070-NLR-NLR-V-66-S.-SELLAMUTTU-Petitioner-and-V.-F.-SOLOMONS-Officer-in-charge-Police-Stati.pdf
Sellamullu v. Solomons
307
Present: Sri Skanda Rajah, J.
■S. SELLAMTJTTU, Petitioner, and V. P. SOLOMONS (Officer-in-charge,Police Station, Slave Island, Colombo), Respondent
S. G. 839 and 840—Applications for Writs of Habeas Corpus m respect of
T. Ramasamy and T. Perumal
.''Habeas corpus—Immigrants and Emigrants Act (Cap. 351)—Sections 6, 8, 13 (1),14, 28 (2) (5), 54 (1)—Removal orders—Procedure—Difference between “ visa ”and “ endorsement ”—Meaning and effect of words “ shall be final and shallnot be contested in any court ”.
Under the Immigrants and Emigrants Act a “ visa ” is quite different froman “endorsement”. Therefore, a “removal order” issued under section28 (2) (c) of the Act stating that a person “ has overstayed the period specifiedin his visa/endorsement ” is invalid because it has not deleted one or the otherof the two words “ visa ” and “ endorsement
The finality conferred by section 28 (5) which provides that “Any ordermade under this section shall be final and shall not be contested in any court ”does not attach to a “ removal order ” which is not in accordance with lawand is ex facie bad.
Observations on the questionable procedure adopted sometimes by officersof the Immigration and Emigration Department of recording alleged“ confessions ” of detainees who are in police custody.
Applications for writs of habeas corpus in respect of two personsagainst whom “ removal orders ” had been issued under the Immigrantsand Emigrants Act.
M. Tiruchelvam, Q.C., with T. W. Rajaratnam and S. Sittampalam,Lor the Petitioner.
H. L. de Silva, Crown Counsel, for the Respondents.
308
SRI S KANT) A RAJAH, J.—-Sellamuttu v. Solomons
July 21, 1964. Sui Skanda Rajah, J.—
These two applications are by the same person, in respect of two-brothers and were argued together.
At the conclusion of the argument on 16.1.64 Crown Counsel handed,to this Court a written summary of his submissions with the citations anda copy of same to learned Queen’s Counsel, who, thereupon, desired!to do the same. Time was granted for that purpose. But soon thereafterhe fell ill and, in consequence, his written summary took a long time-in coming. Thereafter, T spent considerable time in examining the-numerous authori+ies. It then struck me that a short, but important,point had escaped the notice of both counsel and I decided to hear them:on it. I have heard them today.
These applications were made in consequence of the arrest of the corpus-in No. 840 on 7.9.62 and that of the corpus in No. 839 on 13.9.62.
Certain other relevant dates, which are common to both applications,may usefully be set down :
22.9.1962: R4, the “ removal orders ” were signed by the acting:Permanent Secretary, who had been authorized by the Ministerunder section 6 of the Immigrants and Emigrants Act,.Cap. 351, to make such an order under section 28 of the Act.
: These applications were filed in this Courl.
: This Court made order directing the Magistrate, Colombo,,
to inquire and report.j
19.11.1962: Notice was served on the respondent requiring him to-produce the corpus before the Magistrate, Colombo, for inquiryon 24.11.62.
23.11.1962: The police, in whose custody they were and to which,they were to return, produced them before Mr. Wijeratne,Assistant Controller, Department of Immigration and Emigra-tion, who proceeded to record their statements in which theyare alleged to have “ confessed ”.
R4, the “ removal order ”, was made under section 28 (2) : “ Wherethe Minister (Authorized Officer) is satisfied that a person to whom this-Part applies—
(c) has overstayed the period specified in the visa or endorsement
Finality for the “removal order” is claimed under section 28(5):“ Any order made under this section shall be final and shall not be contestedin any Court”
The moaning and effect of the word “final” in similar legislation,was considered in Be Gilmore's application 1. At p. 806 said Denning,
L. J., “…• on lookinginto the old books I
find it very well settled that the remedy by certiorari is never takenaway by any statute except by the most clear and explicit words. The.
1 (1957) 1 A. E. R. 796.
