HOPWOOD

Vs.

OFFICER-IN-CHARGE, MINOR OFFENCES BRANCH, RAGAMA POLICE STATION

SUPREME COURT
ALUWIHARE, J.
AMARASEKARA, J.
GOONERATNE, J.
SC/FR/257/2018
FEBRUARY 23, 2021

Fundamental rights-Article 13(1) of the Constitution-Freedom from arbitrary arrest and detention-Code of Criminal Procedure Act, sections 23(1), 32(1)(b)

The managing partner of the company who issued two cheques to a supplier advised the banks to stop payment on both cheques on the basis that some of the goods supplied to the company were defective. On a complaint made by the supplier to the police, the 1st respondent, the officer-in-charge of the Ragama police station, required the managing partner of the company to be present at the police station but, as he was indisposed, the petitioner, the chief manager of the company, presented himself at the police station instead. The 1st respondent arrested the petitioner, recorded a statement from him and held him overnight in the police cell and produced him before the Magistrate on the following day for criminal misappropriation of the money due on the two cheques.

The petitioner complained to the Supreme Court that there was no complaint lodged against him by the supplier and that his arrest and detention was contrary to the procedure established by law and violative of his fundamental rights guaranteed under inter alia Article 13(1) of the Constitution.

The 1st respondent, in his affidavit. admitted that the person wanted in connection with the alleged fraud was the managing partner and not the petitioner but. as the former had been evading, the petitioner was arrested. He justified the arrest and detention of the petitioner on the basis that the petitioner was a person in authority (manager) of the company.

Held:

1. The petitioner, as a manager of the company, upon receiving notice, willingly participated at the inquiry held by the 1st respondent, in the absence of the managing partner of the company due to ill health. There was no formal arrest of the petitioner on record nor were the reasons for his arrest made known to him. There was no reasonable justification to arrest the petitioner as a suspect, detain him overnight and produce him before the Magistrate.

2. This is not a case of mistaken identity. The 1st respondent was aware that the person under investigation was not the petitioner. Taking a person into custody and detaining him for the purpose of obtaining his assistance to bring criminal suspects to justice or any other deprivation of personal liberty amounts to a violation of Article 13(1) of the Constitution.

Cases referred to:

1. Tuduge Achalanka Srilal Perera v. Police Sergeant Ananda and other (SC/FR/198/2011, SC Minutes of 22.02.2019)

2. Gunasekara v. De Fonseka (1972) 75 NLR 246 at 250

3. Guneththige Misilin Nona and others v. PC Muthubanda, (10312), Police Station, Moragahahena and others (SC/FR/429/2003, SC Minutes of 06.08.2010)

4. R v. Howell (1981) 3 All ER 383

5. Joginder Kumar v. State of UP and others AIR 1994 SC 1349

6. Gamlath v. Neville Silva and others [1991] 2 Sri LR 267

7. Channa Peiris and others v. Attorney General and others [1994]1 Sri LR 1 at 47

8. Landage lshara Anjali and another v. Waruni Bogahawatte and others (SC/FR/677/2012, SC Minutes of 12.06.2019)

9. Weragama v. lndran and others (SC/FR/396 and 397/93, SC Minutes of 24.02.1995)

APPLICATION under Article 126 of the Constitution for infringement of fundamental rights.

Shyamal A. Collure with Prabath S. Amarasinghe, A.P. Jayaweera and Ravindra Silva for the Petitioner.

Induni Punchihewa, S.C., for the Respondents.

cur. adv. vult.

July 29, 2021

GOONERATNE, J.

The Petitioner, the Chief Manager of Rainbow Garments Technologies (Pvt.) Ltd. contends that his arrest and detention by the 1st Respondent, the Officer-in-Charge of the Ragama Police Station, on 18/07/2018, and producing him in the Magistrates Court of Negombo on 19/07/2018, in Case Bearing No. L. 69786,