024-SLLR-SLLR-2003-1-DHANAPALA-FERNANDO-v.-ATTANAYAKA-OFFICER-IN-CHARGE-KANDANA-POLICE-STATIO.pdf
196
Sri Lanka Law Reports
[2003] 1 Sri L.R
DHANAPALA FERNANDO
v.ATTANAYAKA, OFFICER-IN-CHARGE,
KANDANA POLICE STATION AND OTHERS
SUPREME COURTFERNANDO, J.
ISMAIL, J. ANDWIGNESWARAN, J. '
SC NO. 330/2002 (FR)
22nd JANUARY, 2002
Fundamental Rights – Search of a licened restaurant and arrest of its guestsand Manager – Power of arrest and search by police – Sections 32 and 33 ofthe Code of Criminal Procedure Act – Sections 65 and 68 of the PoliceOrdinance – Articles 12 (1) and 14 (1) (g) of the Constitution.
The plaintiff and his sister owned a. partnership business called JayasiriRestaurant and Inn (“the Inn”) at Kandana registered under the BusinessNames Statute of the Western Provincial Council and licensed by the Ja-ElaUrban Council. The business consisted of a restaurant, a reception hall forweddings and parties and an inn with guest rooms.
On the orders of the 1st respondent, the 2nd respondent Sub Inspector ofPolice who was armed with a revolver raided the Inn on 3.6.2002, 9.6.2002,13.6.2002 and 16.6.2002 and searched it apparently at gun point and hencewithout the consent of the Manager of the Inn.
sc
Dhanapala Fernando v Attanayake, Officer-in-Charge,
Kandana Police Station and others (Fernando, J.)
197
On 3. 6. 2002, the 2nd respondent questioned three couples who were occu-pying rooms. They disclosed their names and addresses. They were not askedto show their identity cards. One of the couples was married, another hadintended to get married; and third couple married but not to each other. As perIB extracts, the Manager had told the police that a licence had been obtainedfor the business but he was not told to produce the licence. The Manager him-self was arrested allegedly for failing to establish the identity of the couples.The 2nd respondent told the Manager that the business cannot be operatedwithout a licence from the Tourist Board. The Manager and couples were takento the Kandana Police Station and released the same day after questioning.
The subsequent raids by the 2nd respondent were to re-check whether the Innwas functional. During these visits the 2nd respondent once told the Managerto close up the business if a licence from the Tourist Board had not beenobtained and the 2nd respondent threatened to assault the Manager if roomswere let.
On 27.6.2002 when the restraining order against the police instructions toclose up the business.came up for renewal the State Counsel submitted tocourt that in view of the licence obtained from the local authority the police hadno power to prohibit the petitiq^er from operating his licence.
However, the State Counsel argued that the impugned arrests and searchcould be defended in terms of sections 32 and 33 of the Code of CriminalProcedure Act, and sections 65 and 68 of the Police Ordinance.
Held :
Per Fernando, J.
1“ …The respondents tried to justify the arrests upon numerous grounds –
that the three couples were reasonably suspected of an offence, cogniz-ably or otherwise and / or of underworld or of criminal activities; that theywere taking precautions to conceal their presence; that there was a needto investigate their possible involvement in such offences or activities,
' that they were found in a place reasonably suspected of being a resortof loose and disorderly characters; that the police had reason to believethat the names and addresses given by them were false and needed ver-ification; and that they had given contradictory reasons for their presenceat the Inn. The respondents have totally failed to establish any factualbasis whatsoever for any of these allegations. That the arrest had reallynothing to do with such matters and was an arbitrary and high handed'infringement of liberty and invasion of privacy is manifest.
2. Whilst there was evidence of rising crime in the area, the search wasunlawful because the respondents had no reasonable suspicion but onlya vague general suspicion that criminals from outside lodge in guest
198
Sri Lanka Law Reports
[2003] 1 Sri L.R
houses in order to commit crimes and then leave the area. Further, thesearch was effected not with the consent of the Manager but by forcinghim to submit to the search by the 2nd respondent showing his weapon.
3. The petitioner's fundamental rights under Articles 12(1 )(g) have beeninfringed by the 1 st and 2nd respondents for which the State and the saidrespondents were liable.
