012-SLLR-SLLR-1983-1-RATNASARA-THERO-V.-UDUGAMPOLA.pdf
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Ratnasara Them v. Udugampota
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RATNASARA THEROV.
UDU6AMP0LA
SUPREME COURT
WIMALARATNE J..RATWATTE J.#COLIN THOSE J.,ABDUL CADER J.AND RODRIGO J.
S.C. APPLICATION NO. 125/1982JANUARY 19TH 1983.
Fundamental rights – Confiscation of printed matter pre-pared for distribution – S 398 and S 453 of Penal Code-Article 14 (1) (a) of the Constitution – Freedom of speechand expression including publication,
The petitioner who had printed some leaflets fordistribution on the subject of the referenda*}- to beheld for extending the life of the parliament,complained that the 1st respondent had taken someof the leaflets into custody.. The 1st respondenthad initiated inquiries on the receipt of a com-plaint by one trimaladasa that he had seen a copy ofthe leaflets on public display. Subsequently oneRev.Father Basil Nicholas had complained that hehad been deceived by one Father Reid Fernando intosigning a copy of the same document.
The original copy signed by Rev. Father BasilNicholas was not taken into custody and Father ReidFernando was not questioned, ffinsladasa-'s statementhad not been produced in court and it was admittedthat the contents of the leaflet were not unlawful.
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The 1st respondent .had not -stated -under what provi-sions of the lav he chose to act and the learnedDeputy – Solicitor General suggested that he couldhave acted under S 398 and S 453 of the Penal Code.
Held –
S .398 and S . 453 of the Penal Code had no
application and that the fundamental.rights of thepetitioner that is the freedom- of speech andexpression including publication had been violated.
Case referred to:-
Emperor vs, Raghunath Singh ~ 1946 A.I.R. (Lahore)at p. 459,
S. Nadesan:. Q.C._ with Sri Ranjan andj_S.H.M. Reeza..-for the petitioners,
Priyaniha Per era.D,S* G.^ with C.R. de Silya.S.C for .the respondents.
Cur Adv Vult.
February 2,1983.;'
ABDUL CABER J.
The petitioner is the Yiharadhipathi of theSatca Vihara situated at Gampaha. He has stated thatan organisation called the ’"Pavidi Handa" wasconstituted by a considerable number of the. clergy,Buddhist and Christian, in Sri Lanka, who wereopposed tq the proposal to extend the life of thepresent Parliament for a further period of 6years. At a meeting held on 18th November, 1982, it■was decided that a statement of the reasons, for.their opposition should be sent to different partsof the Island and signatures obtained from thosewho were in agreement and to print and distributethem. Accordingly, some statements were preparedand sent to the clergy in various parts of theIsland for signature.The petitioner placed an order
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for printing 50,000 copies of this statement withthe names of the signatories for the purpose ofdistribution to the members of "Pavidi Handa" forbeing .given to or posted to voters. 10,OCX) leafletswere delivered to the petitioner while the balancewas in the course of printing of which 5,000 copieshad been > given out or had been posted to thevoters, and the balance was with the petitionerawaiting distribution. He had in addition in hispossession 5,000 copies of the statement in English.
On 8th December, 1982., on a complaint, theGampaha Police went to the press in which therewere some copies of this leaflet which had alreadybeen printed. While the other copies were beingprinted, they seized and removed about 20,000 prin-ted copies and also '’composed matter" and stoppedfurther printing of this statement. Thereafter, thePolice went to -Sama Vihara and the Sub-Inspectortold the petitioner that they had seized leafletsfrom the press and they wanted from the petitionertheoriginalsofthe documents signed bythe
cleigy <. The petitioner gave them about a dozen suchsigned statements. The petitioner states that whenhe questionedtheInspector why they seizedand
removed the leaflets from the press, he repliedthat they were taken away because it is illegal toprint them under Emergency Rules and Election Law.He had also told the petitioner that 3 persons fromthe press had been arrested and it is likely thatthe press would be sealed and that the first threesignatories of whom the petitioner was the thirdwerelikely tobe arrested. The Sub-Inspectordid
… nottake awaythe5,000 copies which were inhis
. possession. He was asked to report at the PoliceStation.the next day, that is 9th December, 1982.He filed this petition on the 9th, stating thatafter his statement was recorded he feared thatthese 5,000 copies also may be seized . and takenaway by the Police and that he would be arrested' and his work in connection with the Referendum may
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be obstructed. He has also expressed the fear thatthe Gampaha Police would continue not to give himand other members of the "Pavidi Handa" theopportunity to meet at the Vihara or elsewhere "todiscuss our problem." He has prayed for a .declara-tion that the steps taken by the 1st respondent intaking away the leaflets printed at the said pressare unlawful and in violation of the fundamentalrights of the petitioner, to direct the 1st respon-dent to restore the copies seized from the saidpress to the petitioner, and for compensation in asum of Rs.25,000/=. I shall refer to prayer "D"later.
