011-SLLR-SLLR-1993-2-WIMAL-VIDYAMANI-v.-LT.-COL.-JAYATILLEKE-AND-OTHERS.pdf
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WIMAL VIDYAMANI
v.LT. COL. JAYATILLEKE AND OTHERS
SUPREME COURT.
FERNANDO J.,
KULATUNGA J. ANDWADUGODAPITIYA J.
S.C. APPLICATION NO. 852/91 SPLJUNE 16, 1992.
Fundamental Rights – Illegal detention – Torture – Articles 13 (1), 27, 11 ofthe Constitution.
The petitioner who was the Mill Security Officer at the Eqnbilipitiya Mill of theNational Paper Corporation was arrested and detained by the Police underemergency regulations for being allegedly concerned in a subversive J.V.Pattack on the Paper Mill. Thereafter, he was transferred to the Pelawatte DetentionCamp and detained under a Preventive Detention Order. The petitioner had anexemplary record of service and had won the confidence of his employer. Therewas no material to warrant the suspicion that the petitioner had J.V.P. links orwas concerned in the subversive attack on the Paper Mill. An allegation thathe was absent from his place of work during the attack was contradicted.
The Judicial Medical Officer found 16 injuries on the petitioner. It was not allegedthat the petitioner had these injuries at the time of his arrest. Even in the absenceof a clear medical opinion, as to the cause of these injuries, these injuries couldbe understood as having being caused by the use of blunt force during an assaultby police officers whilst the petitioner was in police custody.
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Held :
The validity of arrest under Regulation 18 (1) has to be determined bythe application of the objective test upon adequate material placed beforeCourt. The validity of an Order under Regulation 17 (1) is determined by theapplication of the test of reasonability, in the wide sense. The Secretary makingsuch order may, in particular circumstances, become obliged to place before Courtrelevant grounds to justify his claim that he was of the opinion that it wasnecessary to order detention in the interest of national security or the maintenanceof public order.
The petitioner's arrest and detention were unlawful, there was proof oftorture and these were infringements of his fundamental rights.
Cases referred to :
Wickremabandu v. Herat and others [1990] 2 Sri LR. 348.
Nanayakkara v. Henry Perera [1985] 2 Sri L.R. 375, 385.
Hirdaramani v. Ratnavale 75 NLR 67.
Sasanasiritissa Thero v. P. A. de Silva [1989] 2 Sri LR. 356, 380 – 381.
Amal Sudath Silva v. Kodituwakku [1987] 2 Sri LR. 119.
Geekiyanage Premalal Silva v. Rodrigo S.C. Appeal No. 24/89 S.C. Mins,of 05.09.90.
Jayaratne v. Tennakoon S.C. No. 18/89 and 10/89 S.C. Mins, of 04.07.91.
Gamlath v. Neville Silva S.C. Application No. 78/90 Mins, of 27.09.91.
APPLICATION for relief for infringement of fundamental rights.
L.C.M. Swamadhipathi for petitioner.
1st respondent absent and unrepresented.
Shavindra Fernando, S.C. for the 2nd and 3rd respondents.
Cur. adv. vult.
June 22, 1992.
KULATUNGA, J.
By his letter dated 18.3.91 addressed to His Lordship the Chief Justicethe petitioner who had, at the relevant time, been a member of theSecurity Service at the Embilipitiya Mill of the National PaperCorporation complained that he was in illegal detention at the PelawattaDetention Camp having been unlawfully arrested by the EmbilipitiyaPolice on 19.10.90. He also complained that until his transfer to thesaid camp on 17.11.90, he was unlawfully detained at the Embilipitiya
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Police Station during which period the police officers there subjectedhim to various acts of torture. His affidavit was filed on 31.07.91wherein he sought relief for alleged infringement of his rights underArticles 11, 13 (1) and (2) of the Constitution. On 04.09.91, he filedan amended affidavit in which he stated inter alia, that on 10.08.91,he had been transferred to Ratnavali Rehabilitation Camp,Anuradhapura. The petitioner was then granted leave to proceed ;at the same time, this Court directed the Judicial Medical OfficerAnuradhapura to examine the petitioner for any injuries he hadsustained and to make a report to this Court. Pursuant to the saiddirection, the J.M.O. examined the petitioner on 26.09.91 andforwarded his report dated 10.10.91.
