In a recent judgement delivered on 31st August 2021, the Court of Appeal ruled on the question whether prevailing COVID-19 situation in the country would qualify itself as an exceptional circumstance warranting grant of bail to undertrials. The suspect in this case is awaiting trial for the alleged commission of the offence of aiding and abetting the import, trafficking, and possession of heroin under Section 54A & 54B of the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984 (PODDO).
Section 54A of the Ordinance provides that any person who manufactures, trafficks, imports, exports or possesses any dangerous drug set out in Column II of Part III of the Third Schedule, except as permitted by the Ordinance, commits an offence under the Ordinance, and shall be liable to the penalty set out in Column III therein. According to section 54B, any person who abets the commission of or who attempts to commit or does any act preparatory to or in furtherance of the commission of any offence under section 54A shall be liable on conviction to the same punishment provided for such offence.
Background to the case.
The petition concerned is a revision application(CA/ PHC/APN CPA
42/2021) from an impugned order of the learned High Court Judge of Chilaw dismissing a Bail Application for failing to show exceptional circumstances as required by section 83(1) of Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No.13 of 1984. Being aggrieved by the said order of dismissal, the petitioner Imad Aboobucker who is the son of the suspect Abdul Qadir Aboobucker presently kept in remand custody in Negombo Remand Prison, filed this revision application on behalf of his father. The Officer in Charge,
Police Station,
Narcotics Bureau and the Hon. Attorney General have been made Respondents to the application.
Case facts.
The suspect is a sole proprietor engaged in the business of importing potatoes, textile, garlic and onions from Pakistan. In March 2020, Police Narcotic Bureau seized 99 .478 kg of heroin in one of the containers imported by the suspect. According to the Government Analyst, the pure quantity of heroin discovered amounts to 67.765 kg. According to Part III of Third Schedule to Ordinance, where anything more than 2 grams of heroin is found, an accused, if convicted, is punished with death or life imprisonment. Penalties for aiding and abetting are no different. One who is found guilty of aiding and abetting the commission of the offence of trafficking or possession of 2 grams heroin could also face death or life imprisonment.
The grounds of the revision application.
The petitioner alleges that the impugned order of dismissal of bail application by the High Court is contrary to law and fails to consider the due weight to be attached to the evidence presented in the bail application. Further, petitioner submits that it is a misdirection of the High Court to not to have considered the ill-health of the suspect as an exceptional circumstance warranting grant of bail. It is also alleged that irrelevant considerations were taken into account by the learnt High Court judge in refusing granting of bail to the suspect. The petitioner also submits that in the absence of clear and cogent evidence or prima facie case against the suspect to connect the him to the offence charged, it was a misdirection of the court to have refused bail.
The Court of Appeal while rejecting the latter submission, observes that unlike at the trial stage of an action, the threshold for making an arrest at the initial stage does not require anything like a prima facie case or sufficient proof to connect a suspect to the commission of an offence. The court cites Channa Pieris v Attorney General (1994) 1 SLR 1 as an authority on the subject, according to which all what a police officer needs to have is reasonable grounds for suspecting a person to be concerned in or to be
committing or to have committed an offence. However, in the present case, Court of Appeal notes that prosecution has already made out a prima facie case against the suspect, even before the trial stage.
High threshold for bail under PODDO.
Section 83(1) of PODDO sets high threshold for granting bail to suspects charged with offences thereunder. Accordingly, no suspect/accused charged with an offence under Section 54A or Section 54B shall be released on bail, except by the High Court, in exceptional circumstances. Therefore, Bail Act No. 30 of 1997 is not applicable to offences under section 54A and 54B. As a result, the legal principle 'bail is the rule, jail is the exception' doesn't have any relevance to the present application. Grounds for granting bail as set out under the Bail Act also do not constitute exceptional circumstances as required by Section 83 (1). The Court of Appeal notes that the test of exceptional circumstances is a very subjective one. Accordingly, there is no hard and fast rule to determine what constitutes an exceptional circumstance and what not. Ramu Thamodarampillai v The Attorney General (2004) 3 SLR 180 ruled that exceptional circumstances depend on facts and circumstances in each case.