APPLICATION for relief for infringement of fundamental rights.
Case referred to :
(1) Bandaranayake v Rajaguru – (1999) Sri LR 104
D. Premaratne, PC. with Hemantha Situge for petitioner.Rajiv Goonatilleke, State Counsel for 1 st to 4th respondents.
Cur.adv.vult
March 19, 2003FERNANDO, J.
The Petitioner and his sister are the partners of a businesscalled “Jayasiri Restaurant and Inn” (“the Inn”) registered in termsof the Business Names Statute of the. Western Province, andlicensed by the Ja-ela Urban Council. The business is carried on inpremises at Kandana, and consists of a restaurant, a large recep-tion hall given on hire for weddings and parties and an Inn withrooms given out to guests. The Petitioner alleges that the 1st and2nd Respondents (the Officer-in-Charge and a Sub-Inspector,respectively, of the Kandana Police) infringed his fundamentalrights (s) under Article 12(1) by conducting three illegal searches of.the premises on and after 3.6.2002 and (b) under Article 14(1)(g)by compelling the closure of his business from 3.6.2003.
It is not disputed that (as shown by the Information Book(“IB") extracts) at 10.45 a.m. on 3.6.2002 on the 1st Respondent'sorders, the 2nd Respondent left the Kandana Police station, armedwith his gun, together with a party of Police officers in a private
sc
unanapaia ternanao v AttanayaKe, umcer-in-unarge,
Kandana Police Station and others (Fernando. J.)
199
vehicle, ostensibly to investigate information received regarding anunderworld gang. At 11.00 a.m. they came to the Inn and searchedit. While the Petitioner claimed that the 2nd Respondent forciblysearched the premises after showing the Manager of the Inn arevolver, the 2nd Respondent denied that allegation and claimedthat the search was with the Manager’ consent. Thereafter the 2ndRespondent got the Manager to open up the rooms of the Inn, andtook into custody three couples, who were occupying three rooms,on the ground (as averred in his affidavit) that they were “unable tosatisfactorily, establish their identity,” as well as the Manager as hetoo was unable to establish their identity. The “Visitors Book” of theInn was also taken. According to the 1st Respondent's affidavit ithad not been duly maintained after 28.4.2002 and was retained asa production. That Book was not produced but only a photocopy ofthe “last entered page” which contained an entry for 24.5.2002.Although that Book was not returned, neverthless (according to the2nd Respondent) the 1st Respondent had warned the Manager tomaintain that Book. It waapnot pleaded that any shortcoming in themaintenace of that Book was one of the reasons for the arrest. Afterfurther questioning at the Kandana Police station, the three couplesand the Manager were released at about 2.15 p.m. One of the mat-ters elicited in the coures of the Manager's statement was thatlicences had been obtained for the business, but his statementdoes not refer to any request to produce those licences.
The Petitioner claimed that the 2nd Respondent had told theManager that the business cannot be operated without a licencefrom the Tourist Board, and had ordered its closure – all of whichthe Respondents denied.
At 6.30 p.m. on 9.6.2002, on the 1st Respondent's orders,the 2nd Respondent left the station, armed, with a Police party toinvestigate information that a suspect couple had obtained accom-modation in an (unspecified) guest-house. According to the IBextracts, the Police party visited the Inn, questioned the Manager,searched the Inn but found neither guests nor suspicious activity,and returned at 7.05 p.m. without having attended to any otherduties.
The Petitioner claimed (but the Respondents denied) that at10.00 a.m. on 13.6.2002 the 2nd Respondent had again come to
200
Sri Lanka Law Reports
[2003] 1 Sri L.R
the Inn and had asked the Manager to come to the station at 5.00p.m., at which time the 1st Respondent had told him to close thebusiness, threatening to assault him if rooms were let.
According to the IB extracts, at 3.00 p.m. on 16.6.2002, onthe 1st Respondent’s orders, the 2nd Respondent left the station,armed, with a Police party to investigate information that under-world gangs were meeting in guest-houses in the area to organizethemselves. At 3.15 p.m. they came to the Inn and found all fiverooms empty, and recorded a brief routine statement from theManager – among the matters elicited in that statement was thatthe approval of the Tourist Board had not been obtained for the Inn.At 3.35 p.m. they visited another guest-house where they arrestedfour couples and the Manager, and returned to the station at4.00 p.m.
