038-SLLR-SLLR-1985-V2-NANAYAKKARA-v.-HENRY-PERERA-A.-S.-P.-AND-THREE-OTHERS.pdf
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Nanayakkara v. Henry Perera, A.S.P.
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NANAYAKKARA
v.HENRY PERERA, A.S.P. AND THREE OTHERS
SUPREME COURT.
WANASUNDERA, J., COUN-THOME, J., ATUKORALE, J., TAMBIAH. J. AND L H.DEALWIS.J.
S. C. APPLICATION No. 19/85.
JULY 15, 16 AND 17, 1985.
Fundamental Rights – Illegal arrest and detention – Regulations 18 and 19 – TheEmergency (Miscellaneous Provisions and Powers) Regulations No. 1 of1985 – Distribution of pamphlets without the l C P 's permission by proscribedorganization – Article 13 (1), (2) and (4) of the Constitution
Vasudeva Nanayakkara on behalf of a proscribed organization, the Nawa Sama SamajaParty distributed leaflets in support of and inciting student protest against certainproposed amendments to the Universities Act. He was arrested by the 1st respondenton the orders of his superior on 17.2.1985 and detained at the Harbour Police Station.
The questions raised were that the 1st respondent who actually arrested VasudevaNanayakkara had of his own knowledge no reasonable grounds for suspecting him to beconcerned in contravening the Emergency Regulations. The reason for the detentionwas not given and the detention was for search and not for investigation. Further thedetention was mala fide and a punishment.
Held –
The 1 st respondent knew that the detenu had distributed leaflets and contravenedthe Emergency Regulations. There is no requirement in the Regulation that theknowledge should be first hand. It could be acquired on statements to others in a way. which justifies a police officer giving them credit.
(21 The detention of a person arrested without a warrant under Regulation 18 can bejustified only if the detention is for search. The expression search is synonymous withinvestigation. Hence the detention here for further investigation was lawful.
The order by the Inspector General of Police (or Deputy Inspector General) to detaina person at a specified location under Regulation 19 (2) should be delivered to thedetenu and state the reason for the detention so that the detenu could make apurposeful and effective representation for his release. 4
(4)While the effect of Regulation 18 in combination with Regulation 19 (making,sections 36,37 and 38 of the Code of Criminal Procedure Act'not applicable) does notrequire a judicial order in regard to the duration of the detention (up to a maximum of 90
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days) and the place of the detention, yet the requirement for production of an arrestedperson before a Magistrate within a reasonable time (not later than 30 days) remainsunder the proviso to Regulation 19(1). The Constitutional requirement that a detainedperson shall be brought before the Judge of the nearest competent Court remainsuntouched. While the Magistrate is powerless to interfere with the arrest and detentionof a suspect made under Regulation 18 read with Regulation 19 he is not powerless toinvestigate the reason for the detention and to notify the authorities if in his view thedetention is a 'punishment' infringing Article 13 (4) of the Constitution.
Vasudeva Nanayakkara admitted that he distributed the impugned leaflets and thathe incited the students. Hence, his detention was not mala fide and not a 'punishment'infringing his rights under Article 13 (4) of the Constitution.
I
Cases referred to:
Muthusamy v. Kannangara (1951)52 NLR 324.
Corea v. The Queen (1954) 55 NLR 457.
Gunasekera v. De Fonseka (1972) 75 NLR 246.
Vimlabai Despande A I R. 1945 Nagpur 8
King Emperor v. Deshpande (1946) 47 Cr.L.J. 831
Edirisuriya v. Navaratnam(1985) 1 S.L.R. 100.
Christie v. Leachinsky(1947] 1 AUE R. 567. 575 ; (1947] AC 583.
Lallubhai Jegibhai v. Union of India A I R. 1981 S.C. 728
APPLICATION for infringement of Fundamental Rights under Article 126 of theConstitution.
Nimal Senanayake. P.C. with KithsiriP. Gunaratne.
Miss S. B. Senaratne. Saliya Mathew. A. B. Dissanayake.
Taranga Silva and Miss A. D. D N. Telespha for petitioner.
