014-SLLR-SLLR-1991-V2-SEETHA-WEERAKOON-V.-MAHENDRA-O.-I.-C.-POLICE-STATION-GALAGEDERA-AND-OTHER.pdf
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Sri Lanka Law Reports
[1991] 2 Sri L.R.
SEETHA WEERAKOON
V.
MAHENDRA, O.I.C. POLICE STATION,GALAGEDERA AND OTHERS
SUPREME COURT.
BANDARANAYAKE, J., FERNANDO, J„ KULATUNGA, i.
S. C. APPLICATION NO. 36/90-MAY 0?, AND JUNE 04, 1991.
Fundamental Rights – Illegal arrest and detention – Articles 13(1) and (2)of the Constitution – Failure to produce before Magistrate under Regulation19(1) of the Emergency Regulations.
The petitioner and her sister were arrested on 12th August, 1989 andhanded over to the Galagedera Police Station of which the 1st respondentwas in-charge. She was detained there till 27th August 1990 on which datethe Magistrate remanded her to fiscal's custody. The A.S.P. Kandy had carlier issued a detention order under Regulation 19(2) of the Emergency Regu-lations authorising detention of the petitioner for 90 days at the GalagcdcraPolice pending investigations into an offence under Regulation 23(c). Thisorder expired on 12.11.1989 but the petitioner's detention at the GalagederaPolice Station continued. On 28th February 1990 a detention order underRegulation 17(1) of the Emergency Regulations was issued by the SecretaryDefence for further detention of the petitioner to prevent her from acting inany manner prejudicial to the national security or, to the maintenance ofpublic order and the 3rd respondent (IGP) made order that the detention becarried out at Galagedera Police Station. Admittedly the petitioner was not,during the period of her detention immediately following her arrest pro-duced before a Magistrate as required by Regulation 19(1) of the EmergencyRegulations.
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Seech* Weenkooa v. O.I.C. Maheadrs, Police Sutioa,
Gslsgeden and Others (Kills tungs, J.)173
The Magistrate who had ordered the remand of the petitioner on27.08.1990 extended the remand and eventually on 03.12.1990 released her.The Advisory Committee that met to review the detention was itself in thedark as to the reason for the detention. There was no detention order cover-ing the detention when it met on 04.01.1990.
Held:
The petitioner was being kept in continued detention under ordersmade mechanically without adequate grounds therefor.
If the offence for which the petitioner was arrested as set out in thedetention order is not specific in terms of the law and the Advisory Commit-tee itself had not been aware of the reason for her arrest it also supports hercomplaint that she was not informed of the reason for her arrest as requiredby Article 13(1) of the Constitution.
There is no explanation for the failure to produce the petitioner beforethe Magistrate within 30 days as required by Regulation 19(1) of the Emer-gency Regulations.
A bare statement in the respondents affidavits that the petitionerengaged in terrorist activity, or is a member of a subversive group or con-ducted. anti-government classes or engaged in anti-government agitationwould not provide an adequate justification for the arrest and detention ofthe petitioner. The Court should be furnished with the material or theinformation on the basis of which the petitioner was arrested to enable theCourt to objectively determine the reasonableness of the suspicion which ledto such arrest. No such material has been placed before Court.
3. The arrest and detention of the petitioner are unlawful and violativeof her rights under Article 13(1) and (2) of the Constitution.
Per Kulatunga, J :
"It is understandable that in suppressing insurgent activity, cor-don and search operations may have to be conducted leading to thearrest of whole groups of persons. Such persons may have to bedetained pending investigations; but care must be taken to ensurethat persons in respect of whom there is no evidence of involvementwith any offence are released early; they must not be forgotten orkept in prolonged detention as a matter of expediency as happened inthis case.
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(6) As the 1st respondent (OIC Galagedera Police Station) is also person-ally responsible for the infringement of the petitioner's fundamental rights hemust pay the petitioner Rs. 2.500/- as a sanction for his conduct in additionto compensation by the State.
Cases referred to:
Edirisuriya v. Navaratnam [1985] 1 Sri LR 100
Nanayakkara v. Henry Perera [1985] 2 Sri LR 375
Nallanayagam v. Gunatiltake [1987] 1 Sri LR 293
APPLICATION for violation of fundamental rights by illegal arrest and det-ention.
K. Thiranagama with J. Hassan, Miss P. Nagendra and A. Hettige for Peti-tioner.
D. S. Wijesinghe P.C. with Nihai Somasiri for 1st respondent.
R. Arasekularatoe S.S.C. with V. Kodagoda for 2nd to 6th respondents.
Cur.adv. vult.
July 29, 1991.
KULATUNGA, J .