SRI SKANDA RAJAH, J.—SellamuUu v. Solomons
309
word “final” is not enough. That only means “without appeal It doesnot mean “ without recourse to certiorari ”. It makes the decisionfinal on the facts, hut not on the law”
In the course of the judgment he quoted his own words in Taylor v.National Assistance Board1, “ The remedy is not excluded by the factthat the determination of the board is by statute made “ final ”.Parliament gives the impress of finality to the decisions of the board onlyon the condition that they are reached in accordance with the law.”
The relevant portion of the “ removal order ” R4 reads, “ WhereasT. Ramasamy (T. Perumal) being a person to whom Part V of the Immi-grants and Emigrants Act (Cap. 351), applies, has overstayed the periodspecified in his visa/endorsement*.”
There is a corresponding* (asterisk) at the foot of the “ removal order ”which instructs the person who signs it to “ delete whichever is inappli-cable ”. He had to delete the word “ endorsement” if he was “ satisfied ”that the period referred to was specified in the visa or the word “ visa ”if that period was specified in the “ endorsement ”.
The omission to delete one of these words in R4 raises two questions :
Is a “ visa ” different from “ endorsement ”?
If so, what is the effect of such omission?
The Interpretation section 54 (1) states: “ endorsement ” means anendorsement granted under Part HI of the Act.
“ Visa ” means a visa granted under regulations made under this Act.
“ Authorized officer ” means any person appointed under section 4to be or to act as an authorized officer.
Endorsement:
Section 8 : This Part (Part in) shall apply to every person seekingentry into or entering Ceylon unless—
(a) he is a citizen of Ceylon ;
Section 13 (1): “An endorsement under this Part by an authorizedofficer shall be required of a person to whom this Part appliesin every case where, on his arrival by ship at any place in Ceylonsuch person de' ires to enter Ceylon and to remain thereinfor any period or purpose whatsoever.
(2) : Every endorsement granted by an authorized officer under thisPart to any person—
shall be signed by such officer ;
shall be in the prescribed form ; and
shall, if sitch person is not the holder of a visa, specify the
the period for which and the terms and conditionssubject to which' such person may enter and remain inCeylon.
1 (1957) 1 A. E. B. 183 at 185.
310
SRI SKANDA RAJAH, J.—Sellamuttu v. Solomons
In the Immigrants and Emigrants Regulation, 1956 :
Endorsements under Part 111 of the Act:
27. Every endorsement under Part III of the Act shall be substan-tially in such one of the Forms G to G2 as set out in the first schedulehereto, as may be appropriate to the case.
It -will be observed thst (i) these Forms are very brief; (ii) the endorse-ment is made in the passport and sometimes in the visa; (iii) madeat the port of entry into Ceylon; (iv) made by an authorized officer ;(v) there is no counterfoil.
In section 13 (1) an upper limit regarding the period is not placed inthe case of an endorsement as has been done in the case of a visa (vide:section 14 infra).
No application is necessary to have an endorsement made.
Visa:
Section 14.(1): “ A visa may be granted by the prescribed authority
for such period, not exceeding two years, as may be specifiedin the visa.
: A visa may, with the approval of the Minister, be granted by the
prescribed authority for such period, exceeding two years butnot exceeding five years, as may be specified in the visa.
: The period specified in any visa may be entered by the prescribed
authority from time to time, for such period and subject tosuch conditions as may be prescribed, upon application madeto that authority in that behalf. Where the authority whichgranted the visa obtained, by reason of sub-section (2) of thissection, the approval of the Minister before making the grant,such authority shall before extending the visa obtain in likemanner the approval of the Minister.
Regulation 4: Visa issued under these regulations shall be of thefollowing classes—
(а)Residence Visas.
(б)Visit Visas.
(c) Transit Visas.
Regulation 5 : Enumerates persons who shall be a prescribed authorityfor the pin-pose of granting, issuing or extending visas.
It will be observed that a prescribed authority is quite different fromauthorized officer.
Regulation 6 : Prescribes Forms A to E on which Applications forthe three classes of visas should be made. In these applicationsthe number of the passports should be given.
Regulation 19 : Prescribes that visas shall be substantially in FormsD or Dl, E or El, F or FI.
