021-SLLR-SLLR-1989-V-2-VEERADAS-v.-CONTROLLER-OF-IMMIGRATION-AND-EMIGRATION-AND-OTHERS.pdf
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SCVeeradas v. Controller of Immigration and Emigration
VEERADAS
v.CONTROLLER OF IMMIGRATION AND EMIGRATION AND
OTHERS
SUPREME COURTBANDARANAYAKE, J.
FERNANDO, J„ AND KULATUNGA, J.
S.C. APPLICATION NO. 221/88SEPTEMBER 27, 1989.
Fundamental Rights – Wrongful arrest and detention – Deprivation of right of freedomof speech – Articles 11, 13, 14(1) (a) and (h) of the Constitution – Immigrants and.Emigrants Act, Ss. 41, 45(1) (b) and 46 – Code of Criminal Procedure Act, No. 15 of1979, s. 32(l)(b), 35 – Section 72 of the Penal Code.
The Petitioner Veeradas was to travel to the United Kingdom at the invitation of aGroup of Amnesty International to address the Group on the human rights situation inSri Lanka. Amnesty International provided the flight ticket. The petitioner had apassport valid for travel to all countries and a single visit visa was issued' by the BritishHigh Commission. Upon presentation of the documents Airlanka issued a flight ticketand petitioner was booked to fly on Airlanka flight to London on 4.11.1988. On 3.11.86he presented himself at the Airlanka counter and was checked and alloted seat 34J.His baggage was checked by customs and taken away for loading. His passport wasinspected and franked with the departure seal. He then entered the departure loungeand awaited the 'boarding' call. At that stage two security officers questioned him andtook him back to the Immigration and Emigration office and alleging suspicions of hisbeing a terrorist and of his documents being forged restrained and prevented him fromboarding the plane despite the fact that he had a valid passport, a valid visa, hisNational identity Card, Airline tickets, and documents to prove the truth of his reasonto travel. Further he was not on the National Intelligence Bureau wanted list. Thepetitioner was taken to the Katunayake Police Station and later produced before theNegombo Magistrate and remanded until 11.11.88 on which day he was discharged asthe Police said they were not instituting proceedings. He later made the trip to theUnited Kingdom on 24.11.88 by an Airlanka Flight. The Seminar date was adjustablearound the date of the petitioner's arrival.
On behalf of the respondents.it was contended that during the last two years theincidence of passengers travelling on Air Lanka Flights with forged passports and visasor being found at destination airports, without travel • documents necessitatingdeportation at the airline's expense and exposure to fines had increased to alarmingproportions. There was inconvenience on such occasions to the other passengers andhumiliation to the airline. On' the petitioner’s passport there was a mark like an erasuremark or smudge on page 3 in the space below the photograph; there was also adifference in the first name given in .the National Identity Card (Kulandeivel) and thefirst name given in the passport (Kulanthavelu) and among his papers there were
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documents showing he had been in preventive detention. There was reluctance on hispart to answer questions. In these circumstances suspicions were aroused in thebackground of continuing widespread civil unrest, that the passport may be forged.
Held –
The facts show reasonable bona fide grounds for suspicion that the passportwas forged, altered or irregular and the action taken against the petitioner waslawful.
The use or possession of a forged, altered or irregular passport is a cognisableoffence under S. 45(1) (f) read with S. 46 of the Immigrants and Emigrants Act.A person reasonably suspected of commiting this offence is liable to be arrestedwithout a warrant under S. 32(1 )(b) of the Code of Criminal Procedure Act No.15 of 1979 by a peace officer or legally detained under S. 41 of the Immigrantsand Emigrants Act by an authorised officer.
(a) There was no violation of Article II
As the petitioner was lawfully arrested and detained there was no violationof Articles 13 and 14(1) (h). The freedom of movement guaranteed hereis within Sri Lanka and not to leave Sri Lanka.
Delay in attending the International Seminar is not an infringement ofArticle 14(1) (a).
Cases referred to:
Wiltshire v. Barrott [1965] 2 All ER 271, .275.
Thani v. State of Kerala 1965 KLT 697.
•APPLICATION for infringement of Fundamental RightsA.H.H. Perera for petitioner
C. Seneviratne, P C., with M.A. Bastiansz for 2,3,4 and 9 respondents
M.Samarakoon, S.S.C., with A. Meddegoda, S.C., for 1,5,6,7 and 8 respondents.
Cur adv. vult.
November 8, 1989.
BANDARANAYAKE, J.
This concerns an application for a declaration that the fundamentalrights of the petitioner guaranteed by Articles 11, 13, 14(1) (a) and14(1) (h) of the Constitution have been violated and a claim indamages and costs of action. At the hearing learned Counsel forpetitioner confined his arguments to the complaint of wrongfuldetention and arrest and deprivation of personal liberty in violation ofhis rights guaranteed by Article 13 of the Constitution and deprivationof his freedom of speech guaranteed by Article 14(1 )(c) of theConstitution.
SC Veeradas v. Controller of Immigration and Emigration'(Bandaranayake, J.)207
Relevant background facts are as follows : The petitioner K.Veeradas of Kolavil, Akkaraipattu was to travel to the United Kingdomat the invitation of the Islington and Hackney Group of the BritishSection of Amnesty International to- address the Group in a series oftalks in their “Sri Lanka Today’’ Seminar in regard to the HumanRights situation in Sri Lanka and the situation for Sri Lankan refugeesin the United Kingdom. These facts are a part of the Petitioner’s caseand are confirmed by letters P4A to P4G and X2 and X3 beingcorrespondence from Amnesty International in the possession of thepetitioner at the time of his arrest.
Consequent to his acceptance of this invitation, AmnestyInternational provided for his flight ticket. The petitioner applied to theBritish High Commission in Colombo on 31.9.88 for a visa to visit theUnited Kingdom presenting his passport (P2). This passport hadbeen issued to him by the Controller of Immigration and Emigrationon 8.7.85 and was valid for certain designated countries in the AsianRegion. By an endorsement made on 9.8.88 its validity was extendedto all countries – vide P2B. A single visit visa'was issued to thepetitioner by the British High Commision on 31.10.88 – vide P2C.
