THAVARASA AND TWO OTHERS V. GUNASEKERA AND OTHERS

054-SLLR-SLLR-1996-V-2-THAVARASA-AND-TWO-OTHERS-V.-GUNASEKERA-AND-OTHERS.pdf


THAVARASA AND TWO OTHERSV.
GUNASEKERA AND OTHERS
SUPREME COURT.
G.R.T.D. BANDARANAYAKE, J.
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
S.C.APPLICATION NO. 224/94.
S.C.APPLICATION NO. 225/94.
S.C.APPLICATION NO. 226/94 .
(CONSOLIDATED)
02, 20 JUNE, 7, 13 JULY AND 01 AUGUST 1995.
Fundamental Rights – Illegal arrest and illegal detention – Constitution -Article 13 (1) and Article 13(2) – Parliamentary Elections Act No. 1 of 1981,section 74(1) which prohibited the pasting of posters in public places -Code of Criminal Procedure Act, section 116(1).
The three Petitioners were campaign supporters of Anura Bastian formerMember of Parliament and U.N.P. organiser for Colombo West and U.N.P.candidate for Colombo District of the Parliamentary Elections of August1994.
Of two widely divergent versions of the facts the Court accepted the versionof the 1st and 2nd Respondent Police Officers. According to the versionaccepted by Court:-
Police found a gjpup of persons pasting posters on behalf of Anura Bastianon the public road and environs. The pasting of such posters was an elec-tion offence.
The 1st Respondent ordered the persons who were committing these electionoffences to stop doing so. They ignored his orders and continued committingthese offences. The three Petitioners were among the crowd committingthese offences and were the leaders and one of them (Ramanathan) becameextremely aggressive towards the 1st Respondent. There were 49 otherswith the Petitioners and all were arrested. Ramanathan pulled out a pistolfrom his waist and attempted to shoot the 1st Respondent and acted in amanner to voluntarily obstruct the 1st Respondent a public servant in theperformance of his duty.
Two Police Officers, A.S.P. Kulatilleke and S.P. Paranathala denied knowingof the allegation of attempted murder until the following morning. There wasquite insufficient ground for the C.I.O. submitting, a second B report or stat-ing that the allegation h&s not been supported beyond reasonable doubt.The C.I.D. operation was described on behalf of the 1st and 2nd Respon-dents as fraudulent.
Held:
(1) The duty of the 1 st Respondent as a public servant had to perform is setout in section 74(5) of the Parliamentary Elections Act No.1 of 1981 andempowered the Police to take such steps and use such force as may bereasonably necessary for prevention of contravention of election laws.Section 74(1) (b) of the Act prohibits the display of posters in a place wherethe public have a right of access. The offence of such display of posters is acognisable offence punishable with fine or imprisonment or both. Thereforethe police arrested everybody at that time and that arrest was lawful.
The protection afforded by Article 13(1) is the protection against unlawfularrest and the recognition of the individual's right to know the reason for thearrest. The Petitioners who were perpetrators of a prohibited act have beencaught red-handed. The offenders were caught on the road in flagrantedelicto and in the circumstances there is no need to explain the reason forthe arrest. There is therefore no infringement of the rights of the petitionersas contained in the second part of Article 13(1).
Section 116(1) (of the Code of Criminal Procedure Act.) is directory and notimperative or mandatory. Despite its language there lies a discretion withthe Police to produce a suspect before a Magistrate instead of relasing himon bail to appear in court although the offences of obstruction and intimidationare bailable. The Petitioners were treated by the 1st and 2hd Respondentsas organisers or ring leaders and that was the distinction made as againstthe 49 others arrested and given Police bail. Those 49 were treated merelyas workers or helpers who actually pasted the posters given to them by theorganisers.
The version of the 1st and 2nd Respondents shows a massive obstructionto public officers. The words used are not mere words of protest. They arewords of intimidation, threat to employment, threat of transfer to a war zone,clearly intended to defer a police officer from doing his lawful duty ofpreventing election offences being committed, words likely to dissuade tohinder or prevent a public servant from doing his duty. These words utteredon the public road in the company of about 50 of their helpers amounts tooffences punishable under sections 183 and 486 of the Penal Code. ThePolice wisely produced the disputing party, disputing their arrest, before aMagistrate.
Procedures regarding detention vary with the relevant law governing the ar-rest. The prescribed period of detention following arrest under the Parlia-mentary Elections Act is governed by the Code of Criminal Procedure Actand is the outer limit within which the arrestee must be brought before ajudge. That is the essence of this sub-article (Article 13(2)) and is one of thechecks the law provides to protect the freedom of the inividual.
A violation of Article 13(1) (illegal arrest) does not necessarily result in aviolation of Article 13(2). Article 13(2) seeks to ensure that persons are notdetained arbitrarily by persons like Police Officers who perform executivefunctions. Detention untill 11 a.m. was not arbitrary but justifiable in thecircumstances. There was therefore no infringement of the provisions ofArticle 13(2).
Any finding on the allegation of attempted murder, which really is a matterfor a trial Court, will not affect the decision regarding Article 13(1). The 2.30
а.m. entry of the 1st Respondent containing information of an attempt toshoot at him was a prompt contemporaneous entry made in the course ofinquiries and is not belated. The Court is not impressed with the denial ofthe petitioners of the 1st Respondent's allegation of an attempt to shoot athim. The Court is unable to hold that the 1st Respondent has not done animpartial inquiry or that he has fabricated evidence against Ramanathan inparticular. The role of A.S.P. Kulatilleke and S.P. Paranathala and of the C.I.D.was suspicious and unacceptable.
Cases referred to:
Muthusamy v. Kannangara 52 N.L.R. 324, 329.
Corea v. The Queen (1954) 55 N.L.R. 457.
3(a).Abeywickrerha v. Pathirana 1986 I SLR 1713(b). Uparis v. Robert 36 NLR 325
3(c). Christie v. Leachinsky (1947) A.C. 573, 593.
Tunnaya alias Gunapala v. O.I.C. Police, Galewela (1993) 1 Sri L.R.61,66.
Police Sergeant v. Razak 13 C.L.W. 39.
б.Police Sergeant v. Simon Silva 15 C.L.W. 13.
Selvakumar v. Devananda S.C. Application 150/93. S.C. Minutes of13.7.94.
Kumara v. Rohan Fernando S.C. Application 22/90- S.C. Minutes of
21.7.94.
Mahinda Rajapakse's case S.C. Application No. 2/93.
S.C.Minutes of 31.3.94.
Faiz v. A.G. S.C. Application No. 89/91 S.C. Minutes of 19.11.93.
APPLICATION alleging infringement of Fundamental Rights guaranteed un-der Article 13(1) and 13(2).
S. Wijesinghe, P.C. with Manohara R. de Silva for Petitioner, V. Thavarasa.F. Mustapha, P.C. with S.Jayawardena for Petitioner S. Ramanathan.R.K.W. Goonesekerafor Petitioner S. Balachandran.
D. Wikramanayake for 1st and 2nd Respondents.
Nihara Rodrigo, Senior State Counsel for 3rd and 4th Respondents.
November 17, 1995.
BANDARANAYAKE, J.
These Petitions contain complaints against officers of the MountLavinia Police in regard to an incident which took place on 7th/8thAugust 1994 during the campaign and run-up to the Parliamentary Gen-eral Election held on 16th August 1994 when the Peoples Alliance wonthe election and formed a Government. This was a period of intensepolitical activity by contesting candidates and their supporters.
FACTS:
Brief statement of events leading to arrest:
The Petitioners were campaign supporters of Mr. W.D.I. AnuraBastian former Member of Parliament and UNP organiser for ColomboWest and UNP candidate for Colombo District.
The three Petitions were taken up and heard together of consentas the facts were common to all. But it was pointed out that the in-volvement of each Petitioner was different and this must be kept inmind when the Court considered the affidavits and other evidence inthe background of applicable Election Laws and Penal Laws.
Petitioner Velauthan Thavarasa is an Attorney at law and avershe had been retained by Mr. Anura Bastian to advics, represent andappear for Bastian's supporters during the campaign, He is a mem-ber of the National Executive Committee of the United National Party.
Petitioner S.Ramanathan is a member of the United National Partyand is also a member of its National Executive Committee besidesbeing a Colombo businessman. The business'es mentioned by himin his petition are:
Chairman of Qroundmet Travels and Tours (Private) Ltd. an Air-line Travel and Ticketing agency of 4 York Street Colombo 1. andSole Agent for Beeman Bangladesh Airline and Royal Nepal Airline;he says he is also a passenger ticket sales agent for Air Lanka, Emir-ates Airlines, Air India, Cathay-Pacific Airlines, Singapore Airlines,Balkan Airlines and Royal Jordanian Airlines. He is also President ofthe Union Importers Association.
Petitioner Sathasivam Balachandran is a brother of PetitionerVelauthan Thavarasa and is a businessman.
This incident occurred during the period of permitted meetingsregulated by the Parliamentary Elections Act No: 1 of 1981. ElectionLaws prohibited the pasting of posters of candidates in public places-vide section, 74(1). On 7.8.94, there had been a public meeting atSoysapura in support of former MP and Minister Tyronne Fernandoalso a UNP candidate at the said election contesting Colombo District.This public meeting continued into the night. Both the Petitioners andthe Respondents state they had been present at that meetihg. Bothparties had to return along Galle Road to reach Mount Lavinia andColombo.
There had been a group of persons pasting posters on behalf ofMr. Anura Bastian on the public road and environs. The road has a dualcarriage way. There were street lights. The posters were of Anura Bastiansingly, of Bastian with former President D.B.Wijetunge and of Bastianwith former Prime Minister Ranil Wickramasinghe. This place of inci-dent was close to the Basic Technical Training Institute Ratmalanaand close to a junction known as Belek Kade Handiya.
