Case of Kudu Noor and others
A reply to Batty Weerakoon on the Bail Act
When Comrade Batty headed the Minis- try of Justice his predecessor G. L's policies were anathema to him though they were in the same cabinet. So he strived to undo everything good or bad that was done by his predecessor. GL brought the Bail Act and said the "granting of bail was the rule and refusal the exception".

Batty was furious. He brought an amendment to the Bail Act which made refusal of bail the rule and the granting of bail the exception. Batty contends: "The under-world was quick to exploit the virtues of this piece of legislation and its key operatives were in and out of remand".

Not an operative was released due to any lacunas in the Bail Act. If they were released by the Magistrates they were either discharged or released on the orders of a higher court.

It was perhaps an attempt to show his role in curbing crime, but underneath this veneer the real intentions were to muzzle the opposition as the elections were at hand. The amendments to the Bail Act were announced as an urgent Bill and they were approved. Though some UNP members spoke of the unsuitability of removing judicial discretion, they did not realize the deep abyss their supporters would have fallen into if the Bill became law. Some divine intervention prevented the Bill from becoming law. Now the Bail Act is again before Parliament and has been referred to a committee. There seems to be some hoodoo in the Bail Act amendment sired by Comrade Batty.

I knew that Comrade Batty was essentially a labour lawyer. But even to become a labour lawyer one must have some knowledge of the criminal law of the country. I was amused by the interpretation given by Batty Weerakoon (in The Sunday Times) to his own amendment to the Bail Act. He has quoted Dr. Colvin R. de Silva, the criminal law wizard. Dr. Colvin R. de Silva would turn in his grave if he had been buried. Fortunately his remains were cremated.

"The description of an offence as non bailable in the Penal Code has no reason for a suspect brought before Court with no evidence to link him to that offence, to be held without bail," says Mr. Weerakoon.

What a great exposition of law! To find the description of an offence as non-bailable in the Penal Code, I went through every page of the Penal Code from Section 1 to Section 490, but could not find the definition of a non-bailable offence in the Penal Code.

The Penal Code describes "Gender", "Number", "Man", "Woman", "Person", "Public", "Republic" so on and so forth until it ends in "Good Faith". But there is no description of a bailable or non-bailable offence. I was so worried thinking that I had made a mistake. Then I read through Indian books on the Penal Code written by Ghour, Nelson and other Indian books on the Penal Code. But what I found instead was that the word "bailable" was not in the Penal Code but in the Code of Criminal Procedure which has been enacted and the definition of bailable and non-bailable was also in the Criminal Procedure Code. I am not sure whether in the rush to bring amendments to existing legislations and making them more complicated and complex, whether Mr. Weerakoon had made an amendment to the Penal Code to include the definition of a bailable and a non-bailable offence.

The fundamental principle learnt at Law College in the final year is that in the Criminal Procedure Code a bailable offence is described as an offence bailable at the Police Station by the Police Officer, whereas a non-bailable offence is an offence where the Police Officer cannot release on bail a person without producing him before a Magistrate.

Section 6 of Prof. G. L. Peiris' Bail Act is very clear. I would advise that Section 6 of the Bail Act be read. This was also the provision under the old Criminal Procedure Code. it is also in the new Criminal Procedure Code of 1979. A non-bailable offence is simply an offence where a Police Officer cannot use his discretion to release a suspect on bail, but produce the suspect before a Court of Law. The Magistrate could release him at his own discretion.

The second paragraph of his dissertation describes the schedule of offences, though many of these nowadays increasingly affect the ordinary citizen. I will not bore the reader with the offences described. Voluntarily causing grievious hurt by dangerous weapons or means, habitually dealing in stolen property and house trespass to commit an offence punishable with death are some of these offences.

But Mr. Weerakoon says that these are all offences in respect of which a Magistrate had no power to grant bail prior to the Bail Act.

Thus, according to Mr. Weerakoon, Prof. Peiris has made offences that were not bailable under the Criminal Procedure Code, or according to him the Penal Code, bailable under the Bail Act. What a crime!

When there was a crime wave sweeping the country like a tornado, Prof. Peiris made it worse and committed a grave crime against society by making all those offences bailable. Ask not a lawyer, not a law student but even an ordinary layman, for he would tell you that, except murder, all other offences though described as non bailable were bailable by the magistrate. That Bail Act took away that discretion vested in the Magistrate to release a suspect on bail in murder cases after three months if proceedings are not instituted and to vest it in the High Court. The Bail Act introduced by Prof. Peiris made it possible for a magistrate to remand suspects even they are charged with committing a non-bailable offence.