Upon presentation of documents a flight ticket was issued to thepetitioner by Air Lanka Ltd. the 2nd-respondent. Petitioner wasbooked to fly on Air Lanka Flight UL 511 to London (Gatwick) on 4thNovember, 1988. On 3.11.88 the petitioner says he arrived at theKatunayake International Airport and presented himself at the AirLanka counter and was alloted seat 34J. His baggage was thenchecked by Customs and taken away for loading. At the Immigrationand Emigration counter his passport was inspected and franked withthe departure seal. He then entered the Departure lounge andawaited the boarding’ call. At that stage he says two security officersof Air Lanka Ltd. questioned him and took him back to theImmigration and Emigration office. There they examined his traveldocuments and baggage and found notices extending the petitioner’searlier detention in custody by the Minister of National Security datedSeptember 1986 and April 1987 under Emergency Regulations. Thepetitioner states that on 22.12,85 he had been taken captive alongwith many others by Government forceis in what is known as a“Cordon and search” operation in which movement of persons arerestrained and they are interrogated and released or further detained.The petitioner was released on 9.8.87 by order P6. However thepetitioner states the 4th respondent took up the position that he was
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a suspected terrorist, suspected his travel documentation was forgedand restrained and prevented him from boarding Fright UL 511aforesaid despite the fact that he had a valid passport and a validvisa to enter the United Kingdom and he also had his NationalIdentity Card (P1) and Airline ticket and documents to prove the truthof his reason to travel if that was necessary. There was also the fact(known later) that the National Intelligence Bureau office at theAirport had at that time informed Air Lanka after checking that thepetitioner was not on their lists of wanted persons and was notrequired by the National Intelligence Bureau – vide affidavit of L.D.A.Jayasekera, Security Superintendent, Air Lanka – 3R4. It is inevidence that at the request of Air Lanka Ltd the Department ofImmigration and Emigration then, cancelled the authority given earlierby them to the passenger to leave Sri Lanka – P2D. Thereafter thepetitioner states he was produced at the Katunayake Police Station at4 a.m. on 4:11.88, his statement and that of the 4th respondentrecorded and he was kept at the Police Station and was producedbefore the Negombo Magistrate on 6.11.88 upon a ‘B’ Report andremanded to Fiscals custody until 11.11.88. The petitioner wasdischarged from custody on 11.11.88 by the Magistrate on beinginformed by the Police that they were not instituting any proceedingsagainst him. He subsequently travelled to London on Air Lanka flightUL 511 on 24.11.88. The'petitioner is said to be still in the UnitedKingdom.
The submissions of learned Counsel for the petitioner were:
The passenger's travel authorisation came from London.
(a) Amnesty International, British Section paid for and providedthe ticket for travel from Colombo to London. Thus, fromthe very inception Air Lanka Ltd. knew who this passengerwas – the fact that Amnesty International has provided theflight ticket was known to the 2nd respondent.
•(b) The petitioner had presented his passport to the 2ndrespondent with a visa to enter the United Kingdom for thepurpose of the issue of -a ticket. The 2nd respondenttherefore had had an opportunity of scrutinising hispassport and visa and satisfying themselves of its validitywhich they would have done before they issued a ticket.
the petitioner spoke the truth to all officials who examined hisdocuments and baggage at the Airport on 3-4th November 1988
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– There was no evidence whatsoever that he was a terrorist orthat he had committed any offence known to the law. In fact theNational Intelligence Bureau at the Airport had cleared him thatnight in the sense that they had intimated to the officials of the2nd respondent that the petitioner was not on their list of wantedpersons. The petitioner had simply been an innocent personwho had been taken in for questioning in the course of asecurity operation and kept in detention for a very long time andreleased without any conditions.
All documents presented by the petitioner to the authorities atthe Airport for scrutiny were genuine and valid. It has also beensubsequently ascertained from the Controller of Immigration andEmigration that the petitioner’s passport (P2) is genuine. Thereis now an endorsement at page 6 of P2 that it is a genuineissue – vide P2E. It was also submitted that the mark like asmudge mark appearing below his photograph on his passportP2A which the Air Lanka authorities say influenced them inpreventing his departure was a natural flaw on the paper, andwas too trivial a matter in the face of all other available evidenceto have attracted such disastrous consequences to him – (ie) tobe prevented from travel, arrested by the Police and remandedin Fiscals custody for a week and the programme arranged forhim in London disorganised. It was submitted that the petitionerwas legally entitled to have been permitted to board flight No.UL 511 on 4.11.88. The 2nd respondent through its officerscould not have restrained him; nor could they have advised theImmigration and Emigration authorities to cancel his departureauthorisatipn; nor could he have been handed over to thePolice.
Petitioner’s Counsel stated he was not pressing his case inregard to action taken by the Police in the circumstances.
Counsel however complained that a Wood’s Lamp test where adocument is examined under ultra violet light was not done. Norwas his passport examined by the Government Examiner ofQuestioned Documents.;
There were no good grounds to give rise to a reasonablesuspicion about the authenticity of his travel documents or thepurpose of his travel. The . action taken by the 2nd respondentand its officers 3rd and 4th respondents was in the
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circumstances perverse, unjustified, unfair and oppressive. Forthe foregoing reasons there had been an infringement of hisfundamental right to be free from unlawful arrest or detained ordeprived of personal liberty guaranteed by Article 13 of theConstitution.
On the facts it was admitted by the 2nd to 4th respondents that thepetitioner had been cleared in the check-in process, and allowed intothe departure lounge pending a call to board the aircraft. At that pointit, is the case for the 2nd to 4th respondents that the petitioner hadattracted their attention and on suspicion taken by them to theImmigration and Emigration office where he did not appear to answerquestions – vide – the affidavit of the 4th respondent – paragraph12B. His conduct thus gave rise to reasonable suspicion in thebackground of recent experience the 2nd respondent had had with itspassengers travelling with false documents which entailed Air LankaLtd having to face considerable embarrassment, trouble and expenseand have their good name and reputation tarnished. By his affidavit(3R1) the Chairman and Managing Director of Air Lanka Ltd has atparagraph 7 thereof stated that during the last two years theincidence of passenger travelling on Air Lanka flights with forgedpassports and visas or being found at the destination airports withouttravel documents has increased to alarming proportions. When suchpassengers are discovered, officials at the relevant airports invariablycarry out security details with regard to –
disembarkation of passengers,
search of passengers leading to delay and dissatisfactionamongst passengers flying on Air Lanka. This affects the reputationof the carrier to its detriment. In addition passengers so discoveredwithout valid travel documents are (a) deported back to Colombo atthe expense of the carrier and (b) particularly in the United Kingdomunder the Immigration Carrier Liability Act of 1987 and in WestGermany the carrier becomes liable to pay a fine to the Governmentconcerned which in the United Kingdom is £1000. Therefore officersin charge of ground handling have been given strict instructions toprevent passengers having suspicious travel documents fromboarding Air Lanka flights pending investigations into thegenuineness of the documents. Annexed to this affidavit were copiesof telexes in respect of the months of March, April, November andDecember 1987 and January to December 1988 from overseas
SC Veeradas v. Controller of Immigration and Emigration (Bandaranayake, J.)211
stations of Air Lanka Ltd relating to deportation of passengers on AirLanka flights from West Germany, France, United Kingdom,Switzerland, Bahrain and Dubai -3R6. These annexures are meant toexplain why Air Lanka ground staff maintain a strict vigilance onpassengers on its carrier as to the genuiness of their traveldocuments.
