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Land Mark case No. 19. Manickam Thavarasa, Alalyadi Road, Thambiluval -2. Vs. Officer in Charge , STF Camp, Thrukkovil. and Others


   IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application under Article 126 of the Constitution.

 SC (Application) No. 09/2002

 PETITIONER

Manickam Thavarasa, Alalyadi Road, Thambiluval -2.

Presently in remand at Remand Prison, Kalutara.

 RESPONDENTS

 1.    Officer in Charge ,  STF Camp, Thrukkovil.

2.    Officer in Charge,   Counter Subversive Unit, Police station, Amparai

3.    The Inspector General Of Police, Police Headquarters, Colombo 1

4.    The Superintendent of Prisons, Kalutara

5.    The Attorney General, Attorney General's Department, Colombo 12.

 

BEFORE             Sarath N. Silva C.J.

                             Shirani A. Bandaranayake J.

                             Yapa J.

 

COUNSEL          V. Yogeswaran for the petitioner

                             S.L.Gunasekera with Dilshan Jayasooriya

                             for the 1st respondent

                             K.R.M. Abdul Raheem for the 2nd respondent

                             Ms. Viveka Siriwardena de Silva, SC,

                             for 3rd to 5th respondents.

 

ARGUED ON    29.04.2002.

  WRITTEN SUBMISSIONS TENDERED ON

                             for the petitioner                             07.05.2002.

                             for the 2nd respondent         03.06.2002.

 DECIDED ON   16.09.2002.

 Shirani A. Bandaranayake J.

 The petitioner of this application, a 48 year old manual labourer, alleged that he was arrested by the 1st respondent without giving any reasons for his arrest and was detained unlawfully by the 2nd respondent. He further alleged while he was in unlawful detention, the 2nd respondent tortured him. This Court granted leave to proceed for the alleged infringement of Article 11, 13(1) and 13(2) of the Constitution.

 The facts of this case are briefly as follows:

 On 07.02.2001, while the petitioner was at home, personnel attached to the 1st respondent's camp arrested him and handed him over to the 2nd respondent on 08.02.2001. The petitioner was kept until 07.05.2001 at the Counter Subversive Unit at Ampara, wherein the 2nd respondent was in charge. The petitioner alleged that during the period 09.02.2001 to 07.05.2001 while being interrogated, he was hand cuffed and assaulted with wooden poles and was burnt with ignited cigarette butts.

 The petitioner was produced before the Magistrate, Ampara on two occasions; on the first occasion, the petitioner had not revealed to the Magistrate the kind of treatment meted out to him during the period of detention at the police station which was under the control of the 2nd respondent due to fear. However, on the second occasion, the petitioner complained to the Magistrate that he was tortured while he was in the custody of the 2nd respondent at the Counter Subversive Unit, Ampara.

 Learned Magistrate had ordered that the petitioner should be examined by JMO, Colombo and accordingly the petitioner was examined on 07.08.2001.

 The 1st respondent submitted that he together with 4 other officials of the Special Task Force arrested the petitioner on suspicion of being involved in terrorist activities having informed him of the reason for his arrest. On questioning the petitioner, the 1st respondent recovered a cellular telephone, which belonged to the leader of the Liberal Tigers of Tamil Eelam (LTTE) in Kandikudichchairu. The petitioner had handed over the said cellular phone from its hiding place in the boutique of one Anandarajah. After arresting the petitioner, the first respondent recorded a statement from him (1R2) and informed the Human Rights Commission of the said arrest (1R3). The petitioner was also produced before the Medical Officer at the District Hospital, Thirukovil for a medical examination (1R4). Thereafter, the 1st respondent handed over the phone to the 2nd respondent together with a book of telephone numbers, which was recovered from the petitioner's house (1R5).

 When the matter was taken up for hearing, learned counsel for the petitioner conceded that the 1st respondent had kept him in custody only for 24 hours. The 1st respondent had produced documents relating to the detention and handing over of the petitioner to the 2nd respondent during the period 07.02.2001 to 08.02.2001. The petitioner made no allegations against the 1st respondent of torture while he was kept in his custody.

 In the circumstances, the 1st respondent was discharged from the proceedings.                                         

 The 2nd respondent averred in his affidavit dated 05.03.2002 that although the petitioner has named him as the Officer in Charge of the Counter Subversive Unit of the Police Station, Ampara there has been no such office since 1997. He submitted that he is the Officer in Charge of the Special Task Force attached to Police Station at Ampara. Irrespective of the fact that the petitioner has not mentioned the correct unit to which the 2nd respondent was attached to at the time material to this application, the 2nd respondent concedes that the 1st respondent handed over the petitioner to his unit, in which he is the Officer in Charge at 1.45 p.m. on 08.02.2001 (2R1). His position is that the petitioner was detained on two detention orders; the first was issued on 08.02.2001 effective for 30 days and the second issued on 10.03.2001 effective for sixty days (2R2 and 2R2A).