Sunil de Silva, Additional Solicitor-General with A R C. Perera. S.S.C. and LatdeAlwis,S.C. for respondents.
Cur. adv. vutt.
August 9, 1985.
COLIN-THOME. J.
This is an application under Article 1 26 of the Constitution Thepetitioner is the brother of D Vasudeva Nanayakkara. He avers that onthe 17th February 1985 the 1st respondent and a party of Policeofficers armed with machine guns and rifles arrived at his brother'shouse at about 8.30 p.m. and took his brother into custody anddetained him at'the Harbour Police Station overnight.
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The petitioner stated that the arrest and detention of his brotherwere illegal and mala fide for promoting the political interest of theUnited National Party and its leaders by eliminating effective politicalopposition and misusing the provisions of the Public SecurityOrdinance for that purpose.
He pleaded that the fundamental rights of Vasudeva Nanayakkara inArticles 12 (1), 12 (2), 13 (1) and 13 (2) of the Constitution havebeen infringed and he prays for a declaration that his arrest anddetention were an infringement of his fundamental rights.
Vasudeva Nanayakkara in his affidavit stated that on the 17thFebruary a Police party suddenly entered his house and the 1strespondent informed him that he had orders to take him into custodyand that he would be detained at the Harbour Police Station under theProvisions of the Emergency Regulations.
The 1st respondent, he averred, did not inform him who gave himorders to take him into custody nor did the 1 st respondent state underwhich Emergency Regulation he was arrested or was being detained.On the 18th February at about 10.30 a.m. he was given an order(marked 'A') by the Officer-in-Charge of the Harbour Police. At no timewas he informed that he had violated any Emergency Regulations.
In paragraph 6 of his affidavit Vasudeva Nanayakkara stated that heverily believed that his arrest and detention was part of a plan of theUnited National Party to eliminate all opposition.
In paragraph 10 of the affidavit he stated :
'I state that I have been and I am the Organising Secretary of the
Nava Sama Samaja Party which was proscribed under the
Emergency Regulations from July 1983 –
Henry Perera, A.S.P., the 1 st respondent, stated in his affidavit thaton 17.2.85 he received an order from A.C.A. Gaffoor, SeniorSuperintendent of Police, Colombo South, to arrest VasudevaNanayakkara for having distributed pamphlets on 13.2.85 in front ofthe Fort Railway Station, in contravention of Regulations 28 (1) and68 (3) of the Emergency (Miscellaneous Provisions and Powers)Regulation No. 1 of 1985.
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The 1st respondent was aware of the fact that VasudevaNanayakkara had distributed leaflets in Colombo on 13.2.85 incontravention of the Emergency (Miscellaneous Provisions andPowers) Regulations No. 1 of 1985.
On 17 2.85 at about 19.45 hours he went to the house ofVasudeva Nanayakkara accompanied by Inspector Fabian Mitchell,Officer-in-Charge of Narahenpita Police and other Police Officers. Hetapped at the door. Vasudeva Nanayakkara came out and theyexchanged greetings as they knew each other earlier. He informedVasudeva Nanayakkara that he had come to take him into custody inconnection with the allegation that he had distributed leaflets incontravention of the Emergency Regulations. Vasudeva Nanayakkaraadmitted having distributed the pamphlets and when the 1strespondent told him that a photograph depicting him distributingpamphlets in front of the Fort Railway Station had been published inthe "Sun newspaper, Vasudeva Nanayakkara said he had heard aboutit although he had not seen the newspaper. A photocopy of the 'Sun'newspaper dated 14.2 85 carrying this photograph was producedmarked 1R1.
He arrested Vasudeva Nanayakkara, with the assistance ofInspector Mitchell, in exercise of the powers vested in him byRegulation 18(1) of the Emergency Regulation No. 1 of 1985.
He informed Vasudeva Nanayakkara that he was taking him to theHarbour Police Station and gave him time to take a change of clothingand a bag containing toilet articles. He also told VasudevaNanayakkara s wife to contact the Commissioner of Police or him incase she wanted to ascertain her husband's whereabouts. He gaveher his telephone number. On the way to the Harbour Police Station heallowed Vasudeva Nanayakkara to buy a parcel of food.