I must note at this point that although the 2nd Respondentclaimed that all three searches were with the Manager's consent,the relevant IB extracts did not record a^y such consent.
The Petitioner made a complaint at Police Headquarters on
Having referred to the Police searches and arrests, hestated that the 1st Respondent had ordered the closure of the Inn;that the Police had told the Manager to get Tourist Board approval;and that the threats and harassment by the Police were making itimpossible to carry on his business, and were affecting bookingswhich he had already obtained. He asked for an inquiry and that hebe allowed to carry on his business. An inquiry was held by anAssistant Superintendent of Police. Although the Inspector-Generalof Police was the 3rd Respondent in this case, we were notinformed of the result of that inquiry.
This application was filed on 19.6.2002, and leave to proceedwas granted on 25.6.2002. The Petitioner had pleaded that he hadbookings for 25th, 26th and 27th June and despite the lack ofnotice to Respondents in view of the urgency, an interim order wasmade, permitting the Petitioner to carry on business, and directing1 st to 3rd Respondents not to interfere with the running of his busi-ness. That order was operative until 28.6.2002, and the question ofrenewal was to be considered on 27.6.2002. The journal entry of
reads thus:
sc
Dhanapala Fernando v Attanayake, Officer-in-Charge,
Kandana Police Station and others (Fernando, J.)
201
“Learned State Counsel submits to Court that the licence tooperate to petitioner has been granted by the Ja-elaPradeshiya Sabha, and in the circumstances the Police haveno legal rights to prohibit the petitioner from operating or (tocancel) his licence”.
In his affidavit the 1st Respondent implied that it was onlyafter this application had been filed that he became aware that theInn was licensed. He complained that no such licence had beenproduced to the Police – perhaps forgetting that the Petitioner andthe Manager had not been asked to do so. He went on to set outthe background to the searches and arrests. There had been a risein armed robberies and crimes in the area. A number of crimes hadbeen committed in places close to guest-houses and it was sus-pected that criminals from outside lodge at guest-houses, commitcrimes, and leave the area. He had therefore ordered patrols andsearches, including checks on guest-houses, to ascertain if anysuspicious or underworld ^taracters had taken lodging there. Otherguest-houses besides the Petitioner's had been searched.
Based on those averments, learned State Counsel contend-ed in his written submissions that it was not “unreasonable for thePolice to take in persons for questioning to ascertain their identitywhen their identity could not be established, (a) because theManager…. was unaware of the identity of the persons occupyingrooms, (b) because the persons found there could not etablish theiridentity, (c) because on initial questioning the couples had contra-dictory explanations for their presence”. In the background of highcrime in the area, the circumstances “warranted the Police to con-sider them to be either concealing their identity or of loose charac-ter”. He argued further that often offenders are found by chance,when they are unable to establish their identity or to explain theirpresence at some place, and asserted that if the police were to becensured for requiring a person to attend the Police station toestablish his/her identity, it would greatly thwart the ablilty of lawenforcement agencies in a civil society to deter persons of loosecharacter and detect offenders and criminals… it is often said thatit is the badge of secrecy that is the badge of a criminal. In anyevent the persons taken to the Police station had not complained ofunlawful arrest and detention and had not even given supporting
202
Sri Lanka Law Reports
[2003] 1 Sri L.R
affidavits. Learned State Counsel relied on sections 32 and 33 ofthe Code of Criminal Procedure Act and sections 65 and 68 of thePolice Ordinance.
Learned State Counsel further submitted, correctly, that thePetitioner had made no allegation of malice or ill-will against theRespondents, and that the allegation that they had acted underpressure from his business rivals was wholly unsubstantiated. Hereferred to IB extracts showing that other guest-houses had beenraided and suspects taken for questionning. He contended that thePetitioner had failed to prove that the 1st and 2nd Respondents hadordered the closure of the Inn, apart from the allegation made atPolice Headquarters, and that since evidence in fundamental rightsapplications is by affidavit, there being no opportunity for cross-examination, when it is word against word, neither party can bebelieved or disbelieved. Finally, he urged that in any event the peti-tioner had failed to quantify his loss with evidence of occupancyrates or past profits.
