26 June 2021 01:55 am Views - 1159
The historical judgement delivered by the Appellate Court on June 16 (Wednesday), granting bail to the former Director CID, SSP Shani Abeysekara, has been hailed by Sri Lanka’s law abiding citizens.
The two Bench – Justices R. Gurusinghe and Bandula Karunaratne in the judgement have stated that the Colombo Crimes Division (CCD) has not only blatantly attempted to frame allegations through fabrication of false evidence, but also smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to Abeysekara, for collateral purposes.
Abeysekara was arrested in 2020 on purported allegations that he had falsely introduced certain weapons that fall within the provisions of the Offensive Weapons Act, Firearms Ordinance and the Explosives Act and fabricated false evidence to frame and arrest the former Deputy Inspector General (DIG) of Police, Vass Gunawardena.
On arrest, Abeysekara was produced before the Gampaha Magistrate (Case No: B/1536/ 20). After the submissions made by both parties to consider bail, the Magistrate fixed the case for Order on 07.08.2020. His application for bail was dismissed citing lack of jurisdiction and Abeysekara was remanded.
Thereafter a bail application (Bail/ 339/20) was filed in the High Court of Gampaha, but that too was rejected.
Hence a revision bail application was filed in the Court of Appeal (CA (Rev.) CA /CPA/18/2021). This was argued on 15.06.2021 and the Judgement was given the following day.
Senior Attorneys –at-Law Viran Corea, Thilini Vidanagamage, Arnold Priyanthan instructed by Gowri Sangari Thavarasha appeared for Abeysekara.
Furthermore, he has been awarded a certificate of commendation by the Secretary-General of the International Police Organization (INTERPOL), greatly appreciating his remarkable professionalism and excellent support to the INTERPOL Response Team in relation to the global response to the Easter Sunday attacks in Sri Lanka
Abeysekara joined Sri Lanka Police on 10.02.1986 as a Sub-Inspector and during his 34 years of service he has served in many capacities at the VIP Security Division of Police Special Task Force and President’s Security Division prior to his posting to the Criminal Investigation Department (CID), upon a special request made by the then DIG Punya de Silva in 1999. Thereafter he was appointed Director of the CID in 2017 and later transferred on 21.11.2019 as the Personal Assistant to the Deputy Inspector General of Police in Galle range, after the 2019 Presidential election and was interdicted from the Police service on 07.01.2020.
During his career Abeysekara was actively involved in the investigation of a number of high-profile cases including, the attempted murder of former President Chandrika Kumaratunga in 1999; the LTTE attack on the Katunayake International Airport in 2001; the murder of Yvonne Johnson at Royal Park Condominium in 2005; the kidnapping and disappearance of 11 youths by Naval Intelligence personnel in 2008 - 2009; the double murder case in Angulana in 2009; and the kidnapping and disappearance of Journalist Prageeth Eknaligoda in 2010.
Furthermore, he has been awarded a certificate of commendation by the Secretary-General of the International Police Organization (INTERPOL), greatly appreciating his remarkable professionalism and excellent support to the INTERPOL Response Team in relation to the global response to the Easter Sunday attacks in Sri Lanka. It is important to note that the suspect has been a key prosecution witness in over 100 trials including over 20 murder trials that led to convictions.
The CID in 2013 conducted investigations on the abduction and murder of Mohammed Siyam and on 22.05.2013 filed action in Colombo Chief Magistrate Court (Case No. B/3279/05/2013).
Police Constables (PC) Dias and Sameera Susantha who had been working at the house and in the office of the former DIG, Vass Gunawardena have voluntarily come to the CID on 11th & 18th November 2013 and given evidence before the Magistrate that on 04.06.2013, that IP Wilwalaarchchi had taken some weaponry in a cab which were used in the murder of Siyam.
According to these statements of PCs Dias and Susantha and IP Wilwalaarchchi, SSP Abeysekara and the other investigating officers have found the aforesaid weaponry at a shed in a land at Kalagedihena, which belongs to Naligama; a friend of IP Wilwalaarachchi. Under Detention Order (No. DML/PTA/24/ 2014), IP Wilwalaarachchi had been detained from 03.03.2014.
The CID has produced the extracts of the said weaponry to the Attorney General on 27.05.2014 and thereafter, the AG had opened an advice file bearing No. C/155/2014/CM and the weaponry has been sent to the Government Analyst. On 30.05.2014 upon the advice of the Attorney General, IP Wilwalaarchchi was discharged.
After Abeysekara was transferred from the CID to Galle DIG’s office, The AG on 09.12.2019, has advised the CID under the said CID file C/155/14/CM to arrest PCs Dias and Sameera Susantha, Naligama and his wife Chiranthi Sanjeewani.
On 03.06.2020, the AG has advised to release Dias and Sameera Susantha and has further advised on 11.06.2020 to release Naligama and Chiranthi Sanjeewani.
On 09.06.2020, the CID has recorded statements from Naligama and Chiranthi Sanjeewani who have made allegations against Abeysekara and other investigating officers, including IP Wilwalaarachchi who discovered the cached weapons from the said Naligama’s land for fabricating evidence by placing the weaponry on the said land and taking pictures of the said weaponry.
Based on these statements Abeysekara was arrested in 2020. According to the bail application, new investigations have been carried out and statements have been recorded from 09 witnesses.
According to the bail application Abeysekara has been arrested on a purported allegation based solely on statements recorded from five witnesses- Inspector of Police (IP) Wilwalaarachchi, Naligama, Chiranthi Sanjeewani and PCs Dias and Sameera Susantha that the weaponry involved in the abduction and murder of Mohammed Siyam were allegedly found at a different place by the suspect Abeysekara and others in order to fabricate evidence to create a false case.