The petitioner who is a student preparing for the G.C.E.Advanced Level Examination and her younger sister werearrested on 12.08.89 by army personnel from Uduwa Elotuw-awatte army camp. On 13.08.89 they‘were banded over to theGalagedera Police Station in charge of the 1st respondent. Thepetitioner complains that she was not informed of the reasonfor her arrest. She states that her sister was released after 14days but she was detained at Galagedera Police Station until27.08.90; that she was not shown any detention order; but thepolice officers told her that her period of detention was beingextended every month. In consequence of representations madeby Ukku Banda the petitioner's father, he was summoned to
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Seetha Weerafcoon v. O.J.C. Mahendra, Police Station,
Galagedera and Others (Kulatunga, J.)175
appear before the Advisory Committee under Regulation 17(4)of the Emergency Regulations bn 04.01.1990. In his affidavit(P3) Ukku Banda says that the members of the AdvisoryCommittee inquired from him as to the incidents that occurredin the village and the reason for the petitioner’s detention towhich he replied that there were no incidents there and thatthere was no reason for the petitioner’s arrest.
At first, the petitioner’s parents were not permitted to seeher regularly. They were allowed to see her only once namelyon 04.02.90. They were permitted to visit her only after therepresentatives of the International Committee of the RedCross visited Galagedera Police Station in June, 1990. Thepetitioner herself made representations for her release andreceived a reply dated 16.08.90 from the Principal StaffOfficer, Operational Headquarters, Ministry of Defence inform-ing that her case had been referred to the Committee for clas-sification, separation, rehabilitation and release for necessaryaction. However, on 27.08.90 she was produced before theMagistrate’s Court of Kandy and was remanded. Thereaftershe was kept at the remand prison, Kandy. On 06.09.90 shefiled this petition alleging infringement of her fundamentalrights secured by Article 13(1), (2) and (4),
The 1st respondent (Officer-in-Charge of Galagedera PoliceStation) states that on 13.08.89 Lieutenant Dikkumbura of thearmy unit at Uduwa handed over the petitioner and her sisterto the Galagedera Police. The same day the Assistant Superin-tendent of Police, Kandy issued a detention order under Regu-lation 19(2) of the Emergency Regulations authorising the 1strespondent to detain the petitioner for 90 days at the Galaged-era Police Station pending investigations into an offence underRegulation 23(c) (3R1). This order expired on 12.11.89 but thepetitioner continued to remain in detention at the Police Sta-tion without any order for such detention until 08.02.90 whenan order under Regulation 17(1) of the Emergency Regulationswas made by the Secretary Defence for further detention of
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the petitioner to prevent her from acting in any manner preju-dicial to the national security or for the maintenance of publicorder (2R4); and 3rd respondent (The Inspector-General ofPolice) directed that the petitioner be detained at the Galaged-era Police Station. Admittedly, the petitioner was not, duringthe period of her detention immediately following her arrest,produced before a Magistrate as required by Regulation 19(1)of the Emergency Regulations.
The 1st respondent’s explanation for the detention of thepetitioner without any order therefor between 13.11.89 and08.02.90 is that it is the Counter Subversive Unit Kandy thatattends to the obtaining of detention orders. After makinginquiries at the Counter Subversive Unit he expected toreceive a further order. Such orders are in practice invariablyreceived at the Police Station some time after the expiry of thecurrent order; and the order 4R2 had been issued late due to adelay by the Counter Subversive Unit in forwarding theirapplication to the Secretary, Ministry of Defence, The 1strespondent gives no explanation for his failure to produce thepetitioner before a Magistrate as required by law. Mr. D. S.Wijesinghe, learned President’s Counsel appearing for himsubmitted as a possible explanation for this lapse the fact thatsuch failure may have been occasioned by want of instructionsfrom the Counter Subversive Unit whose instructions he car-ried out in all such matters.
On 27.08.90 the 1st respondent produced the petitionerbefore the Magistrate’s Court of Kandy with a ‘B’ report No.29441/90 (P6) wherein he stated —
that he was investigating the complaint of the Uduwaarmy unit made on 13.08.89 regarding the suspect whohad been arrested for subversive activity and handedover to him for further investigations;
that further investigations are being made;
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Seetiu Weenkooa v. O.I.C. Mahendia, Police Station,
Oalagedera and Others (Kulatunga, J.)177
(c) that he was holding her under an order made in terms ofRegulation 17(1) of the Emergency Regulations.
On that day the 1st respondent also moved for an orderremanding the petitioner to Fiscal custody pending furtherinvestigations. The Magistrate made an order for her remanduntil 10.09.90 which was subsequently extended until 03.12.90on which date she was released from Fiscal Custody.
To a question by Court as to why the petitioner who wasdetained at the Galagedera Police Station under a preventivedetention order was produced before a Magistrate thelearned President’s Counsel said that this was done on theinstructions of the Counter Subversive Unit. However, thepetitioner alleges in her further affidavit dated 12.04.91 that byso producing her the 1st respondent has misled the Magistrateto issue an order for her remand to Fiscal Custody.
