SUSILA DE SILVAv.
WEERASINGHE AND OTHERS
COURT OF APPEAL.
SIVA SELLIAH, J. AND JAMEEL, J.
A. APPLICATION HCA 34/85.
MAY 5. 1986.
Habeas Corpus – Arrest without warrant – Sec. 18(1) of the Emergency Regulations.
An arrest without warrant was made under section 18(1) of Emergency Regulations of18.8.85 by S.l. (Police) on instructions given by his superior A.S.P. of a personreasonably suspected of inciting others to commit offences under the EmergencyRegulations. The S.l. making the arrest had no firsthand knowledge of the facts but hetold the detainee at the time of his arrest the reason for the arrest. Subsequentlydetention orders were made by the I.G.P. under section 19(2) of the EmergencyRegulations of 1985 and thereafter by the Minister of National Security under section 9of the Prevention of Terrorism Act No. 48 of 1979 and No. 10 of 1982.
Following the decision in Nanayakkara v. Henry Perera. A.S.P. (1985) 2 SLR p.375that a police officer making an arrest under Emergency Regulations 18(1) may eitherhave firsthand knowledge or his knowledge may be acquired on statements by others ina way which justifies him to give such statements credit:
the arrest was lawful, and
the subsequent detention orders by the I.G.P. and the Minister of NationalSecurity are in accordance with the law.
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.
Christine v. Leachinsky – (1947) AC 583.
Deshpande v. Emperor – AIR 1945 Nagpur 8.
King-Emperor v. Deshpande – AIR 1946 P.C. 123; 47 Criminal Law of India(1946) p. 831.
Nanayakkara v. Henry Perera – (1985) (2) SLR 375.
APPLICATION for Writ of Habeas Corpus.
W. Abeykoon with P. H. Dharmawardena for petitioner.
Asoka de Silva. S S. C lor Attorney-General
June 6, 1986.
SIVA SELLIAH, J.
This is an application for a Writ of Habeas Corpus in respect of K. K. V.Jayatillake de Silva (47), a journalist and translator who was taken intocustody by the police on 29.8.85 and still continues to be in custody.The petitioner is the wife of the corpus.
The facts upon which this application is made are stated to be asfollows:
Two police officers came to the house of the petitioner on 29.8.85at about 7.15 p.m. and removed her husband – thereafter she isunaware of her husband's whereabouts. She has made complaints atthe Welikade Police and the Police Headquarters. She has stated thather husband is innocent of any crime or illegal or unlawful incidentsand moves that the respondent be directed to produce him in court tobe dealt with according to law.
Sub-Inspector Jinasena of the Maharagama Police who arrested thecorpus on 29.8.85 at Koswatte has filed affidavit 2R4 dated
stating that he arrested the corpus on the instructions ofASP-CID, K. V. T. Perera and that he explained the purpose of hisarrest to the corpus.
ASP K. V. T. Perera has filed affidavit on 17.10.85 2R3 and statesthat he is an officer of the unit established to investigate offencesagainst the Prevention of Terrorism Act No. 48 of 1979 as amendedby Act No. 10 of 1982; he has there stated that he receivedinformation to the effect that the corpus was concerned in inciting agroup of persons to commit acts contrary to the EmergencyRegulations and accordingly instructed SI Jinasena to arrest thecorpus; he has also stated that after his arrest he placed the relevantmaterial concerning the corpus before the IGP who then made orderon 29.8.85 under section 19(2) of the Emergency Regulation No. 8of 1985 for detention of the corpus for 30 days and that the saidorder was served on the corpus; he has also set out in para 8 of theaffidavit that the investigations have revealed that the corpus is thesecretary of the Samajawadi Janatha Viyaparaya which is affiliated tothe breakaway group of the proscribed organization known as the JVP,
the sole object of which is to overthrow the legally elected governmentof Sri Lanka by illegal means and establish in its place a Marxist form ofgovernment and that towards this end were engaged in subversiveactivity and that the corpus is involved in this conspiracy to overthrowthe government. He has furnished all this material to the IGP whomade a detention order on 29.8.85 and also to the Minister ofNational Security who made a detention order on 1 2.9.85 which wereserved on the corpus. The corpus he stated, is at present held on thedetention order made by the Minister on 1 2.9.85 under section 9 ofthe Prevention of Terrorism Act No. 48 of 79 as amended by Act No.10 of 1982.
