SUSENDRAN

VS.

ATTORNEY GENERAL AND ANOTHER

COURT OF APPEAL
WENGAPPULI, J.
ABEYRATNE, J.
CA/PHC/APN/134/2019
HC COLOMBO 7735/2015
JANUARY 23, 2020

Bail-Exceptional circumstances-Flight risk-Poisons, Opium and Dangerous Drugs Ordinance, as amended by Act No. 13 of 1984, sections 54A, 83(1)

The 1st accused was indicted for committing the offence of trafficking and possession of heroin, punishable under sections 54A(b) and 54A(d) of the Poisons, Opium and Dangerous Drugs Ordinance. The 2nd accused was indicted for aiding and abetting the 1st accused in the commission of the offence. Upon conviction after trial, they were sentenced to imprisonment for life by the High Court. On appeal to the Court of Appeal, the convictions were set aside and re-trial was ordered to be concluded expeditiously, and the High Court was also directed to decide on bail.

Section 83(1) of the said Ordinance enacts "No person suspected or accused of an offence under section 54A or section 54B of this Ordinance shall be released on bail, except by the High Court in exceptional circumstances."

On application for bail, it was urged that the two accused had been incarcerated for well over six years pending trial and appeal. The prosecution objected to bail based on their investigations that the accused posed a flight risk. This suggestion was dismissed by the accused as unfounded.

The High Court refused bail. The two accused moved in revision. Held:

1. Any suspect or accused facing an allegation of committing an offence under section 54A or 54B of the Poisons, Opium and Dangerous Drugs Ordinance would have to satisfy the High Court of the existence of "exceptional circumstances" to be enlarged on bail. The Bail Act, No. 30 of 1997, has no application in relation to suspects or accused who are alleged to have committed an offence under the Poisons, Opium and Dangerous Drugs Ordinance.

2. The existence or otherwise of "exceptional circumstances" is a question of fact. The decision in each case must depend on its own peculiar facts and circumstances.

3. "Exceptional circumstances only exist, when the facts and circumstances of the case are such that they constrain or impel the court to the conclusion that justice can only be done by the granting of bail." (Attorney General v. Ediriweera [2006] BLR 12)

4. Grounds that are by no means extraordinary but common to many accused persons would not satisfy the criterion of "exceptional circumstances".

5. Freedom is curtailed by long periods of legal custody. But judicial precedents indicate that a long period of detention pending appeal itself cannot be considered an "exceptional circumstance" for the granting of bail.

6. Considering the age of the two accused, both being in their late twenties, together with the fact that the sentence is life imprisonment in the event of conviction, it is reasonable to assume that there exists a probable flight risk.

Cases referred to :

1. Shiyam v. Officer-in-Charge, Police Narcotics Bureau and another [2006] 2 Sri LR 156
2. Thamotharampillai v. Attorney General [2004] 3 Sri LR 180
3. The Queen v. Cornelis Silva 74 NLR 113
4. The Queen v. Rupasinghe Perera 62 NLR 228
5. Cader v. Officer-in-Charge, Narcotics Bureau [2006] 3 Sri LR 74
6. Shiek Samsudeen Mohomad Naseer v. Attorney General (CA/PHC/APN/38/2019, CA Minutes of 01.08.2019)
7. Kulatilake v. Attorney General [2010] 1 Sri LR 212
8. R v. Rehman and Wood (2006) 1 Cri App Rep (S) 77
9. Attorney General v. Ediriweera [2006] BLR 12

APPLICATION for Revision from the Orders of the High Court of Colombo. Nalin Ladduwahetty, P.C., with Amila Palliyage for the 1st Accused-Petitioner.

Azard Navavi, D.S.G., for the Complainant-Respondent.

cur. adv. vult.

February 7, 2020

WENGAPPULI, J.

The 1st and 2nd accused-petitioners, by their individual applications (bearing Nos. CA(PHC)APN 134/2019 and CA(PHC) APN135/2019), have invoked the revisionary jurisd