The petitioner joined the National Paper Corporation in 1980 asa Security Officer. He was promoted to the post of Executive SecurityOfficer in 1983 and to the post of Mill Security Officer in 1985. Theevidence adduced before us shows that he has, as an employee ofthe Corporation, maintained an exemplary record of service. This issupported by documentary evidence which I summarise as follows:
29.06.84 : commendation by the Corporation for assistancegiven in detecting a gambling den conducted by certain employeesof the Corporation and in apprehending the offenders. (P5)
07.09.84 : commendation by the Head Quarters InspectorEmbilipitiya Police Station for assistance rendered in the recoveryof a water pump belonging to the Corporation, which had beenstolen. (P6)
19.09.84 : appreciation by the Mahaweli Authority of hisservice in giving the officers of the Authority a demonstration infire fighting. (P3)
13.11.84 : commendation by the HQI Embilipitiya Policestation for assistance rendered in the recovery of stolen tractorspare parts worth Rs. 20,000 belonging to the Corporation. (P7)
12.12.84 : commendation by the Corporation for his“ devoted, dedicated and loyal service " to the Corporation inconducting a basic course of training for its security staff, includingon the subjects of fire-fighting and self defence. (P2)
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26.06.86 : certificate of specialised training in security duties(armed and unarmed) provided by the Ministry of Security forIndustrial and Commercial Establishments which states that thepetitioner had obtained the 1st place in the course. (P1)
15.01.89 : appreciation by the Commanding Officer of theArmy Training Centre Embilipitiya for a lecture given to the newrecruits on the subject of fire-fighting. (P4)
13.02.89 : payment of a reward of Rs. 259 to the petitionerby the Corporation for assisting in the recovery of a stock of paperwhich had been stolen from the Corporation. (P8)
We then have the petitioner's report (P9) dated 17.09.90 addressedto the Chairman of the Corporation regarding subversive attacks onthe Embilipitiya Paper Mill in October and November 1989 and theaction taken in that regard. On 9.10.89 subversives attacked theMill and damaged 20 vehicles and assaulted the employees. TheArmy COD H.Q (Embilipitiya) and the Embilipitiya Police wereinformed ; but they visited the Mill only in the morning of the nextday. Thereafter, the petitioner visited the Embilipitiya Police Stationfrom time to time with a view to adopting security measures but hewas informed that Police Officers were unable to intervene withouta directive from the Ministry of Defence. On 21.10.89 the petitionerliaised with Army Head Quarters Embilipitiya and arranged forassistance to be given against further subversive attacks on a signalbeing by the blowing of the siren. On 11.11.89 subversives attackedthe Mill again, damaged its property and set fire to the Mill.Mr. Gunasena Kuruppu managed to blow the siren, whereupon thearmy arrived and the subversives fled. They were thereby ableto save the paper machine. Mr. Kuruppu was assaulted by thesubversives on that occasion and was consequently hopitalised for3 days. The General Manager of the Corporation has, by a writingdated 06.05.92 (P13) confirmed the facts relating to the twosubversive attacks referred to in P9 and further confirmed that thepetitioner was present at the station during the said attacks and dulyattended to his duties by extinguishing the fire and salvaging theproperty of the Corporation.