We now come to the point where the 1st and 2nd Respondentsproceed to the scene at about midnight consequent to a telephonemessage from Assistant Superintendent of Police J. Kulatilleke.
Jayantha Kulatilleka who, whilst returning from Soysapura him-self had seen several vehicles and people pasting UNP posters onparapet walls and on fhe road near Belek Kade Junction had directedthe 1st Respondent to take steps according to law. The relevant po-lice entry has been produced marked 1R1 being an extract from theElection Information Book of the Mount Lavinia Police and the time ofthat entry is at 00.20 a.m. on 8.8.94.
The 1st Respondent who was at Soysapura, assembled a policeparty and came to a spot near the Technical College where he sayswas a crowd of persons and several vans parked and, inter alia,pasting posters of Anura Bastian which acts constituted offences. The1st Respondent states he ordered the persons who were committingelections offences to stop doing so. They ignored his orders and con-tinued committing offences. The three Petitioners were among thiscrowd of persons committing offences. S. Ramanathan was directingthe others and ail three Petitioners became extremely aggressivetowards him. There were 49 others whom he apprehended at the .time besides the Petitioners.
The Court will deal with the particulars relating to the conduct ofeach of the Petitioners, from the time of the first confrontation withthe 1st and 2nd Respondents, as presented by the versions beforecourt.
At this point however I allude to the versions of the Petitioners asto the circumstances in which they came to be confronted by the po-lice. The Petitioners state that at about 12.30 a.m.’on 8.8.94 afterattending the said meeting at Soysapura Moratuwa, they left for Co-lombo in a van driven by driver Alagarathnam. On the way the Peti-tioners received a telephone call from one Nirmalan, a Bastian sup-porter, that some of Bastian's supporters were being assaulted bythe police at Ratmalana. Simultaneously the Petitioners saw agathering of almost 50 persons on the road opposite the TechnicalTraining Institute and some persons were being assaulted by the po-lice. They stopped their van, got down and made their way to thepolice officers. Petitioner Thavarasa identified himself as an attorneyat law looking after the interests of candidate'Anura Bastian.
Before the Court considers the conflicting versions of the partiesi.e. facts supportive of the claim of the Petitioners of an infringementof their fundamental rights on the one hand, and facts inconsistentwith the Petitioners version which may show that the police officersconducted themselves within the law to enforce*the law by preventingits breach on the other, it would be useful and convenient to set downbriefly the successive events that took place after the police took thethree Petitioners and 49 others to the police station and took intocustody several vehicles and posters and articles used for the pur-pose of pasting posters.
BRIEF STATEMENT OF EVENTS AT POLICE STATION AFTER ARREST.
From documents produced at this hearing we find that, after sev-eral people were brought to the police station that night, the 1st Re-spondent pleads that he informed the Petitioners of the charges ofcommitting prohibited acts under elections laws and other offencessuch as intimidation and attempted murder punishable under the PenalCode against them and took them into custody. An entry to this effecthas been made in notes made by the 1st Respondent in the aforesaidElections Information Book and produced marked 1R1. This note com-mences at 2.30 a.m. on 8.8.94. It is a continuation of the earlier entrymade at 00.20 a.m. in 1R1. This later entry also contains notes per-taining to the extremely aggressive intimidatory conduct of these Peti-tioners and the threats they made against the 1 st and 2nd Respond-ents, details of which will be set out in due course.
The Assistant Superintendent of Police Mt.Lavinia JayanthaKulatileke on irrformation given by telephone by the 1 st RespondentHQI, visited the Mt.Lavinia Police station at 1.15 a.m.. on 8.8.94. Hisnotes entered in the Officers Visit Book commonly referred to as theOVB commence at 1.15 a.m. and have been marked 1R2. Accordingto that note, when he went to the police station he saw 5 vans parkedoutside and inside the police station premises, about 45-50 personsalleged to have been caught pasting election posters on the publicroad, and the three Petitioners along with the 1st and 2nd Respond-ents and several other police officers present. He questioned the 1stRespondent regarding the incident. The notes of the ASP at this pointdo not refer to the 1 st Respondent having informed him that PetitionerRamanathan fired at him with a pistol. This omission is a point stressedby all Counsel for the Petitioners. It was by their submission that theallegation of attempted murder was an afterthought. The note contin-ues to state that he separately questioned the Petitioners and theytold him that they were assaulted by police officers and taken intocustody on the road upon an allegation of pasting posters and broughtto the station, that the 1st Respondent took Ramanthan's licencedpistol and a bag containing Rs.82,000/- and the Celltell phonebelonging to Petitioner Thavarasa (which has been returned). Thenote continues and refers to Anura Bastian coming to the police stationat 2 a.m. and asking for the release of the Petitioners. At 2.15 a.m:’ASP notes he received a telephone call from C.V. Gooneratne (PAcandidate from Colombo District at the general election) informinghim that a crowd of Anura Bastian's supporters committing electionoffences have been arrested, that they have attempted to shoot policeofficers and that he informed the IGP and requested me to actaccording to law. ASP informed the SP. J. Paranathala of the inci-dent. Also, it is noted that at the urgent request of AAL Thavarasaand Mrs. Thavarasa for bail, he will consider the matter. At this pointis a full stop in the note. It continues on the same line thus:
®0 §= eo3: S3: (sSeaQ 7.00) o®«S ©O ^jrf©3 SSoo s>®3 s@® 80csfp5ftpO'>C200 cozrfzn zae e@S SSsi 6o®&>o$7sJ cszsj epcs za®30 ®g tps>
8tdes)riQ<3cs&i ©OSrajsfzae^ sScsa
Thus*the ASP's note pointedly records the time at which he saysan information was given to him by the 1 st Respondent namely, thatPetitioner Ramanathan attempted to shoot him with a pistol at the timeof arrest and for that reason they cannot be released on bail. Counselfor the Petitioners rely on this entry contained in 1R2 in making thesubmission that it was only at about 7 a.m. on 8.8.94 that the 1stRespondent for the first time made the allegation of an attempt madeby Petitioner Ramanathan to shoot at him at the time of his arrest. Ihave used the word "pointedly" because the said time has been notedwithin brackets.
Nowhere else in the ASP’s note 1R2 has any time been placedwithin brackets although specific times have been given regarding thearrival of Anura Bastian at 2 a.m. and C.V. Gooneratne's telephone callat 2.15 a.m. Counsel for the 1 st Respondent submits that the (7 a.m.)entry is a false entry in the circumstances and has been done pur-
posely by the ASP in the morning to ensure that the Petitioners arereleased from custody on bail as all other offences were bailable. Thecircumstances 1 st Respondent's counsel alludes to are:
That other specific times contained in 1R2 have not beenplaced within brackets;
C. V. Gooneratne telephones the ASP at 2.15 a.m. and informshim specifically of the attempt made by those committing electionsoffences to shoot at police; This information is thus available to theASP at 2.15 a.m. Someone, perhaps a member of the public at BelekKade Junction had informed Mr. Gooneratna.
The 1 st Respondents notes 1R1 commencing at 2.30 a.m.refers to the attempt to shoot him with a pistol.
That Anura Bastian came at 2 a.m. and requested that allthose people arrested be released -1R2. This was not done. Theywere not released. Why?
Subsequent events confirm that quite unusual steps have beentaken to report to court by 4 p.m. the same day that, contrary to the Breport already filed by the 1st Respondent – P2 the allegation of anattempted murder by shooting cannot be seriously supported tipon theavailable evidence. So Petitioner Ramanathan comes home on bailthe same day.
ASP Kulatileke in 1R2 has inspected the pistol P1 and the mis-fired bullet P2 at 8.30 a.m. having been given same by reserve PS12298.ASP had seen an indentation on bullet P2 (This marking of P2 is whathad been given by the Mt.Lavinia police in their investigation.) Thisportion of his note 1R2 is marked 3RY2. To continue the narrative ofevents, the three Petitioners were produced before the JMO by the 1 stand 2nd Respondents that morning despite their objection. No injurieswere seen. Thereafter they were produced before the Magistrate withB report P2 at about 11 a.m. The Magistrate did not wish to hear thecase but transferred it to the Additional District Judge who made anorder of remand in custody as against Petitioner Ramanathan againstwhom there was a specific allegation whilst granting the other two Pe-titioners bail. The B report P2 contained allegations of offences pun-ishable under sections 183,300,486 (i.e) obstruction; attemptedmurder and criminal Intimidation. The police did not object to bail asagainst Petitioners Thavarasa and Balachandran probably becauseit involves questions of law such as common intention.
INTERVENTION OF THE CID:
Concurrent with the events of the 1st and 2nd Respondents tak-ing the Petitioners in the morning of 8.8.94 for a medical examinationby the JMO at about 7.30 a.m. and later producing them in Court at11 a.m. other happenings with regard to this matter have been placedbefore the Court by learned Senior State Counsel representing the In-spector General of Police and the Attorney General, the 3rd and 4thRespondents. Letter 3R1 was produced before us; this is a photocopyof a letter written by Anura Bastian to Deputy Inspector General ofpolice CID (Amarasena Rajapakse since retired). The letter is un-dated. It is in the English language. It reads as follows:
Quote "Strong representations are being made to me
by a large number of supporters regarding the HQI, Mt. Lavinia, tohave them remanded till the election is over.
One’such case is one Ramanathan against whom the HQI hasmade a case where Ramanathan has attempted to shoot him.
As this is going too far I would like you to take an*interest and seethat justice is done."
Sgd:
Ex:MP. Anura Bastian "..unquote. On this letter, AmarasenaRajapakse side lines the 2nd para marking it "X" and minutes as fol-lows:
Sgd;
Quote". On the direction of IG police please send a team
under the direction of SP. Mr. Othnapitiya particularly about the alle-gation at "x" above and report.”