SRI SKAJSTDA RAJAH, J.—SeUamvitu v. Solomons
311
It will be observed that a visa in Form D, E, or F: (i) carries a photo-graph of its holder ; (ii) gives the number of the passport; (iii) has acounterfoil; (iv) has a serial number; (v) is signed by the 'prescribedauthority; (vi) is obtained outside Ceylon by a person before he entersCeylon ; (vii) “ Arrival endorsements ” and “ Departure endorsements ”can be made on it by an authorized officer.
Forms Dl, El, and FI are in respect of visas endorsed in a passport
by a prescribed authority before entry into Ceylon.
*
The foregoing would show that a “ visa ” is quite different from an“ endorsement ”.
Therefore, the authorized officer had to decide one of two questionsbefore signing R4 : (i) whether the corpus had overstayed the periodspecified in a visa or (ii) overstayed the period specified in an endorse-ment.
Apparently the material at his disposal was insufficient for him tobe satisfied as to which of these two the corpus had violated. That waswhy he did not delete one or the other of the two words visa and endorse-ment. In short, he appears to have been doubtful as to whether thecorpus was the holder of a visa or an endorsement.
If the material was sufficient, he did not direct his mind at all to thesequestions. Therefore, it cannot be said that he was “ satisfied " as towhich of the two breaches specified in R4 the corpus was guilty of.
For these reasons, I would hold that: (i) the decision of the authorizedofficer was not reached in accordance with the law ; and (ii) the “ removalorder ” is ex facie bad.
For each of these two reasons the finality, if any, sought to be conferredby section 28 (5) does not attach to the “ removal order ” R4, ineach one of these cases.
In habeas corpus application No. 23 of 1964 : S. C. Minutes of 25.3.1964,this court has held that the finality conferred by section 28 (5) does notattach to a " removal order ” which is ex facie bad.
The “ removal order ” being bad the only conclusion to be reachedis that the corpus in each of these applications is in illegal custody.Therefore, I would grant these applications and order their immediaterelease.
The petitioner is entitled to costs fixed at Rs. 210 in respect of eachapplication.
In ordinary circumstances there would be nothing more to add. Butin more than one case it has been noticed that after obtaining a " depor-tation order ” or “ removal order ” either on suspicion or on insufficientmaterial—perhaps, moved by an excessive zeal to get rid of people—the officers of the Immigration and Emigration Department adopt thequestionable procedure of recording alleged “ confessions ” of detaineeswho are in police custody. In these applications too this procedurehas come to light and it calls for comment.
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SRI S KANT)A RAJAH, J.—Sellamuttu v. Solomons
If the material before the authorized officer was sufficient to “ satisfy 55him as required by section 28 (2) what was the necessity to record alleged“ confessions ” by these men after the service of notice to produce thesemen before the Magistrate for inquiry into these applications %
In these cases, they have, undoubtedly, made an Additional Magistrateof Colombo believe that, even if it is true that these men made thesestatements, they made them voluntarily. The Magistrate did not stopto consider that these men were in police custody for over two monthsand they had to return to that custody immediately after their statementswere recorded. Under these circumstances they would have been ingreat fear of what might befall them if they did not answer “ yes ” towhatever was asked. The police may have been temporarily absentwhile the statements were being recorded. But, for all practical purposesthey were still in police custody.
The Additional Magistrate did not approach these statements in thecorrect way. The burden was on the respondent to prove that the allegedconfessions were made voluntarily. Unless this burden was satisfactorilydischarged by the respondent the confessions would be inadmissible asevidence against these men. But the approach of the Magistrate wason the basis that the burden was on these men who were in police custodyaccused of violating the provisions of the Immigrants and EmigrantsAct to show that there was “ inducement, threat, or promise ” in orderto shut out these confessions.
It is not even remotely possible that these men would have made such“ confessions ” specially after these applications had been filed. TheMagistrate did not consider this aspect at all.
The Additional Magistrate's finding can be explained only on the basisof lack of experience on his part. This court has more then once pointedout that, “ Richness of experiences in Court is a sine qua non for successon the Bench-” (S. C. 287/64 : M. C. Kuliyapitiya 18097—S. C. Minutesof 23.6.64).
Applications allowed.