It was submitted on behalf of the 2nd to 4th respondents that onchecking the passport it was discovered that :
There was a mark like an erasure mark on page 3 of hispassport in the space below the petitioner’s photograph at the pointof his signature – vide P2A.
There was a difference in the first name given in. his NationalIdentity Card as compared with his first name as appearing in hispassport. In the National Identity Card his first name is, given asKulendeivel Veeradas whereas in his passport his first name appearsas Kulanthavelu Veeradas.
The passenger had in his possessiqn documents P5A andP5B showing that he had been in preventive detention by order of theMinister of National Security under the Prevention, of Terrorism(Temporary Provisions) Act, No. 48 of 1979, in the years 1985 .and1986 and a document (P6) showing that the said order of detentionhad been cancelled on 9.8.87.
In the circumstances suspicions were raised that the passengermay be a person involved in antbgovemment terrorist activityconstituting offences under anti-terrorist and Emergency laws andregulations in the background of continuing widespread civil unrest inthe country and a suspicion that his passport was forged, irregular oraltered. The above facts as sworn to by the affidavits of the DutyManager, the Senior Investigating Officer the 4th respondent, theJoint Operations Officer and the Security Superintendent of Air LankaLtd, all of whom were on duty that night and all of whdm. inspectedthe passport (P2) and other documents – vide 3R3, 4R1, 3R1 and3R4 – before handing the petitioner over to the Police having had thepassenger’s departure authorisation cancelled.
It was submitted that upon the foregoing the 4th respondent andother Air Lanka staff whilst being mindful of their responsibility toprevent passengers with documents suspected to be false travellingin their carrier, suspected the petitioner to be in possession of a
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forged or altered or irregular passport and prevented his departurepending investigations. During this period they handed the petitionerover to the Police and forwarded the passport for verification to theController of Immigration and Emigration, who declared it to be agenuine issue – vide endorsement at page 8 of the passport afterwhich the petitioner was discharged by Court and allowed to travel. Inthe circumstances the 4th respondent claimed that their actions werein good faith and lawful, in the performance of duty consequent to areasonable suspicion arising upon the material before them at thetime that the passport was forged, altered or irregular and whichneeded investigation.
In pursuance of inquiries made by the Acting Manager of the2nd respondent’s company (United Kingdom and Ireland) a letterdated 25.4.89 from the former Secretary, Islington and HackneyAmnesty International Group was received. That letter enclosed anannexure ‘X4’ which is a press cutting from the Islington Chronicle of8.2.89. That press cutting contains an article under the caption“Campaigners told of Tamil’s prison and torture ordeal’’. The articlecontains the following among other statements, to wit: “Freedomcampaigners in Islington came eye to eye with one of their successstories – a man they helped free from a Sri Lankan jail. Localmembers of Amnesty International welcomed Mr. VeerathasKulantheivelu, a member of the Tamil minority to hear about 2 yearshe spent in prison without trial. He (Veerathas) said that, like theothers, he was tortured …. (and he) was arrested the first time hetried to board a plane at Colombo Airport. Only then did he get a trialcharged with subversive activities – and he was • found to becompletely innocent….’’ It was submitted on behalf of the 2nd to 4threspondents that –
• (i) the entirety of the papers filed in the instant FundamentalRights application (petition and affidavit) on behalf of the petitionermade no reference whatsoever to his having being tortured whilst hewas under detention by order of the Minister of National Security inspite of the fact there is specific references to his arrest anddetention from December 1985 to August 1987 in paragraphs 40, 41and 42 of his petition and affidavit. This allegation of torture has beenmade for the first time since the petitioner went to the • UnitedKingdom.
(ii) The article contains a false statement that the petitioner wascharged and tried for subversive activitiy and acquitted consequent to
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his arrest when trying to board a plane. In fact he was merelyproduced before Court and remanded pending investigations of histravel documents: he was never charged for an offence nor acquittedafter trial but discharged from custody upon the Police informingCourt that they had no material against him and he was allowed to flyto the United Kingdom. It was submitted the incorrect report in thenewspaper was probably the result of the petitioner giving a garbledand malicious version of what happened in Sri Lanka on 3/4.11.88suggesting thereby that the petitioner is a. person capable and willingto misrepresent matters when it is advantageous to him. This fortifiesthe respondent’s decision to investigate the petitioner’s traveldocuments for the reasons already stated. The 2nd to 4threspondents deny that they have in any way infringed upon thefundamental rights of the petitioner.
Conclusions :
In the Memorandum- of Association of Air Lanka Ltd – X5 – theobjects for which the Company was established are amongst others :
Article 3(1): “To carry on business as a local and international airlineor air transport undertaking and to operate air transport servicesfor passengers and cargo and to undertake any allied; orancillary services in the Republic of" Sri Lanka or any part of theworld … etc.’’ Ancillary to this purpose is the employment ofpersons as management staff, traffic staff etc “and to secure the
fullest development of official Air transport services to be
operated by the Company – Article 3(2)”. .
Article 4:“ and to engage, employ and maintain managers, clerks andservants etc – Article 47. The business of the Company is to bemanaged by the. Boardj either by themselves or through aManaging Director …. and the Board shall have power and maymake such rules and regulations for the management of the
business and property of, the Company as they may think
expedient … Article 116 of the Articles of Association – X6.
A Company must of necessity act through the medium 'of itsnatural officers, or agents. ■
A part of the ticket issued to; the petitioner has been marked in thiscase – P3. It states that the passenger ticket and baggage check aresubject to the conditions of the contract on passenger coupon. Theseconditions do not appear to have been appended. P3 also states that
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Air Lanka makes every effort to provide seats for which confirmedreservations have been made but no absolute guarantee of seatavailability is denoted by the expressions (used).
The Emigration Laws of Sri Lanka provide that no person if he is acitizen of Sri Lanka shall leave Sri Lanka unless he has in hispossession a Sri Lankan Passport – s.35(a) of the Immigrants andEmigrants Act. This means the passenger must have a validpassport. There is thus a duty cast on Air Lanka Ltd to preventpassengers from violating Sri Lankan laws. Similarly under the lawsof foreign countries (eg) the United Kingdom Immigration CarrierLiability Act cited London being the destination airport, it would be anoffence for the carrier to have brought in a passenger with falsedocuments for which the carrier is liable to a fine. There is then afurther duty on the carrier to take such step as to prevent apassenger violating the laws of a foreign country. I have also to referto Article 33 of the Warsaw Convention as modified and amendedwhich reflects standard international practice and which provides thata carrier may refuse to carry any passenger when in the exercise ofreasonable discretion the carrier decides such action is necessary to'prevent violation of the laws of any country to be flown from, into orover. – Chitty on ^Contracts – 25th Ed, Vol 2, para 2742.