Sgd:
(8.8.94 DIG). Thereafter 3R1 reaches SP Othnapitiya (SP, CID,Interpol Division)
(It would appear that it was DIGCID, who selected the SP incharge of Interpol Division to conduct inquiries against police officersof Mt. Lavinia.) Overleaf of 3R1 is another minute addressed to E10marked 3R2- requesting E10 to look into these allegations and report- comply with orders of DIG/CID. Thereafter at 9.05 hrs. on 8.8.94Othnapitiya's notes, also found in document 3R1, states that DIG/CID and Director CID are present. DIG informs him that Mt. LaviniaPolice had arrested some persons in connection with offences relat-ing to election offences Viz: UNP supporters putting up posters onbehalf of Mr. Anura Bastian and that a person named Ramanathanhas been taken into custody for attempting to shoot HQI Mt. Lavinia.
The note continues stating DIG has said that the IGP has orderedan impartial inquiry be conducted by the CID since allegations havebeen made that police had not done an impartial inquiry.
Thereafter Director/CID was asked to form a team immediatelyunder Othnapitiya's command to conduct inquiries.
Next, Othnapitiya's notes of inquiry are marked 3R3. They read asfollows: 10.45 hours police station Mt.Lavinia. Now to SP's office.
I met SP Mr. J. Paranathala and ASP J. Kulatileka. They briefedme facts of the case. According to SP/ASP., the HQI had not in-formed them of the alleged attempted shooting incident until this morningalthough HQI had met the ASP immediately after the incidents lastnight. There hdd been several armed police officers together with theHQI at the time of the alleged incident. I instructed Cl Upasena torecord a statement of ASP in his office. I shall get down the other
police officers and question themsgd. SP Othnapitiya. The next
entry of Othnapitiya has been marked 3R4 and reads thus:
8.8.94 13.45 hrs: Director/CID telephoned me and informed thatthe IG Police had directed DIG/CID to file a report in Court on thebasis of the material as it is strongly suspected that HQI Mt: Laviniahas fabricated evidence against 3 persons, namely Ramanathan andtwo others implicating them in a case of alleged attempt to shoot.Director/CID instructed me(Othnapitiya) to move Courts that the CIDis making detailed inquiries into this matter and submit a report oncompletion of the investigation and CID has no objection to releasingthe suspects on bail.'Unquote
COURT PROCEEDINGS ON CID REPORT.
The next thing that took place as far as the Court proceedingswere concerned, was the filing of a 2nd B Report at 4 p.m. on thesame day by Cl. Rohan Upasena of (Interpol Division). In his reporthe says that the CID was conducting a wide investigation at MT.Lavinia Police Station and has obtained a statement from ASPJayantha Kulatileka of Mt.Lavinia and that "according to the evidenceso far collected, facts to show that there had been any attemptedmurder or a threatening by aiming a pistol have not been revealedbeyond reasonable doubt. Therefore I move that these suspects (1)W.P. Thavarasa. (2) S. Balachandran and (3) S. Ramanathan whohave been produced before court now, be discharged on bail undersection 114 of the Criminal Procedure Code. Act No 15 of 1979."
Upon this 2nd B Report the Magistrate, now decides to deal withthe case regarding Ramanathan, and stating that – quote "the 2nd Breport produced reports that there is no evidence to support the factsstated in the first report in respect of suspect Ramanathan"unquoteand decidesquote" accordingly I am or-
dering bail to him since it is an infringement of his rights to remandhim. Accordingly I am ordering same bail to him as ordered to theother suspects. I am ordering this 1 st suspect (Ramanathan) Rs.2500/- cash/certified bail. Call case on 22.08.94 …."unquote"….
Next, Cl. Rohan Upasena giving evidence before the Magistrateon 10.08.94, produces a pistol bearing serial No.A3404 of Czechoslo-vakian make and live bullets and a misfired live bullet with a mark asthough hit by the firing pin which he says he received from the 1stRespondent and placed the seal on the package. Witness moves tosend productions to the Government Analyst for examination and re-port. The Magistrate makes order that productions P1-P4 be so sent to
the Analyst. He further orders that the productions"….. quote" be
handed over to Chief Inspector Rohan Upasena to be sent to the Gov-ernment Analyst"At this point of the proceedings on 10.08.94,
Attorney at Law Kanthilal Kumarasiri appearing for the present
Petitioners (who were accused in the Magistrates Court) in the course
of submissions has stated to Court"quote" The firearm had .not
been sealed and on the following day at 9 a.m. the police officershave forwarded it to the CID. My request is that reports on the pro-duction be obtained and the Analyst's report and the productions bekept in special custody of Court". But the Magistrate made order…quote…" in accordance with the request of Mr. Kumarasiri, I orderthat the productions be sent to CID through Cl. Rohan Upasena andthat they be kept in their charge….1 reject the application made to
keep the productions in Court. I order that they be kept with CID"
The Magistrate in so ordering, has referred to a JSC circular sent in1983 against keeping of fire arms in court premises in the wake ofmassive disturbances in Colombo.
Chief Inspector Upasena filed in court a further report P5. Thisreport refers to statements recorded of thirteen persons. The state-ments of the two Respondents and three other police officers, namelyInspector Dhanandaya, Sub-Inspector S. Jayamaha and policesergeant 1965 Mathes all support the 1 st Respondent's assertion thatPetitioner Ramanathan who was wearing a sarong, at one point tooka pistol from his waist and pointed it at the 1st Respondent. We donot know how far away from the HQI these witnesses were. The 2ndRespondent and PS. Mathes corroborate. The 1 st Respondent statesthat Ramanathan pulled the trigger. Inspector Dhanandaya andJayamaha say Ramanathan pulled out the pistol and pointed the pistolupwards at the HQI when the HQI caught him and wrested the pistolfrom him. *
As against this, the summary of the statement made by SPJayantha Paranathala is to the effect that at about 2 a.m. on 8.8.94ASP Kulatileka informed him that a group of persons pasting posterswere obstructing the police and that they were detained at the policestation; no one informed him of this shooting till next morning althoughthey were bound to inform him of such serious incidents immediately.
The summary of ASP Kulatileka's statement in P5 is that whilstreturning home from the Moratuwa meeting he noticed persons affix-ing posters on the road. He informed HQI Mt. Lavinia the 1 st Respond-ent to take action. Again at about 1 a.m. he had to come to the policestation to settle a dispute that was ongoing between those caughtand the HQI. The HQI informed that the Petitioners had obstructedhim in his duties. He*questioned the petitioners who informed himthat the police had taken into custody Ramanathan's bag containingRs.82,000/- and they assaulted him but that no information regardingan alleged shooting at the HQI was given to him that night but that heknew it for the 1st time next morning when reading the B report thathad been prepared.
Alagaratnam's affidavit P8 shows he did not get down from thevan.
An examination of the Information Books of the Mt.Lavinia Policeshows.
That the routine information book 3R5 at page 319 para. 1373contains an out entry at 17.30 hrs. on 7/8/94 marked 3R5 A that offic-ers are going for election duty at Moratuwa. This confirms the affida-vits of 1st and 2nd Respondents.
Next is an entry in the Election Information Book 3R6 at 00.40am. although date on page is 7.8.94 Senior State Counsel submitsthat it has to be on 8.8.94 having regard to other entries. Court issatisfied'that this is so. This entry is marked 3R6B.
There are entries regarding the handing over of suspects to thereserve. Then bail has been granted to 46 named persons on orders ofthe ASP at 5.45 a.m. on 8.8.94 – vide page 199 at para .70. This entryis marked 3R7B.
After that there is another out entry at p.202 para. 71. at 7.15a.m.-HQI taking 3 named suspects to Kalubowila Hospital for exami-nation by the JMO. This entry is marked 3R8B. The relevant provisionto do this is section 122(1) of the Criminal Procedure Code.
An entry at p.122 para 388 at 1 p.m. on 8.8*94 made in theBeat Information Book explains why 1st Respondent had to start anew book at Mt. Lavinia police as books had been removed by theCID. This entry has been marked 3R9C.
A second Election Information Book had to be opened by Mt.Lavinia Police on 8.8.94 at 22.15 hours as the earlier book had beenremoved by the CID. This is marked 3RX.
1R1 already referred to are notes made by the 1 st Repondentin his crime note book pages 20 and 21 at 00.20 hrs: and pasted.Pasting commences at 22.30 hours – vide page 34 on 8.8.94-marked3RX1. Again notes made in this crime note book by the 1 st Respond-ent commencing on 8.8.94 at 2.30 a.m. are also pasted marked 3RX2.
Entry made by ASP Kulatilake at P.362 at 8.30 a.m. on 8.8.94in the Officers Visit Book 3RY1 that he inspected the pistol and bulletpresented to him by PS 12298 and that he saw an indentation on abullet is marked 3RY2.
The Government Analysts report P10 dated 7.10.94 states that herecieved 3 parcels from Magistrate Mt.Lavinia with seals intact. Theparcels contained.
P1-9×19 mm CZ75 pistol
P2-9×19 mm – cartridge with indentation
P3-9×19 mm -11 cartridges
P4-cartridge case.
GOVERNMENT ANALYST'S OPINION:
Opinion of the Government Analyst:
P1 is a firearm as described in the firearms Ordinance.
P1 barrel had smell of spent gun powder residues denoting P1had been fired but one cannot say when P1 was last fired.
P2 cartridge with indentation was compared with test roundsfired. The indentation seen on P2 was different to indentations on testrounds fired with P1. P2 has not been fired from P1.
Submissions of Counsel on behalf of Petitioners
Tq summarise submissions of Counsel in these applications, on
behalf of Velauthan Thavarasa, Petitioner in application 224/94 D.S.Wijesinghe PC submitted.
The police say he was pasting posters on the public road-vide1R3. Petitioner denies it. He says he got to the scene after thepolice. On reaching the scene when he saw the police assaultingtheir helpers on the road he protested as an Attorney looking afterthe interests on Anura Bastian but the police taking umbrage at hisprotests took him and others to the police station. Thus the onlyallegation that can possibly be made against him is one of obstruc-tion for the protest he made.
