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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2395

Justice denied - An account of the fraud fighter

[color=darkblue][b]An application of the violation of the fundamental rights guaranteed by Article 11 & 12 of the Constitution by the Executive[/b][/color]
IN THE SUPREME COURT OF DEMOCRATIC SOCIALIST REPUBLIS OF SRI LANKA

In the matter of an application under article 126 of the Constitution

BETWEEN
Case No SC _______
NAGANANDA KODITUWAKKU
The Petitioner

AND

SARATH JAYATHILAKE
The Director General of Customs
Customs House
Bristol Street
Colombo 1
The Respondent

To his Lordship the Chief Justice and other Judges of the Supreme Court of Democratic Socialist Republic of Sri Lanka.

I Nagananda Kodituwakku, 50 years of age, Sinhalese, Buddhist, currently live in the United Kingdom at No 24 Valley Road Letchworth Garden City Hertfordshire SG6 4EJ United Kingdom do sincerely solemnly and truly declare and affirm as follows.

1. I am the petitioner and the affirmant above named.

2. I am a citizen of Sri Lanka and an attorney-at-law of the Supreme Court of Sri Lanka.

3. I joined the Customs Administration of Sri Lanka as an Officer of Customs on 17th April 1978 where my statutory duties were the collection, management and protection of the revenue of customs.

4. I state that during my service as a revenue officer, I have always performed an impartial and committed service in protection of government revenue. I state further I never compromised with the lawbreakers and my life in the customs administration was always at risk and for that reason I was the only officer in the Customs who was issued with a weapon [a revolver] for my protection.

5. I state further that in Sri Lanka it is a common sight that the lawmakers and the executive connived with the revenue fraudsters in organized revenue frauds with scant respect to the law and hence the life of the officers who refused to give into the unlawful demands of the corrupt politicians was always at tremendous risk. I state that as a committed public officer I was compelled to perform my duties against this fraudster-political-mafia under life threatening circumstances, and through out my public life I was subjected to systematic and sustained pattern of persecution as I refused to give into the illegal demands of the corrupt political leadership. I state further that it was a common sight in the Customs administration that most of the persons appointed to the post of Director General of Customs [DGC], were merely a figurehead, who conveniently betrayed the honest and upright officers in order to protect their post. I state that in most cases the DGC failed in his statutory duty to deal with powerful revenue fraudsters whose actions were openly condoned by the corrupt political leadership

6. With a view to demonstrate the endless persecution and degrading treatment that I had been subjected to, I set out below the catalogue of such instances of systematic and sustained pattern of persecution directed at me for my uncompromising approach, that finally triggered me to leave the country amidst death treats, in September 2001.

7. To my recollection the first notable instance where I was subjected to harassment was occurred in 1981. Then I was attached to the Baggage Division of the Customs, where amongst other things my duty was to examine the passenger baggage for uncustomed or prohibited goods. The particular incident referred to took place at the Katunayake airport. I happened to choose an outward-bound female passenger whose movement I observed suspicious. The said passenger was ordered to open her baggage, a very heavy suitcase, for examination. The passenger very hesitantly openly it, which contained full of contraband [silver bars]. I state that whilst the action against the said female passenger was in progress, the Secretary to the then President Manikdevala rushed to the customs examination hall, a restricted area to the general public, and claimed that the passenger was his daughter and vehemently objected to the action being taken. In the meanwhile the Director Airport, Selvaratnam [who was later found guilty for his connivance in another massive foreign currency export racket and removed from Customs] was alerted and intervened. I state that on his orders I was taken off from any further action and the passenger was allowed to embark with the contraband. I state that it was apparent from Selvaratnam’s dishonest conduct, that he was to clear that passenger and for some reason he had missed the passenger. I state further that this event never ended with the release of the passenger with the contraband. I was victimised for no fault of mine and removed from the baggage division with no apparent reason given.