The main complaint against the Bail Act was that even in bailable offences, a right, once guaranteed to the accused under the Criminal Procedure Code to ask from Court that he be released on bail, was changed. A person who has committed a bailable offence which the Magistrate has no right to try without a Mediation Board report, could overlook the Mediation Board Certificate and remand him applying some frivolous and utterly inconceivable positions which are enumerated in Section 14 (1)(b). The protest against the Bail Act at that time was mainly on the basis that the judicial discretion could be subverted by a scheming police officer by placing before Court a false report of public disquiet so obtain an order for remand. Mr. Weerakoon had the patience to go through the statistics of the persons in remand to show a great increase in the number of remandees after the Bail Act came into being. The main reason being that some magistrates, who are less liberal and more protective of society, have the uncanny habit of remanding suspects brought before Court on trumped up charges.

Mr. Weerakoon says, "There were instances when the provisions of the Bail Act was resorted to in order to release on bail suspects who were brought under special laws as those relating to trafficking in dangerous drugs, the possession of offensive weapons, and causing loss or damage to State property on which release on bail was expressly prohibited''.

I do not know how he came to these conclusions. None of these offences were offences where bail was expressly prohibited; the Magistrate was entitled to release a person on bail for causing damage to State property. In other offences relating to drugs and possession of weapons, the High Court and the Court of Appeal were empowered to release the suspects on bail.

There are offences under the Immigration Act, and Antiquities Ordinance where there is no forum where Bail application could be referred to. I am only aware of the Offensive Weapons Act where due to inconsistencies in the Sinhala and the English versions, the High Court of Kandy ordered the release of the suspects suspected of using offensive weapons. Later, the Court of Appeal quickly brought the situation under control. Now no Court other than the Court of Appeal releases suspects on bail.

Then Mr. Weerakoon refers to the 'Kudu Noor' affair. He tries to supplement and buttress his argument in support of his contention that a new amendment to the Bail Act would prevent people like 'Kudu Noor' from getting bail. He asserts in his own inimitable style: "This is what prompted drug related young suspects in remand for months without end and without proceedings being filed against them to put to me the embarrassing question as to how 'Kudu Noor' was in and out of remand every week or two when their own applications for bail were not countenanced by Court''. As the ex-minister, had he any interest of enlightening himself on how the wheels of justice turn in respect of drug lords, he could have called for the file relating to 'Kudu Noor'.

Apparently, 'Kudu Noor' was the biggest dealer in heroin in Sri Lanka, and his operations so secretive that his underworld connections with the political leadership, the Mafia and the Police could not find any information to connect 'Kudu Noor' with the smuggling of heroin. At about that time, for some reason, one of the members of the inner circle breached the oath of Omerio (the oath of silence). One of these operatives informed one of the special squads formed by the President to curb the drug menace that Kudu Noor was about to receive a six kilo shipment of heroin. But he said he wanted four kilos of heroin as his fee for giving this information.

After much discussion with their superiors, the Police Special Squad finally arrested Kudu Noor and as agreed the four kilos of heroin was handed over to the informant. But the other senior Police Officers frowned upon the alleged deal. When they cordoned the house of Kudu Noor, he had left the house about ten minutes earlier and there was only a child of about ten years.

Six kilos of heroin was found in the house and the inmate who was the child was taken to custody and bailed out. Subsequently Kudu Noor was arrested.

The Police as agreed, handed over four kilos of heroin to the informant. (But they would not admit this publicly). A DIG who got this information started an inquiry immediately to punish the Police Officers who had agreed to handover four kilos of heroin to the informant.

Kudu Noor was not released on bail but the Police informed Court that heroin was not found in his possession and therefore the Court ultimately discharged Kudu Noor from the proceedings. The release had nothing to do with the Bail Act. No Magistrate worthy of his salt could ever release any person who possesses heroin above the stipulated amount in the Poisons and Dangerous Drugs Ordinance. But Kudu Noor as contended by Batty Weerakoon was released on bail by the High Court. He would never have been released on the abuse or misuse of the Bail Act, but released under the Statute which governs the importation and possession of heroin in Sri Lanka.

The amendment to the Bail Act does not refer to the provisions of the Dangerous Drugs Act. The Poison, Opium and Dangerous Drugs Act is independent to the Bail Act and this supplements my argument that people like Kudu Noor will use the power, money and the position they have in society to commit any crime and obtain bail from Court. But the poor and the innocent who have committed a compoundable offence or an offence which ought to go before the Mediation Board could languish in remand on the pretext that they had committed a scheduled offence and which is not in the Bail Act. The remand prisons will be full of young people on false and trumped up charges - not of drug trafficking but on compoundable offences which should be referred to the Mediation Board.

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