According to the bail application the statements given by the five witnesses in 2020 are inconsistent with the statements given by them in 2014. The statement given by Dias in 2020, was not the same that was given in 2014. Further, he has stated that he was kidnapped by the CID when he was in Sanjeewani’s house. Sanjeewani was a close associate of Sarathchandra; who is one of the convicted along with Vass Gunawardena.
Susantha has stated in his statement in 2020 that the statement he gave in 2014 was given in fear of the CID.
In the bail application the petitioner states that it is apparent that these are some of the very same weapons whose recovery by the suspect Abeysekara is sought to be impugned by the respondents, without any explanation as to how weapons proven to have been in Vass Gunawardena’s custody, came into the custody of Abeysekera. It was established that several of the weapons were traced to be in the custody of Vass Gunawardena. Vass Gunawardena himself, in his dock statement in case No: H/C TAB 7193/14, when testified had said that some of the cache of explosives and weapons that were found were those he had acquired during and after the war against the LTTE. However, Gunawardena failed to substantiate the actions taken by him in relate to these weapon recoveries.
No instances of prior wrongful conduct
Considering the reported facts Justices R. Gurusinghe and Bandula Karunaratne in their 14 page judgement has stated that at the time of the arrest, Abeysekara has not been in possession of any illegal weaponry and there is no substantial evidence to link the possession of the said weaponry to the suspect other than the statements given by the witnesses and there are no instances of prior wrongful conduct or conviction against the suspect whatsoever, no pending cases against him, no evidence to reasonably suggest that he would be absconded not submit to the jurisdiction of court and legal process and no evidence before the Court to say that the suspect would interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice’.
The Order written by Justice Karunaratne states, “It is important to note that the date of the alleged offence is 11.03.2014 and the complaint has been received to the CID only on 09.06.2020 and to the CCD on 24.06.2020. At the time of the arrest, suspect Shani Abeysekara has not been in possession of any illegal weaponry and there is no substantial evidence to link the possession of the said weaponry to the suspect other than the statements given by the aforesaid witnesses. There are no instances of prior wrongful conduct or convictions against the suspect Shani Abeysekara whatsoever. There are no pending cases against the suspect. There is no evidence to reasonably suggest that the suspect would be absconded, not submit to the jurisdiction of court and legal process.
“Also I would like to indicate that there is no evidence before this Court to say that the suspect Shani Abeysekara would interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice.
“It is my view that on account of the unusual and extraordinary delay in lodging the first complaint despite every ability to do so demonstrates very strongly that the allegations against the suspect Shani Abeysekara are a result of falsification and embellishment and a creature of after-thought.
“Not only that the said delay has not been satisfactorily or credibly explained. It is crystal clear that the statements given by the said witnesses in 2020 are contradictory to statements given by them in 2014.
“Upon the statements of apparent backers and supporters or collaborators of the convicted Murderers, purported facts have been reported in B/1536/20 to the Learned Magistrate’s Court of Gampaha against the suspect, in a blatant attempt to frame allegations through fabrication of false evidence pertaining to purported commission of offences under the Penal Code and for the purported possession of a cache of firearms, explosives and ammunition in a manner that constitutes offence under the Offensive Weapons and the Explosives Act.
“However, no credible evidence had been brought to the attention of the Court to substantiate this position or credibly establish a semblance of a prima facie case. The Case No. B/3250/03/2014 has been instituted on 27.02.2014 upon the arrest of said Wilwalaarachchi on 24.02.2014 and following the recovery of the cached weapons and ammunition from No. 107/01, Raniswala, Kalagedihena. Suspects had been arrested and released by the CID upon the advice of the Attorney General.
“The Petitioner’s contention was, after a lapse of 6 years, some witnesses who are said to be associates of said former Deputy Inspector General, Vass Gunawardena, may have made false allegations. Thereupon, the suspect Shani Abeysekara was arrested without any credible or reasonable evidence and produced before the Learned Magistrate of Gampaha.
“The learned Additional Solicitor General submitted that until the investigations are completed the suspect should not be released on Bail. Due to the Covid 19 pandemic further investigations were delayed and therefore one more month would be enough to complete the rest of the investigations.
“The learned counsel for the respondent submitted that the Court of Appeal has the exclusive jurisdiction to enlarge a suspect on bail under section 10 of the Offensive Weapons Act.
“The State imposes a punishment on the suspect indirectly by keeping him in remand custody for an uncertain period. Obviously, that was not the intention of the legislature when it enacted Article 13(5) of the Constitution. The Petitioner’s main concern is that the suspect Shani Abeysekara is over 59 years of age and is currently on medication for high blood pressure. He is medically advised and requires constant attention and treatments. Not only that he has suffered a heart attack while being transported by the Prison Authorities, overnight between multiple holding facilities in Gampaha and Polonnaruwa. As a result, it was revealed that the suspect has been medically advised to schedule to undergo surgery for insertion of one or more stents. The suspect Shani Abeysekara has already been exposed to and contracted Covid-19 while in remand, and was fortunate to have survived it. There are many documents, to establish the fact of suspect having contracted Covid-19 while under the custody of the Prison Authorities. The suspect has been in remand custody for the last 10 months. There is no cogent material before this Court to establish that the witnesses were intimidated by suspect Shani Abeysekara.
Considering the totality of the material placed before us, I am of the considered view that the suspect Shani Abeysekara be enlarged on bail subject to strict conditions imposed by this Court.
“We act in revision and set aside the order of the Learned High Court Judge dated 09.12.2020. We order to release the suspect Shani Abeysekara on bail. We direct the Registrar of this Court to communicate this order to the High Court of Gampaha forthwith”.