Mere words of protest do not amount to obstruction of a publicservant, an offence punishable under section 183 of the penal code.In support of this contention he cited: Muthusamy v. KannartgaraP>
Again, the true reason for an arrest must be made known to thearrestee Corea v. The Queers
The case Abeywickrema v. PathiranaP*' and the case reported inSC 212/87; SC minutes of 24.7.89 were also cited.
There is an important contradiction between the 1st and 2ndRespondents version on the one hand and that of the ASP's and SP'sKulatilake's and Paranathala's on the other as to the time the allega-tion of attempted shooting was made. The ASP says he knew of it forthe first time at 7a.m. whereas the Respondents sedk to put the timemuch earlier to about 1.15 a.m. The investigation done by the CIDtend to confirm the position of the ASP and SP that there is substan-tial doubt in regard to the allegation of an attempt to shoot the 1stRespondent. If so then the police are left only with the allegations ofobstruction and intimidation of a public servant both of which are bail-able offences for which police bail could have been given. The factthat bail was refused shows the mala tides of the Respondents. Theallegation of pasting posters is denied. The allegation of threats andintimidatory behaviour by the Petitioner is also denied. Petitionersstatement recorded at 4.30 a.m. in the GC1B (II) at p.144/145 makesno reference to obstruction or attempted murder. There was in factno reasonable ground for arrest. There is therefore an infringementof Article 13(1) and continued unnecessary detention violative of Article13(2).
There is a difference in the number of bullets said to havebeen taken from Petitioner Ramanathan between what is stated inthe First-B report and the 1st Repondent's objection filed in the case.(Counsel for Respondents admits a mistake having been made asbooks were not available to them as CID had removed the books)
Counsel wished the Court to look at the entries made by policeofficers at Mount Lavinia intrinsically. On behalf of S. RamanathanPetitioner in application 225/94 Faisz Mustapha PC contended that:
There were two issues the Court has to consider in regard tothe Petitioner's claim of violation of his rights of freedom from unlawfularrest and unlawful detention – protected by Articles 13(1) and 13(2) ofthe Constitution.
They were:
As the Petitioner got to the scene after the police, was therereasonable grounds for his arrest. Has the true reason for arrest beengiven? Mere words do not amount to obstruction of a public servant.Counsel adopted the submissions of other Counsel. Was continueddetention overnight warranted?
Offences set out in section 74(2) of the Parliamentary Elec-tions Act as well^s the offences of criminal intimidation and voluntaryobstruction of a public servant from performing his duty punishableunder sections 486 and 183 of the Penal Code as set out in the BReport presented by the 1 st Respondent were bailable. Under section116(1) of the criminal procedure code, the police should have grantedbail without producing him before the Magistrate. There has thereforebeen unlawful detention until 11 a.m. on 8/8/94.
The allegation of attempted murder is entirely false. Petitionerhad a licensed pistol for the protection of his business. The licencewas produced that night. The gun was in his bag with Rs:82,000/- whichis missing.
(ii) Test the 1st Respondent's version in 1R1 in the light of ASP
Kulatilake’s notes in 1R2. The allegation of attempted shooting hasbeen entered in the ijotes made by the 1st Respondent in 1R1 after2.30 a.m. after Mr. C.V. Gooneratne's telephone call at about 2.00a.m. to the ASP informing him of a shooting incident at Belek KadeJunction. How Mr. Gooneratne came to hear of such an event remainsunexplained. The ASP's note at 1R2 that he heard of the attemptedshooting only at 7 a.m. on reading the B report destroys 1 st Respond-ents notes made at 2.30 a.m. for if it were so, the 1st Respondentshould have informed the ASP of that fact which he has failed to do.Therefore 1 st Respondent's allegation is unreliable.
Petitioner complained of loss of money Rs:82,000/- to the ASPthat night. Therefore this false allegation of attempted shooting hasbeen foisted on the Petitioners; they learnt of this allegation only at11 a.m. in Court.
Government Analyst's Report P10 contradicts any possibilitythat unexpended bullet with markings made by a firing pin, had beenfired from the production pistol;
SP Paranathala supports ASP Kulatilake that 1st Respondenthad not mentioned about the gun incident before 7a.m.
{statement of Petitioner recorded at 4.30 a.m. does not bear aspecific reference to the attempt to shoot. There is no denial or admis-sion of same although there is a reference to the gun and the loss ofmoney. Petitioner made allegations to the ASP against the police. Thusif the allegation of attempted shooting is false, there was no reason toarrest. He should have been released along with the 49 others by 7a.m. As a false reason has been given continued detention violatespetitioners rights under Article 13(2).
On behalf of Balachandran Petitioner in application 226/94 R.K.W.Gunasekara contended:
When Petitioners were produced before the ADJ Mt.Lavinia at11 a.m. they thought there was only a "pasting of posters" charge.Now they found a charge of attempted murder. A lawyer for PAFFERALorganisation Mr. Mendis appeared and objected to bail for Ramanathan.
Ramanathan was remanded whilst Petitioner also on a section 300Penal Code charge was released on bail. How?
According to the police these were two incidents
of pasting posters;
of obstruction to the police and of attempt at firing a pistol.
It was submitted that the latter part of 1st Respondent's storywas fabricated to make charges more severe as Thavarasa hadprotested at the arrest of the other 49 helpers. Although the threePetitioners came in a van together later, they were also taken withthe 49 others pasting posters. Verba! protest was made. That is notobstruction of a public servant.
Senior officers were not informed until 7 a.m. the next morningof the matter of the attempt to shoot as they should have been. There-fore the Respondents version was improbable.
CID investigation report is supportive of the senior officers claimthat they were not informed of the attempt to shoot until the follwingmorning. Therefore Magistrate granted bail to Ramanathan. All Peti-tioners were discharged on 9.10.94 and all proceedings discontinued.
Only supportive evidence was of obstruction by Thavarasa ashe protested both at the scene and at the police station. That was theshouting match referred in 1R2.
Petitioner Balachandran had nothing to do with the allegedattempted shooting incident or of obstruction or of pasting posters.Therefore he has been wrongfully arrested and detained.
Submissions of Counsel for 1st and 2nd Respondents
Submissions made by Counsel on behalf of the 1 st and 2nd Re-spondents on specific matters have been set down in earlier parts ofthis judgment. A«ummary is
(a) That the Petitioners were at the scene directing the operation .of pasting posters when the police got there on instructions of ASPKulatileka;
That Thavarasa, Ramanathan and Balachandran out of thecrowd who were acting in contravention of election laws challengedthe police, abused and threatened them. Ramanathan pulled out apistol attempted to shoot the 1st Respondent and acted in such amanner as to amount to voluntary obstruction of a public servant inthe performance of his duty. That duty is contained in section 74(5) ofAct No 1 of 1981 empowering the police to take such steps and usesuch force as may be reasonably necessary for prevention orcontravention of election laws. There is a prohibition against thedisplay of posters in a place where the public have a right of access- vide section 74(1) (b) of the Act. The offence of such display ofposters is a cognisable offence punishable with fine or imprisonmentor both. Therefore the police arrested everybody at that time, andthat arrest was lawful.
That to say that it was only at 7 a.m. that ASP Kulatilake learnedof an attempt to murder was an untruth. The 1st Respondent hadinformed him of it when ASP came to the station about 1 a.m. TheASP also learned of it from Mr. C.V. Goonaratne. ASP's conduct inbracketing the time thus (7a.m.) is indicative of a desire to draw at-tention to that time in his note. SP Paranathala's statement to ClUpasena cannot be true.
•The conduct of DIG/CID Amarasene Rajapaksa is very unu-sual. Why did he choose Interpol to investigate the conduct of theMt. Lavinia Police. Is not the police hierarchy in charge ofadministration of the Mt. Lavinia police division the proper authorityto have investigated allegations such as this. That would have beennormal procedure. How can anyone say that police hierarchy in theMt. Lavinia police division is less independent or less competent thanthe international crimes division. This puts the entire investigation ofCl Upasena in a suspicious perspective. Were handpicked supportersof the political party of which two of the Petitioners were executivecommittee members solicited to ensure that one of them, Ramanathan,is released on bail the same day. The report of Cl Upasena is unac-ceptable as it does not deal with important aspects of the materialavailable to him;
The Magistrate's order placing the production pistol and car-tridges etc: in the hands of Cl Upasena is not proper in thecircumtances of this case. The Magistrate's Court has not openedthe parcel presented by Upasena, inspected its contents as it shouldhave, and resealed it with the Court seals. This failure results in apossible challenge to the Government Analyst. Thus the 1 st and 2ndRespondents challenge the production unspent cartridge with marksof indentation of the firing pin examined by the Analyst as not thesame one taken into custody from the Mt. Lavinia police by Upasena.This challenge is warranted in the suspicious circumstances of theCID investigation already adverted to. It was all a ruse to haveRamanathan released on bail by 4 p.m. the same day.
The contradictory positions taken by the Petitioners as to wherethe gun was remaining is unexplained. Ramanathan says it was inhis bag along with cash Rs: 82,000/-. Nanayakkara who has filedaffidavit in favour of the Petitioners puts the pistol under the carpet inthe van.
The Respondents say it was in Ramanathan's waist. This is moreprobable as the Analyst has found gun powder residues in the barreland says it has been previously fired. Again, Mrs: Thavarasa went tothe police station with. Anura Bastian at 2.00 a.m. and produces thelicence. Why rush in with the licence at that time if the gun had beenharmlessly lying in a bag or in the van. On the contrary does not thatsuggest that the gun has assumed significant relevance in the inquir-ies by 2.00 a.m.
The allegation of loss of cash Rs: 82,000/- is denied and ispalpably false made to superior officers and introduced by Ramanathanto embarrass the police for arresting him and not giving in to hisintimidatory tactics. For one thing, there was no need to carry such alarge amount of money as helpers had been fed and transported byAnura Bastian. For another, the CID inquiry is silent about the loss ofmoney.