Before dealing with those submissions, it is necessary toascertain more precisely the circumstances in which the three cou-ples were arrested, taken to the Police station, and questioned, asappearing from the IB extracts relied on by the Respondents. The2nd Respondent had made his notes at 11.50 a.m. on 3.6.2002 atthe Inn itself, and these showed that all six did give their names andaddresses. Although there is nothing to suggest that they wereasked a single question regarding their identity or residence, andno record of any reason to doubt the information given, he never-theless noted that since they had not produced any identity cardsor documents to establish their identity he was arresting them inorder to ascertain their identity and to investigate further whetherthey were involved in any offences.
The 2nd Respondent's “In” entry made at 1.00 p.m. gave thenames and addresses of all “suspects”, which thus confirms thatthey had already given their names and addresses at the Inn itself;and no reason for disbelief was recorded. The “suspects” were thendetained, while awaiting the 1st Respondent's instructions. Theirstatements were recorded – and no mention was made of identitycards, or the lack of them. While the Respondents claim that thethree couples were released after ascertaining their identity and
sc
Dhanapala Fernando v Attanayake, Officer-in-Charge,
Kandana Police Station and others (Fernando. J.)
203
that they were not engaged in underworld activities, they did notexplain how the brief statements recorded could possibly have sat-isfied them on those two points.
The statements recorded show that the “suspects” were alladults, who fell into three categories. One couple was married whilethe second was intending to get married. The other two personswere married but not to each other. The first couple explained that,having no place to stay while their house was nearing completion,they had been lodging at the Inn for about 20 days. Both of themwere recorded as saying that, they had not informed the Police thatthey were staying at the Inn – for which the wife went on to beg par-don from the police! She also stated that she was pregnant. Insteadof even a formal expression of regret by the Police, the statementsof that couple included an assurance that they had nothing to sayagainst the Police! They were not asked anything about their iden-tity cards, or why they did not have them, or about underworld orcriminal activities.
*
Arrest
Learned State Counsel submitted that sections 32 and 33 ofthe Code of Criminal Procedure Act authorize the arrest of a personsuspepted of committing a cognizable offence, or found taking pre-cautions to conceal his presence under circumstances which affordreason to believe that he is taking such precautions with a view tocommitting a cognizable offence. Any such person can be taken toa Police station for questioning to ascertain his name and address.
That submission does not help in the circumstances of thiscase. Under section 32(1 )(b) a mere suspicion is not enough. A rea-sonable suspicion or credible information is required. Likewise sec-tion 32(1 )(h) applies only where there is “reason to belive” that aperson is taking precautions with a view to committing a cognizableoffence. There was no such suspicion, information or reason justi-fying the arrest of the three couples and the Manager. Section 33applies to a person accused of a non-congnizable offence in thepresence of a Police officer who either refuses to give a Police offi-cer his name and residence or gives a name or residence whichsuch officer has “reason to believe” to be false: such a person maybe arrested for the purpose of ascertaining his name or residence.The IB extracts show that when questioned at the Inn all six “sus-
204
Sri Lanka Law Reports
[2003] 1 Sri L.R
pects” gave their names and addresses, and the Respondentshave not established that they had “reason to believe” that any ofthese were false.
Learned State Counsel also relied on section 65 of the PoliceOrdinance, which, he contended, authorized the “arrest of personswithout warrant for the ascertainment of names and addresses.”Section 65 provides:
“Every person taken into custody by any police officer withouta warrant (except persons detained for the mere purpose ofascertaining their name and residence) shall forthwith bedelivered into the custody of the officer-in-charge of a stationin order that such person may be secured until he can bebrought before a Magistrate…”
That is not a provision which confers a power of arrest with-out warrant, but merely prescribes the procedure for dealing withpersons after being taken into custody. The parenthetical clausemerely serves to exclude from that procedure the persons thereindescribed, but creates neither any new offence nor a new power ofarrest. That clause would therefore apply to persons arrested undersection 33 of the Code of Criminal Procedure Act, but does not inany way widen the ambit of that section.
