|Case Reference/File No|| 2 SriLR 375|
|Case Name||Nanayakkara v. Henry Perera, A.S.P and three others|
|Date of judgement||15th, 16th and 17th July, 1985|
|Judges||Wanasundera J |
L.H. De Alwis J
D. Vasudeva Nanayakkara
1st respondent – Henry Perera, A.S.P
2nd respondent – S.D.E.C. Gunawardena, D.I.G., Metropolitan Range
|Keywords||Articles 13 (1), (2) and (4) of the Constitution – unlawful arrest and detention – Regulations 18 and 19 of Emergency regulations|
|Brief facts||On 17.2.1985 the 1st respondent, with a police party armed with guns and rifles arrived at his brother’s house and took his brother into custody and detained him at the harbor police station until the next day. The petitioner’s position was that the arrest and detention was illegal and mala fide and was promoting the political interests of the United National Party(UNP) and its leaders and was misusing the provisions of the Public Security Ordinance. The petitioner in this case seeks relief for infringements of the fundamental rights of Vasudeva Nanayakkara protected under Articles 12 (1), 12(2), 13(1) and 13(2) of the Constitution. Vasudeva Nanayakkara in his affidavit averred that he was not informed the reasons for his arrest or detention and that he believed such reason to be that he was the Organizing Secretary of the Nava Sama Samaja Party (NSSP) which was proscribed under the Emergency Regulations. The 1st respondent’s position was that A.C.A. Gafoor, Senior Superintendent of Police, Colombo South ordered to arrest Vasudeva Nanayakkara for having distributed pamphlets in front of the Fort Railway Station which was an offence under Regulation 28 (1) and 68 (3) of the Emergency (Miscellaneous Provisions and Powers) Regulation, No. 01 of 1985. The 1st respondent’s version is that Vasudeva Nanayakkara admitted that he distributed leaflets and that he signed a statement at the police station admitting such action. However, A.C.A. Gafoor in his affidavit averred that Vasudeva Nanayakkara was arrested on 17.2.1985 on his orders as he in his investigations on the matter of student unrest in the University of Colombo over some amendments to the University Act found out that Vasudeva Nanayakkara was in constant touch with the student leaders and was using the student dissatisfaction to draw the school children into the protest campaign and to incite them to have confrontations with the police and commit offences. The court observed that the 1st respondent was incapable of establishing “a reasonable ground” for suspecting Vasudeva Nanayakkara having committed an offence under Emergency Regulations and that such “reasonable ground” should be determined by the Court pursuing an ‘objective test’. The Court held that the procedure followed in the petitioner’s arrest and detention was not violative of Article 13(1) and (2) of the Constitution and that the petitioner’s detention was mala fide and was a “punishment” infringing his fundamental rights under Article 13(4) of the Constitution|
|Judicial Precedence||(1) The 1 st respondent knew that the detenu had distributed leaflets and contravened the Emergency Regulations. There is no requirement in the Regulation that the knowledge should be first hand. It could be acquired on statements to others in a way which justifies a police officer giving them credit. |
(2) The detention of a person arrested without a warrant under Regulation 18 can be justified only if the detention is for search. The expression search is synonymous with investigation. Hence the detention here for further investigation was lawful.
(3) The order by the Inspector General of Police (or Deputy Inspector General) to detain a person at a specified location under Regulation 19 (2) should be delivered to the detenu and state the reason for the detention so that the detenu could make a purposeful and effective representation for his release.
(4) While the effect of Regulation 18 in combination with Regulation 19 (making, sections 36, 37 and 38 of the Code of Criminal Procedure Act’ not applicable) does not require a judicial order in regard to the duration of the detention (up to a maximum of 90 days) and the place of the detention, yet the requirement for production of an arrested person before a Magistrate within a reasonable time (not later than 30 days) remains under the proviso to Regulation 19(1). The Constitutional requirement that a detained person shall be brought before the Judge of the nearest competent Court remains untouched. While the Magistrate is powerless to interfere with the arrest and detention of a suspect made under Regulation 18 read with Regulation 19 he is not powerless to investigate the reason for the detention and to notify the authorities if in his view the detention is a ‘punishment* infringing Article 13 (4) of the Constitution.
The Court rejected the position of the learned President’s Counsel that the knowledge of the police officer making the arrest should be first hand, and held that such knowledge within the purview of Regulation 18(1) may be first hand or acquired on statements by others in a way that justifies a police officer giving them credit. In answering the question whether a person who is arrested without a warrant is capable of being detained under Regulation 19 for an unspecified and unknown reason, the Court was of the opinion that both Regulations 18 and 19 do not provide for the matter and that those regulations then have to be read with Article 13(4) of the Constitution. In light of the fact that Article 13(4) shall not be affected by restrictions as may be prescribed by law under Article 15(7) in the interior of national security, the court held that the detention of a person arrested without a warrant under Regulation 18 would be lawful only if such detention for an unspecified and unknown reason would be violative of Article 13(4) of the Constitution. This would necessarily mean, the Court held, that such person must be released once the further investigations are over. The Court was also of the view that an arrest and detention are inextricably connected wherefore the reasons for an arrest as well as a detention is necessary to be communicated to the subject of such arrest and detention.
|Legislation Title||The Constitution of the Democratic Socialist Republic of Sri Lanka 1978|
|Area||Articles 13 (1), (2) and (4) of the Constitution, Regulations 18 and 19 of Emergency regulations|