The 1 st and 2nd Respondents were merely doing their duty asordered by their ASP when they were subjected to much abuse, threatsof transfers to unpopular stations and even physical threats. They weresubjected to massive obstruction. The police were fully entitled toarrest everyone involved in pasting posters at midnight on the road.
The 49 others were released on bail as they did not behave in animproper manner but stopped doing prohibited acts. The 1st and 2ndRespondents were justified in what they did. They were preventedfrom making necessary entries, as their books were removed by theCID and they had therefore to open new books. This explains theminor inconsistencies pointed out by Counsel for Petitioners. Alsoonly 12 bullets were found – vide first B report and not 13 as mistak-enly stated in the objections. Objections were filed whilst the infor-mation books were not available to the 1st and 2nd Respondents.
There has been no infringement of any of the FundamentalRights of the Petitioners. Counsel submitted that the 1st and 2nd Re-spondents have been unable to present themselves before promo-tion Boards because of this case and asked for costs.
CONCLUSIONS
[A]
The question whether the Petitioners were on the public roadparticipating in the commission of prohibited acts under Elec-tions laws when the police arrived.
The burden of proof to show an infringement of their fundamentalrights lidfe with the Petitioners. The record of entries made by inquiringofficers, and their statements and reports have been recounted in de-tail as have the submissions of Counsel. The repetition of some factsat this stage also is unavoidable and has to be endured.
A vital matter the Court has to address its mind to at the thresholdof the decision making process in this case is whether this Court issatisfied that the Petitioners got to the scene where election offenceswere being committed after the police as they all say, consequent toreceiving a telephone call to the cellular telephone in the van in whichthey were travelling or whether they were there before the police 1
There is no dispute that the police got there consequent to a direc-tion from the ASP. In regard to the Petitioners claim there are the fol-lowing circumstances:
Some helpers had had their dinner at Anura Bastian's housethat night. They also took meals to other workers and helpers thatnight. Helpers Mangaleswaran and Thiruchandefen did so at midnight- They went to Ratmalana with dinner packets – vide P6 and P7 alsoNirmalan says he hired 4 vans to take workers to Ratmalana. Thissuggests • that people involved in Bastian's election campaign knewthat workers were hard at work at Ratmalana at midnight.Chandrakapila and Gomez in their affidavits P14 and P16 admit goingto Bastian's house at about 7 p.m. being given dinner there and withseveral others being transported to Galte Road Ratmalana to pasteposters. Belekkade junction is in Ratmalana. Therefore it can safelybe inferred, that these Petitioners knew of the activity of their workersat Belekkade junction at around midnight. Petitioner Thavarasa beinga lawyer should have been aware of the provisions of theParliamentary Elections Act – viz – the prohibition against pastingposters in places where the public have a right of access. Thavarasais specifically retained to overlook Bastian's election campaignsituations. Can such a person say he was only made aware of a crowdat Belekkade junction by a telephone call? Or is it not much morelikely that Thavarasa and his companions well knew beforehand thatposters were to be pasted on the road at Ratmalana and he was athand to supervise whilst his workers were engaged in unlawful activity.It is not denied that posters were indeed pasted by Bastian's campaignworkers that night.
Coupled with above there are the affidavits of 1st and 2ndRespondents that Thavarasa on being challenged stated -Quote- "Whatis the law prohibiting the pasting of posters?" This suggests thatThavarasa participated in pasting posters in some way.
The serious contradictions in the Petitioners case regardingthe denial that the pistol was in the waist of Ramanathan; viz:Ramanathan says the pistol was in a bag with money in the van,whereas K.A.Sumith Nanayakkara says the pistol was under the carpetnear the front seat – vide P5. These contradictory versions do notseriously challenge the 1 st Respondent's narrative that the pistol wasin Ramanathan's waist. If he was standing on the road with his helpersat midnight participating in committing offences and he owned a pistolfor his safety, it is not improbable that he had his pistol at hand.
Several vans have taken workers and their meals toRatmalana. There were nearly 50 workers with all the necessitiesrequired for the job at hand. Would they not need some supervisionand advice and some protection in the middle of the night? It is obviousthat the operation of pasting posters was to be kept secret perhapsboth from the public authorities as well as the supporters of TyronneFernando of Moratuwa the other UNP candidate close to whoseterritory Ratmalana was. Therefore they chose late night. In suchcircumstances it is natural to have supervisors, i.e. – someoneaccountable to the candidate. ASP Kulatilakeeaw people committingelection offences, why did he not stop and challenge them and callfor assistance? He goes home. Is it that he did not wish to interferewith the ruling party? This conduct is significant when consideringhis subsequent conduct.
In all the above circumstances taken together, the Court hasserious doubts in regard to the Petitioners version that they reachedthe scene after the police. It could well be that Petitioners also wentto listen to the meeting at Moratuwa earlier that evening. ButBelekkade junction is proximate enough to Moratuwa so that thePetitioners had an opportunity to have got back to Ratmalana longbefore the police. In view of the above, the supportive materialcontained in affidavits filed on behalf of the petitioners that the policewere there before the Petitioners got there is unconvincing and issuspicious. The only alternative version before the court is that the1 st and 2nd Respondents with a police party upon proceeding to thescene, found a large crowd of about 50 people committing electionsoffences. They had to use some force to bring things under control asthey were empowered to do. The three Petitioners were among thatcrowd of persons.
It is the contention of the Petitioners, that the note made regardingthe arrest was made only at 2.30 a.m. at the police station -1R1 – andthat by that time the Petitioner had been protesting at the purportedassault on their supporters having come upon the scene after the po-lice, and objecting to their arrests which angered the 1 st Respondentand his subordinates and resulted in an attempt being made by the1st Respondent to falsely implicate the petitioners, not only withelections offences but also with obstruction and intimidation andattempted murder charges whilst at the same time stealing their moneyRs: 82,000/-.
Looking at this submission, one has also to keep in mind the stateof things at the time. Between 00.20 hrs: and 2.30 hrs: on 8/8/94 acrowd of above 50 persons had to be prevented from committing pro-hibited acts, apprehended, herded into their own vehicles with all thematerials used by them to commit offences and brought to the policestation. All the while there appears to have been a shouting matchbetween these petitioners and the police. The ASP is informed. Hecomes. Mr. Anura Bastian and Mrs. Thavarasa come and there ismuch talk. In the circumstances the 2.30 a.m. entry in 1R1 can beregarded as a contemporaneous entry setting out the circumstancesof arrest.
The Court is of the view that the case sought to be made out bythe Petitioners is highly unlikely. No investigation whatever has beenmade by the CID regarding the loss of cash. Considering all thesecircumstances the Court sees no sensible compelling reason to sus-pect or reject the Respondents version that the Petitioners were amongthe crowd committing elections offences on the road at midnight whenthey got there. The Court accepts the Respondents version on thismatter. The petitioners have failed to prove this important matter thatthe police had reached the scene before them and were assaultingtheir workers and that they came there later.
[B]The question whether the arrests of the Petitioners was lawful.
The protection afforded by article 13(1) is the protection againstunlawful arrest and the recognition of the individuals right to know thetrue reason for his arrest. Thus the court has to consider whether thearrests were lawful. The offences complained of against the Petition-ers as reflected both in 1R1 and in the body of the first B report filedwere for committing prohibited acts under the elections laws besidesintimidation, obstruction and attempted murder. At this point I will onlybe dealing with the allegations of elections offences, obstruction andintimidation. The allegation of attempted murder will be consideredlater in this judgment. Counsel for Petitioners argued that the offences
of voluntary obstruction of a public servant from doing his duty andcriminal intimidation were not made out on the Petitioners version ofthe facts, viz that the petitioners, finding the police at the scene madeverbal protests which did not amount to obstruction and/or intimidationand that therefore the arrests were unlawful. But the court is of theview that the case law cited in support of this contention can be dis-tinguished upon a proper view of the events of that night. It is obviousthat it was the pasting of posters on the public road that attracted thepolice. The ASP informed the 1st Respondent of it – vide first part of1R1 -which the ASP admits and which the 1 st Respondent found hap-pening when he reached the scene and which he ordered to bestopped; that is the point at which the police intervened and usedforce. It is the pasting of posters which was the primary offencecommitted and for which the culprits were arrested. All else stem fromthat initial unlawful act. The police went there to prevent it and in sodoing took everyone into custody. Thus when in the objections of theRespondents, it is stated at paragraph 12 that the arrest was made inrespect of the offence of attempted murder and offences under electionlaws, it merely restates the fact that both those offences are cognisableoffences wherein the police have the power to arrest without warrant,unlike the other offences averred, and both were committed in thesame transaction. The fact that mention of attempted murder is mademakes no difference to the view of the Court that the arrest wasprimarily to prevent prohibited acts being committed under electionslaws.
Section, 74(1) (b) of the Parliamentary Elections Act No.1 of 1981prohibits the display of posters in a place where the public have a rightof access. .Section 74(1) (e) of the Act provides for punishment – fineor imprisonment or both. Section 74(4) of the act provides that it is acognisable offence when an arrest can be made by a police officerwithout a warrant. Thus, the 1 st and 2nd Respondents could have law-fully made the arrests they made, in the manner in which they weremade. The above were the enabling provisions of law under which thepolice could have properly acted, and the police say the Petitionerswere participants in the commission of that offence, the leaders of thatgroup.
The police are required to make an assessment of a factual situ-ation and take necessary action. Here there is no question but thatthe police had to take the action they took. Thus the physical act ofarrest is lawful and justifiable. There has been no infringement ofArticle 13(1) of the Constitution affecting the rights of the Petitionerson this ground.
