NANDANI

VS.

OFFICER-IN-CHARGE, POLICE STATION MARAVILA AND ANOTHER

COURT OF APPEAL
WIJESUNDERA, J.
IDDAWALA, J.
CA/PHC/APN/134/20
HC CHILAW BA/83/30
MC MARAWILA B2106/2018
JUNE 29, 2021

Poisons, Opium and Dangerous Drugs Ordinance, section 83(1)- Judicature Act, No. 2 of 1978, section 16(3)-Revision-Bail application-Locus standi-Successive applications for bail-Exceptional circumstances

The petitioner's husband had been arrested for possession of heroin and was produced before the Magistrate's Court for offences under section 54A of the Poisons, Opium and Dangerous Drugs Ordinance,

as amended. The petitioner preferred a bail application on behalf of her husband to the High Court, which was refused on the ground that no exceptional circumstances had been averred. She then filed a fresh bail application. The High Court refused to issue notice on the ground that she could have appealed against the order refusing the earlier bail application, and the subsequent bail application was an abuse of the process of court. The petitioner moved the Court of Appeal in revision to set aside the order of the High Court and to have her husband enlarged on bail. The respondents objected to the petitioner's application on inter alia the grounds that the petitioner had no locus standi to maintain the revision application and that there were no exceptional circumstances to invoke revisionary jurisdiction in terms of section 83(1) of the Ordinance.

Held :

1. Neither the Bail Act, No. 13 of 1997, nor the Poisons, Opium and Dangerous Drugs Ordinance specify who should make a bail application or a revision application. Even the Criminal Procedure Code does not contain any provision on this matter. However, section 16(1) of the Judicature Act, No. 2 of 1978, as amended, provides that an aggrieved person in a criminal case can file an appeal and section 16(3) has specifically recognised the revisionary power of the Court of Appeal.

2. The discretion vested in the Court of Appeal in the exercise of its revisionary jurisdiction must be exercised judiciously, based on the facts and circumstances of the case. Considering the situation that prevailed in the country during the submission of the bail application and the revision application, when most day-to-day activities were restricted, the petitioner has locus standi to file a revision or bail application on behalf of her husband.

3. Despite the fact that refusal to grant bail is a final order, which is appealable, in the event of a change of circumstances during the course of the proceedings, our law does not bar, abridge or restrict the right of a suspect or an accused to file subsequent application (s) to be enlarged on bail so long as the suspect or accused establishes a change of circumstances in support of the subsequent bail application.

4. It is the duty of the court to properly deliberate on the bail application· and to carefully examine the details and the circumstances relating to it. While the court can reject the application in limine

if the circumstances of the previous application are similar to the subsequent application or it is vexatious or frivolous in nature, if the circumstances are different, then the court is bound to consider it.

Cases referred to :

1. Senathilake v. Attorney General [1998] 3 Sri LR 290

2. Attorney General of Gambia v. Pierre Sarr N'Jie (West Africa) [1961] AC 617 at 634

3. The Ceylon Mercantile Union v. Insurance Corporation of Sri Lanka 80 NLR 309

4. Lansage Basil v. Attorney General (SC/APPEAL/20/2017, SC Minutes of 03.07.2020)

5. R v. Wilkes (1770) Burr 253

6. Ward v. James (1965) 1 All ER 571

7. Roberts v. Hopwood and others (1925) AC 578 at 613

8. Anuruddha Ratwatte v. Attorney General [2003] 2 Sri LR 39

9. Cader v. OIC, Narcotics Bureau [2006] 3 Sri LR 74

10. Rasheed Ali v. Mohamed Ali and others [1981] 1 Sri LR 262

11. Kulatilake v. Attorney General [201