What are the exceptional circumstances submitted by the petitioner?
Petitioner contends that the absence of previous convictions or pending cases amounts to an exceptional circumstance warranting a suspect's release. The observation made by Basnayake J in Cader v Officer - In - Charge Narcotics Bureau (2006) 3 SLR 74 is an important one to be noted here. Basnayake J. observes that owing to a host of reasons, the absence of previous convictions or pending cases cannot be considered as exceptional grounds warranting bail. One such reason is the possibility for a suspect to abscond. Given the severity of the penalties under the Ordinance, there is always the risk of the suspect absconding. Suspects, once released on bail, have a tendency to repeat similar drug offences, and the police cannot be expected watch their every move. Ranil Charuka Kulathunga v Attorney General CA (PHC) APN 134/2015 also held that in view of the above reasons, it would be prudent for trial to be concluded early as possible while a suspect kept in custody.
Court also draws attention to the intention of the Parliament in enacting the Amendment Bill to PODDO in 1984. The Parliament's intention in introducing section 83(1) under the Amendment Act of 1984 is to keep suspects of drug-related offences in custody until trial is concluded, that is unless a strong case of exceptional circumstances is made out warranting grant of bail. Therefore the burden of proof is necessarily placed on a suspect to show the existence of exceptional circumstances warranting his release from custody. The Court of Appeal reflecting on these stringent restrictions envisaged by the severity of the penalties intended by the Ordinance, comments on the position of a suspect under PODDO as one with a unique standing.
Secondly, the petitioner avers an illness the suspect is alleged to be suffering from since 2013 as an exceptional circumstance. He contends that combined with the impact of COVID-19 situation, suspect's ill-health qualifies as an exceptional ground. He alleges that suspect's health condition is deteriorating and his life is in danger in absence of a proper medical treatment. However no evidence as to any such deteriorating health condition is adduced before the Court of Appeal. No proof of prescription or request for or receiving of medical examination while under remand custody is submitted before the court. A mere medical report dating back to December 2020 has been submitted to the court to the effect that the suspect is suffering from inadequate kidney functioning and glucose control. The report had also been issued in the absence of the suspect without an in-person physical examination. Therefore such medical report does not disclose a sound medical opinion on the present physical condition of the suspect.
According to Ramu Thamodarampillai v The Attorney General (2004) 3 SLR 180 an illness in order to qualify as an exceptional circumstance must be a present illness. Additionally, it must also be shown that continued incarceration would endanger a suspect's life or cause permanent impairment of his health. The petitioner must also adduce evidence as to the nature of illness and its effect on the suspect. Attorney General v Ediriweera (2006) BLR 12 held that a suspect must prove a present actual state of ill-health by means of medical reports. Further, it was observed that a suspect must adduce evidence to the effect that continued incarceration would absolutely imperil his life or permanently impair his health.
The petitioner in this revision application has only averred a past medical history of the suspect which goes back to the diagnosis of the particular medical condition followed by a surgery in 2013. The Court of Appeal observes that a past medical condition alone is not sufficient to convince the court of the existence of an exceptional circumstance. Petitioner also fails to convince the court that the suspect cannot be treated for his alleged medical condition in Prison Hospital or at a Government Hospital, and therefore granting of bail is necessary to pursue medical treatment elsewhere. Further no request for evaluation of the particular medical condition has been made to the Prison Hospital. Nor a request under section 69(1) of the Prisons Ordinance has been made to Commissioner General of Prisons requesting a transfer of the suspect to a Government Hospital for treatments. Further, the Court of Appeal observes that a mere suspicion, doubt or anxiety in the mind of suspect or petitioner fail to establish exceptional circumstances that would shock the conscious of the court.