The next question is whether the right of a citizen to know or tobe told of the reason for depriving him of his freedom at the time ofarrest or so soon after has been avoided. Petitioners complain theywere not informed as to why they were arrested. Counsel spent muchtime on this matter in their submissions. They cited Corea v. Queen(supra) and Uparis v. Robert(3b) Has the true reason for the arrestbeen intimated to the arrestees? In the instant case the perpetratorsof a prohibited act have been caught red-handed. The offenders werecaught on the road in flagrante delicto. Observations of Lord Simondsin Christie v. Leachinsky <3c) are apt and applicable to the instant
situation. Quote" It is clear that the constable has not been guilty
of an illegal arrest if he reasonably suspected that murder had beendone. Again I think it is clear that there is no need for the Constableto explain the reason for arrest if the arrested man is caught red -handed and the crime is patent to high Heaven…” I am in respectfulagreement with this statement of the law which is the same in SriLanka as it is in England in this area. Again, it is found that Gratiaen,J. has approved of this same proposition in.Corea v. The Queen(2)Quote …." a police officer acts illegally if he arrests a man without awarrant on a mere unexpressed suspicion" that a particular cognisableoffence has been committed – unless ofcourse ” the circumstancesare such that the man must know the general nature of the offencefor which he is*detained or unless the man himself produces thesituation which makes it practicably impossible to inform him…" Theversion of events narrated by the police which the Court acceptscombine the observations of the learned judge quoted above. TheCourt is therefore satisfied that there has been no infringement of therights of the Petitioners as contained in the second part Of Article13(1) either.
[C]
Scope of Section 116(1) of the criminal procedure code, and con-sideration of Ahicle 13(2)-the allegation of unlawful detention.
I now turn to the contention of the Petitioners that, even if thearrest was justifiable under the election laws, (although they contendthat the arrest was unlawful) still such offences were bailable beingthe offences of obstruction and intimidation, and the police beingenpowered by section 116(1) of the Criminal Procedure Code to grantbail, did not do so but instead, produced the petitioners before theJMO Colombo South for medical examination whilst in custody andthereafter kept them in further detention until 11 a.m. on the same day.The police then did not object to bail in respect of Thavarasa andBalachandran and the Court granted bail. They were thus detained incustody for a time longer than necessary. It was contended that thepolice are obliged to release persons in custody accused of bailableoffences as soon as reasonably possible. Here those inquiries wereover by about 7.30 a.m. when they were taken to hospital; the policeinquiry notes having been made and the suspects, statements re-corded etc. There was thus, according to the contention of Counselfor Thavarasa and Balachandran, an infringement of their rightsprotected by article 13(2) of the Constitution (ie) freedom from unlawfuldetention. The above submission was made on the further contentionthat the charge of attempted murder was false and therefore oughtnot to be taken into account in ascertaining whether there was aninfringement of Article 13(2).
The first answer to this question is that the empowering sectionviz: section 116(1) of the Criminal Procedure Code is directory and notimperative or mandatory. Despite its language there lies a discretionwith the police to produce a suspect before a Magistrate instead, de-pending on the circumstances of the case. For example, the suspectmay have received serious injury from some other ifhknown cause,may be even self inflicted wounds, where a Magistrate ought to beinformed of the case. Again, the suspect may be physically or men-tally unable to cope with freedom and needs assistance. The law thuskeeps the matter open to enable the police to deal with different situa-tions. I have held in Tunnaya alias Gunapala v. OIC Police, Galewela,{4)that where an offence is bailable, it is permissive for a police officer,acting in terms of section 116(1), to take security from a suspect forhis appearance before Court. An examination of the provisions of sec-tions 38 and 39 of the Criminal Procedure Code support this view.Section 38 requires an OIC in charge of a station to report to Court allcases of arrest without warrant whether admitted to bail or otherwise.Similarly, Section 39 of the code stipulates that a person arrested
without a warrant shail not be discharged (from custody) except onhis own bond or on bail or under the special order in writing of aMagistrate. An interpretation which narrows tFie scope of this sec-tion, which is a pivotal point in an investigation, ought not to beadopted. Such an interpretation could also expose the police toallegations of abuse or misuse of power. A discretionary act by apolice officer at this point would better promote the ideal of good judg-ment by a responsible public officer upon a proper consideration ofrelevant data reflecting good faith, rather than an interpretation whichcompels a police officer to grant bail even against his good sensewithout taking into account surrounding circumstances. I hold thatthe powers contained in section 116(1) aforesaid are discretionaryand that the 1st Respondent could have, instead of granting bailhimself to these petitioners who he says were the ringleaders, decidedto produce them before a Magistrate. Other relevant considerationswhich justified the 1st Respondent's refusal of police bail werenumerous. For Example:
(i) The Petitioners complained of police assault-vide statementsof the Petitioners recorded at 4.30 a.m. by SI. Bandara in the GCIBIIof Mt. Lavinia police PP:144,146,148,149, and signed by them, andthe notes of ASP-1 R2. In the face of such a recorded complaintagainst the police it is plain good sense to produce suspects for amedical examination promptly. If police bail is granted to such asuspect, he is being given a tool, an opportunity, to fabricate evidenceagainst the police.
The offence of voluntary obstruction of a public servant.
(II) The Petitioners were treated by the 1st and 2nd Respondentsas organisers or ringleaders and that was the distinction made asagainst the 49 others arrested and given police bail. Those 49 weretreated merely as workers or helpers who actually pasted the postersgiven to them by the organisers. The question is whether the evidencejustifies this distinction. To answer that we go to the notes made bythe 1 st Respondent recorded in the Election Information Book at 2.30a.m. and produced as 1R1. Referring to the protests raised by thePetitioners at the scene on the road after midnight, while the policewere preventing the commission of prohibited acts under election laws,
Petitioner Ramanathan Sathasivam threatened thus" …quote…" Fromwhich police are you. If you become too active you will be sent toJaffna. Yesterday we drove away SP. Ignatious.We are UNP'ers,Anura Bastian' people. Why can't we paste posters. We are workingfor the government. We know the President and Prime Minister verywell. Therefore your coat will be removed and you will be transferredto Jaffna immediately. At that time Attorney at Law Thavarasa said….quote…. "What is the law that prohibits pasting of posters…. doyou want us to get permission from A.S.Seneviratne (DIG)? if youget too officious you will be sent to Jaffna,… You will be dismissedfrom service. Sathasivam Balachandran said… quote…"..You cannotstop us pasting posters…I know His Excellency and the Prime Minister… If you talk too much you will be sent to Jaffna… You will be dealtwith."
The above, if true shows a massive obstruction to public officers.These are not mere words of protest. They are words of intimidation,threat to employment, threat of transfer to a war zone, clearly intendedto deter a police office from doing his lawful duty of preventing electionoffences being committed, words likely to dissuade, to hinder or pre-vent a public servant from doing his duty. These words uttered onthe public road in the company of about 50 of their helpers amountsin my vigw to offences punishable under section 183 and 486 of thePenal Code. Case law cited by Respondents Counsel, to wit: PoliceSergeant v. RazaW5) which held that "words may be as potent as physi-cal acts" and Police Sergeant v. Simon Silval6). Which held there is"voluntary obstruction" when "the interference compfiained of hindersor is likely to deter an officer from discharging his duty" are to mymind on all fours with the evidence of obstruction in the instant caseand should be adopted. The case of Muthusamy v. Kannangara (supra)can be distinguished and is inapplicable to this case, as that casedealt with an attempt to search premises without a search warrant sothat the police officer was acting unlawfully and the prevention ofsuch a search by asking the officer to get out of the premises was notregarded as words sufficient to constitute an obstruction of a publicservant. The words attributed to each of the Petitioners shows themacting in concert with a common attitude and frame of mind usingcommon intimidatory language. Thavarasa the Attorney, says "whycan't we paste posters?" This supports the view that he had to impresshis men that he was looking after their interests. Thus we have asituation where the police are not playing their normal role of investi-gating the complaints of disputing parties. Here they are one of theparties to a dispute and they have in the lawful exercise of their pow-ers arrested the other party. In these circumstances, in the face of anallegation of assault too, the police wisely produced the disputingparty, disputing their arrest, before a Magistrate. The police have actedquite properly in these circumstances and prima facie a case ofobstruction has been made out. In this back -ground I get on to thePetitioners' contention of unlawful detention resulting in aninfringement of Article 13(2) of the Constitution.
The allegation of unlawful detention:
Procedures regarding detention vary with the relevant law gov-erning the arrest, (eg) for offences under the normal law the criminalprocedure code would apply whereas if the arrest is under emergencyregulations or other special laws, the provisions operative under thoselaws or regulations would apply: The prescribed period of detentionfollowing arrest under the Parliamentary Elections Act is governed bythe Criminal Procedure Code and is the outer limit within which thearrestee must be brought before a Judge, That is the essence ofthis sub-article and is one of the checks the law provides to protectthe freedom of the individual -see Selvakumar v. DevanandaP* andKumara vs. Rohan_FernandcP
There are dicta Jn some decisions suggesting that if Article 13 (1)is violated because the arrest is 'illegal' or 'unlawful' it follows thatArticle 13(2) is violated and that if the detention is excessive in thesense that it was very long simpliciter -there is a violation of Article13(2). In Mahinda Rajapakse's case – S.C. Application No.2/93, SCMinutes of31/03/949) I held that the Petitioners had not been arrestedaccording to procedure established by law and that their arrests wereviolative of Article 13(1). However I rejected the submission of Coun-sel that a violation of Article 13(1) necessarily resulted in a violationof Article 13(2). I held that while detention is integral of the act ofarrest Article 13 (if is concerned with what the persons making thearrest do, whereas Article 13(2) is not concerned with the lawfulnessof the arrest but with the question of ensuring "the containment ofexecutive power".
