No law to charge a person under PTA just because he is a Tamil; HC Judge

Protest in Batticaloa in 2019 against the Prevention of Terrorism Act

• Tamil suspect allegedly arrested for drug trafficking had been charged under PTA
• Gross violation of person’s human rights and it is a severe misuse of country’s criminal justice system
• Severe doubts regarding ‘place of arrest’ of the accused  

“There are no provisions in the law to indict a person under the Prevention of Terrorism Act  (PTA) for the mere reason that he or she is a Tamil,” Colombo High Court declared in a landmark order discharging a person arrested on the suspicion of keeping drugs in his possession but charged him under the controversial and notorious law, the PTA.   

Delivering the order in an indictment filed by the Attorney General in 2018,  
High Court Judge A. K. M. Patabendige also stated that “it was a gross violation of a person’s human rights and it is a severe misuse of the country’s criminal justice system,” 

The High Court judge was delivering the order in an indictment filed against Thangarasa Karthigesu who was arrested by a group of policemen attached to the Terrorist Investigation Division (TID) on or around June 16, 2015.
He was charged on two counts under Poisons, Opium and Dangerous Drugs (Amendment) Act No 13 of 1984 for keeping around 183 grams of diacetylmorphine also known as heroin in his possession. The accused Thangarasa Karthigesu had pleaded not guilty to the charges framed against him. 

According to the evidence of IP Ratnayake, a sub-Inspector attached to the Terrorist Investigation Division (TID), an investigation on alleged drug trafficking was conducted on July 15, 2015, at Elakanda in Wattala. He had left the station with four other policemen but the operation had been foiled. However, on the following day, the police officer had said that he got information about the drug trafficking by the suspect in and around Wattala, Elakanda, Kadirana and Kotahena areas. Awaiting at Kadirana bridge in the  Wattala area around 7.15 pm, the accused had been arrested with a bag which contained heroin according to the police officer’s evidence. The police also had taken into custody a mobile phone, some cash and gold jewellery. 

The police officer had said that two other suspects had been arrested on the information received from Thangarasa Karthigesu.

At the Magisterial inquiry, the suspect Thangarasa Karthigesu had requested the Magistrate to call for a telephone tower report but it had been refused. The Magistrate’s order was overruled following a revision application made to the High Court in 2016 and the court in turn had ordered to call for a telephone tower report with regard to the telephone used by the accused. 

During the trial before the High Court, a technical officer from Sri Lanka Mobitel had been summoned. According to the investigation team, the accused had been arrested at the Elakanda river banks passing Kadirana bridge.  
However, according to the witness representing the telephone service provider, Thangarasa Karthigesu’s mobile phone had shown the location as Moor Street in Armour Street, Colombo. 

Giving evidence the witness police officer also had stated that a statement from the accused was recorded at Elakanda around 20.40 and around 22.50 at Armour Street Police Station. However in complete contrast to the police evidence,  the mobile phone of the accused had been located at a telephone tower at Wanathamulla and the court observed that the police officer, the main investigation Officer IP Ratnayake had given contradictory evidence. 

The witness telecommunication officer has informed court that Hekiththa area from where the accused is said to have been arrested is completely away from the telephone towers in Grandpass, MahaVidyala Mawatha, Moor Street, Armour Street and Wanathamulla from where the mobile phone of Thangarasa Karthigesu had indicated. 
Examining the evidence related to the mobile phone and witnesses, the court indicated that there is a serious doubt with regard to the “place of arrest” of the accused. 

The evidence given by the witness from the telecommunication company seriously challenges the evidence of the Police Investigation Officer who is said to have arrested the accused. 

In addition, the High Court Judge Patabendige observed that the time written in the police records as 22.50 on the day of the arrest, the numbers 5 and 0 had been tampered with. The judge said that the procedure to correct a mistake on a record is prescribed by the Police Department ordinance. Scribbling on what is already written is not an accepted method of correction, the Judge stressed.

The High Court Judge also observed that the police officer who is attached to the TID’s Investigating Grade had not even taken action to search the house of the accused Thangarasa Karthigesu who was arrested after reading out charges under the Prevention of Terrorism Act. “The witness had failed to provide a justifiable answer with regard to not searching the house,” the court observed.  

As happened in many instances in Sri Lanka, especially during the war and after the war, those arrested under the PTA are detained for a long period. Karthigesu too had to face a similar fate.

The accused Thangarasa Karthigesu had been arrested under the PTA and he was kept under detention orders at the TID for several months. He was later produced under section 54 of the Poisons, Opium and Dangerous Drugs Act.

The judge observed that the Officer in Charge (OIC) of the TID himself had admitted that there was no evidence to prove that the accused had been involved in any terrorist activities. 

“However the OIC of the Division at the initial stage when the arrest was made had stated that according to the information, the accused and others had been involved in drug trafficking with the LTTE and part of the money had been handed over to the LTTE cadres to be spent for the promotion and development of the terrorist organisation and at times the LTTE cadres too had been involved in supplying heroin to the suspect.”

“If there were such evidence why did the OIC of the TID on September 28, 2015, state that there was no evidence to prove that the suspect was involved in terrorist activities,” questioned the High Court Judge in his judgement. 
“This clearly shows that the investigators have obtained detention orders misusing the provisions of the Preventing of Terrorism Act on the suspects who are arrested on the allegation of possessing drugs,” the judge ruled. 
During the trial, the High Court judge questioned the Police officer who was giving evidence.

Judge: Initially what is the information your officer received? What kind of information had he received?
Witness: The person called Thangarasa Karthigesu is involved in drug trafficking. 

Judge: Under what section of the law were the offences read out to the accused in the accused dock when he was arrested? 
Witness: Your Lordship I mainly arrested him under section 6(1) of the Prevention of Terrorism Act. 

Judge: So you received the information that some person was trafficking drugs. And acting on the correct information and after finding drugs in the custody of the accused, what made you arrest him under the PTA? What is the information you had, when you read out offences under the PTA for a person who was allegedly arrested for keeping heroin in his possession? 

Witness: Your Lordship, I was informed that Tamil people from India are providing drugs to him. 
Judge: Why did you read out charges under the PTA, just because he was a Tamil national and just because a Tamil was arrested with heroin in his possession? 

Witness: (no answer) 
The Judge in his order stated that according to the witness’ evidence the accused who was said to have had heroin in his possession had been charged under the PTA for the reason that he was a Tamil and on the basis that he received heroin from India.  

Not only that there is no provision in law to charge a suspect who was arrested on the allegation of keeping heroin in his possession, under the PTA just because he was a Tamil but also it is a violation of the human rights of a person, the judge observed. 

“I record that this is a misuse of the country’s criminal justice system,” High Court Judge A. K. M. Patabendige noted and ordered the Court Registrar to convey this issue for the observation of the Inspector General of Police. The accused was discharged without calling the Defence trial.