• in accordance with the new amendments introduced to the Opium and Dangerous Drugs Ordinance, the High Court has the power to grant bail to a person, when the pure quantity of the dangerous drug is less than 10 grams
• However, taking into consideration the legal provisions following the new amendments, the Court of Appeal decided to set aside the High Court order and granted bail to the accused

By Lakmal Sooriyagoda  

In its recent judgement, the Court of Appeal has held that in accordance with the new amendments introduced to the Opium and Dangerous Drugs Ordinance, the High Court has the power to grant bail to a person, when the pure quantity of the dangerous drug is less than 10 grams.  

The Court of Appeal two-judge-bench comprising Justices Sampath Abayakoon and P. Kumararatnam held that sections 84 and 85 of the Dangerous Drug Ordinance as amended by the amendment act in 2022 are sections that apply to granting of bail by the High Court when the pure quantity of the dangerous drug is less than 10 grams.  
“When the pure quantity of the dangerous drug alleged to have been possessed or trafficked by a person is less than 10 grams, the relevant High Court has no option but to release such a person on bail after 12 months in custody, unless the Attorney General has acted and had obtained an order in terms of section 85 of the Ordinance as amended by the Amendment Act No. 41 of 2022,” Justice Abayakoon observed.  

In this case, an accused had filed a revision application on the basis that in terms of section 83 of the Poisons, Opium and Dangerous Drugs Ordinance as amended by Act No. 41 of 2022, the accused is entitled to be released on bail as the pure quantity of the drug alleged to have been in possession and trafficked amounts to less than 10 grams, namely 9.426 grams, and the maximum period a person can be kept under remand custody for having possessed such a quantity shall be 12 months in terms of section 84, which can only be extended up to a total period of 24 months in terms of section 85.  

The Attorney General at the High Court had objected to the application for bail on the basis that since in terms of the Amendment Act No. 41 of 2022, a person who had in his possession more than 5 grams of Heroin can be sentenced to death, the High Court has no jurisdiction to grant bail. 

However, taking into consideration the legal provisions following the new amendments, the Court of Appeal decided to set aside the High Court order and granted bail to the accused. The Court granted bail on the accused as the alleged pure quantity of the dangerous drug possessed and trafficked by the accused in the case under consideration was 9.426 grams of Heroin, and he had been in remand custody from the date of his arrest on October 16, 2019, and he has not been tried, convicted and sentenced.