Finally, learned State Counsel claimed that section 68 of thePolice Ordinance enables “the police to enter a place without war-rant on suspicion inter alia of it having a person of loose character”In so far as is relevant to this case, section 68 empowers a Policeofficer without warrant:
"… to enter and inspect all drinking shops, gaming housesand other resorts of loose and disorderly characters, allpremises of persons suspected of receiving stolen property,any locality, vessel, boat, or conveyance in any part whereofhe shall have just cause to believe that crime has been or isabout to be committed… and then and there to take all nec-essary measures for the effectual prevention of crime…”
Learned State Counsel's submission appears to be that “per-sons of loose character” include couples having extra marital orpre-marital relations, and that upon “suspicion” that there were
sc
Dhanapala Fernando v Attanayake, Officer-in-Charge,
Kandana Police Station and others (Fernando. J.)
205
such couples at the Inn, the Respondents were entitled to enter andsearch the Inn and arrest any such couples because they could notestablish their identity to the satisfaction of the Police and/orbecause they gave contradictory explanations for their presence atthe Inn. Such an interpretation would give the Police unacceptablywide powers to enter a great many establishments and makenumerous arrests. However, such conduct is not criminal, althoughit may constitute a matrimonial offence or (in some circumstances)misconduct attracting disciplinary action under the EstablishmentsCode. It does not justify search and arrest by the Police. Further,even if “loose character” can be given the wide meaning suggest-ed by learned State Counsel, section 68 only applies if the place inquestion is a resort of persons of “loose and disorderly character”:and the only power which the police have is to take measures forthe prevention and detection of crime, and nothing else. TheRespondents had, and have no evidence or information that the Innwas such a place.
To sum up, the ResfJbndents tried to justify the arrests uponnumerous grounds – that the three couples were reasonably sus-pected of an offence: cognizable or otherwise, and/or of underworldor criminal activities; that they were taking precautions to concealtheir presence; that there was a need to investigate their possibleinvolvement in such offences or activities; that they were found in aplace reasonably suspected of being a resort of loose and disor-derly characters; that the Police had reason to believe that thenames or addresses given by them were false and needed verifi-cation; and that they had given contradictory reasons for their pres-ence at the Inn. The Respondents have totally failed to establishany factual basis whatsoever for any of these allegations. That thearrests had really nothing to with such matters and was an arbitraryand high-handed infringement of liberty and invasion of privacy ismanifest. Thus it was that a pregnant wife was forced, as the priceof avoiding further detention, humiliation and inconvenience, to begpardon from the Police for failing to inform them that she and herhusband were lodging in a licensed guest-house. The arrest of theother two couples was equally wrongful, although the circum-stances of aggravation were less.
206
Sri Lanka Law Reports
[2003] 1 Sri L.R
Learned State Counsel seized upon the fact that theManager and the couples did not petition this Court in respect oftheir arrest. Clearly, the Petitioner was not entitled to complain ofthose arrests, as such. But if those arrests, directly or indirectly,impaired his own fundamental rights, as for instance his right tocarry on a lawful business, he was certainly entitled to complain:The successful running of a guest-house requires a Manager, staff,and, of course, guests. If the wrongful acts of a Police officer in rela-tion to Manager, staff and/or guests, prevents or deters them fromdischarging their duties or from patronizing the guest-house, andthereby impedes the successful running of the guest-house, theproprietor is entitled to complain of the infringement of his ownrights. I hold that the Petitioner is entitled to complain that theunlawful arrest of his Manager and customers impaired his ownfundamental right under Article 14(1)(g).
Search
The Respondent’s contention wqg that, having regard to thedeteriorating crime situation, the Petitioner's Inn was searched toascertain whether suspicious or underworld character were lodgingthere; that other guest-houses were similarly searched; that thePolice had no malice against the Petitioner; and that the searcheswere with consent.
As for the other guest-houses most of the IB extracts pro-duced referred to arrests of couples, and no instance was cited ofany other guest-house being searched three or four times within afortnight. It is true that the Petitioner has not proved malice.
