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The petitioner who is the wife of the suspect in a Magistrate’s Court had been arrested on 07.11.2018 for possession of heroin and since then remains in incarceration. The application for bail was refused by the High Court on 02.07.2020. Aggrieved by the said refusal, the petitioner made a revision application to Court of Appeal and the respondents objected to it mainly on the grounds of lack of  exceptional circumstances and unreasonable delay in filing the revision application.

The petitioner has submitted as exceptional circumstances, the following: -

1.The order of the learned High Court Judge is contrary to law.

2.  There is no likelihood of charges being framed against him in near future.

3.  The suspect has no previous convictions but has one pending case.

4.  The suspect has been in remand for this case from 7th November 2018.

5.  The present situation of COVID-19 pandemic has created a risk situation for the suspect to be kept in the remand prison.

6.  The suspect being in remand for a long period of time has made the suspect’s children helpless financially.

 

The following decisions were considered in the Judgement ..

1.  Observation of Basnayake J CA (PHC) APN 79/2020 13/07/2021 Page 8 that “When a person is found guilty of possessing heroin, anything more than 2 grams, the mandatory punishment is either death sentence or life imprisonment’’. Therefore, I am of the view that not having previous convictions and not having any cases pending cannot be considered as grounds when considering bail”

2.  In Anuruddha Ratwatte and Others vs. The Attorney General 2003 2 SLR 39 an Orders refusing to grant bail was considered as a final Order for which an appeal is available.

3.  This has been discussed at length in the cases and in Cader vs. Officer - In - Charge Narcotics Bureau 2006 3 SLR 74. CA (PHC) APN 79/2020 13/07/2021 Page 4.

4.   The revisionary power of this Court is discretionary and when a party files a revision application, he must satisfy the court that there are exceptional circumstances which shock the conscious of Court. In such “exceptional circumstances”, the revisionary power of the Court can be exercised for the following purposes as discussed extensively in the following cases..

i.    Attorney General vs. Ranasinghe and others 1993 2 SLR  81 at p 85.

ii.  CA (PHC) APN 79/2020 13/07/2021 Page 53)

5.  Gnanapandithen V. Balanayagam (1998) 1 SLR 391 where G.P.S. de Silva CJ decided that; “The question whether delay is fatal to an application in revision depends on the facts and circumstances of the case”.

  In  Shiyam v Officer-in-Charge, Police Narcotics Bureau & another (2006) 2 Sri L.R. 156, the Supreme Court held: “………that the provisions in the Bail Act, No. 30 of 1997 would have no application in relation to the suspects or accused who have been alleged to have committed an offence under Poisons, Opium and Dangerous Drugs Ordinance. …………”


In the case of Ramu Thamodarampillai Vs. The AttorneyGeneral 2004 3 SLR 180 observed thus:

"....... the decision must in each case depend on its own factsand circumstances. But, in order that like cases will be decided alike, there should be uniformity of decisions, it is necessary that guidance should be laid down for the exercise of that discretion”

In C.A. (PHC) APN No 16/12- CA minutes dated 14.06. 2012 the allegation levelled against the suspect was that she was in possession of 3.59 grams of heroin. The suspect was in remand over a period of one year after the issuing of the Government Analyst Report without being indicted. This fact and other reasons like the suspect not having pending cases or previous convictions and she being a widow were considered in this case. On these circumstances suspect was enlarged on bail by the above order of His Lordship Sisira de Abrew J.

Besides, in CA Application No 44/2002 CA minutes dated 06.03.2003 the petitioner was enlarged on bail considering his remand period of one year and ten months even after serving of indictment on him.

In this instant application the petitioner was arrested on 07.11.2018 and remanded on 14.11.2018. Accordingly, he has been held in remand custody for more than two years.



TO READ JUDGMENT CLICK HERE

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