8. The second such incident where I suffered humiliation occurred in 1983. I had detected a massive revenue fraud running into over 800 million rupees of government revenue [Case No EXP/DRC/83]. I state that this is the leading revenue fraud inquiry in the customs history where number of banks, airlines and customs and the officers of the Ministry of Textiles were found involved. For instance, in consequent to the detection of this fraud, the Swill Air was forced to sack it’s manager, who was caught red handed. He had connived with the revenue fraudsters and confessed about his culpability. Investigations revealed that he had issued false shipping document for goods that had never left the country. Further Investigation carried out into this revenue fraud confirmed that fraudsters had misappropriated hundreds of millions of rupees by way of duty rebates from the General Treasury on the pretext of exported readymade garments, whereas inquiries confirmed that the organised fraudsters had claimed funds from the General Treasury on bogus shipping documents for the shipments that had never left the country. However, after this fraud was exposed the then Finance Minister, Ronie de Mel, was worried for some reason and wanted to cover-up the fraud and the political pressure was brought on to suppress the inquiries. The pressure used in this regard was such an unprecedented nature that inquires into the fraud came to a standstill.

9. I state that, in the given circumstances, the then Principal Collector of Customs [PCC], HB Dissanayake was helpless and under tremendous pressure to abandon the fraud inquiry. These scandalous circumstances compelled me to seek assistance of a powerful rival Cabinet Minister of the Minister of Finance Ronnie De Mel, Minister Cyril Mathew, then Minister of Industries who came to my refuge and agreed to raise the issue at the Cabinet level. He presented a special cabinet memorandum to the Cabinet urging appointment of a Special Presidential Commission to inquire into the fraud, which should be concluded within three months and to impose severe penalties on those who are concerned. A copy of the said Cabinet Memorandum dated 12-10-1984 Marked “X1” is annexed hereto and is pleaded as part and parcel of this affidavit.

10. However, Minister Cyril Mathew’s Cabinet proposal never materialised. Instead, on suspicion of being the whistleblower responsible for the Cabinet memorandum, I was immediately removed from the fraud investigation and transferred to Marine Division, with explicit directions that I should not engage in any anti smuggling operation. In the meanwhile, the Minister, Cyril Mathew was also sacked from the Cabinet of Ministers for some unknown reason. I have annexed hereto two news items published regarding my unwarranted transfer, for exposing the government corruption, published in the “Lankadeepa” of 19-12-1984 marked “X2” and in the “Atta” newspaper of 15-11-1984 marked “X3” and is pleaded as part and parcel of this affidavit.

11. I state that as a result of this unprecedented move the entire inquiry process came to a standstill and not a single cent was recovered from the fraudsters who defrauded the government revenue of over 800 million rupees on bogus shipping documents for shipments of garments that never left Sri Lanka. I have annexed hereto a statement by the then PCC, HB Dissanayake to the Bribery Commissioner on 17-02-1986 marked “X4” wherein he concedes that I was debarred from anti-smuggling operations [the relevant section of the statement marked as “X5”] and is pleaded as part and parcel of this affidavit. Another statement made in this regard by the then head of the Marine Division, GK Rajasooriyar, also annexed hereto marked “X6” with the relevant section marked “X7” and is pleaded as part and parcel of this affidavit.

12. I state that despite the fact I was debarred from performing my statutory duty by a Ministerial order I was determined to defy the unwarranted ban imposed on me. I state that on 05-06-1985, I initiated action in another revenue fraud committed by Nawaloka, a close associate of the then President Jayawardena. The said fraud related to importation of a brand new luxury car [BMW Baweria] then valued over 3 million rupees defrauding the government revenue. The Importer had paid customs duty of Rs 52,000, whereas the actual customs duty of Rupees 1,786,263.00 should have been paid on the vehicle. I proceeded to take action against the revenue fraudster and the vehicle was seized. Afterwards, at a formal inquiry [Case No POM/167/85] was held and the vehicle was confiscated.

13. After finalisation of the case, like in any other similar case, the vehicle was advertised in the newspapers for sale. I state that at this stage of the case the President Jayawardena, directly intervened. He summoned the PCC and ordered the cancellation of the sale and release of the vehicle to the fraudster-businessman. Helpless PCC had no other alternative but to give effect to the unlawful order by the President. Accordingly, the sale was cancelled by another newspaper advertisement and the vehicle was released to the fraudster. At the same time I was severely reprimanded for my action and for defying the ban imposed on me i.e. to turn blind eye on all forms for revenue frauds. Clear written orders only directed at me were made restricting my fraud investigations only to the anti-smuggling operations carried out in the high seas. I have annexed hereto two news items marked “X8” and “X9” published in “The Island” newspaper [23-01-1986] and in the “Atta” [25-01-1986] regarding the abuse of power and illegal release of the vehicle by the President and is pleaded as part and parcel of this affidavit.

