ArmedForces from performing their duties in respect of the ongoing war",and "to resist the police and to fight against the Government". Hearrested the petitioners, having explained to them that the posterscontained material “aimed at influencing the Armed Force from en-gaging in the war and also enticing the people to react violently againstthe President, the government and the police", and that they werebeing arrested under the Emergency Regulations. He took them tothe Cinnamon Gardens Police in order to hand them over, but theOfficer-in-charge said that the place of arrest fell within the KollupitiyaPolice area; and he handed them over to the Kollupitiya Police at10.00 p.m.
Marian and Another v. Upasena (Fernando, J.)
The Officer-in-charge, Kollupitiya, says that he was satisfied thatthe petitioners had been arrested for offences under the EmergencyRegulations, and therefore detained them for further investigation andaction. The pillion rider was smelling of liquor. He considered itadvisable to produce both for examination by the J.M.O. At about 2.00a.m. in the morning, both were then produced before a J.M.O. ofColombo, who resides at Panadura, whose report confirms that thepillion rider was "smelling of liquor" – which is no offence. The Officer-in-charge, Kollupitiya, says that when they were brought back, at 3.30a.m. he was informed that the place of arrest was within the CinnamonGardens area, and at 1.30 p.m. they were handed over to that Policestation. They were produced before a Magistrate only at 4.35 p.m.Although the Police objected to their release, the Magistrate releasedthem on bail.
At the hearing, learned Senior State Counsel conceded that thefirst poster was innocuous, but (stressing the word "esOsf) submittedthat the second was an incitement to violence, and that it bore themeaning which the 1st respondent attributed to it.
Learned President’s Counsel for the petitioners submitted that thepetitioners were members of the Nava Sama Samaja Party, and thatthe posters were a sequel to the revocation of the permission grantedto that Party to hold a procession, which was the subject-matter of
S.C. (F R) Application No. 470/96, SCM 17.7.97. He contended thatthe impugned poster merely called for a legitimate "struggle", just asin the case of any other claim or demand for rights.
We indicated to learned Senior State Counsel that the impugnedposter appeared to be a legitimate exercise of the freedom of speech,and therefore no offence; that even if the 1st respondent initiallythought otherwise, and needed some time to consider the meaningof the words used in the impugned poster, yet the matter could andshould have been clarified within the hour; and that in any event therewas no justification for delaying, until the next afternoon, to producethe petitioners before a Magistrate.
However, after judgment was reserved, the parties have filed aconsent motion in each case, agreeing:
Sri Lanka Law Reports
 3 Sri LR.
”… to settle this case by the respondents paying Rs. 5,000as an ex gratia payment to the petitioner. . . this payment is madewithout any attachment of personal responsibility of the respondentsconcerned".
We accordingly make order directing the respondents to pay a sumof Rs. 5,000 as compensation to each of the two petitioners.
WIJETUNGA, J. – I agree.
BANDARANAYAKE, J. – I agree.