BAIL PENDING APPEAL - EXCEPTIONAL CIRCUMSTANCES - ***CA/BAL/0639/2023***

 

 SUMMARY BY GALLEBLOGGER ***

EXCEPTIONAL CIRCUMSTANCES FOR THE GRANT OF BAIL

Background:

This is a Court of Appeal order, made pursuant to an application for bail, filed by Fathima Murshida Risvi Sheriffdeen on behalf of her husband, Thuwan Mohomed Indra Riyas, the accused in High Court Case No. HC/2366/21. Riyas was charged with possession and trafficking of a substantial quantity of heroin, offenses punishable under Sections 54A (b) and 54A (d) of the Poisons, Opium, and Dangerous Drugs Ordinance. The Government Analyst's report confirmed the net weight of heroin as 43.0 grams and 183.0 grams. The accused has remained in remand custody since his arrest from 27-10-2018.

 

Legal Principles:

The bail application was made under Section 83 of the Poisons, Opium, and Dangerous Drugs Ordinance, as amended by Act No. 41 of 2022, which permits bail only under exceptional circumstances. The petitioner’s contention was that there were following exceptional circumstances:

 

1.  Prolonged custody of the accused for almost five years without the completion of prosecution evidence.

2.        The main prosecution witness left the country, causing indefinite delays.

3.         The accused's family, including three children attending scool, was faced significant hardships due to his detention, particularly a child with a severe medical condition requiring ongoing treatment.

4.         Risk of substantial miscarriage of justice if bail is not granted.

The respondents opposed the bail application, based on the premise that they did not constitute exceptional circumstances, especially given the seriousness of the charges involving a commercial quantity of heroin.

 

The court referred to precedents, including Ramu Thamodarampillai v. The Attorney General [2004] 3 SLR 180, which emphasized that the decision to grant bail depends on the peculiar facts and circumstances of each case. Additionally, in Attorney-General v. Sugulebbe Latheef [2008] 1 SLR 225, the Supreme Court highlighted the right to a fair trial and the importance of timely proceedings.

 

In Nasher v. Director of Public Prosecution [2020] Victoria  Session Court of Appeal [VSCA] 144, the court acknowledged that a combination of delay, onerous custodial conditions, and a weak prosecution case could establish exceptional circumstances.

Conclusion:

The Court of Appeal granted bail to the accused, considering the inordinate delay in the trial, the ongoing hardship faced by the accused's family, and the lack of progress in the prosecution's case.

Judges:

Hon Judges R. Gurusinghe J and M.C.B.S. Morais

 

                                End of the blogger's comment 

 

 G GURUSINGHA , J - ORDER- *******  This is an application by the petitioner seeking bail for her husband, namely Thuwan Mohomed Indra Riyaz who is the accused, (hereinafter referred to as the accused) in the Case bearing No. HC 2366/21 in the High Court of Colombo. The accused is charged with being in possession and trafficking

41.3     grams of heroin on 26-10-2018. He is also charged with being in possession and trafficking 183.0 grams of heroin on the same day. The abovementioned charges are framed under Sections 54A (b) and 54A (d) of the Poisons, Opium and Dangerous Drugs Ordinance (hereinafter referred to as The Ordinance) as amended by Act No. 13 of 1984.

The accused was arrested on 27-10-2018 by the Police Officers attached to The Organized Crimes and Corruption Division, Colombo 12, for allegedly having in possession and trafficking a total quantity of 609.66 grams of heroin, which are offences punishable under Section 54A (b) and 54A (d) of the Ordinance. According to the Government Analyst report dated 25-10- 2019, the net weight of heroin allegedly found in possession of the accused was 43.0 grams, and the net weight of heroin recovered from the house  of the accused was 183.0 grams.

 The accused was indicted in the High Court of Colombo by the indictment dated 15-01-2021.  The  accused has been in remand custody up to date since his arrest. The petitioner has filed this application seeking bail for the accused in terms of  Section 83 of the  Ordinance as amended  by Act No. 41 of 2022.

The provisions of section 83 of the Poisons, Opium, and Dangerous Drugs Ordinance, as amended by Act No. 41 of 2022, state;

83 (1) Subject to the provisions of  sections 84, 85 and subsection (2) of this section, a person suspected or accused  of  an  offence  under  sections 54A and 54B of this Ordinance, shall not be released on bail by the High Court except in exceptional circumstances.

(2)   Notwithstanding the provisions of sections 84 and 85, a person suspected or accused of an offence under subsection (1) of  section  54A  and section 54B-

(a)               Of which the pure quantity of the dangerous drug, trafficked, imported, exported or possessed in ten grammes or above in terms of the report issued by the Government Analyst under section 77A; an

(b)        Which is punishable with death or life imprisonment, shall not be released on bail except by the Court of Appeal in exceptional circumstances.

(3)   For the purposes of this section “dangerous drug” means Morphine, Cocaine, Heroin and Methamphetamine.”