14. I state that, although I was debarred from fraud investigations, I still managed to uncover major revenue frauds carried out in the high seas by certain persons directly connected to the political leadership. On 24-11-1985 I managed to arrest four large fishing boats loaded with expensive textiles valued over 7 million rupees. At the inquiry held into this fraud [Case No. POM/361/85] all contraband together with four boats was confiscated by Customs.

15. I state further that mastermind behind this smuggling operation was the infamous criminal Gonawala Sunil, close associate of the then Prime Minister Ranil Wickramasinghe. His connivance and knowledge in the mid-sea smuggling operations was a fact known to customs and it was confirmed by a statement made to Customs by the Inspector of Police; Thuraisinham, had confronted Sunil in the Modara beach, whilst another haul of the smuggled goods were being loaded to lorries. I have annexed hereto the said statement by the police inspector Thuraisinham dated 22-12-1985 marked “X10” and is pleaded as part and parcel of this affidavit.

16. I state that Gonawala Sunil was a notorious criminal who was imprisoned to for a long jail term but released on a presidential pardon obtained by his friend the then Prime Minister, Ranil Wickramasinghe. In this regard I respectfully invite the attention of the Court to the news item published in the Internet by the “Freedom Watch Sri Lanka” which is attached hereto marked “X11” and is pleaded as part and part of this affidavit.

17. I state further that after the aforesaid smuggling operation was foiled Gonawala Sunil made a sham claim to the financial reward offered to the initiator of the detection. He made his claim on the basis that customs spoilt the smuggling operation on an information he provided to customs. I state, being the officer responsible for the raid and detection, that Sunil’s claim was utterly a baseless claim made with a view to lessen the heavy financial loss he suffered.

18. I state that although there was no proof whatsoever for such an information provided to customs, at the instigation of the then Prime Minister Ranil Wickramasinghe an inquiry was ordered to ascertain the veracity of the Sunil’s reward claim. Strictly speaking it was a deliberate attempt made to threaten my life with a confrontation of a reconvicted criminal.

19. I state that at the inquiry held into his claim for the financial reward ran into over 1.8 million rupees, a totally unrelated issue was raised about the ammunitions carried in my service revolver. I state that I had only provided with an empty revolver by Customs and hence I had to obtain ammunition from a police source. However, his accomplices in the customs had informed Gonawala Sunil criminal above this matter. At the said inquiry I was compelled to demonstrate the number of rounds my weapon contained, which in fact contained six rounds of ammunitions. Thereafter at the instigation of Sunil, I was summoned and questioned by the Criminal Investigation Department [CID] as to the source of supply of the ammunition contained in the revolver.

20. I state further that, whereas the said inquiry was ordered to examine the veracity of Gonawala Sunil’s claim for the financial reward, I was treated like a criminal and made to suffer endless harassment under menacing circumstances. Nevertheless, I vehemently challenged his claim and at the conclusion it was confirmed that his claim was manifestly unfounded. However, Gonawala Sunil never accepted the findings and at the behest of the then Prime Minister Ranil Wickramasinghe a second inquiry was ordered.

21. In the meanwhile, whilst this reward matter was pending, in February 1986, political-fraudster-mafia who considered my presence in the customs is a obstruction to their organised frauds, concocted bribery charge. And on 13-02-1986 I was taken into custody on a carefully plotted bribery allegation. I state that this action not only effectively stopped me from engaging any action against the organised fraughter-political-mafia but it also was a character assassination plot. Media coverage given in this regard included some of the photographs taken whilst I was removed to the remand custody by the prison guards. I have attached hereto number of such news items published on 14-02-1986 in the “Daily News”, “The Island” and “Divaina” newspapers marked “X12” and is pleaded as part and parcel of this affidavit.