It is common ground that on 15.11.89 a police post was establishedinside the Mill premises to tighten the security there. The petitionerstates that on 29.05.90 he was arrested by Sgt. Bandara of the
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Embiliptiya Police who was indisposed towards him ; he was notinformed of the reason for his arrest ; and he was detained at theEmbilipitiya Police Station until 31.05.90. Shortly before he was released,a Police Officer recorded a statement from him about subversiveactivities at the Mill premises. On 04.06.90 the General Manager ofthe Corporation called for a report from the Assistant Superintendentof Police Embilipitiya regarding the said arrest. However, no reportwas received, despite a reminder on 1.10.90 (P14a). The petitioneralleges that in the meantime Sgt. Ariyadasa and other police officerswere stealing the property belonging to the Corporation. On 05.06.90the petitioner made a report (P10) to the Chief Security Officerdetailing the alleged acts of theft. In that report, the petitioner statesthat property including stocks of paper were being removed by thepolice without gate passes claiming that the Management hadpermitted such removal.
On 12.09.90 the General Manager of the Corporation addresseda letter (P11) to the Superintendant of Police Ratnapura giving adetailed account of alleged acts of misconduct by Police Officersattached to the police post at the Mill (between 22.08.90 and 11.09.90)including the unauthorised removal of empty barrels, bleachingpowder, paper and exercise books, misuse of Corporation vehicles,assaulting a security guard and taking two employees into custody.The General Manager also arranged for the Chief Security Officerof the Corporation (who was accompanied by the petitioner) to discussthe matter with the S.P. The petitioner states that after discussions,all the Police Officers attached to the Police post at the Mill weretransferred out ; that thereafter, on 19.10.90 when he was on duty,Police Officers from the Embilipitiya Police Station arrested him ; thatat the Police Station Sgt. Wimalasiri and other police officers assaultedhim; that as a result he sustained many injuries including a permanentdisability of the middle finger of his right hand ; that whilst soassaulting him they questioned him about the damage caused to theMill by the subversives ; and that he was detained at the EmbilipitiyaPolice Station until 17.11.90 on which date he was transferred to thePelawatte Detention Camp where he remained until his transfer toRatnavali Rehabilitation Camp, Anuradhapura, on 10.08.91.
The petitioner denies that he engaged in any unlawful activity orwas in any way associated with subversive activity at the Mill andasserts that he duly carried out his duties as a Security Officer and
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assisted in safeguarding the Mill against such activity. He alleges thatthe motive for his illegal arrest, detention and torture was the factthat the Police Officers concerned were displeased with the actiontaken by him for safeguarding the property of the Corporation andits employees which led to a complaint being made to the SP againstvarious acts of misconduct by Police Officers. On behalf of therespondent, affidavits have been filed by the Secretary to the Ministerof State for Defence, ASP Amaradasa Fernando, Sub Inspector ofPolice Upali Minipura of the Counter Subversive Unit Embilipitiyaand Sergeant Wimalasiri Goonewardena. It is the case for therespondents that the petitioner had links with the Janata VimuktiPeramuna and was involved in the subversive attacks at the Mill.ASP Amaradasa Fernando states that the petitioner's involvementwith the subversives was confirmed by the fact that he was absentfrom his place of work during both attacks and was absent for twomonths thereafter ; that the petitioner was arrested on 30.05.90 andwas released the next day after recording his statement ; that afterthe establishment of the police post at the Mill, the petitioner waskept under observation and being displeased with such vigilance, hemade complaints against police officers ; and that on receipt of furtherinformation, the petitioner was re-arrested on 19.10.90 and detainedpending investigations.
As authority for the petitioner's detention, the respondents haveproduced two detention orders namely, an order dated 20.10.90 underRegulation 19 (2)* of the Emergency Regulations for a period of 90days (Z1) and an order dated 16.01.90 under Regulation 17 (1) forthe period thereafter (Z2). The petitioner was released on 31.10.91,during the pendency of these proceedings. The Secretary to theMinistry of State for Defence states that in the meantime he reviewedperiodically the available material against the petitioner as to thenecessity for his continued detention.