The 1 st respondent averred that the Nava Sama Samaja Party hadbeen proscribed under the Emergency Regulations and by virtue ofsuch proscription the distribution of the pamphlet marked 1R2A,annexed to the affidavit of Inspector L. I. R. de Silva, Officer-in-Chargeof the Fort Police Station, amounted to a contravention of Regulation68 (3) of the Emergency Regulations published in Gazette(Extraordinary) No. 332/12 dated 18.1.1985.
Inspector L. I. R. de Silva in his affidavit stated that on 13.2.85 hesaw Vasudeva Nanayakkara distributing pamphlets in front of the FortRailway Station. He annexed a specimen leaflet marked 1R2A. He
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recorded Vasudeva Nanayakkara's statement at the Harbour PoliceStation on 18.2.1985. He showed Vasudeva Nanayakkara the leaflet1R2A and he admitted that it was the leaflet distributed by him on13.2. V985. in front of the Fort Railway Station. 1R2A was against thenew Act of the Government concerning Higher Education. VasudevaNanayakkara signed his statement admitting that he distributed theseleaflets on 13.2.1985. He also admitted inciting the students. Acertified copy of his statement has been produced parked 1R2B.
Inspector Fabian Mitchell in his affidavit has stated that the 1strespondent informed Vasudeva Nanayakkara that he came to arresthim for distributing leaflets in contravention of the EmergencyRegulations.
A. C. A. Gaffoor, Senior Superintendent of Police, has stated in hisaffidavit that Vasudeva Nanayakkara was arrested on 17.2.1985 bythe 1st respondent on orders given by him. From about the 21stJanuary, 1985, there was unrest among the students of the ColomboUniversity over the amendments to the Universities Act. On severaloccasions the Police had to intervene to prevent the students fromcommitting unlawful acts. As the Colombo University came within hisarea he carefully followed the developments in the protest campaignof the students and he received information that VasudevaNanayakkara was in constant touch with the student leaders and wasusing the student dissatisfaction to draw the school children into theprotest campaign and to incite them to commit unlawful acts and tohave confrontations with the Police.
In February 1985 there was an organised campaign to distributeleaflets in Colombo condemning the amendments to the UniversitiesAct and alleging that the Government was attempting to repress theunderprivileged.
On the 13th February, 1985, Vasudeva Nanayakkara and a largenumber of students had distributed leaflets in front of the Fort RailwayStation and similar acts were done by other groups in various parts ofthe city. The timely intervention of the Police prevented thecommission of unlawful acts and a serious breach of the peace wasaverted.
Superintendent Gaffoor averred that permission had not beenobtained from the Inspector-General of Police for the distribution ofpamphlets among the public and the said act cf Vasudeva
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Nanayakkara in distributing or conspiring with others to distribute orthe abetment of others to distribute pamphlets was in contravention ofRegulation 28 read with Regulation 45 of the Emergency(Miscellaneous Provisions and Powers) Regulations. No. 1 of 1985.
He stated that an examination of the leaflets distributed byVasudeva Nanayakkara on 13.2.1985 revealed that the Nava SarrtaSamaja Party which had been proscribed under Regulation 68 wasamong the groups supporting the campaign.
After carefully studying the situation and information compiled byIntelligence Agencies Superintendent Gaffoor formed the opinion thatit was necessary to arrest Vasudeva Nanayakkara and investigate theoffences of distributing leaflets without the I.G.P. 's permission and onbehalf of a proscribed organization. Accordingly, he ordered the 1strespondent to arrest Vasudeva Nanayakkara for distributing leafletsamong the public in contravention of the said Emergency Regulationand to produce him at the Harbour Police Station.
It appeared necessary to detain him in custody pending theconclusion of investigation as to his complicity in the student protestcampaign. On 18.2.85 he made a report to D.I.G. EdwardGunawardene setting out briefly the information available to him andrecommending the detention- of Vasudeva Nanayakkara for thepurpose of further investigation. The arrest of Vasudeva Nanayakkaraand the recommendaton of his detention for further investigation weremade in good faith. S.
