046-SLLR-SLLR-2005-V-1-RATNAYAKE-AND-ANOTHER-vs.-MEDIWAKA-DEPUTY-INSPECTOR-GENERAL-OF-POLICE-K.pdf

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The 2nd respondent submitted that he had kept the premises in questionunder observation for several days and he was convinced that the mattersset out in the said petition warranted a complete investigation. The 2ndrespondent has submitted the certified extracts of the covert operationscarried out by him with other officers on 06.04.2003,07.04.2003,08.04.2003and 09.04.2003 (2R10, a, b and c). The 2nd respondent further submittedthat the inquires he had made within the Department of Police had revealedthat the 1 st petitioner had a previous conviction in a related offence severalyears ago. In view of the aforementioned circumstances, the learnedMagistrate was moved for a search warrant and the 2nd respondentcontended that the said raid on the petitioners' premises was carefullyplanned on reasonable suspicion based on credible information andpreliminary investigations. It was submitted that the raid was never carriedout for any collateral purpose and never intended to subject the petitionersor member of their family to any kind of distress or humiliation.
The question of violation of petitioners’ fundamental rightsThe petitioners submitted that despite the incident that took place on
the petitioners were never requested to present themselvesat the Police Station nor were any statements recorded from them and nofurther action has been taken on the matter. The petitioners further submittedthat they have a reasonable apprehension that the search operation whichwas carried out on 10.04.2003 was for a pre-determined, malicious andcollateral purpose at the instance of the 1 st respondent in order to bringthe petitioners and their business establishment into disrepute.
The petitioners prayed from this court for:

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a declaration that the petitioners’ fundamental right to freedom fromcruel, inhuman or degrading treatment as guaranteed to them interms of Article 11 of the Constitution ;
a declaration that the petitioners' fundamental right to equality andequal protection of the law in terms of Article 12(1) of the Constitution ;and
a declaration that the fundamental right to freedom to engage in alawful occupation, profession, trade, business or enterprise as-guaranteed to them by Article 14(1) of the Constitution.
All three aforementioned alleged infringements were based on theentering and surrounding of the petitioners' premises by respondents on
The petitioners allege that the search that was carried outand the manner in which it took place, referring to the number of officersthat were brought in, clearly indicates that it was a malicious move tobring disrepute to the petitioners’ establishment. Since the petitionershave made these accusations against the respondents on the basis ofunequal treatment, now I would turn to examine the said allegations toascretain whether there has been a violation of Article 12(1) of theConstitution, since that is the main infringement the petitioners have claimedin their petition.
The search carried out by the respondentsAs stated earlier, the respondents rely on the anonymous letter receivedby the Police in early April 2003. The contention of the Counsel for thepetitioners is that the respondents cannot rely on an alleged anonymousinformant and in support of this contention they have relied on the decisionof Anura Bandaranaike v The IGP0). In that case, the court had held thatthe 1st respondent failed to satisfy court that he received any reliableinformation from an informant and that the 2nd and 3rd respondents hadfailed to satisfy court that they had .‘reason to believe’ that the suspecthad entered the premises of the petitioner. However, the decision taken inAnura Bandaranaike’s case (supra) could be distinguished from this caseas the material before this court with regard to the present matter isaltogether different. In Anura Bandaranaike's case there was no materialproduced before court referring to any such written document regarding acomplaint and the respondents were not in a position even to divulge thedetails of the information given to the respondents and therefore the
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respondents failed to satisfy the court that reliable information was receivedby the respondents. In the instant case the 2nd respondent has producedthe anonymous letter received by them (2R9). The letter provides infomiationon two aspects; firstly, it speaks about prositution carried out in Buwelikada,Talwatte areas and especially in Hotel Sunray which establishment belongsto the 1 st petitioner. The letter also refers to men armed with weapons andguns who frequent this hotel. There is also reference to school girls beingprovided as prostitutes by the petitioners. Furthermore a request is madeto the Police to take steps to stop all these shameless activities of thepetitioners. The writer has also alleged that the petitoner has patronage ofthe Police. Secondly, the letter refers to a woman who sells heroin toschool children near Dharmaraja College. Therefore, the facts in the instantapplication are different to that in the case of Anura Bandaranaike v TheIGP (supra) and as such no reliance could be placed on the said decision.
It is to be borne in mind that the respondents had not merely acted onthe receipt of this letter. Immediately after the letter was received, theAssistant Superintendent of Police had directed the 2nd respondent toinquire into the matter, to look into any previous incidents and to obtain asearch warrant, if it is required. As pointed out by the learned StateCounsel for the respondents, a reference number (CR/00/08/04/04/03) wasgiven to the said letter and the dale for reporting to the superior officershas been noted down as 01.05.2003.
The surveillance notes of the Police Officers contain detalied accountsas to their observations and considering the observations of seveal PoliceOfficers contained in 2R10, it is clear that a reasonable suspicion hadarisen in the minds of the investigators that a search of the premises waswarranted.