It is well settled that the validity of arrest under Regulation18 (1) has to be determined by the application of the objective testupon adequate material placed before this Court. The validity of anorder under Regulation 17 (1) (s determined by the application ofthe test of reasonability, in the wide sense ; and the Secretarymaking such order may, in particular circumstances, become obligedto place before this Court relevant grounds to justify his claim that
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he was of the opinion that it was necessary to detain the petitionerin the interest of national security or the maintenance of public order.Wickremabandu v. Cyril Herat(1). In the instant case, there is nomaterial to warrant the suspicion that the petitioner had JVP linksor that he was concerned in the subversive attacks at the Mill. Theallegation that he was absent from his place of work during the saidattacks is contradicted by documentary evidence and particularly bythe statement of the General Manager of the Corporation (P13) inwhich the General Manager also contradicts the allegation that thepetitioner absented himself from his place of work for two monthsafter the subversive attacks. The General Manager states that thepetitioner was absent for one month and 14 days on approved leave.In the circumstances, the petitioner's arrest under Regulation 18 (1)was unlawful and the consequent detention order Z1 was alsounlawful. Further no material was produced before us as to thebasis on which the Secretary could have formed the opinion thatit was necessary to detain the petitioner under Regulation 17(1) ; consequently the detention order Z2 was unlawful. I hold thatthe arrest and detention of the petitioner are violative of his rightsunder Articles 13 (1) and (2) of the Constitution.
As regards the alleged violation of Article 11, Sergeant WimalasiriGoonewardena states that he is familiar with the facts andcircumstances relating to the arrest of the petitioner but denies theallegation that the petitioner was assaulted whilst he remained inpolice custody. However, the report of the JMO who examined thepetitioner on 26.09.91, whilst the petitioner was still under detention,supports the allegation of assault. The petitioner told the JMO thatthe officers pf the Embilipitiya Police took him into custody on19.10.90 and assaulted him with battons, wires, rubber pipes andclubs. The JMO observed the following injuries on the petitioner.
oedematous right middle finger with limitation of movementand pain over palpation.
2 1/2" x 1" scar on left buttock.
4 1/2“ x 0.2" scar on middle 1/3 of anterior aspect of rightthigh.
1 1/2" x 0.2“ scar 6“ below the 3rd injury.
0.3“ long scar 1/2“ below the 3rd injury.
2" x 1/2” scar on medial aspect of left ankle.
0.5" in diameter scar on lateral aspect of the left lower leg.
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0.5"longscaronlateralaspectoftheleft ankle.
1.0"longscarondorsalaspectofright thumb.
0.5“ long scar on left side of the back of chest in 8thintercostal aspect at midline.
4" long linear shape scar on right shoulder joint.
0.5“longscaronmedialaspectof leftwrist.
1/4“longscarondorsalaspectoftheleft hand.
2“ long scar on anterior aspect of the left lower thigh.
1.0“ long scar on left anterior chest wall.
1/2“ long scar on dorsal aspect between left thumb andindex.
The J.M.O. states that he is unable to express an opinion on theabove injuries as they are old wounds. The respondents have nottaken up the position that the petitioner had any injuries on him atthe time of his arrest. Even during the subversive attacks it was oneGunasena who was assaulted. The petitioner did not sustain anyinjuries at the hands of the subversives. The history given by thepetitioner to the J.M.O. is consistent with the description of the assaultgiven in the petitioner's affidavit to this Court prior to his medicalexamination ; and even in the absence of a clear medical opinion,there is no difficulty in taking the view that the said injuries wereprobably caused by the use of blunt force. In all the circumstances,
I am satisfied that Sergeant Wimalasiri Goonewardena and otherPolice Officers of the Embilipitiya Police Station assaulted thepetitioner whilst he was in police custody and caused multiple injuriesto him. I hold that such conduct is violative of the petitioner's rightsunder Article 11 of the Constitution.