22. I state further that after I was remanded I faced imminent threat to my life in the remand custody as Gonawala Sunil had strong relations with the prisoners as well as with the prison officers. Therefore soon after I was remanded an application was made to Commissioner of Prison seeking maximum protection in the remand. I state that, further to the said request I was removed from the remand custody and grilled in the death row of the Walikada Prison where only the convicted prisoners are celled. And also to ensure maximum protection, measures were taken to disallow visitors and to provide only home made food to the cell in sealed containers.

23. I state further that in consequent to a bail application made to court I was later released from the remand custody. However, I was placed under interdiction on the bribery allegation and as a result the personal protection provided [official revolver] was withdrawn. I state that in these terrible circumstances I was summoned to attend to the second inquiry [referred to in para20 above] into Gonawela Sunil’s reward claim. Since I faced with a serious security risk, on the advice of those who were concerned of my safety and security, I decided to abstain from attending the second inquiry. And hence a request was made to the second inquiry officer to take appropriate action on the basis of my evidence already recorded at the first inquiry.

24. I state that, this request was never heeded and an inquiry afresh was held ex-pâté and, on the basis that Sunil’s claim for reward was uncontested, Gonawala Sunil was awarded the financial reward running into over 1.8 million rupees. I state that the said action taken at the behest of the political leadership is a insult to the upright public officers who refused to surrender to the demands of the fraudster-political-mafia. I state that my interdiction on the briber allegation and withdrawal of security was a plot which culminated with the awarding of financial reward of over 1.8 million rupees to the reconvicted criminal Gonawala Sunil, which should otherwise been awarded to me for foiling the smuggling operation. I have attached here to a leading news item published in this regard in the “Atta” newspaper dated 14-06-1986 marked “X13” and is pleaded as part and parcel of this affidavit.

25. I state further that harassment I was subjected to never come to an end with my removal with the interdiction. I state that on 03-08-1992 as a result of my assistance provided, whilst placed under interdiction, to fellow Customs Officer to nab a smuggler with some contraband, once again I was charge sheeted for providing assistance to foil the said the fraud, on the basis that support provided was unauthorised. I state that in this instance I provided assistance at a request by a fellow customs officer named Nanayakkara to arrest another attempted smuggling operation that took place at Katubadda on 31-03-1991. It was an attempt to release some uncustomed [dutiable] goods to the open market from a customs bond by a businessman named G D Premadasa, proprietor of M/s Universal Apparel Garments. The said action was a cognisable offence and hence at the request of the said officer I extended my assistance to foil the smuggling attempt. In this case [POM/127/91(93) contraband seized valued over 12 million rupees were confiscated.

26. After the conclusion of the said case there was an attempt by the then DGC, Mr Lalith Heengama, to release the said contraband, apparently on a directive by the then President R.Premadasa. The Officer Nanayakkara informed me about this purported action and sought my support to thwart this alleged attempt. I used all my expertise to talk Heengama over the phone about it with a view to make him to let slip the source responsible for the purported illegal release order. To my amazement Heengama did come out with facts that the said action was taken on the orders of the then President R Premadasa. The Customs Officers Union was duly informed about these revelations and a resolution was passed at a special general meeting, condemning the deceitful action by the DGC, Lalith Heengama. I state that the media exposure given to this matter compelled the government to abandon the attempted release of the forfeited goods. In these circumstances I state that charge sheet issued on me for foiling this fraud, and defeating the attempts made to release the contraband, was manifestly unfounded and it was only another attempt made to subject me further harassment.

27. In the meanwhile, further to the Bribery Charge [referred to in paragraph 21] I had to face a High Court Trial [Case No 558/1989] after 3 years of the arrest and interdiction. I was determined to prove the frivolous nature of the charge, and at the said trial I fought the case single-handedly with no legal representation. HB. Dissanayake, the then Deputy Secretary to the Treasury and a former PCC, P Weerasekara, the DGC and SMJ. Senaratna, then most senior Director of Customs [who later became the DGC] gave evidence to for Defence. They testified before the High Court that it was a bogus charge concocted by the powerful fraudster-mafia whose interests were affected by my presence in the Customs.