 The petitioner was taken into custody on suspicion of his having been involved in the activities of LTTE. He made a statement on 07.01.2001 at 9.45 p.m. where he admitted that he was involved with the LTTE with regard to the purchase of a cellular phone (1R2). This statement was made, while the petitioner was in the custody of the 1st respondent. The petitioner has not alleged any kind of torture in the hands of the 1st respondent. Admittedly the 1st respondent handed over the petitioner to the 2nd respondent within 24 hours and also informed the Human Rights Commission of the arrest of the petitioner almost immediately (1R3). The document gives a detailed description on the offences committed by the petitioner. I therefore hold that the petitioner was informed the reason for his arrest, that the 1st respondent suspected the petitioner had connection or was involved in an unlawful activity or offence under the Prevention of Terrorism Act and that his arrest was according to law and not in violation of Article 13(1) of the Constitution.

 The petitioner was produced before the Magistrate, Ampara for the first time on 07.05.2001; 3 months after his arrest. The 2nd respondent relies on the two detention orders issued on 08.02.2001 (2R2) and 10.03.2001 (2R-2A) validity being given for 30 days and 60 days respectively. Both detention orders are issued in terms of Regulation 19(2) of the Emergency Regulations, No. 1 of 2000 published in the Gazette Extra Ordinary No. 1130/8 of 03.05.2000, to justify detention for 90 days. Regulation 19(2) reads as follows:

 " Any person detained in pursuance of provisions of regulation 18 in a place authorized by the Inspector General of Police may be so detained for a period not exceeding ninety days reckoned from the date of his arrest under that regulation, and shall at the end of that period be released by the Officer in Charge of that place unless such person has been produced by such officer before the expiry of that period before a Court of competent jurisdiction; and where such person is so detained in a prison established under Prisons Ordinance......." Regulation 19(2) provided for the detention of any person in terms of Regulation 18 for a maximum period of ninety days. This does not mean that the detention of a suspect for the full period is mandatory. The purpose of detention of a suspect under Regulation 19 is for further investigation which should be completed without any undue delay and steps must be taken either to indict or to discharge a detenu as early as possible. In Selvakumar vs Douglas Devananda and Others ( SC Application 150/3, SC Minutes of 13.07.1994), Fernando, J observed that,

"...... Emergency Regulation 18 and 19 do not compel, but merely authorize detention for a period not exceeding ninety days .....'This does not mean that detention for the full period of ninety days is either mandatory or proper ........If in the circumstances there has been unreasonable delay in release, it is no answer that the specified time limits have not been exceeded."

 As mentioned earlier the petitioner made his initial statement on the day he was arrested. Therefore, he had made a confession at the office of the Superintendent of Police, Ampara on 28.04.2001 while he was in the custody of the 2nd respondent (2R3). The B report dated 07.05.2001 reveals information based only on the petitioner's statements and the confession. It appears that the 2nd respondent has not been able to obtain any other information implicating the petitioner's involvements in any such activities indicating a close relationship with the LTTE.

 In these circumstances, I am of the view that the detention of the petitioner was unnecessarily prolonged without any valid reason and thereby the 2nd respondent is responsible for the violation of the petitioner's fundamental right guaranteed by Article 13(2) of the Constitution.

 The petitioner complained of torture during the period he was detained by the 2nd respondent in his custody. As mentioned earlier, when the petitioner was produced before the Magistrate for the 2nd time, he complained to him that he was tortured while being in custody at the Counter Subversive Unit, Ampara. It is common ground that at the time, the 2nd respondent was in charge of the said unit. The Magistrate ordered the petitioner to be examined by the JMO, Colombo, which was carried out on 07.08.2001.

 The 2nd respondent has taken up the position that the petitioner was not assaulted while he was in his custody and that the petitioner himself, with the intention of getting discharged from custody, has inflicted the alleged injuries on his body. In support of this submission, the 2nd respondent has produced a newspaper report dated 09.08.2001, which states that the suspects in remand custody are inflicting injuries on themselves in order to institute proceedings against the police officers (2R1P). Except for the newspaper report the 2nd respondent has not produced any other material nor did he make any submission to substantiate his argument.              

  The JMO in his report stated that on examining the petitioner, he observed the following scars on his body.

 TRUNK

 1,2 and 3


  05:28 AM Sunday August 08th, 2010