However, while the Respondents have produced evidence ofrising crime rates, they merely pleaded a vague general suspicionthat criminals from outside lodge in guest-houses in order to com-mit crimes, and then leave the area. The Respondents not onlyfailed to adduce any material whatsoever which gave them reasonto believe, in general, that criminals did lodge in guest-houses, butthey also failed to establish that they had any reason to believe inparticular, that they were lodging at the Inn.
In Bandaranaike v Rajaguru <1) the petitioner's house wassearched allegedly upon information (of which some particularswere disclosed) received by the Inspector-General of Police from a
sc
Dhanapala Fernando v Attanayake, Officer-in-Charge,
Kandana Police Station and others (Fernando. J.)
207
long-standing and reliable informant. Nevertheless, after scrutiniz-ing the material relied on, this Court held that the respondent hadfailed to discharge his burden of satisfying the Court that he hadreceived reliable information, and that he had “reason to believe”that the search was justified; and further that it was more likely thatthe Respondent had acted “with some undisclosed purpose inmind.” The present case is even more starved of evidence justify-ing the repeated searches of the Inn.
The fact that the Manager and the three couples were notquestioned about underworld or criminal activities confirms that thesearch on 3.6.2002 was not .connected with such activities.
As for consent, the 2nd Respondent's notes at 11.50 a.m. atthe Inn, his “In” entry at 1.00 p.m. and the Manager's statement at1.30 p.m. did not record that the search was with consent. It is veryprobable that the 2nd Respondent did draw attention to his weaponand left the Manager with no option but to agree to a search. Eventhe IB extracts relating to U»e subsequent searches do not mentionconsent.
I hold that the searches of the Petitioner's premises werearbitrary, without valid reasons, and without consent, and weretherefore in violation of his fundamental right under Article 12(1).
Closure of Business
The evidence establishes that the Petitioner's business wasin fact closed from 3.6.2002 until interim relief was obtained on
Indeed, the IB extracts of 9.6.2002 and 16.6.2002recorded that all the rooms of the Inn were empty.
The natural and probable consequence of the arrests of theManager and all six guests on 3.6.2002, their detention at thePolice station, and the subsequent searches would have been toimpair the carrying on of the Petitioner's business, in violation ofArticle 14(1) (g).
The available evidence further shows that the Respondentswere disputing the Petitioner's right to carry on business, as indi-cated by the questions asked about licences and Tourist Boardapprovals, and not investigating criminal and underworld activ-ities. The Petitioner's complaint to Police Headquarters on
was the natural consequence of the Respondent’s
208
Sri Lanka Law Reports
[2003] 1 Sri L.R
orders to close his business; and so also the retention of the“Visitors” Book “as a production” although there was no charge incontemplation.
The Respondents' submission that this was a matter of wordagainst word and that therefore neither party can be believed ordisbelieved is not tenable. Although affidavit evidence cannot betested by cross-examination, it can certainly be tested by referenceto omissions, contradictions, inconsistencies, intrinsic improbability,etc. I have no hesitation in holding the Petitioner's version to bemuch more probable than the Respondents' which is subject to thenumerous infirmities which I have already pointed out.
I hold that the 1st and. 2nd Respondents, directly and indi-rectly, and without lawful justification, compelled the closure of thePetitioner's business from 3rd to 25th June 2002, in violation of hisfundamental right under Article 14(1)(g).
Loss and Damage%
While it is true that the Petitioner has not given details of theloss and damage suffered by him, there is evidence that he hadmortgaged the premises for Rs. 250,000 which he was liable torepay in monthly instalments of Rs. 8,000, that he had eightemployees, and that rooms were let at Rs. 350 per day. I considerit likely that he would have incurred a pecuniary loss of at least Rs.50,000 until he was able to re-establish himself..
Order
I grant the Petitioner a declaration that his fundamental rightsunder Articles 12(1) and 14(1 )(g) have been infringed by the 1stand 2nd Respondents, and award him a sum ofRs. 100,000 as compensaton payable by the State, and a sum ofRs. 30,000 as costs payable in equal shares by the 1st and 2ndRespondents personally. These payments shall be made on orbefore 31.5.2003.
ISMAIL, J.-I agree.
WIGNESWARAN, J. -I agree.
Relief granted.