In terms of the above provisions the petitioner has to establish exceptional circumstances which warrant granting bail to the accused.  The petitioner has pleaded the following as exceptional circumstances. 

i.                    Although the accused has been in custody for almost five  years since his arrest, the prosecution was able to present only half of the PW1’s evidence in Chief. 

ii.                  The main witness who is essential to proving the prosecution case left the Police service and went abroad on 07-01-2023. He is currently in Dubai and cannot ascertain the date of his return to Sri Lanka. 

iii.               The accused is a  43-year-old  married  person.  The  accused  is married to the petitioner and has three children.  All  three  children are of school age, and the Petitioner is unable to take care of the children alone without the suspect.

The Petitioner annexes marked “X-3” to “X-5” true copies of the certificates of birth of the children mentioned above and pleads that they are considered part and parcel of this petition.

 iv.                One of the suspect’s children has Pelvic Inflammatory disease, and due to that condition, there is a condition called Torted and gangrenous adnexal cyst.

 As a result of this disease, his daughter had an operation performed on October 20, 2019, and a part of the uterus was removed from the abdomen. At that time, the accused was in remand prison, and the Petitioner had done all the  treatments alone. At present, due to the exacerbation of this disease, the child has to undergo a large number of other treatments. However, leaving the other two children alone at home, this child was hospitalized, and the petitioner could not stay in the hospital  to take care of one child. Because of this situation, it has become impossible to provide treatment for the child for several years.

 The Petitioner annexes marked “X-6” true copies of the Medicals of the child mentioned above and pleads that they are considered part and parcel of this petition.

 v.                  The Petitioner states that there would be a substantial miscarriage of justice if the Accuse is not enlarged on bail.

 The respondents have filed their objections to the petitioner’s bail application and stated that the petitioner has failed to establish any acceptable exceptional circumstances to invoke the jurisdiction of this Court as warranted by Section 83 of the ordinance. The respondents moved that the petitioner’s application be dismissed in limine. The respondents also stated that the facts of the case draw the reasonable inference that the accused had been involved in drug dealing for a long period of time. Further it was stated that the quantity involved in this case is a commercial quantity  and not a user quantity. The respondents have also taken up that  the  period  of remand does not constitute exceptional circumstances.

 What constitutes exceptional circumstances is not defined in the statute. Our Superior                 Courts               have    considered         various               situations     as               exceptional circumstances in granting bail for suspects in terms of the Ordinance.

 In Ramu Thamodarampillai v. The Attorney General [2004] 3 SLR 180 the court held that:

“the decision must in each case depend on its own peculiar facts and circumstances”.

 The accused has been in remand custody for a period of 5 years and  6 months since his arrest. Although the accused was indicted  in  the  High Court in 2021, evidence of prosecution witness no. 1 was not concluded in the High Court as of the date of the inquiry. The Government Analyst report was issued on 27-08-2019. The Counsel for the petitioner submitted that the accused has no previous convictions or other pending cases. The petitioner has to look after three minor children without the assistance of the father (the accused) for a long time. One of the daughters had  undergone abdominal surgery for a condition called Torted and gangrenous adnexal cyst. The petitioner stated that she had to go to the hospital regularly with the sick daughter.

 The High Court case against the accused has already taken five and a half years without concluding witness no. 1, which is markedly a longer period than what could be considered reasonable in all the circumstances of this case.

 The case will take an indefinite time to conclude. When the accused  is  in remand custody for a longer period, the case is expected to be concluded expeditiously within a  reasonable  time.  However,  the  case  against  the accused has already taken more than  five  years  which  is  neither  explicable nor reasonable.

 In the case  of Attorney-General V Sugulebbe Latheef and Another  [2008]  1  Sri LR Page 225, the Supreme Court stated inter-alia, “the right to a fair trial amongst other things include the following: -

....... 7. The right of an accused to be tried without much delay.”

 In the Bail Application of CA Bail/0109/22, P. Kumararatnam, J., quoting from the judgment of the Supreme Court of Victoria, stated as follows:

In Nasher v. Director of Public Prosecution [2020] VSCA 144, the court held that: “a combination of delay, onerous custodial conditions, and the relative weakness of  the prosecution case may,  when considered  with all relevant circumstances, compel the conclusion that exceptional circumstances have been established.”

When considering the facts of the case,  the delay of five and a half years from the date of arrest cannot be considered reasonable. In the circumstances, the accused is granted bail on the following conditions.

 

1.      A Cash bail of Rs. 500,000/- (Five Hundred Thousand)

2.  2. Provide two sureties. Each such surety must enter into a bond of Rs. 1,000,000/- (One Million).

 3.      To surrender his passport, if any, to the Court.  An overseas travel ban is imposed on the accused until the conclusion of the case.

4.      The permanent address of the accused should be provided to the High Court of Colombo, and such residence should not be changed without leave of the Court until the conclusion of the case.

5.      To report to the OIC of the Organized Crime and Corruption of the Police, Colombo 12, every last Sunday of the month, between 9.00 a.m. and 1.00 p.m.

The Registrar is directed to send copies of this order to the High Court of Colombo and the Officer-in-Charge of Organized Crime and Corruption Prevention Division of the Police, Colombo 12.

 

 

  

Judge of the Court of Appeal.

 

 

M.C.B.S.  Morais J., I agree. Judge of the Court of Appeal.