S.D. E. S. Gunawardena, D I G.. Metropolitan Range, the 2ndrespondent has averred that after he studied the report of Gaffoor andother reports he formed the opinion that it was necessary to detainVasudeva Nanayakkara who had been arrested under the EmergencyRegulations pending the completion of investigations. By virtue of hispowers under Regulations 18 and 19 (2) of the EmergencyRegulations he authorized the Officer-in-Charge of the Harbour Policeto detain Vasudeva Nanayakkara at the Harbour Police StationVasudeva Nanayakkara was released from detention on the 18thMarch 1985.
The virtual petitioner (hereafter called the petitioner) originally cameinto court on the basis of two complaints :
that his arrest was in circumstances which contravened Article13 (1) »f the Constitution
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that his detention was an infringement of Article 13 (2) of theConstitution.
At the hearing of this application learned President's Counselconfined himself to the submission that the arrest of the petitioner byHenry Perera was illegal and infringed Article 13 (1 > as Henry Perera atthe time of arresting the petitioner did not have a reasonable groundfor suspecting the petitioner to be concerned in or to be committing orto have committed an offence under any Emergency Regulation.Henry Perera was merely carrying out the orders of Gaffoor, S.P., toarrest the petitioner. There was no material in Henry Perera's affidavitfrom which it could be inferred that he had "a reasonable ground' forsuspecting the petitioner to have committed an offence under anyEmergency Regulation. Learned Counsel submitted that theexpression "reasonable ground" had to be treated as an objective factto be proved by the 1 st Respondent and to be determined by Court.
Learned Counsel cited Muttusamy v. Kannangara (1) (per Gratiaen,
J.) where it was held that a peace officer is not entitled to arrest aperson on suspicion under section 32 (1) (b) of the CriminalProcedure Code, except on grounds which justify the entertainment ofa reasonable suspicion.
It was further held in this case that section 69 of the PoliceOrdinance does not authorise a police officer without a warrant toenter and search premises for alleged stolen property except onreasonable suspicion. A suspicion is presumed to be reasonable only ifthe facts disclose that it was founded on matters within the policeofficer's own knowledge or on statements by other persons in a waywhich justify him in giving them credit. See also Corea v. The Queen(2).
Learned President's Counsel also relied on the judgment inGunasekera v. De Fonseka (3) which held that although Regulation 19of the Emergency Regulation No. 6 of 1971, published in Gazette of15th November, 1971, empowers any officer mentioned therein toarrest without a warrant a person whom he has reasonable ground forsuspecting to be concerned in an offence punishable under anyEmergency Regulation, a condition precedent for such arrest is thatthe officer who arrests should himself reasonably suspect that theperson arrested had been concerned in some offence under theEmergency Regulation. Accordingly, where an AssistantSuperintendent of Police has purported to arrest a nerson under
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Regulation 19 merely because he had orders to do so from hissuperior officer, the Superintendent of Police, and was not personallyaware of the actual offence of which the person arrested wassuspected by the Superintendent of Police, such arrest is liable to bedeclared in habeas corpus proceedings to have been unlawful.
The Indian case of Vimlabai Despande (4) dealt with theinterpretation of Rule 129 (1 > of the Defence of. India Rules whichprovided that –
R 129 (1} 'Any police officer. . . . may arrest without warrant anyperson whom he reasonably suspects of havingacted
. . . . in a manner prejudicial to the public safety or tothe efficient prosecution of the war."
The High Court of Nagpur held that 'under R. 129 all that theProvincial Government can do is to specify the place of detention andup to a limit of two months, its duration. The power to arrest or detainunder R. 129 is not conferred on the Provincial Government The onlyauthority we are concerned with under R. 119 is the police officer whomade the detention, and it is for him to show that he had reasonablegrounds for suspicion . . . : The only affidavit we have on the side ofthe Crown is one which tells us about the suspicions entertained bythe Provincial Government, not by the police officer making the arrest.But what we have to determine here is what were his suspicions, andwere they reasonable, and not what the Provincial Government'ssuspicions are.* This decision was affirmed by the Privy Council in KingEmperor v. Deshpande (5).