The 1st respondent, the Superintendent ofPolice, Gampaha, with reference to the above alle-gations has stated that at 9.55 a.m. on 8.12.82, acomplaint was made at the Police Station at Gampahaby one .Wimaladasa to the effect that he had seen acopy of the document marked ”A1" pasted on a letterbox in the Gampaha town, and at 10 a.m., about 5minutes later, Rev. Father Basil Nicholas com-plained at the Police Station that he had beendeceived into signing on a blank paper and that hisname now appears as the 70th signatory on the saidpamphlets to which he had never consented to be asignatory and that he requested an investigation; aparty of Police Officers was sent to ascertain ifthere were any of these pamphlets pasted anywhere;that it was reported to him that these pamphletswere seen pasted everywhere in town; that he tracedthe original of these pamphlets to a printing pressin Gampaha; caused the pamphlets found therein toto be seized and, as it transpired that the peti-tioner was responsible for getting these pamphletsprinted, he visited the Sama Vihara and recordedthe statement of the petitioner. In his affidavit,he has referred to the statements recorded subsetquently of five other persons, copies of whichstatements have been annexed to his affidavit,which are totally irrelevant to these proceedings,
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as they were recorded after the seizure of thesepamphlets and* therefore, could not have formed thematerial on which the 1st respondent acted.
In the affidavit filed by the 1st respondent,he has not stated under what provisions of law hechose to act in this manner. The petitioner'sstatement that the Sub-Inspector told him that thepamphlets were taken away "because it was illegalto print them under -Emergency -Laws and ElectionLaws" has not been expressly contradicted. Thereis, however, a general denial- in paragraph 2 ofthe affidavit of the 1st respondent. The DeputySolicitor-General, however, did not support theseizure of these pamphlets on the ground that theprinting of these pamphlets was a violation of theEmergency Laws and the Election Laws. The DeputySolicitor-General referred to Section 50 (l)(b) ofthe Referendum Act ?»o. 7 of 1981, the violation ofwhich is a cognizable offence. Section 50 (l)(b)reads as follows :-
"50, (1) During the period commencing from thedate of publication of the Proclamation undersection 2 and ending on the day following , theday of which a poll is taken at Referendum,' noperson shall, for the purpose of promoting aReferendum, display-
(a)
any handbill, placard, poster, drawing,notice, symbol or sign on any place to whichthe public have a right of, or are granted,access except in or on any premises on any dayon which a meeting to promote the Referendumis due to be held in that premises;".
Wimaladasa's statement has not been producedin Court; the pamphlets which Wimaladasa saw pastedhad not been removed and exhibited in this Court;
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nor an affidavit filed- from.Wimaladasa. Even the.,statement of the let respondent that it was repor-ted to him that his officers saw these pamphlets"pasted in the town" is hearsay as noaffidavit
has been filed from these officers_ In the light ofthese circumstances, the Deputy Solicitor-Generaldid not support the action of the 1st respondentunder this provision.