The Director CID has filed affidavit dated 22.10.85 setting out allthese matters and the affidavits of the Minister of National Security, ofthe ASP and Sub-Inspector referred to above and states that the arrestand detention of the corpus are in the circumstances lawful and thatthe petitioner is not entitled to the relief claimed by him.
The IGP (1R) has filed affidavit dated 22.10.85 (2R2) setting outthat on the material furnished to him including the matters set out inthe affidavits of SI Jinasena and ASP K. V. T. Perera 2R3 and 2R4, hehad reasons to suspect that the corpus was concerned in incitinggroups of persons to commit acts contrary to the EmergencyRegulations and that he made a detention order dated 29.8.85 (X1).
The Minister of National Security has filed affidavit 2R1 dated
wherein he stated in para 3:
"Having regard to all the information furnished to me including thematters set out in the affidavits of ASP K. V. T. Perera and SIJinasena, I have reasons to suspect that the said corpus K. K. V.Jayatillake de Silva is concerned with or concerned in unlawfulactivities, to wit, doing acts preparatory to causing and conspiringto cause the death of members of the armed forces and the policeforce and to commit mischief to the property of the government".
He states that accordingly he made detention order dated 12.9.85(X2) under section 9 of the Prevention of Terrorism Act.
At the hearing before us, learned counsel for the petitioner placedtwo principal submissions which he canvassed strongly:
That SI Jinasena who arrested the corpus had no firsthandknowledge of the alleged subversive activities of the corpus toarrest him, and that he arrested him on the instructions of theASP and that therefore the arrest was illegal and unlawful andthus anything that was done in regard to the corpus was andremained illegal.
That the subsequent detention orders X1 and X2 by the IGP andby the Minister for National Security were thereafter made for acollateral purpose, i.e. to legalise or cover up the illegal arrestand therefore were bad and unlawful.
I shall now proceed to consider these submissions.
As far as the first submission was concerned that the arrest waslawful as SI Jinasena had no firsthand knowledge of the corpus'Peged involvement in subversive activities against the State but onlyerfcted on the orders of the ASP, he contended that the arrest of theborpus was made under section 18 (1) of the Emergency Regulation of
which states as follows:
“Any police officer, any member of the Sri Lanka Army, the Sr.Lanka Navy or the Sri Lanka Air Force, or any other persorauthorized by the President to act under this regulation may search,detain for purposes of such search, or arrest without warrant, anyperson who is committing or has committed or whom he hasreasonable ground for suspecting to be concerned in or to becommitting or to have committed, an offence under any EmergencyRegulation, and may search, seize, remove and detain any vehicle,article or substance or thing whatsoever used in or in connectionwith the commission of the offence".
He accordingly contended that since SI Jinasena was merelycarrying out orders of the ASP he, i.e. SI Jinasena has no reasonablegrounds for suspecting the corpus to be concerned in any subversiveactivity and could not have informed him of the reason for his arrestand therefore the arrest was unlawful. He relied on the cases ofMuthusamy v. Kannangara (1) and Corea v. The Queen (2) which heldthat a person must be informed of the reasons for his being arrested;
he also quoted the case of Gunasekera v. De Fonseka (3) where it washeld that where an ASP has purported to arrest a person underRegulation 19 merely because he had orders to do so from hissuperior officer, the SP, and was not personally aware of the actualoffence of which the person arrested was suspected by the SP, sucharrest is liable to be declared in Habeas Corpus proceedings to havebeen unlawful. H. N. G. Fernando, C.J. has there held at p. 249 thatthe duty to inform a person of the grounds of his arrest is no more anarbitrary requirement and that a citizen has a right to resist an unlawfularrest. In Christine v. Leachinsky (4) Lord Simon said-
"Is citizen A bound to submit unresistingly to arrest by citizen B inignorance of the charges against him? I think that cannot be the lawof England”.