Regulation 18 (1) of the Emergency Regulations published inGazette No. 332/13 of January 18, 1985, states .
18(1) "Any police officer, any member of the Sri Lanka Army, theSri Lanka Navy or the Sri Lanka Air Force, or any otherperson authorised by the President to act under thisregulation may search, detain for purposes of such search,or arrest without a warrant, any person who is committingor has committed or whom he has reasonable ground forsuspecting to be concerned in or to be committing or tohave committed, an offence under any emergencyregulation, and may search, seize, remove and detain anyvehicle, vessel, article, substance or thing whatsoever usedin ®r in connection with the commission of the offence."
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Regulation 18(1) empowers anyone of the numerous personsmentioned therein to search, detain for purposes of such search orarrest without a warrant, any person
who is committing an offence under any EmergencyRegulation , or
who has committed an offence under any EmergencyRegulation ; or
whom he has reasonable ground for suspecting to beconcerned in or to be committing or to have committed, anoffence under any Emergency Regulation.
In Gunasekera v. De Fonseka (supra) the affidavit of theSuperintendent of Police, stated thit the corpus Gunasekera had beenarrested on 18th March, 1975 'on suspicion' of being concerned in aconspiracy to overthrow the Government. It was clear from theaffidavits of the Superintendent of Police and the AssistantSuperintendent of Police that the corpus was arrested because theSuperintendent suspected that he had been concerned in someoffence, and that the Assistant Superintendent who arrested him hadno such suspicion and could not and did not inform the corpus of theparticulars of the alleged offence.
In the instant case, however, although Henry Perera, A.S.P. wasordered by A. C. A. Gaffoor. S.P. to arrest the petitioner, both thesepolice officers, according to their affidavits, were aware before thearrest that the petitioner had distributed leaflets on 13.2.85 in front ofthe Fort Railway Station in contravention of Regulation 28 of theEmergency Regulations. The evidence objectively examined wentbeyond a matter of suspicion. Both police officers had knowledge thatthe petitioner had committed an offence contravening the EmergencyRegulations and so Henry Perera was able to inform the petitioner ofthe reason for his arrest on the 17th February 1985. LearnedPresident 's Counsel submitted that the knowledge of the police officermaking the arrest had to be first hand. There is no such requirement inRegulation 18 (1). Knowledge may be first hand or acquired onstatements by others in a way which justifies a police officer givingthem credit
On the material available in this case I hold that the procedurefollowed in the petitioner's arrest was lawful and did not infringe hisfundamental rights under Article 13(1).
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Learned President s Counsel submitted further that Regulation 18only provides for detention for purposes of search. He submitted thatdetention for the purposes of further investigation is not authorised byRegulation 19. The affidavit of S.P. Gaffoor makes it clear that thereason for the detention of the petitioner was 'pending the conclusionof investigations as to his complicity in the student protest campaign'
Regulations 19 and 20 of the Emergency Regulations read asfollows
"19. (1) The provisions of sections 36, 37 and 38 of the Code ofCriminal Procedure Act No. 15 of 1979, shall not apply in relationsto persons arrested under Regulation 18.
Provided that where any person has been arrested and detainedunder the provisions of Regulation 18 of these regulations, suchperson shall be produced before any Magistrate within a reasonabletime, having regard to the circumstances of each case, and in anyevent, not later than thirty days after such arrest.
The production of any person in conformity with the provisions ofthese regulations shall not affect the detention of such person underparagraph (2).
(2} Any person detained in pursuance of the provisions ofRegulation 18 in a place authorised by the Inspector-General ofPolice may be so detained for a period not exceeding ninety daysreckoned from the date of his arrest under that regulation, and shallat the end of that period be released by the officer-in-charge of thatplace unless such person has been produced by such officer beforethe expiry of that period before a court of competent jurisdiction.
