IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for Bail in terms of Section 83 (2) of the Poisons, Opium and Dangerous Drugs Ordinance No. 13 of 1984 as Amended Act No. 41 of 2002 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka.

CA/BAL/0639/2023 Complainant HC Colombo Vs.

Case No: HC/2366/21 Thuwan Mohomed Indra Riyas Accused And Now Between Fathima Murshida Risvi Sheriffdeen, No. 83/63, Ketawalamulla, Colombo 09.

Petitioner Vs.

1. The Hon. Attorney General Attorney General’s Department Colombo 12 Respondent

2. Officer-in-Charge, Organized Crime and Corruption Prevention Division Mihindu Mawatha, Colombo 12.

Complainant-Respondent Thuwan Mohomed Indra Riyas.

(Presently at Colombo Remand Prison)

Accused - Respondent Before : R. Gurusinghe J &

M.C.B.S. Morais J Counsel : Sanjith Senanayake with Upul Dissanayake for the Petitioner Jehan Gunasekera, S.C., for the Respondents Argued on : 08/05/2024 Decided on : 20/06/2024

ORDER

R. Gurusinghe This is an application by the petitioner seeking bail for her husband, namely Thuwan Mohomed Indra Riyaz who is the accused, (hereinafter referred to as the accused) in the Case bearing No. HC 2366/21 in the High Court of Colombo. The accused is charged with being in possession and trafficking 41.3 grams of heroin on 26-10-2018. He is also charged with being in possession and trafficking 183.0 grams of heroin on the same day. The abovementioned charges are framed under Sections 54A (b) and 54A (d) of the Poisons, Opium and Dangerous Drugs Ordinance (hereinafter referred to as The Ordinance) as amended by Act No. 13 of 1984.

The accused was arrested on 27-10-2018 by the Police Officers attached to The Organized Crimes and Corruption Division, Colombo 12, for allegedly having in possession and trafficking a total quantity of 609.66 grams of heroin, which are offences punishable under Section 54A (b) and 54A (d) of the Ordinance. According to the Government Analyst report dated 25-10- 2019, the net weight of heroin allegedly found in possession of the accused was 43.0 grams, and the net weight of heroin recovered from the house of the accused was 183.0 grams.

The accused was indicted in the High Court of Colombo by the indictment dated 15-01-2021. The accused has been in remand custody up to date since his arrest. The petitioner has filed this application seeking bail for the accused in terms of Section 83 of the Ordinance as amended by Act No. 41 of 2022.

The provisions of section 83 of the Poisons, Opium, and Dangerous Drugs Ordinance, as amended by Act No. 41 of 2022, state;

83. (1) Subject to the provisions of sections 84, 85 and subsection (2)

of this section, a person suspected or accused of an offence under sections 54A and 54B of this Ordinance, shall not be released on bail by the High Court except in exceptional circumstances.

(2) Notwithstanding the provisions of sections 84 and 85, a person suspected or accused of an offence under subsection (1) of section 54A and section 54B-

(a) Of which the pure quantity of the dangerous drug, trafficked, imported, exported or possessed in ten grammes or above in terms of the report issued by the Government Analyst under section 77A; and (b) Which is punishable with death or life imprisonment, shall not be released on bail except by the Court of Appeal in exceptional circumstances.

(3) For the purposes of this section “dangerous drug” means Morphine, Cocaine, Heroin and Methamphetamine.”

In terms of the above provisions the petitioner has to establish exceptional circumstances which warrant granting bail to the accused. The petitioner has pleaded the following as exceptional circumstances.

i. Although the accused has been in custody for almost five years since his arrest, the prosecution was able to present only half of the PW1’s evidence in Chief.

ii. The main witness who is essential to proving the prosecution case left the Pol