In Deshpande v. Emperor (5) the High Court dealing with thesuspicions of the police officer who effected the arrest made thefollowing observation at p. 26:
"The only affidavit we have on the side of the Crown is one wlitells us about the suspicions entertained by the ProvingGovernment, not by the police officer making the arrest. But wh<we have to determine here is what were his suspicions, and werethey reasonable, and not what the Provincial Government'ssuspicions are; moreover, under Regulation 129 the court has tcdetermine whether the suspicions were reasonable and not theProvincial Government".
The decision of the Nagpur High Court which held that Deshpande'sarrest and detention was unlawful were upheld by the Privy Counci.(6). H. N. G. Fernando, C.J. held in Gunasekera v. De Fonseka (supra)
adopting the principle in the above case to the facts of the presentcase, it is apparent that the arrest of the detainee and his subsequentdetention were unlawful and that he was entitled to be released fromcustody.
The learned Senior State Counsel who appeared for therespondents stated that the submissions are not tenable as theaffidavit of SI Jinasena sets out in para 2 thereof that he arrested thecorpus on 29.8.85 on the instructions of the ASP CID and that heexplained the purpose of arrest to the said corpus. (The underlining isby me). This clearly establishes that when he went to arrest the corpushe was well aware through the instructions received from the ASP that
the corpus was involved in subversive activities against the State andwas trying to overthrow the legally elected government of this countryand was thus in a position to explain the reason of arrest to thecorpus. I am of the view accordingly that SI Jinasena had knowledgeand had "reasonable ground for suspecting" that the corpus wascommitting offences under the Prevention of Terrorism Act under theEmergency Regulation. In Nannayakkara v. Henry Perera (7) a Benchof 5 judges considered this point in relation to a Fundamental Rightsapplication and held at p. 383-
"Learned President's Counsel submitted that the knowledge ofthe police officer making the arrest had to be firsthand. There is nosuch requirement in Regulation 18(1). Knowledge may be firsthandor acquired on statements by others in a way which justifies a policeofficer giving them credit. On the material available in this case I holdthat the procedure followed in the petitioner's arrest was lawful anddid not infringe his fundamental rights under article 13(1)."
In the instant case I am of the view that on the instructions of theASP, SI Jinasena to whom the instructions were given becamepossessed of sufficient material and information relating to thesubversive activities of the corpus which would necessarily have givenhim reasonable suspicions of the corpus' unlawful activities incontravention of the Emergency Regulation and the provisions of thePrevention of Terrorism Act and thus enabled him to give the corpusthe reasons for his arrest. I therefore conclude that the arrest waslawful and that the subsequent detention orders X1 and X2 made bythe IGP and the Minister for National Security are in accordance withthe law.
The first point taken therefore by the learned counsel for thepetitioner fails.
In view of my findings that the first submission that the arrest of thecorpus is unlawful must fail, the second submission that the detentionorders X1 and X2 were for a collateral purpose, i.e. to justify the illegalarrest does not arise for consideration; for if the arrest was lawful nocollateral purpose exists for the making of the detention orders whichhave been duly made in accordance with law, i.e. 9(1) of thePrevention of Terrorism Act No. 48 of 1979 by the Minister ofNational Security (X2).
There is no allegation in the petitioner's affidavit of the arrest beingmade due to any malice in fact or in law. The detention orders havebeen lawfully made and being ex facie valid there is thus no reason tohold that they were motivated by any kind of malice legal or otherwiseagainst the corpus, or made for a collateral purpose as contended by. learned counsel for the petitioner.
For the reasons set out by me this application for Writ of HabeasCorpus is dismissed.
JAMEEL, J. — I agree.