(3) Where a person who has been arrested and detained inpursuance of the provisions of Regulation 1 8 is produced by theofficer referred to in paragraph (2) before a court of competentjurisdiction such court shall order that such person be detained inthe custody of the Fiscal in a prison established under the PrisonsOrdinance.
20. The provisions of section 11 5 of the Code of CriminalProcedure Act No. 15 of 1979, shall not apply in relation to anyperson who is produced before a Magistrate under the provisions ofRegulation 19 (3) or appears before a Magistrate in any othermanner and is detained or remanded in the custody of the Fiscal inany prison in respect of being suspected or accused of any offenceunder any emergency regulation. Such person shall remain in such
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custody for a continuous period of three months and shall not bereleased at any time prior to the expiry of such period, except inaccordance with the provisions of Regulation 64.'
It has been held in Edirisuriya v. Navaratnam (6) that a person canbe taken in for detention under Regulation 16(1) either for purposes ofsearch or by way of arrest without warrant and such a person can bedetained up to a period of ninety days in a place authorised by theInspector General of Police or by a Deputydnspector General of Police.Regulation 19 (2) applies to all persons arrested and detained underRegulation 18 and not to a limited class of persons ‘detained for thepurposes of such search", ram in agreement with the dicta in thisjudgment.
The question arises whether a person who is arrested without awarrant can be detained under Regulation 19 for an unspecified andunknown purpose. Regulations 18 and 19 although they throw no lighton this matter have to be read with Article 13 (4) of the Constitution.The relevant portion of Article 13 (4) reads :
'The arrest, holding in custody detention or other deprivations ofpersonal liberty of a person, pending investigation or trial, shall notconstitute punishment.'
Under Article 15 (7) of the Constitution laws may be made in theinterests of national security which modify certain articles of theConstitution. Emergency Regulations under the Public SecurityOrdinance are by Article 15 (7) equated to legislation. Under Article15 (7) fundamental rights declared and recognised by Articles 12,13 (1), 13 (2) and 14 shall be subject to such restrictions as may beprescribed by law in the interests of national security, but may notaffect Article 13 (4).
It is manifest, therefore, that the detention of a person arrestedwithout a warrant under Regulation 18 can be justified in law only ifthe detention is for further investigation. It would be unlawful to detainsuch a person for an unspecified and unknown purpose as this wouldbe an infringement of Article 13(4). It necessarily flows from this thatno sooner the further investigation is concluded the suspect is entitledto his release from detention without waiting for the duration of ninetydays to be over.
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It is now necessary to examine the expression 'detain for thepurposes of such search.' Provisions for detention of a suspect incustody 'pending further investigation' is specifically contained insection 115(1) and (2) of the Code of Criminal Procedure Act No. 15of 1979.
'115. (1) Whenever an investigation under this Chapter cannotbe completed within the period of twenty-four hours fixed by section37, and, there are grounds for believing that further investigation isnecessary the officer-in-charge of the police station or the inquirershall forthwith transmit to the Magistrate having jurisdiction in thecase a report of the case, together with a summary of thestatements, if any, made by each of the witnesses examined in thecourse of such investigation relating to the case, and shall at thesame time forward the suspect to such Magistrate.
The Magistrate before whom a suspect is forwarded underthis section, if he is satisfied that it is expedient to detain thesuspect in custody pending further investigation, may afterrecording his reasons, by warrant addressed to the superintendentof any prison authorise the detention of the suspect for a totalperiod of fifteen days and no more. The provisions of section 264shall apply to every such warrant. If at the end of the said period offifteen days proceedings are not instituted the Magistrate maysubject to subsection (3) either discharge the suspect or require himto execute a bond to appear if and when so required."
Regulation 20 of the Emergency Regulations permits the period ofsuch detention being extended from fifteen days provided in section11 5 to three months. Article 13 (4) of the Constitution alsoauthorises detention pending investigation provided it is bona fide andnot a punishment.
According to the Shorter Oxford Dictionary the expression 'search'is synonymous with 'to investigate*. This is demonstrably implicit inthe scheme of Regulations 18 and 19 of the Emergency RegulationsThe object of these regulations is to extend and not to attenuate thepowers of a police officer in a state of emergency. I hold, therefore,that the expression "detain for purposes of such search’ in Regulation18 of the Emergency Regulation empowers a police officer to detain asuspect pending further investigation.