The questions that arise for consideration vis-a-vis the 2nd to 4threspondents upon the allegations raised by the petitioner thereforeare,
Whether the act of detaining him and denying him embarkation^ and off loading his baggage and handing him over to the Police
for the purpose of investigating his travel documents was withinthe capacity of the' Company; and,
whether the company and its officers, viz: the 2nd, 3rd and 4threspondents have acted intra vires their authority or employment.
The affidavit pf the Chairman and Managing Director responsiblefor the Management of the Company – 3R – and already referred tostates that in view of the parlous state that existed affecting the goodname and business of the 2nd respondent company as a result ofpassengers with invalid travel documents or no travel documents usingthis carrier to travel to foreign lands (which facts have not beendenied) he had issued strict instructions. to his staff to preventPassengers with suspect documents from using the carrier. Neitherthe fact that he gave such instructions or the underlying reasons for
SC Veeradas v. Controller of Immigration and Emigration (Bandaranayake, J.)215
such instructions mave been challenged by the petitioner at thishearing./
It is my opinion that in the light of the objects of the Company andthe powers of the Managing Director as referred to above and thebackground of frequent abuse of the carrier resulting inembarrassment, expense and loss of reputation and the necessity forthe 2nd respondent company to prevent any breach of the laws of SriLanka or another country it was with'n the capacity of the 2ndrespondent company to have instructed its employes through itsManaging Director to prevent passengers with suspicious documentsfrom boarding its aircraft. Having regard to the fact that there is anobvious clear visible mark like an erasure or smudge mark on thephotocopy of P2A below the photograph of the petitioner (the originalpassport not being tendered for the examination of the Court as, thepetitioner is said to be in the United Kingdom) and taking intoaccount the differences in the first names of the petitioner appearingin the Identity Card (P1) and the passport (P2) – Kulandeivel in P1and Kulanthavelu in P2 and the petitioner s reluctance to answerquestions – vide 4R which has not been denied, and given the highdegree of caution and alertness expected of the servants of the 2ndrespondent company there could well have arisen in the minds of the2nd respondent’s ground staff on duty that night a bona fidereasonable suspicion that the passport P2 was either forged, alteredor irregular. The passport could have been altered etc after issue of■the Airline ticket. This being so, it is my view that the 4th respondentacting on behalf of the 2nd respondent has acted bona fide andlawfully within the scope of his authority and employment which is ofa public nature in the business of running an airline, in the course ofduty, in refusing embarkation to the petitioner pending investigation ofhis travel documents. (The petitioner indeed left Sri Lanka afterinvestigation revealed the passport was a genuine issue – P2E – on24.11.88 on an Air Lanka flight) Flowing from this the act of the 1strespondent acting through an authorised officer, to wit: A.J.W.Fernando – 1R2 — in cancelling the departure endorsement in Thepetitioner's passport – P2D, or being- off-loaded by Air Lanka Ltd.suspected of having illicit Sri Lankan documents, is not unlawful •- infact it is accepted international aviation practice – vide 1R and TR2not denied by the petitioner; and the acts of the 5th, 6th and 7threspondents in detaining the petitioner; on suspicion of having in hispossession a forged, altered or irregular passport is also lawful. In
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fact learned Counsel for the petitioner states he is not seeking reliefagainst the 1st, 5th, 6th and 7th respondents. The 8th respondenthas been added in view of the provisions of Article 134(1) of theConstitution.
It may be pertinent to note that the use or possession of a forged,altered or irregular passport by a person constitutes a cognisableoffence under s.45(1)(f) read with s.46 of the Immigrants andEmigrants Act – Cap. 351 and as such a person is liable to bearrested without a warrant upon a reasonable suspicion that such anoffence has been committed under the provisions of s.32(1)(b) of theCode of Criminal Procedure Act, No. 15 of 1979 by a peace officer,or legally detained under s.41 of. the Immigrants and Emigrants Actaforesaid by an authorised officer.
In the result there has been no violation of Article 11 of theConstitution and it has not been pressed by Counsel for petitioner. Asthe petitioner was lawfully arrested and detained there has been noviolation of rights guaranteed by Articles 13 and 14(1 )(h). Anyconsequential delay in attending the Amnesty International Seminardoes not in the circumstances constitute an infringement of Article14(1)(a) of the Constitution.
For these reasons the application is dismissed but without costs.FERNANDO, J.
During a “cordon and search’’ operation conducted or. 22.12.85 atAkkaraipattu, the Petitioner was taken into custody by the Police, andwas thereafter detained at various Camps, under a Detention Orderdated 30.12.85, issued under the Prevention of Terrorism Act (andextended from time to time). No complaint is 'made in his petition tothis Court that his detention was illegal; or that he was subjected totorture or other treatment contrary to Article 11 – and his Counselinformed us that no complaint had been made, during his detentionor after his release, to any Court or tribunal, or to any authority in SriLanka, alleging any improper treatment. According to his Counsel, hewas released on 9.8.87 in consequence of a general decisionconnected with the Ihdo-Sri Lanka Accord of July 1987. .
It would appear that the “Islington and Hackney Amnestyinternational Group’’ (“the Al Group.1'), a group of persons associatedwith or affiliated to the British Section of Amnesty International ("Al”),
SC Veeradas v. Controller of Immigration and Emigration (Fernando. J.)217
had takerr a keen interest in the Petitioner’s detention. In a letterdated 14.7.88, the Al Group Secretary refers to the Petitioner havingbeen “an investigation case prisoner of our Group during [yourdetention]”, and invited him to participate in a seminar, thenscheduled for October, on the Human Rights situation in Sri Lanka:the Petitioner was requested “to recount [his] experiences and alsogive an update of the situation of Tamils in Sri Lanka today”. It wasalso mentioned that the International Secretariat of. AmnestyInternational, as well as the British Section, would like the Petitionerto address them. The Petitioner having accepted this invitation, in asubsequent letter, dated 19.9.88, he was asked “the exact dates youwill be in England", and was informed that “since you will be the onlyspeaker coming from abroad, we will arrange the date around yourtravel arrangements”. His participation in the proposed seminars andtalks was therefore of high importance. He duly obtained a visa fromthe British High Commission on 31.10.88, and his air-ticket fromAirlanka (the 2nd Respondent) on the very next day. This ticketcontains an endorsement “PTA ref F14152”, and Counsel submittedthat this refers to a “Passenger Travel Authorisation” (or perhapsPre-paid Ticket Advice), and that payment had been made by A| inLondon. The ticket also bears an endorsement “Pax holds visa”which indicates that the officer of Airlanka responsible for the issue ofthat ticket had examined his passport, and was then satisfied as tothe genuineness of the passport and the visa. Counsel rightlysubmitted that Airlanka knew on 1.11.88 that Al had paid for thePetitioner’s ticket, and had satisfied itself that the passport and thevisa were in order; he conceded, rightly, that there was no material tosuggest that the ticketing staff had noticed any discoloration, in thepassport at that point of time, or even that such discoloration hadthen existed.