The Deputy Solicitor-General then submittedthat the 1st respondent could have acted underSections 398 and 433 of tiie Penal Code. Section 398deals with cheating SBC- ion 453 with the makingof a false document. Even assuming that the peti-tioner or, for that matter, anyone else hadcommitted the act complained against by FatherBasil Nicholas, there is doubt whether an offenceof cheating or forging a document would arise on-that material. However, I wc-*-'d adopt thesubmission made by the Deputy Solicitor-Generalthat the 1st respondent could well make a mistakeas regards the application of these sections to thefacts reported to him although in the final resulta Court might hold that no offence had been, infact, committed under these sections. tijt vrhat iasignificant is that the 1st responded has notstated that he acred under either or both thesesections. It is merely a proposition put forward bythe Deputy Solicitor-General at the argument beforeus, so that it is yet open to question whether the1st respondent acted whilst investigating anoffence under the Penal Code or an offence underthe Emergency and Election Laws.
The Deputy Solicitor-General drew our atten-tion to Section 112(1) of the Code of CriminalProcedure Act and submitted that since the respon-dent vas investigating a cognisable offence, he wasentitled to search for any document which he consi-.dered necessary for the conduct of the investiga-tion and, therefore, he vas justified in taking
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..charge of the pamphlets.
The burden is on him to satisfy us that hecomplied with the requirements of this Section;viz. that:
he considered that the production of thesepamphlets were necessary to the conduct of theinvestigation, and
there was reason to believe that the peti-tionerwill not produce these pamphlets in
response to summons or order issued by courtunder Section 66, or
that such document is not known to be inthe possession of the petitioner.
In respect of the first of these conditions,Mr. Nadesan raised a very pertinent questionwhether it was necessary that the respondent shouldtake charge of about 20,000 printed leaflets toprove the charges of cheating or forging a docu-ment. In fact, the Police had in their possessionone of these printed documents before the respon-dent seized these leaflets because the statementof the Rev. Father recorded by the Police commenceswith the words that the printed pamphlet was shownto the Rev* Father before his statement was recor-ded. I agree with Mr. Nadesan that it was notnecessary to take charge of 20^000 pamphlets toprove either of these charges.
In respect of the second requirement, I cannotsee how the respondent could have entertained anydoubts that the petitioner would not produce theprinted leaflets when required to do so by Courtwhen the petitioner had admittedly printed thislarge number of pamphlets for distribution for acause which he believed to be right.
The third requirement is also not fulfilled
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inasmuch as the 1st respondent himself had dis-closed that in the course of the investigation ittranspired "that the petitioner was responsible forgetting these pamphlets printed" and secondly hedid not seize the documents that were in thepossession of the petitioner.
An examination of the facts will lend supportto my conclusion that this Section has no applica-tion. Assuming that the 1st respondent went out toinvestigate one of these two offences, the firstand important material document .that he should havetaken charge of should have been the original docu-ment in which the Rev. Father placed his signature.He did not do so. According to the petitioner hetook charge of some other original documents. Ob-viously, the respondent did not give his mind tothe document signed by the Rev. Father. In fact, itwas produced in Court at the hearing by Counsel forthe petitioner. What Father Basil Nicholas hadstated was that Father Reid Fernando saw him andasked him to sign a document on which the data wason one sheet and the signatures on another, and sofar as he could remember, he was the second personto sign the document and that there were no signa-tures of any Buddhist priests on that document. Onewould expect any intelligent Police Officer to callfor and obtain the documents on which Rev.Fatherhad placed his signature which, as I said earlier,was npt done. Secondly, the respondent has statedthat the statement of the petitioner was recorded,but that statement had not been produced before usto consider whether the petitioner had been ques-tioned in the light of the submissions made by theDeputy Solicitor before us. Thirdly, the Policeshowed the pamphlet to Father Nicholas beforerecording his statement and, therefore, it has tobe presumed that the Police had started an investi-gation after recording the information furnished byWimaladasa. Though the priest had complained ofcheating and requested the Police to hold an inqui-
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ry, it would appear that the motive for theseizure was actually based on Wimaladasa's com-,plaint. It is significant that apart from the factthat the respondent has not taken shelter behindthe Penal Code, even the written submissions referto the complaint of Uimaladasa as one of thereasons for seizing the pamphlets. Fourthly, if atall any person cheated the Rev. Father, accordingto him, it was Father Reid Fernando who took the'signature, but Father Fernando was not questionedbefore the seizure of these pamphlets. Fifthly, noaffidavit has been filed from Father Basil Nicholasor from Father Reid Fernando.