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Learned President's Counsel also submitted that the detention ofthe petitioner was mala fide and an infringement of Article 13 (4) ofthe Constitution.
According to the affidavit of Gaffoor, S.P., he had receivedinformation that the petitioner and other anti-Government politicalelements were attempting to make use of the student dissatisfactionto draw the school children into the protest campaign and to incitethem to commit unlawful acts and to have a confrontation with thePolice. Accordingly, he recommended to Edward Gunawardena.
I.G. that the petitioner should be detained pending the conclusion ofinvestigations as the petitioner's complicity in the student protestcampaign.
The petitioner has admitted in his signed statement to InspectorL.I.R. de Silva, recorded on 18.2 1985, that he distributed theimpugned leaflets near the Fort Railway Station on 13.2.1985. Healso admitted inciting the students.
I hold that there is no substance in the allegation that the petitioner'sdetention was mala fide and a 'punishment" infringing his fundamentalrights under Article 13 (4) of the Constitution.
Another question that arises for consideration of this Court iswhether an order by the Inspector-General of Police (or DeputyInspector-General) to detain a person at a specified location underRegulation 19 (2) should state the reason for the detention.
In the instant case the order of detention (3R1) reads as1 follows :
'By virtue of the powers vested In me under Regulation 19 (2) of the Gazette of theDemocratic Socialist Republic of Sri Lanka. Extraordinary No. 332/13 of18.01.1985, I, S. D. E. S. Gunawardena. Deputy Inspector-General of Police.Metropolitan Range, do hereby authorise. Officer-in-Charge, Police Station. Harbour,to detain Vasudeva Nanayakkara of No. 34/8. Fife Road. Colombo 5, who hadcommitted offences in contravention of Regulation (blank) of the said GazetteExtraordinary, for a period of one month with effect from 18.02.1985 at PoliceStation, Harbour, Colombo 1.
Police Hdqrs,
Colombo.
18.02.1985.
Sgd. S. D. E. S. Gunawardena,D.I.G.. Metropolitan Range.'
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A person is arrested and detained by an officer exercising hispowers under Regulation 18(1). The duration of the arrest anddetention in pursuance of the provisions of Regulation 18 is providedin Regulation 19.
Regulation 19 (2) merely authorizes the Inspector General of Police(or Deputy Inspector General of Police) to nominate the place ofdetention. It is in effect an authorization to the Officer-in-charge of aplace of detention to hold a particular person in custody within thepremises under his control.
This interpretation is fortified by an examination of Regulation 17(1)which empowers the Secretary of the Ministry of Defence to make anorder of preventive detention of any person who in his opinion is actingin any manner set out in Regulation 17 (1) (a) and 17 (1) (b). Oncesuch an order is made Regulation 17 (2) authorizes a police officer orother member of the armed services to implement such an order usingsuch force as is necessary for the purpose. Regulation 17 (3) providesthat a person detained in pursuance of such an order shall be detained,"in such place as may be authorized by the Inspector General ofPolice".
It is clear, therefore, that under Regulation 19 (2) and 17 (3) theInspector General of Police merely nominates the place of detention.This provision also enables the family of a detenu to ascertain from theInspector General of Police the exact location of such detention so thatthey can contact the detenu.
In the instant case the reason of the arrest, communicated by HenryPerera, A S P. to the petitioner was that the petitioner had distributedleaflets in contravention of Emergency Regulations. The offence hadalready been committed on 13.2.1985, four days prior to his arrest.The reason for his subsequent detention at the Harbour Police Stationaccording to Gaffoor, S. P., was to facilitate further investigation intothe petitioner's alleged complicity in the student protest campaign.This reason for his detention was not communicated to the petitionerwith sufficient particularity Although Regulation 19 (2) does not statethat the order of the Inspector General of Police nominating a place ofdetention should state the reason for the detention we think that it is inthe interest of natural justice that the reason should be communicatedto the detenu in the written order and that he should be supplied witha copy of the order.