Moreover, the respondents had also taken the precaution to obtain asearch warrant for the purpose of carrying out a search on the premises inquestion. Learned State Counsel for the respondents correctly submittedthat the impugned search warrant (2R1) was issued by the learnedMagistrate of Kandy on 09.04.2003, based on the information provided bythe Police. More importantly it is to be borne in mind that the issuing of asearch warrant is purely a judicial act, which cannot be examined inproceedings pertaining to an infringement of a fundamental right of apetitioner. It was brought to our notice that although the search warrant
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was issued under section 9(2) of the Criminal Procedure Code, the correctprovision of law for the Magistrate to issue such warrant would have beenunder the Brothels Ordinance. In Fernando v Parawathi Radan(2) a searchwarrant directing the search for toddy in premises where it was alleged tobe sold, failed to aver the quantity ot toddy to be searched was in excessof one gallon – an essential element, if the act was to be treated as anoffence. The court held that irrespective of the error the warrant was validand that the officer endeavouring to execute it was acting in discharge^the functions entrusted to him by the court, Furthermore, in L. C. H. Peirisv The Commissioner of Inland Revenue(3) it was held that the mere citingof the wrong provision of law does not vitiate the act performed thereunder.
The petitioners' main grievance was based on the fact that his hotelwas raided at a time he was celebrating his 2nd son’s achievement ofobtaining the coveted Trinity Lion by a large contingent of officers incamouflage uniform. By the said action, the petitioners complained thattheir fundamental rights enshrined in Article 12( 1) of the Constitution wereinfringed by the respondents.
Article 12( 1) of the Constitution states that,
"All persons are equal before the law and are entitled to the equal
protection of the law.”
The petitioners' allegations against the respondents are chiefly basedon the fact that an armed contingent entered the petitioners' premises on
As observed earlier, the respondents on the receipt of theanonymous letter had commenced an investigation on the complaint made,took steps to kept premises under surveillance and after establishing thatthere was a cause to search the premises made an application to thelearned Magistrate for a search warrant. The respondents visited thepetitioners' premises only thereafter. In such circumstances, would it bepossible to state that the respondents had infringed the petitioners’fundamental rights guaranteed in terms of Article 12(1) of the Constitution ?Furthermore, the anonymous letter included a second matter concerningdrugs being sold in the vicinity. Learned State Counsel submitted that therespondents had inquired into, this complaint and a successful raid wascarried out in which a suspect by the name Nadeera Suriyanpala wasarrested with a small quantity of heroin for which he was fined Rs. 6,000on 09.04.2003 upon pleading guilty. This raid was also carried out by the2nd respondent.
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In the light of the foregoing it would now be necessary to consider thecrediworthiness of the position taken up by the petitioners.
Firstly, the petitioners claim that at the time the respondents 'chargedinto’ their hotel, they were to start the reception to celebrate their son'sachievement. In the petition it is clearly stated and the affidavit affirmedthat, the 2nd petitioner at that time was 'getting ready' to come down inorder to welcome their guests, In fact the allegation is that at the time the2nd petitioner was preparing herself in her room, Police Officer had comeinto her room without any permission or notice, However, there are severalaffidavits filed by the petitioners’ guests along with the petitioners' counteraffidavit, which aver the following :
“At or about 1 p. m. whilst the party was in progress, to my uttersurprise and astonishment, suddenly and without any prior warningwhatsoever, approximately 25-30 persons clad in camouflage uniformand carrying T-56 rifles entered the premises at which the hotel islocated, together with approximately 6 other persons who were in civilianclothes, and one police officer in police uniform.”
Thus its is apparent that at the time of the arrival of the respondentswith others, ‘the party was in progess’. At a time when the party was inprogress could it be possible for the hostess to be still inside her roomgetting dressed up for the occasion ? Furthermore, there are several otheraffidavits, the petitioners had filed along with the petition (X1 to X12). Almostall the affidavits are identical in substance and the language that has beenused. More importantly the affidavit marked X6 is purported to have beensworn by one Buddhika Sembapperuma of Trinity College, who was afriend of the petitioners’ son. According to the affidavit he was invited forthe luncheon party along with his parents. This affidavit has been seriouslychallenged by the said Buddhika Sembapperuma’s father by his affidavitdated 26.03.2003 (2R19) in which he alleges that neither his wife, theirson nor he had participated at a luncheon orgainzed by the petitioners attheir restaurant on 10.04.2003. He has categorically stated that none ofthem were invited for the said function on 10.04.2003.