1I •,i
The Petitioner had a confirmed reservation on Airlanka'flight 511,leaving Colombo at 1.00 a.m. on 4.11.88. He checked in, paid theEmbarkation Tax, passed through Customs, and proceeded to theImmigration and Emigration Department counter. The officer on dutywas satisfied, says the Petitioner, that his passport was genuine andthat his other documents in order. Although the Petitioner does notmention any problem or delay at this stage, Airlanka’s TrafficSupervisor states that he saw the Petitioner in the office theImmigration Department, and that that officer had informed him that“there was a problem with regard to the Petitioner’s passport and nodecision has been taken as yet”. This information he conveyed to the
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Duty Manager, who, a few minutes later, saw the Petitioner seated inthe Departure Lounge, awaiting embarkation, and decided to examinehis travel documents.
According to the Petitioner, he was questioned by two persons, asto why he was leaving the country, and upon replying that he hadbeen invited by an Amnesty Internationl Group, he was taken to the4th Respondent (an Investigations Officer in Airlanka's SecurityDivision), who also questioned him; on seeing the Al Group letters,the 4th respondent searched his hand baggage, and thereafter tookcharge of his passport, national identity card, ticket, the letters, and. the Detention Orders: the primary reason for the off-loading, he says,was the fact that he had been invited to address that Group. The 4thRespondent "prevailed” upon the Immigration Officer to cancel thedeparture endorsement, thereby countermanding the authority for thePetitioner’s departure from Sri Lanka. It is common ground that thePetitioner’s name was not on any list of persons debarred fromleaving Sri Lanka or "wanted’.’ for any terrorist or other activities. ThePetitioner also states that the 4th Respondent “took the position that[he] was a suspected terrorist and that his travel documentation wasforged”.
According to the Duty Manager, on examining the passport, shenoticed a discoloration in the space reserved for the signature of thepassport:holder, immediately below his photograph. Suspecting thatthis portion had been tampered with, and that, even the visa might notbe genuine, she reported the matter to her superiors, and inconsequence of the Chief Operating Officer’s decision the Petitionerwas "off-loaded”, i.e. he was not permitted to embark on that flightand his checked baggage was taken off. The Security Superintendent(presumably the second person referred to by the Petitioner)corroborates the Duty Manager, and further states that he examinedthe Petitioner’s checked baggage, which had been off-loaded bythen, and found the documents relating to the Petitioner’s detention.The Duty Manager issued a letter to the effect that the Petitioner hadbeen off-loaded, whereupon the Immigration Department officer madean endorsement on the Petitioner’s passport cancelling the departureendorsemet previously made. The 4th Respondent denies that he"prevailed” on the Immigration Officer to cancel that endorsement,and the latter states that the departure endorsement was cancelled,in accordance with the normal practice, in consequence of the DutyManager’s letter stating that the passenger had been off-loaded.
SC Veeradas v. Controller of Immigration and Emigration (Fernando, J.)219
The 4th Respondent enumerates the various matters, apart fromthe discoloration, which made him suspect the genuineness of thepassport, and the detention orders. The Petitioner’s name as set outin his national identity card was slightly different to ,his name as setout in the passport, and he did not answer questions regarding thesedocuments., He thus suspected forgery as well, as a possibleconnection with terrorist activity. (The absence of his. name from any“Wanted” list could not have dispelled his suspicions, for obviouslyforgery and other criminal and terrorist acts are being committed bypersons quite unknown to the Police; on the other hand, had it beenfound that the Petitioner’s name was on any “Wanted” list, thatwould hiave strengthened that suspicion). It was in thesecircumstances that the 4th Respondent took the Petitioner, andhanded him over to the Katunayake Police, (of which the 6thRespondent was the Officer-in-Charge), together with his traveldocuments and baggage. The Petitioner was suspected of continuingoffences, namely the use or possession of a forged, altered orirregular passport, which were cognizable offences under sections459 and 462 of the Penal Code, and section 45(1)(d), (e) and (f),read with section 46, of the Immigrants and Emigrants Act: Theseoffences were "committed” in the presence of the Duty Manager, theSecurity Superintendent and the 4th Respondent, who were jointlyresponsible for the restraint on the Petitioner’s liberty: in my view thatrestraint was placed in the execise of the right of arrest under section35 of the Code of. Criminal Procedure Act, for the expression “any
person who ip his presence commits a cognizable'offence”, in
the context of section 3.5, includes a person who “reasonablyappeared" to be committing such offence (as in Wiltshire v Barrett,
. The Petitioner was detained in Police custody, produced before aMagistrate the next day, and remanded till 11.11,88; on that day hewas released, as the Police informed the- Court that there was noevidence to support the allegations against him.
On 22.11.88, in order to dispel the suspicion created by thediscoloration, the 1 st Respondent made an-1 endorsement, that“despite the discoloration on page -3> hereof. it is confirmed that thispassport is a genuine issue”. On 25.11.88 the Petitioner left forLondon on another Airlanka flight, and this application was filed on3.12.88. In response to a query, the Al Group informed Airlanka, byletter dated 25.4.89, that the Petitioner participated in .the meetingorganised by that Group,, and. forwarded a newspaper cutting relating
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to that meeting. The news item is headed "Campaigners told ofTamil’s prison and torture ordeal", and states inter alia –
“Freedom campaigners in Islington came eye to eye with one oftheir success stories – a man they helped to free from a Sri
Lankan jail [The Petitioner) told them he had never been
involved in politics but was arrested with hundreds of otherTamils by the army. He said that, like the others, he wastortured though he had committed' no crime. Even when he wasreleased in 1987 he and his family were still harassed by theIndian army peace-keeping force.
The Islington group invited him to speak after campaigning hardfor his release. Members spent much of 1986 and 1987 writingletters on [his] behalf to the Sri Lankan authorities.
