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Ward Place heroin case: Magistrate says he had been misled

COLOMBO: The Maligakanda Magistrate and Additional District Court Judge R. A. Priyantha Wijesiri de Silva gave evidence before the Colombo High Court Judge Upali Abeyratne in connection with the Ward Place heroin case.

The Attorney General indicted Mohammed Samoon Mohammed Shiyam, Jayagodage Upali Abeygunawardana and Murshida Shiyam alias Murshida Mubarak Murshida with six counts including for possession of 9 kg of pure heroin.

The PNB took the accused into the custody with bags of heroin weighing 23 kgs on November 28, 2003 at the residence of the first and the third accused at Ward Place. The Government Analyst's Department revealed that it contained 9 kg of pure heroin.

Examined by the President's Counsel Tirantha Walaliyadda appearing for the first accused Magistrate de Silva said that he was working as the Magistrate at the Maligakanda Magistrate's Court on March 8, 2006.

The suspect of the case 31189, Ranasembulage Sunil Fonseka alias Pattah was produced from the remand prison before him in his chambers.

He stated that he wanted to make a statement. After inquiring from Fonseka as to whether he was making the statement voluntarily, the statement was taken and kept in the safe of the registrar.

Cross examined by Deputy Solicitor General Shavindra Fernando de Silva stated that he entered the Law College in 1985 and took oaths as a lawyer in 1988. He worked under senior lawyers including Tirantha Walaliyadda. Later he was sworn in as a Magistrate in 1997.

The Attorney appearing for Sunil Fonseka informed the Court that Fonseka wanted to make a confidential statement under section 127 of Criminal Procedure Code but Fonseka himself did not requested. He made the statement under the section 127(2) of the Criminal Procedure Code.

The statement should be sent to the Court where the relevant case was being heard. Fonseka's case was heard before Magistrate de Silva from the outset. Fonseka made the request to make the statement after nearly 20 appearances.

Till then an attorney did not appear for him.

Deputy Solicitor General Shavindra Fernando suggested that a Magistrate had no powers to take such a statement under the section 127(2) of the Criminal Procedure Code.

The Magistrate agreed with that suggestion and said that he had been misled and statement was taken.

When DSG Fernando said that Fonseka's statement did not fall into the category of confession Magistrate said that Fonseka stated that he wanted to make a confidential statement.

High Court Judge Upali Abeyratne:-"Is there any term as confidential statement in the Criminal Procedure Code?"

Magistrate de Silva:-"No". He said that the suspect used that term.

When DSG Fernando asked as to whether Magistrate could be sure that the suspect, Sunil Fonseka did not take any money from someone although he noted that he made the statement voluntarily Magistrate said that he was not sure but the suspect was in remand prison for months.

Second accused Upali Abeygunawardana made a dock statement and said that he was parking his three-wheeler for hire near the Davatagaha Mosque.

On November 28, 2003 a group approached him in a blue colour van threatened him with pistols and asked as to whether he was transporting drugs of Shiyam.

Thereafter he was abducted in the van and his three-wheeler also was accompanied to a storeyed building at Ward Place. Later he was taken to PNB and took signatures on blank papers.

A three-wheeler driver B. A. Latheef, a defence witness examined by President's Counsel Rienzy Arsakularatne said in evidence that he saw a group came in white colour van took him after threatening him with pistols.

When Latheef was cross examined by Deputy Solicitor General Shavindra Fernando he said that he did not inform the Police that such a crime took place on that day.

He did not give any statement to the Police. But he came to the High Court after three years to give evidence accepting the request by Upali's wife.

He also said that he noted only the three-wheeler number belonged to Upali at the time he was abducted but he did not note the number of the van that the group came to abduct Upali.

He also said that the Davatagaha junction was full of vehicles and there was one police person there. But Latheef kept silent. Deputy Solicitor General Shavindra Fernando and Senior State Counsel Chethiya Gunasekara appeared for the Attorney General.

President's Counsel Tirantha Walaliyadda, President's Counsel Rianzie Arsakularatne and Attorney-at-law Anil Silva appeared for the first, second and third accused respectively.

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