28. I state that on 27-11-1992, after a long drawn trial I was exonerated but yet denied reinstatement until DGC Heengama was removed from the Customs. Once P Weerasekara was installed as the DGC, on 28-05-1993 I was reinstated after a long period of over seven years of extreme hardship and suffering. In this regard I have annexed hereto a copy of the letter marked “X14” dated 28-05-1993 by the DGC P Weerasekara, requesting me to assume duties and is pleaded as part and parcel of this affidavit. I have also annexed hereto a report marked “X15” dated 05-09-1997 by DGC SMJ. Senaratna addressed to the Secretary to the Ministry of Finance, wherein he confirms that the said bribery charge was a framed up scandal [a relevant section marked as “X16”] and the three officials [referred to in para 27] gave evidence at the High Court trial [the relevant section is marked as “X17”] and is pleaded as part and parcel of this affidavit.

29. I state further that after my reinstatement in 1993, on the orders of the government there was a formal disciplinary inquiry held against me, into the charge sheet referred at para 25 & 26 above. By then Lalith Heengama had been replaced with the DGC Weerasekara. At the said inquiry, I state that Lalith Heengama was compelled to withdraw the unfounded charges and accordingly I was exonerated and acquitted.

30. I state further that after my reinstatement [in May 1993], I was straight away assigned duties in the Special Investigations and Intelligence Unit (SIIU) of the Customs Administration. I state that, although I had been subjected to endless harassment, my stance against the organised fraudsters never changed. As usual I commenced my anti-smuggling operations against this organised mafia.

31. It was distressing to note that as I declined to concede to another illegal order by then President DB Wijetunga to set free another revenue fraudster my presence in the Customs was once again came to an abrupt end. In November 1993, I detected a major revenue fraud committed by a fraudster named Sumathipala Mannaperuma [proprietor of Mannaperuma Traders]. Mannapperuma was conntected to the political leadership and the President ordered shutting down the case, whereas the inquiries conducted revealed that Mannapperuma had defrauded government revenue running into several million rupees [Case Nos SP/INV/61/93 & SP/INV/71/93]. He had imported a large number of vehicles from Japan on a fake agent valuation reports submitted for customs purposes and thereby defrauding the government revenue.

32. Despite the political pressure and orders from DGC, I proceeded to arrest the suspect Mannapperuma who was then absconding. Police assistance was sought to arrest this suspect and produce him before customs but the police failed to do so. Finally on credible information given to me, a team of Customs Officers headed by me raided one of his palatial houses at Bambalapitiya, where I found him hiding with his wife inside a tiny toilet. The suspect was arrested and under the provisions of the Customs Ordinance, [the offence committed by Mannaperuma was non-bailable] action was taken to produce the suspect before the Court. Obviously the President and the DGC P Weerasekara was disturbed for defying the orders and action taken against Mannapperuma.

33. I state that I was never allowed to take action as required by law and to produce the suspect before the Court. On 06-12-1993, before he was produced before the Court, I was removed from the special investigation unit [SIIU] to the Policy Planning Division with immediate effect, and suspect was set free. I state further that soon after the said unwarranted transfer, on the orders of the President Wijetunga I was once again placed under interdiction with no reason or charges whatsoever given. In this regard I have annexed hereto a newsitem appeared in the “Counter Point” Magazine [February 1994], marked “X18” where my unjustified removal was brought to light. The relevant section of the article is marked “X19” and is pleaded as part and parcel of this affidavit. I also invite the attention of the Court to the document marked X15, a report [05-09-1997] by DGC SMJ Senaratna to the ST, where the DGC Senaratna confirms that the said transfer was put into effect obviously with the idea of preventing me from taking action against the fraudster. The relevant section of the report is marked as “X20” and is pleaded as part and parcel of this affidavit.

34. I state further that DGC Piyaseela Weerasekara himself, in an affidavit made to the Supreme Court [04-07-1994] admitted that he was summoned by the President Wijetunga and ordered him to ensure my dismissal from the public service. I state that this fact too is confirmed in the report dated 05-09-1997 [marked “X15” above] by DGC SMJ Senaratna to the ST. The relevant section of the said report is marked as “X21” and is pleaded as part and parcel of this affidavit.