Even their invitation attracted attention from the island's police -[he] was arrested the first time he tried to board a plane atColombo airport. Only then did he get a trial, charged withsubversive activities – and he was found to be completelyinnocent.
This news item paints a picture different to that presented by thePetitioner to this Court. His Counsel referred to the Indo-Sri LankaAccord as being the cause of the Petitioner’s release, in 1987, anddid not even suggest that there had been any other contributoryinfluence whatsoever; nor did- he allege that the Petitioner hadpreviously been tortured, while under detention: No reference ismade in the news item to the real reason, for the Petitioner's arrestand detention on 4.11.88. The statement' that he was thereaftercharged, with subversive activities, and found to be completelyinnocent, after trial; is baseless. Indeed, the Petitioner having beingremanded on Saturday 5th November and released on Friday 11thNovember, it would have exceeded the best expectations of anyoneconcerned with the elimination of the Law's delays, to learn that acontested criminal trial on a serious charge had been concludedwithin five working days. The Al Group submitted this news item to, Airlanka without in' any way suggesting that it was incomplete orinaccurate, and in the absence of any '-counter-affidavit by thePetitioner it must be assumed to’ be a correct report of his-part in the,proceedings of that meeting. The Petitioner thus appears not to beaverse to suppressing and distorting (or even inventing) facts, to suithis own purposes, and this must necessarily'affect his credibility,when considering the allegations in his-affidavit, especially that he
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was subjected to “degrading” treatment and the reasons attributedfor his being off-loaded.
It is necessary to refer to two other allegations that- were made.According to the Petitioner's written submissions, “it is a surmise thatsuch off-loading [of the Petitioner] was done wilfully so that his seatcould have been made available to some other person”, i.e. to someother passenger wait-listed for that flight.” This surmise was notpursued at the hearing. The ticket and other expenses of thePetitioner were being met by Al, and he had no foreign exchange:Counsel submitted that he was off-loaded because he was unable tocomply with demands for money made by Airlanka officials. When .itwas pointed out that this allegation had not been made in the petitionor in any of the supporting documents, it was not pursued by hisCounsel,
It was strongly contended at the hearing that the Petitioner wasoff-loaded because he was intending to address the Al Group.Several Airlanka officers have in their affidavits set out the reasonsfor off-loading the Petitioner and handing him over to the Police; notonly do these affidavits set out the events of that night* injgreat detail,but corroborative facts and documents have been referred to. ThePetitioner s allegation that the 4th Respondent “prevailed” upon theImmigration Officer to cancel the departure endorsement is not onlydenied by the latter, but is intrinsically improbable: once an Airlinerefuses to carry a Sri Lankan passenger out of Sri Lanka, theImmigration authorities have no power to compel such Airline tochange its decision, and have no alternative but to cancel thedeparture endorsement. The Petitioner has not chosen to deny orexplain any of these matters by means of a counter-affidavit. I holdthat the Duty Officer first examined the Petitioner’s passport, andquestioned him further only after, and only because, she noticed adiscoloration, which gave rise to a suspicion in her mind as to thegenuineness of the passport. The Petitioner has made no complaintof difficulty or delay in regard to the original issue of the ticket on
11.88, and this tends to negative the suggestion that just two dayslater, Airlanka was motivated by a desire to prevent the Petitionertravelling to the United Kingdom, to address an Al Group. That-thePetitioner chose to make the allegations referred to in the precedingparagraph confirms that in his- own mind he did hot really believe thatthe off-loading was on account of the Al connection. The statements
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made by him at the Al Group meeting indicate a readiness to departfrom the .truth to suit his own purposes. I hold that his off-loading wasoccasioned by a suspicion that his passport had been tampered with.The 4th Respondent found other features which tended to enhancethis suspicion, and therefore handed the Petitioner to the Police.
The background in which the 4th Respondent, the Duty Managerand other Airlanka officials acted at about midnight on 3.11.88 is ofgreat relevance, in determining whether this suspicion was areasonable suspicion. There was unchallenged evidence that theincidence of passengers travelling on Airlanka flights with forgedpassports or visas, or being found upon disembarkation to be withoutany travel documents; had increased to alarming proportions; that avariety of ingenious ruses were being resorted to; that of the namesmentioned in the telexes produced in this connection, an unduly largenumber were Tamil names; that apart from delays and dissatisfaction' among other passengers, Airlanka was put to great inconvenienceand expense as a.result of the consequent liability to repatriate suchpassengers at its own expense and to pay heavy fines togovernmental authorities abroad. Thus in addition to what may todaybe occupational hazards of air travel, affecting the life and safety ofpassengers, their property and the aircraft itself, from causes such ashijacking and sabotage, there were additional risks of financial lossarid operational delays, as a result of passengers travelling on forgedor irregular travel documents. The documents produced indicate thatpassengers with forged passports or visas had escaped the vigilanceof Immigration officers. There can thus be no presumption that apassenger who had passed through Immigration controls had validtravel documents; in any event, faced with an allegation at an airportabroad, that a passport was forged, any attempt by Airlanka todisclaim . liability by relying on any such presumption would havereceived short shrift. I therefore cannot accept the Petitioner’scontention that Aidanka was in any way bound by the Immigrationofficer’s opinion. Airlanka had, quite justifiably, issued strictinstructions that particular vigilance and care should be exercised tocheck the travel documents of passengers on its flights, and toprevent those with suspicious travel documents from boarding itsflights.
The Petitioner contends that his fundamental rights have beenviolated in the: following manner.
SC Veeradas v. Controller of Immigration and Emigration (Fernando, J.)223
0) He suffered “degrading treatment at the hands of the-subordinates of the 1 st and 2nd Respondents, and also at the handsof the 6th and 7th Respondents” in violation of Article 11;
While Article 14(1 )(h) guarantees the Petitioner the freedom ofmovement, the Respondents deprived him of that freedom, byrestraining him from leaving Sri Lanka on 4.11.88;
“ He was precluded on 4.11.88 from proceeding to London ,where he was to participate in Seminars and Discussions which werearranged for by Amnesty International ’’ in- violation of Article.14(1 )(a); and
He was subjected to arbitrary arrest, detention''and deprivationof personal liberty in violation of Article 13(1) and (2).
No details whatsoever of the “degrading” treatment suffered 1have been averred. Apart from a statement that, even after hisdischarge in the Magistrate's Court proceedings! employees ofAirlanka “continued .to treat him with disdain insisting that hispassport was a forgery", nothing even faintly hostile or unfriendly hasbeen alleged. This allegation'.is.thus, patently untenable, and learned'Counsel for the Petitioner .did not press .it.