As justification for the detention of the petitioner, the 1strespondent states that the investigations made by his subordi-nate officers regarding the petitioner revealed information thatshe was involved in terrorist activities with one Kalyani Saraman organiser of the J.V.P., that in her statement the petitionerstated that the said Kalyani and another had met her and soli-cited her support for subversive activities which she declined;and that while eight terrorist suspects including the petitionerwere in custody there was an attack on the Galagedera PoliceStation which the police repelled by firing back. The policebelieve this attack to be an attempt to free the suspects whowere in custody.
The 2nd respondent (the Army Commander) states that thepetitioner and her younger sister were arrested by LieutenantDikkumbura in a cordon and search operation on informationregarding subversive activity after which they were handedover to the Galagedera Police Station.
The 3rd respondent (I.G.P.) states that in February 1990 hereceived an application from the Superintendent of Police
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Kandy for a detention order against the petitioner under Regu-lation 17(1) of the Emergency Regulations which he forwardedto the Secretary, Ministry of Defence. The 4th respondentstates that the said application (4R1) had been received by hispredecessor in office on 08.02.90 pursuant to which the deten-tion order 4R2 was made. In 4R1 S.P. Kandy states that thereis material to show that the petitioner had joined subversivegroups and conducted anti-government classes, recruitedmembers for subversive groups and engaged in anti-government agitation. He recommends a preventive detentionorder on the basis of such allegations.
Mr. Thiranagama, learned Counsel for the petitioner sub-mitted that the arrest and detention of the petitioner areunlawful and violative of Article 13(1) and (2) of the Constitu-tion, for the following reasons:
. 1. There are no valid grounds for her arrest; hence there isno justification for it. State has failed to produce anymaterial warranting her arrest for an offence under Reg-ulation 23(c). Consequently, the detention order 3R1 isunlawful. There is also no detention order covering theperiod from 13.11.89 to 08.02.90.
In any event, the police have failed to produce the peti-tioner before a Magistrate not later than thirty daysafter her arrest as required by Regulation 19(1) andhence her detention under order 3R1 is bad.
Edirisuriya v. Navaratnam (1)
Nanayakkara v. Henry Perera (2)
Nallanayagam v. Gunatilake (3)
The order 4R2 is not based on adequate material. It hasbeen made mechanically. The respondents themselveshad not treated that order seriously in that whilst itauthorised the petitioner’s detention at the GalagederaPolice Station she was remanded to Fiscal Custody on
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Seelha Weerakoon v. O.I.C. Maheodn, Police Station,
Galagedera and Others (Kuiatunga, J.)179
the application of the Police and was thereafter releasedby the Magistrate even without a revocation of theorder.
Regulation 23(c) is in the following terms:
“Whoever in any manner overawes, influences, or coerces,or prepares, conspires, or attempts to overawe, influenceor coerce, any person with the intention of including orcompelling the government of Sri Lanka, The President,a Member of Parliament, a member of the Police, amember of the armed forces or a public officer, to exer-cise or refrain from exercising in any manner the lawfulpowers of the government of Sri Lanka, The President,such Member of Parliament, member of the* Police,member of the armed forces or public officer shall beguilty of an offence….”
The offence so created is punishable with death or rigorousimprisonment upto twenty years and the forfeiture of all prop-erty. A mere reference in the detention order to Regulation23(3) does not sufficiently clarify the nature of the act forwhich the petitioner was arrested. A bare statement in therespondents’ affidavits that she engaged in terrorist activity, oris a member of a subversive group or conducted anti-government agitation would not provide an adequate justifica-tion for the arrest and detention of the petitioner. The Courtshould be furnished with the material or the information onthe basis of which the petitioner was arrested to enable theCourt to objectively determine the reasonableness of the suspi-cion which led to such arrest. No such material has beenplaced before this Court; and Mr. Arasekularatne, learnedSenior State Counsel conceded the existence of such infirmityin the case for the respondents. He also conceded that thematerial furnished to justify the detention order 4R2 is alsolimited to bare statements in affidavits.
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It was stated from the Bar that in .justifying the petitioner’sarrest the respondents are handicapped by the fact that Lieut-enant Dikkumbura who arrested her is not available as he isengaged in operations. I am unable to accept this statement inmitigation of the infringement of the petitioner’s rights. TheState had over six months to obtain Lieutenant Dikkumbura’saffidavit. If he was engaged in operations during that entireperiod, an affidavit to that effect should have been filed. Thishas not been done. In any event, the 1st respondent has saidthat the police have themselves investigated the allegationsagainst the petitioner and even referred to the pages of theinformation book. If so, it was open to the State to have fur-nished to this Court the material disclosed in such investiga-tions; relevant extracts of the information book could havebeen produced; but none of this has been done. As such, theimpugned arrest and detention have to be regarded as unjusti-fied.