By requiring a person arrested to be brought before a neutralperson, namely a Judge, Article 13(2) seeks to ensure that personsare not detained arbitrarily by persons like police officers who performexecutive functions. In that case I held that even though Article 13(1)was violated, Article 13(2) was not violated. In the instant case thearrest has been lawful. The view that questions of "unlawfulness orillegality of the arrest resulting in a violation of Article 13(1) is irrelevantin deciding whether article 13(2) has been violated" was also statedby Goonawardene, J. in Faiz v. A.G.(10) It was held that it was unnec-essary to – quote "characterise any action that does not conform tothe provisions of Article 13(1) as an illegal arrest". It is my view thatthe refusal by the 1st Respondent to grant bail was justifiable. It. isseen that even ASP Kulatilaka in his note has stated that the ques-tion of bail is being considered -vide his notes at -1R2 just before the[7AM] entry when he says he was informed of the attempted shooting.It is my view for the reasons given in this part of the judgment, thatdetention until 11 a.m. was not arbitrary but justifiable in the circum-stances. There is therefore no infringement of the provisions of Article13(2).
[D]
Challenge against allegation of attempted murder
The Petitioners challenge this allegation made more specificallyagainst S.Ramanathan by the 1st and 2nd Respondents upon thefacts, as being false, malicious and revengeful. The Petitionerscontend that such a thing never happened and complain that it hasbeen added to counter the allegation of theft of Rs. 82,000/- madeagainst the police, as a means of refusing police bail and keepingS.Ramanathan and the others in custody on remand as punishment,thereby depriving them of their freedom and causing an infringementof their rights protected by Article 13(1).
Petitioners' Counsel have had at the forefront of their submis-sions, the contention that it was this pretext, this false allegation uponwhich the arrest of the Petitioners and their continued detention wassought to be justified by the Mt. Lavinia Police.
I have already held in this judgment that the arrest, on the evi-dence, certainly shows it could have been made, and was indeedmade for the commission of elections offences and that the detentionwas justified in the circumstances without the grqpt of police bail. Inthe result, any finding on the allegation of attempted murder, whichreally is a matter for a trial Court, will not affect the decision of thisCourt regarding Article 13(1). Petitioners' Counsel have advisedlychosen to present their case contesting the allegation of attemptedshooting as the starting point for unlawful arrest and detention.
In view of this contention it behoves the Court to consider thearguments on this matter. The Court has therefore to look at, notonly the conduct of the Mt. Lavinia Police but also all otherconsequential events that took place, including the investigations bythe Interpol division of the CID, the contents of the second B reportpresented to court, the productions and the Analyst's Report and thesteps taken by the Mt. Lavinia Magistrate and his orders, as all of thispresents a composite whole in regard to this aspect of the case.
Petitioners arguments have been presented on the premise thatthe 1st Respondent divulged to the ASP this matter of an attempt toshoot at him for the first time only at 7 a.m. on 8.8.94, but that the 1 stRespondent had an opportunity from 01.15 a.m. that night of informinghis superior officer of such an important matter when the ASP visitedthe station but which he failed and neglected to do. Therefore the 1stRespondent's assertion is belated, untrustworthy and in fact palpablyfalse, as in the meantime, petitioner S.Ramanathan had accused thepolice of stealing his money. This accusation had been made to theASP by Ramanattfan long before even his statement was recorded at4.30 a.m.
We therefore have to look at both entries in 1R1 i.e. the 00.20 a.m.entry and the later entry at 2.30 a.m. the ASP's notes at 1R2, AnuraBastian's letter to DIG/CID-3R1 and Cl Upasena's inquiries and reportP3.
1st Respondent's entry at 2.30 a.m. on 8.8.94 in 1R1 containsthe alleged event ef Ramanathan being dressed in a sarong and shirtpulling out a pistol from his waist and pulling the trigger when 1stRespondent was seeking to prevent the commission of prohibited actsunder election laws. 1st Respondent grappled with Ramanathan, dis-armed him and brought him under control. As against this, ASPKulatilake's notes# commence at 01.15 a.m. on 8.8.94-vide 1R2. Itrefers to a visit by Anura Bastian to the station at 2.00 a.m. in thecompany of Mrs: Thavarasa asking for bail for his men; it also refersto a telephone call being received from C.V. Gooneratne at 02.15a.m. who had informed that Anura Bastian's workers had been arrestedfor pasting posters on the road and that they had attempted to shootpolice officers and requested him to act according to law. The notecontinues and states that he (ASP) will consider grant of bail ifpossible. Then an entry of the time [07.00AM] in brackets, followedby a note that the 1st Respondent informed him that when he wasseeking to arrest the crowd of persons (pasting posters),
Quote Ramanathan attempted to shoot him. This entry in
1R2 is the basis upon which the case for the applicants have beerTpresented. What is of utmost significance however in this entry, andwhich should be forthwith noted, is that it contains an admission byASP Kulatilake that the 1st Respondent had told him that it was in theprocess of taking these persons into physical custody thatRamanathan shot at him." These persons” must in the context meanthe persons committing elections offences. So this note contains anadmission that the arrest were being made was for committing elec-tions offences. This reiterates and supports the view of this Court,expressed earlier, that the arrests were lawfully made under powersgiven by the Parliamentary Elections Act Section 74(4) and (5). Butwhat is presently sought to be discussed is the submission of Peti-tioners Counsel, that it was only at about 7 a.m. and not before, thatthe 1st Respondent informed the ASP for the first time of the attemptto shoot him. What are the relevant matters pertaining to this submis-sion? We know that it was the ASP himself who first came acrosselections offences being committed on the road. Instead of confront-ing the lawbreakers himself, he informs Policemen on duty at TyronneFernando's meeting to take action according to law and goes home.Then at 01.15 a.m. on 8.8.94 on information received from the 1strespondent, he goes to the police station. At 2.00 a.m. Mrs: Thavarasaturns up with Anura Bastian and with Ramanathan^ gun licence bear-ing reference No: etao=t3= /1/c 544 marked x- vide-1R2-and P5-statement of Goury Thavarasa to Rohan Upasena -to show that thepistol in police custody is a licensed weapon. Who told her that the
police had taken the pistol into custody is not known. Obviously ithad become known to Mrs: Thavarasa before 2.00 a.m. thatRamanathan's pistol has become a significant ifem of evidence inthe ongoing inquiry and she has collected the licence apparently fromthe Ramanathan household that night. Otherwise her conduct inproducing this licence at that time is inexplicable. At paragraph 15 of1st Respondent's objections he has stated that a large number ofpersons unconnected with the incident gathered on the road and werewitnesses to the incident and that the use of a pistol against the 1stRespondent became a sensational and notorious fact that in a shortwhile it reached the ears of C.V. Gooneratne; so also could it havereached the ears of Mrs: Thavarasa to rush in with licence. At 2.15a.m. C.V. Gooneratne informs ASP of an attempt to shoot at policeofficers by Anura Bastian's people committing elections offences •• 1R2.
Thus the pistol's licence in the name of Ramanathan and C.V.Gooneratne's telephone call are known to the ASP at about 2.15 a.m.With the confrontation taking place in his presence between his policeofficers and these people brought to station for committing offencesas is evident by 1R2 with Anura Bastian and Mrs. Thavarasa joining in,how can ASP be believed when he says he was not informed of anattempted shooting at the Inspector until the next morning? In thecircumstances any normal person would inquire from the Inspectoras to whether there was any truth in the information given by C.V.Gooneratne. He has not done that according to 1R2. That is quiteunusual conduct, ft is now known that five police officers of Mt. Laviniapolice have confirmed to Cl.Upasena that Ramanathan pulled out apistol from his waist when challenged whilst persons were committingprohibited acts under election laws. There is also the ASP's own notein 1R2 made by him before his [7.00 Am] entry, that he is consider-ing the grant of police bail at the urgent request of Anura Bastian andMr. Thavarasa.What was there to consider when the other offencesallegedly committed were elections offences, obstruction and criminalintimidation, all bailable. Nor were the petitioners demanding a medi-cal examination for assault on their persons although they had com-plained of assault. So if he was unaware of any attempt at shootingat anyone, police bail could have been ordered by him for these Pe-titioners too as he did to the 49 others. If the 1 st Respondent refused
bail, he would also have questioned the 1st Respondent as to thereason for his refusal. Something stayed his hand. The only thingthat could have deterred him at that point of time, long before morningsurely was that he was aware of an allegation of attempted murderbeing made by the Inspector. All of these circumstances taken togethermakes ASP Kulatilake's version extremely unlikely, highly suspiciousand unacceptable. It would appear that the truth is being suppressed.
In the same vein, SP Paranathala's denial of knowing anything ofthe allegation of attempted murder until the following morning is alsosuspicious questionable and quite unacceptable. ASP Kulatilakeshould have informed the SP of the events at the police station thatnight involving informations of trying to shoot police officers, which atleast according to his own admission he had got on the telephone.Paranathala lived next door to the Police Station.
His denial being unacceptable it seems more likely that the truthis being suppressed by the ASP and the SP Messrs: Kulatilake andParanathala. Their conduct is unnatural and does not inspire any cqn-fidence in their credibility.*
This Court is unable to accept their position that they knew noth-ing of an attempted murder allegation until the following morning. Inthe result the Court is of the view that the 2.30 a.m. entry of the 1stRespondent containing information of an attempt to shoot at him wasa prompt contemporaneous entry made in the course of inquiries andis not belated and that this matter with a pistol was known to everyoneat the police station that night.
The ASP examined the production pistol and cartridges with thereserve officer and noted that one cartridge bore indentations as ifthe fireing pin of a pistol had struck it. These productions had beenhanded over to Cl. Upasena. Cl. Upasena took away the police booksat Mt. Lavinia and therefore new books had to be opened.