When the attention of learned Counsel for'the Petitioner wasdrawn to the text of Article 14(1 )(h), he conceded that thefundamental right recognised is-the freedom of movement within SriLanka; and did not extend to a right fo leave Sri Lanka. Anyrestriction on his freedom of movement within Sri Lanka wasconsequent upon his arrest and detention: if such arrest anddetention was proper, there would be no violation of Article 14(1)(h);if improper, relief would be granted under itenv (4) below. Thisallegation was not pressed as an independent ground of Complaint-.
There was evidence that the Petitioner did leave Sri lanka, on
on another Airlanka flight. It is clear from the Al Groupcorrespondence that being the only speaker coming from abroad, thedates of the proposed seminars and talks were to be arranged to suithis travel arrangements; it was confirmed by the Al Group that thePetitioner did address the Group as planned. Thus the Petitioner wasnot precluded from exercising his right, of expression – though the'question might have arisen whether the fact that the exercise of thatright was delayed also constituted an infringement pf; Article 14(1)(a).Counsel was also invited to address us on the question whetherArticle 14(1 )(a) extender! to a case where the fundamental right to
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the freedom of speech was sought to be exercised outside Sri Lanka,but was prevented by an act done within Sri Lanka. However,Counsel did not pursue this complaint. In any event, if the off-loading,arrest and detention was not in violation of Article 13, there could notbe, in the circumstances of this case, any infringement of Article14(1 )(a).
The only matter that was ultimately pressed was that thearrest and detention of the Petitioner was in violation of Article 13(1).This potentially involved three different aspects.
the off-loading of the Petitioner, in consequence of questioningby the Duty Manager and the Security Superintendent, upon adecision by the Chief Operating Officer;
the arrest, referable to section 35 of the Code of CriminalProcedure Act, and consequent detention (until handed over to thePolice), by the 4th Respondent and other Airlanka officers; and
the arrest on 4.11.88, and detention until production before theMagistrate on 5.11.88, by the Katunayake Police.
In the light of the discoloration in the passport, and the problemsencountered by Airlanka at airports abroad, learned Counsel for thePetitioner was forced to concede, in the course of the hearing, thatthe suspicion entertained by the Duty Manager, the SecuritySuperintendent and the Chief Operating Officer was a reasonablesuspicion, justifying the off-loading of the Petitioner. In any event,off-loading involved no violation of Article 13(1).
The fact that the circumstances gave rise to a reasonablesuspicion warranting off-loading (possibly involving civil liability fordamages for breach of the contract of carriage) does not necessarilymean that there was a reasonable suspicion justifying arrest. Counselsubmitted that Airlanka should have refrained from handing thePetitioner to the Police, and should have conducted furtherinvestigations as to the genuineness of the passport before takingany steps to cause him to be arrested. This contention isunacceptable: if the circumstances gave rise to a reasonablesuspicion that a cognizable offence was being committed, arrest wasjustified; further, if the Petitioner had been released, and it latertranspired theit the passport had been tampered with, there was noassurance that the Petitioner could thereafter have been traced; if the4th Respondent had released the Petitioner despite suspicion of the
SCVeeradasv. Controller of Immigration and Emigration (Fernando, J.)225
commission of a serious offence, such release would have beenrelied upon as proof that the 4th Respondent did not in fact entertainsuch suspicion; arrest and handing over to the Police, in terms ofsection 35 of the Code, is conduct consistent with the 4thRespondent having genuinely entertained a suspicion that thepassport had been tampered with. It is also relevant that the 4thRespondent was not content to act on the opinions of others: hequestioned the Petitioner and learnt of other matters which enhancedhis suspicions. I therefore hold that the 4th Respondent and the otherAirlanka officers did have reasonable grounds for suspecting that thePetitioner's passport had been tampered with, and that they did notviolate the Petitioner’s rights under Article 13(1) and (2).
I am confirmed in my view by the express submission of learnedCounsel for the Petitioner that there was no infringement of Article 13by the Katunayake Police; he accepted that, as far as the Policewere concerned, there was reasonable ground for suspicion. Sincethe Police acted upon the same material as that upon which theAirlanka officers acted, it would follow, considered objectively, thatthe Airlanka officers did have rbasonable ground for suspicion: in theabsence of any circumstance indicating that the Airlanka officers didnot in fact (i.e. subjectively) entertain such suspicion, it mustnecessarily follow that the finding in respect of the Airlanka officersmust be the same as the finding in respect of the Police.
The Petitioner’s application thus fails. The allegations made againstthe public officers, namely of the Immigration Department and thePolice have been made recklessly, and I would order the Petitioner topay one set of costs to the 1st, and 5th tp 7th Rspondents in a sumof Rs 500/-. In respect of the allegations against Airlanka, one canappreciate the sense of grievance under which the Petitionerlaboured: despite having a genuine passport, he was not onlyoff-loaded, but deprived of liberty, and put to the inconvenience ofchanging his travel plans; despite the flimsy nature of the allegationsof the infringement of fundamental rights made against Airlanka andits officials, it appears equitable that no order for costs should bemade in favour of the 2nd to 4th Respondents.
Learned President’s Counsel for Airlanka submitted that in anyevent the acts of Airlanka and its officials did not constitute“executive or administrative action" within the meaning of Article126(1) of the Constitution, but in view of my findings on the merits,that is a battle left to be fought another day.
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KULATUNGA, J.
I have had the advantage of reading, in draft, the judgments of mybrothers Bandaranayake, J. and Fernando, J. in which the factsmaterial to this application have been fully stated. The petitionercomplains that on 04.11.88 he was pevented from leaving Sri Lankaon Air Lanka flight 511 to attend a seminar and talks on human rightsarranged by the “Islington and Hackney Amnesty InternationalGroup” in London. Mainly in consequence of a decision about thegenuineness of his passport made by Air Lanka Officials thepetitioner was “off-loaded” i.e. he was not permitted to embark onhis flight and his checked baggage was taken off; the Immigrationofficer at the Airport was made to cancel the departure endorsementon his passport; and the 4th respondent handed him over to theKatunayake Police. He was produced before the Magistrate and wasremanded till 11.11.88 on which day the Magistrate discharged himupon being informed by the Police that sufficient material was notavailable to institute action against him.
On 25.11.88 the petitioner left for London on another Air Lankaflight and participated in the Amnesty International Seminar. In thispetition he alleges infringement of his rights under Articles 11, 13,14(1)(a) and 14(1)(h) of the Constitution.
In the course of the hearing before us, learned counsel for thepetitioner informed us that he is not seeking relief against the 1st,5th, 6th and 7th respondents and would press the application againstthe other respondents only in respect of the, alleged infringementunder Articles 13 and 14(1)(a) of the Constitution.