35. I state that further my interdiction, the government did have no ground whatsoever to justify my removal. Hence a second inquiry was ordered into the charges from which I had already exonerated [ref para 29]. I state that the purported intension of ordering a second inquiry into the very same charges was obvious i.e. to guarantee my dismissal. And as anticipated on 17-10-1994 second inquiry was held and I was dismissed from the public service. In this regard, I respectfully invite the attention of the Court to the following observation made by the DGC, SMJ Senaratne in a report marked “X15” to the ST, which clearly demonstrate the ulterior motive of the government.

“ … In fact Mr Weerasekara as well as myself considered that the charges levelled against Mr Kodituwakku for his extending timely assistance to a brother officer to foil an attempt of illicit leakage of fabric worth well over 12 million rupees cleared on duty free concessions to the open market, which is a cognisable offence, were frivolous and unwarranted. Mr Kodituwakku’s contribution for foiling the alleged attempt to release the consignment ought to have been appreciated rather than penalized him….” “…It appears that even the DGC was helpless in the background under which he would have been compelled to act…some unseen hands had seen to it that a capable Customs Officer possessing a very high degree of detective ability should ceased to function in the Customs Department…” The relevant section of the said report is marked as “X22” and pleaded as part and parcel of this affidavit.

36. I state further that apparently, the fraudster-political-mafia did not satisfy with the endless harassments that I had been subjected to and my removal from the public service, for the reason that I switched on to use the media to expose major frauds of which actions suppressed on the orders of the political leadership. I used all the first hand information [backup copies of important inquiry records] I had about such frauds to expose the government corruption. Those records were kept with me because the important fraud inquiry records had mysteriously gone missing from the Customs Department. Some of the backup records I had maintained related to cases that were unlawfully suspended, dismissed or action indefinitely delayed and where the original case records had been destroyed or stolen.

37. I state further that on 7th February 1995, with a view to remove those vital backup records from my possession, a team of customs officers led by Anura Weerawansa, the person who was convicted for the murder of the Customs Officer Sujith Perera, was used to raid my house at No 99, Subadrarama Road Nugegoda. My house was rummaged under the pretext of searching for prohibited and/or uncustomed goods. I have annexed hereto some of the photographs taken [marked “X23”] whilst the said raid was conducted and is pleaded as part and parcel of this affidavit.

38. At the said raid all the backup case records [photocopy files], pertaining to revenue frauds inquired into by me were forcibly removed and I was taken into custody. Thereafter I was produced before the Court with a criminal charge on the assumption that some stolen government property found in my possession. I state that it was a groundless charge [Case No 1835 - MC Gangodawila] initiated with a view to subject me to further harassment. I have annexed hereto a copy of the said charge sheet marked “X24” and is pleaded as part and parcel of this affidavit.

39. I state that, with a view to subject me to further humiliation, a carefully plotted publicity campaign was launched about the said raid and my arrest. The print media “Lanakadeepa” of 11-02-1995 reported that very important original inquiry files in connection with some of the on going inquiries had found concealed in my house. It was further reported that after taken into custody the suspect was being subjected to detailed questioning about the likely transfer of some of the vital stolen inquiry records to the revenue fraudsters. It was also reported that I had robbed very important inquiry records with an intention of suppressing major revenue fraud inquires. I have annexed hereto the said news item marked “X25” and is pleaded as part and parcel of this affidavit.

40. In the meanwhile, I state that I challenged my dismissal from the public service [referred to in para 35 above] before the Court of Appeal (Case No.186/96). However, at the hearing of my application, the Court held that, in the light of the ouster clause in the Constitution [Article 55 (5)] it has no jurisdiction to inquire into the merits of the case and accordingly my application was dismissed. I state it was a further blow to a public officer who was subjected to endless harassment and hence I sought justice from the Supreme Court.

41. I state that the Supreme Court, having fully appreciated the circumstances that had led to my removal from the public service, overturned the Order of the Court of Appeal and directed the Court of Appeal to try the application on it’s merits.

