UDAGAMA AND 2 OTHERS V. CHANDRA FERANANDO, INSPECTOR GENERAL OF POLICE AND 5 OTHERS

UDAGAMA AND 2 OTHERS V. CHANDRA FERANANDO,
INSPECTOR GENERAL OF POLICE AND 5 OTHERS

SUPREME COURT
TILAKAWARDENA, J.,
AMARATUNGA, J. AND
MARSOOF, J.
S.C. APPLICATION NO. FR 455/2005
JULY 21ST, 2011

Constitution -Article 12(1) - Right to equality - Articles 13(1) and 13(2)-Freedom from arbitrary arrest, detention and punishment - Article 14(g)-Freedom of speech, assembly, association, occupation, movement - Article 126 - Fundamental rights jurisdiction -Excise Ordinance -Section 33, 35, 37, 46g, 47, 48(a), 48(c), 52(1)a

The 1st and 2nd Petitioners were the partners of Don Patrick Wine Shop situated in Pussellawa, that had a license issued under the Excise Ordinance to sell foreign liquor and locally made malt liquor, but not to be consumed on the premises.

On 10.10.2005 the 3rd Petitioner was a salesman of the Wine Shop. The 3rd and 4th Respondents were the Police Officers who arrested the 3rd Petitioner for allegedly selling arrack to a customer to be consumed in the premises. The 3rd Petitioner was taken to the Police Station where he was kept in Police custody for several hours before being released on Police bail. The 3rd Petitioner's position is that in any event, the sale of liquor for consumption in the premises is not an offence under the Excise Ordinance.

The Petitioners have contended that by the raid and the arrest of the 3rd Petitioner, the Respondent Police officers have violated the fundamental rights guaranteed to the 1st and 2nd Petitioners by Articles 12(1) and 14(g) of the Constitution and the 3rd Respondent's fundamental rights guaranteed by Articles 12(1), 13(1), 13(2) and 14(1) g of the Constitution.

In terms of the Excise Notification No. 509. all Police officers have lawful power to perform the acts and duties set out in Sections 33, 35, 37 and 48 (a) of the Excise Ordinance.

Held:

(1) As a result of the combined effect of clause 1(11) of the Excise Notification 509 read with Sections 35 and 46 (g) of the Excise Ordinance, Police Officers have the power to detect the offence of selling an excisable article in contravention of the conditions of a license issued under the Excise Ordinance and to arrest the offender without a warrant.

(2) Although the Police have the power to detect and apprehend a person who had committed an offence under Section 46(g), in view of the provisions of Section 52(1) (a) of the Excise Ordinance, the Police have no aut hority to initiate proceedings before a Magistrate against an offender. Such offences, commonly called technical offences, have to be referred to an excise officer.

(3) When the Minister, by clause 1(11) of the Excise Notification, has appointed all officers of the Police Force to perform acts and duties mentioned in Section 35 of the Excise Ordinance. officers of all ranks of t he Police force have the power to arrest without a warrant any person found committing an offence, in any place other than a dwelling house, punishable under Section 46 or 47 of the Excise Ordinance.

APPLICATION under Article 126 of the Constitution

Ronald Herem with D. Johnthasan for Petitioners
Harshika de Silva, State Counsel for the Respondents

Cur.adv.vult

July 21th 2011
GAMINI AMARATUNGA J.

    The 1st and 2nd petitioners are partners of Don Patrick Wine Shop situated in Pussellawa. The 3rd petitioner is one of their salesmen. The said wine stores has a licence issued

under the Excise Ordinance for the sale of foreign liquor including locally rnade malt liquor not to be consumed on the premises.

    According to their petition, on 10.10.2005 the 3rd and 4th respondents who were at that time police officers attached to the Pussellawa Police station arrested the 3rd petitioner for allegedly selling arrack to a custorner (a decoy said to have been sent by the 3rd and 4th respondents) to be consumed on the premises. The 3rd petitioner was taken

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