In the light of the facts and circumstances more fully set out in thejudgements of my brothers Bandaranayake, J. and Fernando, J., I amof the view that the off-loading of the petitioner on 04.11.88 was bonafide and lawfully done; there is no material to justify the allegationthat his rights under Articles 11 and 14(1 )(h) of the Constitution havebeen violated; and the available evidence does not establish anyinfringement of his rights under Article 14(1 )(a). For the reasonswhich I shall proceed to set out, I am of the view that the petitioner'sarrest and detention by the Air Lanka officials and the 4th respondentpending his being handed over to the Katunayake Police on adecision regarding the genuiness of his passport are justified underSection 35 of the Code of Criminal Procedure read with Sections 459and 462 of the Penal Code and Sections 45(1 )(f) and 46 of the
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Immigrants and Emigrants Act.
Section 35 of the Code of Criminal Procedure provides, inter alia,that any private person may arrest any person who in his presencecommits a cognizable offence and shall without unnecessary delaymake over the person so arrested to the nearest peace officer or inthe absence of a peace officer take such person to the nearest PoliceStation; if there is reason to beliieve that such person comes underthe provisions of Section 32 a peace officer shall re-arrest him; ifthere is reason to believe he has committed a non-cognizable offencehe shall whfere appropriate be dealt with under the provisions ofSection 33. If there is no reason to believe that he has committedany offence he shall be at once discharged'.
The commentary on the corresponding Section in the Indian Code(S.43) in Sohoni’s – The Code of Criminal Procedure 18th EditionVol. 1 at page 251 states –
“The section is purely enabling and not in any sense obligatory.Further, it is the intention of the legislature to prevent arrest byprivate persons on mere suspicion or information. Hence thelimitation as to persons who would be arrested by the words inhis presence commits a non-bailable and cognizable offence
A private person has no power, on receiving infbrmation-of
theft, to arrest the thief while carrying away the stolen propertyas the offence is neither a continuing offence nor one committed• in his presence”.
The following passages (based on the decision in Thani v. State ofKerala (2) appear at page 252 –
“Arrest by a private individual on mere suspicion or on inferenceor opinion or information is illegal. The right of the privateindividual to arrest is more restricted in India than in England
“Where the accused was chased and arrested on meresuspicion, he got a right of self-defence. He, being a one eyedman, was caught hold of and attacked by three or four personsarmed with sticks and chopper. If in the exercise of his right ofself-defence, he happened to cause the death of one of them,he could not be said to have exceeded the right”.
The above views would equally apply to the construction of Section35 of our Code; it follows that an arrest by a private person on the
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ground of the commission of a cognizable offence would be lawfulonly if the act which constitutes such offence is committed in thepresence of such person. After any suspect who is so arrested ishanded over to the Police, the assessment of the available evidenceshows that there is no reason to believe that he has committed anyoffence he is entitled to be discharged. This, however, would notnecessarily make the initial arrest by a private person unlawful. If thatwere the law no private person would take the risk of arresting aperson under Section 35, a provision which even though limited inscope is intended to aid the arrest of offenders who may otherwiseescape the law.
Sohoni’s ‘Code of Criminal Procedure’ has this to say on theextent to which private persons making arrest are protected.
“For protection of persons, acting in good faith under thissection, see sections 79 and 99 I.P.C. The protection given toMinisters of Justice extends also to private persons arresting orendeavouring to arrest felons, etc., under certain limitations. As .these prsons are discharging duties or exercising powersimposed and given by law, they are in a sense engaged in thepublic service and for the advancement of justice, though notspecially appointed. If such a person is resisted and killed, theslayer is guilty of murder if he had express notice of the pur-pose for which the deceased came, e.g., by commanding thepeace or otherwise showing that his inter-position was in theinterest of peace and justice or with friendly intent”.
The corresponding provisions in our Penal Code which afford suchprotection are Sections 72 and 92. Section 72 which is relevant tothis case provides –
“Nothing is an offence which is done by any person who isjustified by law, or who by reason of a mistake of fact and notby reason of a mistake of law in good faith believes himself tobe justified by law in doing it.
Illustration:
A sees Z commit what appears to be a murder. A in theexercise, to the best of his judgment exerted in good faith, of thepower which the law gives to all persons of apprehendingmurderers in the act, seizes Z, in order to bring Z before theproper authorities. A has committed no offence, though it may
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229
turn out that Z was acting in self defence”.
Ratnalal & Thakore “The Law of Crimes” 19th Edition at page 143commenting on the corresponding Section in'the Indian Penal Code(S.79) confirms that persons acting, inter alia, under Section 59 (nowSection 43) of the Code of Criminal Procedure are protected underthis section.
In the instant case, according to the petitioner after he was firstquestioned by Air Lanka Officials he was taken to the 4th respondentwho also questioned him; the 4th respondent searched his handbaggage and thereafter took charge of his passport and otherdocuments. The 4th respondent’s defence is fully set out in thejudgements of my brothers Bandaranayake, J. and Fernando, J.which is unnecessary for me to repeat except to state that the 4threspondent did, in all the circumstances, suspect forgery in respect ofthe petitioner’s passport. If his passport had in fact been forged, itwould constitute offences under Section 459 (using as genuine aforged document) and 462 (possession of a document purporting tobe made by a public servant) of the Penal Code, which arecognizable offences under the Code of Criminal Procedure. It wouldalso constitute an offence under Section 45(1 )(f) of the Immigrantsand Emigrants Act (use or possession of a forged, altered or irregularpassport) which read with Section 46 of the said Act is a cognizableoffence for the' purposes of the application of the provisions of theCode of Crirninal Procedure; all such offences were committed in thepresence of the 4th respondent and other Air Lanka officials^ and thearrest and the handing over of the petitioner to the Police is justifiedunder Section 35 of the Code of Criminal Procedure.
I am satisfied that notwithstanding the subsequent exoneration ofthe petitioner by the Police leading to his discharge by theMagistrate, the 4th respondent acted in good faith in arresting thepetitioner and making him over to the Police and as such the. 4threspondent is protected under Section 72 of the Penal Code. Whilstthe protection under Section 72 would preclude the prosecution of the4th respondent for any offence. I am also of the view that upon apurposive construction of Section 35 of the Code of CriminalProcedure the 4th respondent will not by reason of the subsequentexoneration of the petitioner become liable for any infringement offundamental rights.
I therefore hold that the 4th respondent is not guilty of any violation
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of the petitioner’s rights under Article 13 of the Constitution. I agreethat his application fails and make order dismissing it. I also agreewith the order for costs proposed by my brother Fernando, J.
Application dismissed