The detention under the order 3R1 is bad for the failure toproduce the petitioner before a Magistrate which is a require-ment under the procedure established by law for the arrest anddetention of suspects. (Regulation 18(1) & 19(1) of the Emer-gency Regulations). Referring to this requirement Wanasun-dera J. said —
“It is more than a mere formality or an empty ritual, butis generally recognised by all communities committed tothe Rule of Law as an essential component of humanrights and fundamental freedoms”.
(Edirisuriya v. Navaratnam (1) p. 118)
At page 120 he said —
“It behoves us therefore to see that provisions such asthis, safeguarding human rights and human freedom areexactly complied with”.
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Seetha Weerakoon v. O.I.C. Mahcndra, Police Station,
Galagedcra and Others (Kulatunga, J.)181
In Nallanayagam v. Gunatilake (3) this Court held the non-production of the detenu before a Magistrate as required byRegulation 19(1) to be a violation of Article 13(2) of the Con-stitution. Colin Thome J. said (p.298) —
“Article 13(2) embodies a salutary principle safeguardingthe life and the liberty of the subject and must be exactlycomplied with by the executive. In our view this provi-sion cannot be overlooked or dismissed as of little con-sequence or as a minor matter”.
I am of the view that want of instructions from the Coun-ter Subversive Unit is not, as learned President’s Counsel sug-gested, a valid explanation for the 1st respondent’s failure toproduce the petitioner before a Magistrate; nor is it open tothe 1st respondent to seek to justify the needless production ofthe petitioner before the Magistrate’s Court on 27.08.90 on theground that this was done on the instructions of the CounterSubversive Unit. As on that day she was in preventive deten-tion at the Galagedera Police Station and the police had nolawful authority to apply for her remand to Fiscal Custodycontrary to the terms of the detention order 4R2. Such con-duct gives credence to the allegation that the police themselvesdid not treat the order 4R2 seriously.
It is also relevant to note that when the petitioner’s fatherUkku Banda appeared before the Advisory Committee on04.01.90 there was no detention order covering the petitioner’sdetention. If the Committee was seriously reviewing her det-ention the absence of a detention order should have come tolight. Nothing like that happened which gives credence to theversion of Ukku Banda that the Committee itself was in thedark as regards the reason for her detention which made theminquire from him what the reason was. No affidavit by therespondents denying this version has been filed. In the circum-stances, there is substance in the submission that the petitionerwas being kept in continued detention under orders mademechanically, without adequate grounds therefor.
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If the offence for which the petitioner was arrested as setout in the detention order is not specific in terms of the lawand the Advisory Committee itself had not been aware of thereason for her arrest it also supports her complaint that shewas not informed of the reason for her arrest as required byArticle 13(1) of the Constitution.
For the above reasons, I determine that the arrest and det-ention of the petitioner are unlawful and violative of her rightsunder Article 13(1) and (2) of the Constitution.
In deciding upon the relief to be granted to the petitioner Itake the following matters into consideration. Without doubtsome allowance has to be given to the forces and the police inthe matter of arrest during insurgent activity. Whilst the Courtwill strike down unlawful acts violative of fundamental rights,nothing will be done which would have a chilling effect on theconduct of law enforcement agencies who are faced withnumerous difficulties in the maintenance of the national secur-ity or public order against subversive activity. It is understan-dable that in suppressing insurgent activity cordon and searchoperations may have to be conducted leading to the arrest ofwhole groups of persons. Such persons may have to bedetained pending investigations; but care must be taken toensure that persons in respect of whom there is no evidence ofinvolvement with any offence are released early; they must notbe forgotten or kept in prolonged detention as a matter ofexpediency as happened in this case. The petitioner wasdetained at the Police Station for one year which detention isillegal for more than one reason until the Magistrate releasedher; but the Magistrate cannot by such release invalidate thedetention order 4R2. If there was no objection to the release ofthe petitioner the appropriate course was that the Secretaryshould have revoked 4R2. This has not been done up to date.However in view of my determination that the petitioner’s det-ention is illegal that order stands quashed.
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Seetba Wccrakoon v. O.I.C. Mabendra, Police Station,
Galagedera and Others (Kulalunga, J.)183
In all the circumstances, I am of the view that the peti-tioner is entitled to a sum of Rs. 20,000/- (Rupees TwentyThousand) as compensation; I direct the State to pay her thesaid sum. The evidence establishes that the 1st respondent isalso personally responsible for the infringement of the peti-tioner’s fundamental rights. As a sanction for such conduct, Idirect him to pay the petitioner a sum of Rs. 2,500/- (RupeesTwo Thousand Five Hundred) as costs.
Bandaranayake, J. — I agree.
Fernando, J. — I agree.
Application allowed. Compensation ordered.