Bhandari J. quoted Lord Camdon C.J. in Emperorvs. Raghunath Singh reported in 1946 A.I.R. Lahore,at page 459 as follows
"The great end, for which men entered intosociety, was to secure their property. Thatright is preserved sacred and incommunicablein all instances, where it has not been takenaway or abridged by some public law for thegood of the whole. The cases where this rightof property is set aside by positive law, arevarious, Distresses, executions, for textures,taxes & c., are all of this description;wherein every man by common consent gives upthat right, for the sake of justice and thegeneral good. By the laws of England, everyinvasion of private property, be it ever sominute7 is a trespass. No man can set his footupon my -ground without my licence, but he isliable to an action, though the damage benothings which is proved by every declarationin trespass, where the defendant is calledupon to answer for bruising the grass and eventreading upon the soil. If he admits the fact,he, is bound to show by way of justificationthat some positive law has empowered or ex-
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cused him. The justification is submitted tothe Judges, who are to look into the books ifsuch justification can be maintained by thetext of the statute law, or by the principlesof.common lav. If no such excuse can be foundor produced, the silence of the books is anauthority against the defendant, and theplaintiff<must have judgment."
"Good faith" was discussed, but not'put for-ward as a defence for seizure of these pmphlets. Ido not intend to discuss the question whether "goodfaith" on the part of a public servant would con-stitute a defence for the violation of fundamentalrights. Section 51 of the Penal Code defines "goodfaith" as follows
"Nothing is said to be done or believed in-good faith which is done or believed withoutdue care and attention."
On the facts in this case, the respondenthas, therefore, failed in this regard, too.
The respondent having admitted the seizure ofpamphlets, the burden lies on the respondent tojustify his conduct. la ay opinion, the -DeputySolicitor- General has failed in his attempt tovindicate the conduct of the 1st respondent.
I hold that the petitioner is entitled torelief in terms of his prayers "B","C","D", "E" and
"F".
Prayer "G" is for a direction to the respon-dent to permit the petitioner to hold lawful mee-tings and "not to carry out the assurance that he(l$t respondent) "gave, the unruly mob on the 3rdDecember, 1982;". The 1st respondent has denied thathe gave any such assurance or that he prevented thepetitioner from holding lawful meetings. He hasgiten the assurance that the Police do not intend
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,:to prevent the holding of a meeting by the petitio-ner. Nov that the occasion for such meetings is nomore and that the respondent has given theassurance that the petitioner will not be obstruc-ted from holding lawful meetings, I do not think itnecessary to go into the matters raised inparagraphs 14 and 15 of the petition.
The petitioner has been prevented from exerci-sing his fundamental rights of "freedom of speechand expression including publication." (Article14(1)(a) of the Constitution). About 20,000 copiesof pamphlets which he printed for publication toespouse a cause which he believed to be right hadbeen seized by the 1st respondent and the petitio-ner had been prevented from distributing them. TheD.S.G. agreed that the contents of these documentswere not unlawful and that he was not relying onthe contents to justify the seizure of these pam-phlets. In my view, this is a serious violation ofthe fundamental rights of a citizen of this countrywhich calls for the award of substantial damages. Amere declaration without more in the form of somepenalty will not deter such future abuse of funda-mental rights of citizens. This Court does have thepower "to grant such relief or make such directionsas it may deem just and equitable in thecircumstance" in terms of Article 126 (4) of theConstitution.
Keeping in mind that 20,000 pamphlets wereseized, I direct the 1st respondent to pay a sum ofRs.10,000/- as compensation and costs fixed atRs.2,100/- to the petitioner.
WIMALARATNE J
I agree.
RATWATTE J
I agree.
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PERCY COLIN-THOME J.RODRIGO J.Application upheld.
I agree.I agree