IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for Bail under and in terms of Section 83(2) of the Poisons, Opium and Dangerous Drugs Ordinance No. 17 of 1929 as amended by Poisons, Opium and Dangerous Drugs (Amendment) Act No.

41 of 2022.

Mira Mohideen Nawazdeen, 42/30, Dollar Rosa Road, Court of Appeal Case No. Pallansena South, Kochchikade.

CA/BAL/0365/2024 Petitioner Magistrate Court of Negombo Vs.

Case No. M 72771

1. Officer-in-Charge, Vice Prevention Unit, Head Quarters Police Station, Negombo.

2. Hon. Attorney General, Attorney General’s Department, Colombo 12. Respondent AND Nawazdeen Mohomed Zakir.

Suspect-Respondent BEFORE : P. KUMARARATNAM, J.

K.M.G.H. KULATUNGA, J.

COUNSEL: Punarji D. Karunasena for the Petitioner.

Wishwa Wijesuriya, SC for the Respondents.

INQUIRY ON: 27.02.2025 DECIDED ON: 02.04.2025 K.M.G.H. KULATUNGA, J.

ORDER

1. This application for bail is made under Section 83(2) of the Poisons, Opium and Dangerous Drugs Ordinance seeking bail for the suspect, Nawazdeen Mohomed Zakir. It is alleged that the suspect was arrested on 02.08.2023 with 26.04 grammes of Methamphetamine. The exceptional circumstance relied upon is that the exact place in which the narcotics were concealed or found from is not specifically stated in the B Report and also the absence of a summary of the evidence. The petitioner relied on the decision of this court in Sumathipala V. A.G. CA/PHC/APN/ 09 of 2010 decided on 19.07.2010. The relevant portion of the said order is as follows;

“In the B report filed by the police, the police have failed to state the particular place (the body of the suspect) where heroin was found although they claimed that heroin was found in the possession of the suspect. We have gone through the B report and according to the B report that the heroin was found in the house of said Deepa Priyangani De Silva. As I pointed out earlier the B report does not indicate the particular place of the body from which the heroin was found (the body of the suspect).”

2. Relying on this decision, time and again petitioners in applications for bail have been taking up the ground that the B Report not specifying or stating the particular place from which the narcotic was found. The particular place in the context being the exact part of the body of the suspect when the recovery is from the person of the suspect. It is argued that when the narcotic is found in the personal possession the exact location of the body or made of concealment should be narrated and stated in the B Report.

3. To my mind, the said dicta of Justice Sisira De Abrew is more often than not, is taken out of context and quoted in the abstract. This dictum should be considered in the factual context of the said mater which Justice Abrew expounded the aforesaid where the facts are unique. The facts of that case are that the suspect had been in a house of another when the officer in charge of the Angulana Police Station is alleged to have come to a house to introduce heroin to the owner of the house. However, the suspect who happened to be in the house had heated exchange of words with the OIC and had also assaulted the OIC. It is in this back drop that the alleged introduction of heroin is said to have been made to the said suspect.

4. In this scenario, the B Report has stated that heroin was found in the house of the said Priyangani De Silva. However, the said suspect Premalal Dammika who happened to be in the house was also produced before the Magistrate for possession of narcotics. It is in this contest that the failure to mention that particular place of the body from which the heroin was recovered was considered as material.

5. I observe that Justice Abrew does not either directly or otherwise lay down or prescribe a mandatory requirement as of a rule to state in the report the exact place of the body from which the recovery was made. In that case the B Report has stated that the heroin was found in the house of