P. Kumararatnam, J.

1. The Petitioner is the 10th Suspect (Hereinafter referred to as the Suspect) named in the Colombo Magistrate Court Case No. HC B 79535/01/2022.

According to the B report submitted by the Police Narcotics Bureau, Cololmbo-1, the Suspect was arrested upon an investigation carried out consequent to a tip off received by the officers attached to Police Narcotics Bureau, Colombo-01. The Suspect was arrested for allegedly aiding and abetting the possession, trafficking, and importing Heroin (Diacetylmorphine) an offence Punishable under the Poisons, Opium, and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984.

Upon information received by the Intelligent Unit of Sri Lanka Navy, that a large quantity of Heroin being transported in a multiday fishing Trawler, the Navy vessel named ‘Wickrama’ was deployed for the mission. The Navy had intercepted a boat named ‘IMU-A-0879-MRT KAVINDU PUTHA’ and arrested the boat along with six persons. Upon check the Navy had found 12 large polythene covers with Heroin parcels in it. The boat, crew members and the Heroin had been duly handed over to CI/ Jayaratne of the Police Narcotics Bureau, Colombo-1 after returning to the Southern Navy Camp. The suspects were duly arrested on 07.11.2022 for having in possession of gross quantity of 299.7337 Kilograms of Heroin (Diacetylmorphine).

Upon a Court order, the contraband had been sent to the Government Analyst Department and according the Government Analyst Report dated 13.10.2023, 164.530 Kilograms of pure Heroin had been detected in the parcel.

Further to the intelligent information, the Navy has arrested the Suspect along with another person along with a Diyo Motorbike bearing No. BIH 7109 at the coastal area on the allegation that he had aided and abetted the 1st to 6th Suspects who were arrested in the main vessel.

The Suspects were produced in the Magistrate Court of Colombo and facts were reported under Section 54A (b) and (d) of the Poisons, Opium and Dangerous Drugs Ordinance as amended by the Act No.13 of 1984.

Upon a Court order, they had been placed under a detention order to facilitate the Police Narcotics Bureau to conduct further investigation with regard to the detection.

The Suspect alleges that he was taken into custody separately was taken into custody on a mere conjecture without any reasonable suspicion.The Suspect further alleges that no any contraband had been found in the exclusive and conscience possession of him.

The Suspect submits that the he has been in remand for over three years. Indictment had not been finalised up to now.

The Petitioner has pleaded following exceptional circumstances in support of this Bail Application.

                     1. The Suspect is a mason and has been engaged mason job for more than 18 years.

                     2. The Suspect is married and has five minor children.

                     3. The Suspect is the sole breadwinner of the family. Due to his arrest the family is undergoing untold hardships.

                     4. At the time of his arrest, he was at the coastal area with another person. No narcotics or any contraband was recovered from his custody.

According to the State Counsel that the dossier of the investigations has been received by the Attorney General’s Department and registered under CR3/101/2024. The matter is under consideration as some documents are requested from the investigation agency.

The Suspect has been in remand for over three years. According to the Government Analyst Report, the pure quantity of Heroin detected from the possession of the Accused is 164.530 Kilograms.

The exceptional circumstances are not defined in the statute. Hence, what is exceptional circumstances must be considered on its own facts and circumstances on a case by case.

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 Section 83 of the Poison, Opium and Dangerous Drugs Act which was amended by Act No. 41 of 2022 states:

                     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 is ten grammes or above in terms of the report issued by the Government Analyst under section 77A; and

                     (b) which is punishable with death or life imprisonment,

shall not be released on bail except by the Court of Appeal in exceptional circumstances.

In this case, the pure quantity of Methamphetamine detected in the production by the Government Analyst is164.530 Kilograms. Hence, this court has jurisdiction to consider granting of bail as per the new amendment.

The Counsel for the Suspect submits that undue and long delay in keeping the Suspect in remand custody is a clear violation of his human rights and is against the presumption of innocence guaranteed under the Article 13(5) of the Constitution. The Counsel further alleges that the indictment has not been finalised yet.

The Counsel for the Suspect submits to this Court that according to the very version of the Respondent, no actual, exclusive and conscience possession could be established against the Suspect.

A court can consider evidence in a bail inquiry. During a bail hearing, the court typically evaluates various factors to determine whether a Suspect should be granted bail, such as the risk of flight, the likelihood of reoffending, and the safety of the community. Ultimately, the court’s role during a bail inquiry is to weigh the available evidence to decide if the Suspect can be trusted to return for trial or if he poses a danger to public safety.

Offences under Section 54A(d) and 54A(b) of the Poisons Opium and Dangerous Drugs Ordinance as amended by the Act No.13 of 1984 is no doubt serious offences but seriousness of the offence alone cannot form a ground to refuse bail. In considering these matters, the court must bear in mind the presumption of innocence.

Further, bail should never be withheld as punishment. Granting of bail is primarily at the discretion of the Court. The discretion should be exercised with due care and caution taking into account the facts and circumstances of each case separately.

The learned State Counsel, in keeping with the highest traditions of the Attorney General’s Department left the matter to be decided by this Court as the Suspect was arrested for aiding and abetting the main Suspects arrested in the multiday fishing trawler.

Considering all these factors into account, especially the period in remand, the uncertainty of filing indictment in near future, the circumstances of his arrest and other circumstances of the case, I consider this is an appropriate case to grant bail to the Suspect. Hence, I order the Suspect be granted bail with following strict conditions.

                     1. Cash bail of Rs.500,000/=.

                     2. To provide 03 sureties. They must sign a bond of two million each.

                     3. The Suspect and the sureties must reside in the address given until conclusion of his case.

                     4. Not to approach any prosecution witnesses directly or indirectly or to interfere with.

                     5. To surrender his passport if any, to court and not to apply for a travel document. The Controller of the Immigration and Emigration is informed of the travel ban on the Suspect.

                     6. To report to the Dickwella Police Station on the 2nd and last Sunday of every month between 9am to 1pm.

                     7. Any breach of these conditions is likely to result in the cancellation of his bail.

The Bail Application is allowed and the Learned Magistrate of Colombo is hereby directed to enlarge the Suspect on bail on the above bail conditions.

The Registrar of this Court is directed to this order to the Magistrate Court of Colombo, Officer-in-Charge of the Police Narcotics Bureau, Colombo-01 and the Officer-in-Charge, Police Station, Dickwella.