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Arrest and detention are inextricably linked. Article 13 (1) of theConstitution states that "Any person arrested shall be informed of thereason for his arrest." The reason why the observance of thisfundamental right is mandatory is succintly explained in the House ofLords case of Christie v. Leachinsky (7) (per Lord Simonds) "Arrestedwith or without a warrant, the subject is entitled to know why he isdeprived of his freedom, if only in order that he may without amoment's delay take such steps as will enable him to regain it". Seealso at p. 578 (per Lord Du Parcq) :
'The principles established by the authorities are agreeable tocommonsense, and follow from the governing rule of the commonlaw that a man is entitled to his liberty, and may, if necessary,defend his own freedom by force. If another person has a lawfulreason for seeking to deprive him of that liberty, that person must asa general rule tell him what that reason, is, for, unless he is told, hecannot be expected to submit to arrest or be blamed for resistance".
In Laltubhai Jegibhai v. Union of India (8) it was held that Article22 (5) of the Indian Constitution requires that grounds of detentionmust be communicated to the detenu. The whole purpose ofcommunicating the ground to the detenu is to enable him to make apurposeful and effective representation.
There is one other matter which requires elucidation. While theeffect of Regulation 18 in combination with Regulation 19 does notrequire a judicial order in regard to the duration of the detention andthe place of detention, yet the requirement for production of anarrested person before a Magistrate remains under the proviso toRegulation 19 (1), 'to ensure the safety and protection of an arrestedperson" (per Wanasundera, J. in Edirisuriya v. Navaratnam, (supra)).The arrested person "Shall be produced before any magistrate within areasonable time having regard to the circumstances of each case, andin any event, not later than thirty days after such arrest".
Under Regulation 19 (1) the provisions of sections 36, 37 and 38of the Code of Criminal Procedure Code Act No. 15 of 1979 shall notapply in relation to persons arrested under Regulation 18. Thesesections are as follows
"36. A peace officer making an arrest without warrant shallwithout unnecessary delay and subject to the provisionsherein contained as to bail, take or send the personarrested before a Magistrate having jurisdiction in the
case.
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Any peace officer shall not detain in custody or otherwiseconfine a person arrested without a warrant for a longerperiod than under all the circumstances of the case isreasonable, and such periods shall not exceed twenty-fourhours exclusive of the time necessary for the journey fromthe place of arrest to the Magistrate.
Officers in charge of police stations shall report to theMagistrate's Courts of their respective districts the casesof all persons arrested without warrant by any policeofficer attached to their stations or brought before themand whether such persons have been admitted to bail orotherwise."
While Regulation 19(1) rules out the applicability of sections 36.37 and 38 it leaves untouched Article 13 (2) of the Constitution,which states :
'13 (2) Every person held in custody, detained or otherwisedeprived of personal liberty shall be brought before thejudge of the nearest competent court according toprocedure established by law, and shall not be furtherheld in custody, detained or deprived of personalliberty except upon and in terms of the order of suchjudge made in accordance with procedure establishedbylaw."
The constitutional requirement that a detained person 'shall bebrought before the judge of the nearest competent court" remainsuntouched except that "any" has been substituted for "nearest" inRegulation 19 (1). While the Magistrate is powerless to interfere withthe arrest and detention of a suspect made under Regulation 18 readwith Regulation 19 he is not powerless to investigate the reason forthe detention and to notify the authorities if in his view the detention isa "punishment" infringing Article 13 (4) of the Constitution.
On the material placed before this Court and for the reasons statedin this judgment I hold that the arrest and detention of the petitionerwere lawful and did not infringe his fundamental rights under Article13(1), 13 (2) and-13 (4) of the Constitution. The complaint that the
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petitioner's fundamental rights under Article 12(1) and 12 (2) havebeen infringed has not been pressed. The application is dismissed butwithout costs.
WANASUNDERA, J. – I agree.
ATUKORALE, J. – I agree.
TAMBIAH, J. – I agreeL. H. DE ALWIS, J. – I agree
Application dismissed.