It is to be also borne in mind that there are serious contradictionspertaining to the petitioners’ allegation against some of the respondents.In his petition the petitioners have alleged that “they have a reasonableapprehension and that they verily believe that the said forced entering andsearch operation was carried out for a pre-determined malicious and
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collateral purpose at the instances of the 1st respondent, in a mannerwhich action was designed to bring the petitioners’ and their businessestablishment into disrepute”, (paragraph 50 of the petition dated09.05.2003). However, on 11.04.2003, immediately after, the alleged incident,the 1st petitioner made a written complaint to several persons includingthe 1st respondent calling for an impartial inquiry. In that there were noallegations againsts the 1 st respondent. Three weeks after the 1 st writtencomplaint, the 1 st petitioner lodged a further complaint at the Police HeadQuarters against the Kandy Police. This included the compaint againstthe 1 st respondent and a persual of this second document indicates thatthere were several discrepancies between these two documents whichraise doubts as to the credibility of the petitioners' version. Moreover, althoughthe petitioners are alleging mala fide on the part of the 1 st respondent, nomaterial has been produced to substantiate such allegations. With regard <to the number of Police Officers who entered the restaurant, therespondents’ version is that only four officers actually entered the building,although the police party had consisted 17 officers including 2nd respondentand 3rd respondent. Out of the aforesaid contingent of 17 officers 5 hadbeen clad in civilian clothes and 12 officers including the 3rd respondentwere in police uniform. Only 9 officers were carrying arms and none ofthem had been clad in camouflage uniform. Except for the affidavits tenderedby the friend of the petitioners who attended the function on 10.04.2003,there is no other material before us to indicate that we could accept theversion given by the petitioners. Considering the inaccuracies of some ofthe affidavits as well as the discrepancies of the petitioners' own documentsreferred to above, on a balance of probability, I am inclined to accept theversion given by the respondents as to what took place on 10.04.2003.
Considering the contents of the allegation made by the petitioners, it isto be clearly borne in mind that their basic complaint is founded on theraid on their restaurant by the respondents. The respondents on their parthad not acted on a mere suspicion. Moreover, although the petitionerscomplained that the respondents have obtained certain statements andaffidavits against the petitioners by several people in the vicinity, underduress, there is other material supported by several documents placedbefore this court to indicate that the respondents had not acted blindly orin order to satisfy an interested third party.
If the respondents had acted on a mere suspicion, it could have beenan arguable situation that the action on the part of the respondents is
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arbitrary and therefore a violation of the petitioners’ fundamental rights.But, where there are several other measures taken by the respondents toascertain whether the complaint or information is worthy of furtherinvestigation by searching the premises and for that purpose when theyhave obtained a search warrant, the action of the respondents has reachedjudical sanctity and has moved beyond the point of being an arbitrary act.In such circumstances could it be an act of infringement of petitoners'fundamental rights ? I do not think so, for an act to be arbitrary andviolative of fundamental rights, the decision has to be one without a rationalbasis ora foundation. Equal protection, enshrined in terms of Article 12(1),means the right to equal treatment in similar circumstances which wouldinclude the situations where liabilties are imposed by law. Such protectionguarantees safeguards from discriminatory actions by the executive. It isto be borne in mind that an act of discrimination cannot be presumed andit is essntial that such action is clearly shown, unless it is apparant on thematerial available, Even if there is discrimination and thereby unequaltreatment, such inequality per se will not violate the provisions of Article12(1), as for the inequality to offend the principle of equality it is mandatorythat there should be an act or acts which are unreasonable and arbitrary'.In the instant case there were justifiable reasons for the respondents totake necessary steps to obtain information which they have carried out, inmy view, according to the procedure laid down by law.
<There is one final matter, to which I wish to address my mind before Ipart from this judgment, Search warrants are an important tool with regardto the day to day duties and functions of a Police Officer and severalstatutes enable Magistrates to issue search warrants for all kinds ofoffences. In Lord Denning’s words, ‘search warrants are a necessary toolin the war aginst crime’. Having that in mind it would be necessary tostress upon the fact that there should be a great regard for the integrity,freedom and privacy of a person which are jealously guarded fromunnecessary interferences, Similarly, it is to be borne in mind that it is inthe larger interst of the society that steps should be taken to find outwrongdoers and suppress crime. In fact in Chic Fashions (West Wales)Ltd. v. Jones'4’ Lord Denning M. R. referring to a search of a premises ona search warrant stated that,
"We have to consider, on the one hand, the freedom of the individual.
The security of his home is not to be broken except for the most
compelling reason. On the other hand, we have to consider the interest
of society at large in finding out wrongdoers and repressing crime. In
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these present times, with the ever-increasing wickedness, there is about,
honest citizens must help the police and not hinder them in their efforts
to track down criminals”
Having said that, it is also to be borne in mind that the police officersalso should act strictly according to the procedure laid down by law withdue adherence to the basic fundamental rights guaranteed in terms of theConstitutional provisions. Accordingly, it is not only necessary but alsoessential to maintain a careful balance between the rights of individualsand the duties carried out. by the officers. The lawfulness of the officers'conduct will have to be judged at the time of the alleged act which hadtaken place, and has to be considered on a case by case basis.
On a consideration of the totality of the circumstances in the instantapplication and for the aforementioned reasons I hold that the petitionershave not been successful in establishing that there was a violation of theirfundamental rights guaranteed in terms of Articles 11,12(1) and 14 (1 )g ofthe Constitution.
This application is accordingly dismissed, but in all the circumtancesof this case there will be no costs.
JAYASINGHE, J.-1 agree
UDALAGAMA, J. -1 agree
Application dismissed.