In deciding the question as to what relief may be granted to thepetitioner, I have taken the following matters into consideration :
No material has been placed before this Court to establishthe existence of a reasonable suspicion that the petitioner wasconcerned in any offence. Assuming that there was such material,it is manifest that a detention order under Regulation 19 (2) wascompetent to facilitate further investigation. Nanayakkara v. HenryPerera (Z). The petitioner was detained under the said regulationfor 90 days ; but there is no evidence of any investigationsconducted during that period. These facts show that the petitioner'sarrest and detention were mala fide and smack of malice.
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The Secretary states that he made the order underRegulation 17 (1) on the basis of material available against thepetitioner " including the material set out in the affidavits markedX1 and X2 The said affidavits consist of bald statements(unsupported by any other material) that the petitioner had JVPlinks and was involved in the subversive attacks at the Mill. Ifthe Secretary had any other material to support the detention, suchmaterial has not been placed before this court. The irresistibleinference from these facts is that the Secretary signed theimpugned order mechanically and had not formed the requisiteopinion. Hirdaramani v. Ratnavale <3) ; Sasanasiritissa Thero v.P. A. de Silva (4>.
The petitioner who had an exemplary record of serviceand had won the confidence of his employer was arbitrarily arrestedand incarcerated for a period of one year. He was subjected totorture whilst in police custody and was detained in a police cellfor one month, which was itself cruel. On 27.05.91 the Attorney-General informed the SP Ratnapura and Mr. D. G. Jayalath (theChairman of the Committee For Processing, Rehabilitation andRelease of Suspects in the Ministry of Defence) that the availableevidence was insufficient to prefer criminal charges against thepetitioner. Had the Secretary reviewed the petitioner's caseperiodically (as he claimed to have done), the petitioner might havebeen released at that stage; instead, he was continued in detentionand was released only on 31.10.91 after 2 months rehabilitation.It seems to me that the decision for rehabilitation itself had beenmechanically made, the effect of which would have been to furtherhumiliate the petitioner.
This court has condemned torture of persons in policecustody in Amal Sudath Silva v. Kodituwakku (5), GeekiyanagePremalal Silva v. Rodrigo (6) ; Jayaratne v. Tennakoon (7) andGamalath v. Neville Silva t8). In the last case I observed that theprevious decisions have had no effect on the police and thatviolations of Article 11 by police officers (which symbolise man'sinhumanity to man) continue. The instant case shows that thesituation is still the same.
Accordingly, I grant the petitioner –
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a declaration that his rights under Articles 13 (1) and (2)and 11 have been infringed by executive or administrativeaction ; and
compensation in a sum of Rs. 15,000 for the infringmentof Article 13 (1) and (2) ; and compensation in a sum ofRs. 20,000 for the infringment of his rights under Article 11,totalling a sum of Rs. 35,000 (Rupees thirty five thousand).
I direct the State to pay the said sum to the petitioner.
As the offending police officers have not been made parties tothese proceedings, it is not possible to make any order against thempersonally. I therefore direct the Registrar to forward to the Inspector-General of Police a copy of this judgment to enable him to takeappropriate action and to make a report to this Court in that regardon or before 15.09.92. The impugned order under Regulation 17 (i)was made by the Secretary to the Ministry of State for Defence andnot by the 2nd respondent (Secretary, Ministry of Defence). In thedays of Hirdaramani v. Ratnavale (3) there was only one officer(namely, the Permanent Secretary) who was authorised to make suchorder ; and H. N. G. Fernando, CJ said (p. 90) ;
" I cannot imagine that the Prime Minister would haverecommended the conferment of the power to make detention Orderson the Permanent Secretary, without the confidence that he willexercise that power in good faith…"
The situation has since changed ; and the power to make detentionorders is now vested in the 2nd respondent as well as in theSecretary, Ministry of State for Defence and any Additional Secretaryof Defence. Whilst such delegation may have been necessitated bythe increase in the volume of work in this sphere, it is hoped thatthe appropriate authority will ensure that such orders are notmechanically made, on the recommendation of subordinate officers.
FERNANDO, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Relief granted.