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
[1998] 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.
Relief granted.