Details of the investigations done by the Interpol Division of theCID have been particularised in an earlier part of this judgment. Thatinvestigation deserves special mention. The documentation produced-3R1- begins with handwritten orders being given by former DIG/CID
Amarasena Rajapakse on an undated letter written by Anura Bastian.There is mention of orders coming from the IGP but no documentshowing such an order has been produced. Who or why theInternational division (Interpol) was chosen for this task is not divulgedto the Court. SP Othnapitiya and Cl Upasena are harnessed for thetask. Ordinarily one would expect the higher administrative authoritiesof the police department overlooking the work of a police station ordivision to initially look into complaints against the police. This wasnot done. In this case this mysteridbs step of involving Interpol hasbeen taken. One would have thought that Interpol would have beenbetter employed looking for "Carlos" rattier than looking into themisdeeds of a suburban police station in this country.Mr.Wikramanayake submits that it was to ensure that obliging policeofficers would submit a report to court so as to enable the grant ofbail to Petitioner Ramanathan forthwith.
The inquiries of SP Othnapitiya commence at 9.05 a.m. on 8.8.94into allegations that Mt: Lavinia police have not done an impartial in-quiry. At 10.45 a.m. -3R3- Othnapitiya meets SP Paranathala and ASPKulatilake of Mt. Lavinia. According to these two officers, HQI Mt.Lavinia had not informed them of the alleged attempted murder inci-dent until that morning although HQI had met the ASP. This then wasthe crux of the matter supposedly being inquired into.
At 1.45 p.m.-3R4-Director CID allegedly telephoned Othnapitiyaand informed that “…quote… the IGP has directed DIG/CID to file areport in Court on the basis of the material as it is strongly suspectedthat HQI Mt. Lavinia has fabricated evidence against 3 persons, namelyRamanathan and two others implicating them in a case of alleged at-tempt to shoot”…"and that the CID is conducting detailed inquiries …and will submit a report on completion of investigations., and that ..the CID has no objection to releasing the suspects on bail." No docu-ments to prove that the IGP in fact made these orders or that DirectorCID did in fact give the aforesaid orders to Othnapitiya have beenproduced for the scrutiny of the Court. Again the report filed in Courtupon the order contained at 3R4 above is the report of Cl. Upasenamarked P3 setting out the "basis of the material". It merely says thatthe CID is conducting a wide investigation at Mt: Lavinia Police Sta-tion but only sets out that – ASP Jayantha Kulatilleke has made a
statement and that "according to the evidence so far collected" factsto show that there has been any attempted murder or threats by aiminga pistol have not been revealed beyond reasonable doubt… ThereforeI move that the suspectsThavarasa, Balachandran and Ramanathan…be discharged on bail…" The contents of P3 are spurious. The onlyevidence referred to is a statement of ASP Kulatilleke. No other evi-dence suggesting any fabrication is revealed. Therefore there wasquite insufficient ground to either file a second B report or state thatthe allegation of the HQI has nottreen supported beyond reasonabledoubt. In fact, as stated earlier, 4 other officers of Mt. Lavinia Policehave supported the HQI aS is divulged in the later report P5 filed byCl. Upasena. Again, according to report P3,it is the CID that movesfor the discharge of suspects and that they be given bail. This is quiteabnormal conduct by the CID.This is obviously meant to countermandthe application of the HQI in the first B report. Is the Interpol Divisionof the CID appearing on behalf of the suspects? Between 9.05 a.m.and 1.45 p.m. the CID have done their investigation and decided tomove for bail in respect of the suspects. This supports the 1st Re-spondent's complaint of massive obstruction by the Petitioners onthe road and at the police station-conduct propelled by political clout.Mr.Wikramanayake submits that the entire CID operation has beenfraudulent. Certainly he has good reason to say so. There is also thefact that no serious inquiry has been made by the CID in relation tothe allegation of theft of cash Rs:82,000/- by the Mt. Lavinia policewhich they deny. Was that allegation a red herring?.
The Magistrate holds that the 2nd B report produced shows thatthere is no evidence to support the fact stated in the first B report inrespect of 1 st suspect (Ramanathan) and he orders bail to Ramanathanin a sum of Rs: 2500/- cash/certified bail. It is noted that the onlymaterial filed before the Magistrate contra the 1st Respondent's B re-port is a reference to a position taken by the ASP. No other materialwas placed before the Court. No evidence or affidavit of the ASP wasplaced before Court. No information from the HQI's Information bookentries have been revealed. The fact that [7a.m.]is highlighted in 1R2has not been revealed; No reference to the evidence of other policeofficers of the Mt.Lavinia Station supportive of the HQI has been made.No information that C.V. Gooneratne informed ASP at 2.15 a.m. thatthere has been an attempt to shoot police officers (as in 1R2) hasbeen revealed.
Nor have the contradictory positions of Ramanathan and his help-ers as to where in fact the pistol was in the van been referred to in
P3.
The Magistrate has merely preferred the contents of one reportto that of the other. Had he asked HQI Mt. Lavinia (1st Respondent)for his views about the Interpol report, he may have been told that itis quite unreliable upon all the circumstances, unfair, and suggestiveof an unwarranted interference with the course of juctice, which mayhave impelled a Magistrate acting judicially to reject the contents ofthe second B report or have it inquired into.
Taking all of the above features and all matters set down in thispart of the judgment into account, the Court is not impressed with thedenial by the Petitioners of the 1st Respondent's allegation of an at-tempt to shoot at him. The Court is unable to hold that the 1st Re-spondent has not done an impartial inquiry or that he has fabricatedevidence against Ramanathan in particular. If the pistol was in thevan, the HQI would not know to whom it belonged or who possessedit. The mere fact that Mrs: Thavarasa produced the licence at about2a.m. and that licence was in the name of Ramanathan, does notmean that Ramanathan brandished it. No particular reason is givenor suggested as to why the HQI picked on Ramanathan to foist afalse allegation of improper use of the pistol. The conduct of all threepetitioners amounts to obstruction and intimidation claims the 1stRespondent. All of these factors militate towards a conclusion thatthe HQI is speaking the truth and no more. In the result the Courtholds that the allegation of the Petitioners of partiality and fabricationof evidence upon which a false arrest was made has not been proved.There was therefore no infringement of the rights of the Petitioners ofunlawful arrest on this ground.
[E]
This really concludes this order. However there are a few othermatters that need be mentioned. Cl Upasena produced a parcel con-taining the pistol, one cartridge "suspected to have been struck by atrigger" and live cartridges and magazine case before Court. Attor-ney at law Kumarasiri appearing for the present Petitioners who werethe suspects before that Court, stating that the pistol had not been
sealed but forwarded to the CID, and moved that the productions bekept in special custody of Court and sent to the Government Analystfor report.To this request, the Magistrate, stating thatthey can-
not be kept in the Court house quoted a JSC circular to that effect,and made order that the productions be sent to the CID through ClUpasena to be sent to the Government Analyst. There is no materialto show that the parcel was opened and checked by the Court as itshould have been, nor were the Court seals put on the parcel. By thismeans, Mr.Wikramanayake pertinently submitted, "the jackal was putin charge of the chicken coop". The JSC circular referred to JG 44/1was issued on 8th September 1983 consequent to the extreme com-munal unrest in Colombo and the burning of the Mount Lavinia Mag-istrate's Court. It directed that – all firearms, explosives and ammuni-tion "in the custody of the Court" be handed over to the police aftermaking necessary entries in the relevant registers. Such productionshad hitherto been kept in safe custody by the Court and the Courthad to take steps to ensure safe custody of guns and other firearms,explosives and ammunition. On receipt of productions, section 27(1)of the Judges Manual required the production clerk to enter the pro-ductions in separate productions registers and see that they werewell tagged with the production labels and sealed where necessary.Particulars such as the case number assigned to it has to be noted.The circular was redistributed in June 1987. It required that the hand-ing over of productions to the police be done after making the neces-sary entries in the relevant registers. So once Upasena handed overthe productions to Court, section 27(1) aforesaid should have beenfollowed and the contents noted in the register, the productions la-belled, tagged and sealed and the sealed productions containing theCourt seals could have been handed over to the police. There is nomaterial whatsoever to show that all this was done. Rather, the par-cel produced by Upasena was handed back to him to be taken to theGovernment Analyst. In the circumstances of this case it would havebeen preferable if the Magistrate had not handed back the productionparcel to CID. The analyst's report P10 throws no light on this either.Thus the finding of the Analyst – vide-P10 – that the cartridge bearingindentations made by the striking of the trigger pin has not been madeby firing the production pistol is, according to Mr.Wikramanayake, nota significant fact in this case. Viewed in the background of the manyunsatisfactory features found in report P3 as well as that we do notknow if in fact the unfired cartridge with indentation taken from MountLavinia Police was identical to that examined by the Analyst, the Courtis not able to come to any conclusion on this matter and therefore theAnalyst's finding does not militate against the 1st and 2nd Respond-ents.
FINDINGS AND JUDGMENT
[F]Learned Counsel for the 1 st and 2nd Respondents brought to thenotice of Court that these Respondents Were only doing their duty aspublic servants according to law. They have, by these applicationssuffered much mental stress and strain besides pecuniary loss; theirpromotional prospects too have been jeopardised in that, pendingthese applications, they were not allowed to present themselves beforepromotion boards which were constituted; nor were they representedby the Attorney General in the normal way.
[G]Leave to proceed was granted only in respect of the alleged vio-lations of Articles 13(1) and 13(2). This Court is of the view that thePetitioners have failed to prove infringement of their fundamental rightsprotected by Articles 13(1) and 13(2) of the Constitution. Each of theapplications is accordingly dismissed with costs as specified below:
Each of the petitioners shall deposit in Court, on or before 15thDecember 1995 a sum of Seventy Thousand Rupees (Rs.70,000/-).Out of the total sum of Two Hundred and Ten Thousand Rupees(Rs.210000/-) thus deposited, a sum of Ten Thousand Rupees(Rs.10,000/-) shall go to revenue as costs of the state.
Of the balance, each of the 1st and 2nd Respondents will be entitledto a sum of One Hundred Thousand Rupees (Rs. 100,000/-).
R.N.M.DHEERARATNE, J. – I agreeWADUGODAPITIYA, J. – I agreeApplication dismissed.