Thirdly, the petitioner asserts that prevailing COVID-19 situation in the country makes the suspect more vulnerable and exposes his already deteriorating physical condition to further deterioration. It could even lead to death if he contracts COVID-19. The Court of Appeal cited its own recent judgement Herath Pathiranalage Sunil Wickrema Abeysinghe and Others v DG CIAOBC CA/PHC/ APN 67/20 which held that the impact of Covid-19 pandemic is equally applicable to all those incarcerated and therefore would not constitute an exceptional ground. The Court of Appeal comments that severity of the pandemic is such that whether one suffering from communicable diseases be in or out of prison, he is at a grave risk of contracting COVID-19. The court cites the observation made by Weeramantry J in The Queen v Cornelis Silva 74 NLR 113 that circumstances common to many accused persons would not qualify as an exceptional circumstance warranting bail. In taking into account all of the above reasons, the Court of Appeal rules that COVID-19 situation does not amount to an exceptional circumstance under the present application, and therefore granting of bail in view of the impact of the COVID-19 pandemic is not warranted.
What could have been done by the petitioner without resorting to filing a revision application?
According to the judgement of the Court of Appeal, there are two possible options for the suspect. Firstly, the petitioner could well have filed a fresh bail application in the High Court, instead of invoking the revisionary jurisdiction of the Court of Appeal. However to succeed in a fresh application, the suspect should prove a state of current actual health condition by cogent evidence, as explained above. However practically speaking, succeeding in a second bail application is highly unlikely, given the application is made before the same judge who refused bail earlier.
Secondly, the petitioner also could have made use of Section 69 of the Prison Ordinance No 16 of 1877 (as amended) and requested to be removed from prison for medical treatments. Section 69(1) allows a prisoner who is found or suspected to be suffering from any disease other than leprosy or a mental disease, if he cannot be treated or kept under observation within the precincts of a prison, to be removed from prison and directed to any Government hospital under a warrant of transfer issued by the Commissioner General of Prisons.
Court's decision sounds sensible?
We are not in ordinary times. A deadly pandemic situation is not by any means ordinary. All the same drug trafficking of commercial quantities are by no means less serious offences. Trafficking or aiding and abetting trafficking commercial quantities of heroin is undoubtedly a severe threat to the law and order in the country. The pure quantity of heroin in this present case sits at a significant 67.765kg. This is an indication of the gravity of the offence. Therefore, Court of Appeal's ruling in the present application that Covid-19 situation is not convincing enough to warrant bail as an exceptional circumstance is a sensible decision.
However the judgement has not properly made the scope of its precedent clear; particularly whether trafficking of small or less significant quantities of heroin also attracts the same legal effect created by the precedent. Whether its precedent extends to granting of bail in respect of all other drug offences. Whether the court's decision is restricted to consideration of exceptional circumstances within the meaning of section 83(1) of PODDO. Thus, the effect of its precedent is open for varying interpretations at the lower courts.
It is true that just two grams of heroin could put one in life-in-prison or could even sentence to death. Nevertheless one should not forget that suspects kept in remand custody are presumed to be innocent until proven guilty. Recently, a woman sentenced to life for trafficking and possessing just 2.78 grams of heroin was found innocent by the Court of Appeal. Therefore, the Court of Appeal should have addressed the question as to whether granting of bail in cases where far less quantities of heroin are trafficked or possessed should be treated just the same way as in cases which involve trafficking of massive commercial quantities.
When due consideration is given to this aspect, the judgement is a little all over the place and not very specific about the scope of the precedent it creates. Court's approach also looks a little regressive and lacking in originality. There are concerns among the legal community that prosecution(state) will indiscriminately utilize the Court of Appeal's judgement as a weapon to object to every bail application at the lower courts and to keep suspects in remand custody, despite health concerns over severe overcrowding of prisons amid a surging pandemic. Unless the Court of Appeal's judgment is distinguished or its position is made more clear by the Court of Appeal itself or Supreme Court in a future case, lower courts will unhesitatingly continue to deny bail requests made on account of COVID-19. This only helps congesting already overcrowded remand prisons. These remand prisons are hotbeds for the virus, literally no social distancing is practiced inside these prisons. Ultimately, many suspects arrested for even minor or less serious offences not punishable by death or life imprisonment would be kept in prolonged remand custody and placed at a greater risk of dying from COVID-19.
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