42. I state that at this stage of the case, (in April 1998) the government conceded that I was a victim of endless persecution and hence ordered my reinstatement. This fact was brought to the notice of the AG by the then DGC, SMJ Senaratna by a report dated 08-02-1999 with his recommendations. The AG was notified that DG was convinced beyond any reasonable doubt that I was entitled to what I have prayed for in my application and that it was just and prudent to settle the case by restoring all my legitimate promotions. I state further that since my reinstatement with restoration of all promotions, further action on the aforesaid court action was abandoned. The DG’s submission referred above contained in his letter dated 08-02-1999 marked marked “X26” and attached hereto and is pleaded as part and parcel of this affidavit.

43. I state further that despite the fact that I was reinstated, the action on the criminal charge [referred to in paragraph 38] never dropped. At the trial into the said “theft” charges it became apparent to the Court that the charges were of frivolous and unfounded. In these circumstances, having made its observation to the CID about the futility of the case, the Magistrate advised the CID to withdraw the criminal charge. In the meanwhile the DGC in a report dated 24-09-1998 addressed to the Attorney General affirmed that no original departmental case records had been traced or found or nor other incriminating material found though through search had been conducted at my house and hence an application was made to withdraw the case. I have annexed hereto a copy of the said report marked “X27” and is pleaded as part and parcel of this affidavit.

44. I state that in these circumstances the State Counsel assigned to prosecute the case, submitted to the court that, further to the Court’s direction given to the CID, the prosecution did not wish to proceed with the case and accordingly I was exonerated from charges levelled against me. I have annexed hereto a copy of the Court order dated 13-01-1998 marked “X28” and is pleaded as part and parcel of this affidavit. I respectfully submit to the court that by time the said court order was pronounced the cruel and malicious intentions of the fraudster-political-mafia had already been realised and I had suffered agonizing pain and suffering for simply being honest.

45. I state that after I was reinstated in 1998, I was made the Head of the Revenue Task Force [RTF], an anti-smuggling arm of the customs. I state that, although I had been a victim of endless persecution, my stance against the fraudsters never unchanged and uncompromising. At the RTF, I was managed to deal with a substantial number of revenue fraudsters and to recover over hundreds of million of rupees by way of penalties and forfeitures, sometimes amidst extremely difficult circumstances.

46. I state further that as the corrupt politicians were directly involved in most of the revenue frauds my life in the Customs once again became extremely difficult. I had to work under life threatening circumstances, which I have brought to the notice of the then DGC Mr. Luckshman Perera. I state further that on the advice of the DGC I spoke to DIG Kotagadeniya seeking protection but no police protection was provided, compelling me to employ private security personnel at my residence to protect my family. In these circumstances I state that I was compelled to seek DGC’s assistance to provide protection or to get me an opportunity to leave the country unharmed. In this regard I have attached hereto a report furnished to DGC dated 30-03-2001 marked “X29” and pleaded as part and parcel of this affidavit.

47. I state further that having fully appraised the imminent threat to my life posed by the fraudster-political-mafia, the DGC, helpless under the given circumstances, was compelled to advise me to suspend all anti-smuggling operations against organised fraudster mafia and to migrate to any country of my choice. In fact he requested the British High Commissioner to accord me asylum status and grant me entry clearance to enter the United Kingdom. I have attached hereto a copy of the request by DGC to British High Commissioner dated 30-03-2001 marked “X30” and pleaded as part and parcel of this affidavit.

48. I state further that the said migration strategy was indefinitely delayed and hence I was compelled work under life threatening conditions, forcing me to asked for help from the DGC to protect my life from possible attack. I state that in these circumstances, the DGC was obliged to grant me indefinite leave to go underground, (outside the provisions of the Establishment Code) until the process of migration was accomplished. I have attached hereto a copy of said permission granted for abstaining from duty 03-04-2001 marked “X31” and is pleaded as part and parcel of this affidavit.

49. I state further that under these threatening circumstances where the protection denied by the Government, I was compelled to employ private security personnel at my home. I also made complained to the Mirihana police regarding the life threatening phone calls [ref document marked “X32”]. In the meanwhile DGC, in order to get my services in cases where my presence considered essential, tried to arrange a police escort but it never realised. Then he sought assistance from the Army commander seeking deployment of two officers from the volunteer force for my protection but that also never materialized. I state that in these circumstances, I attended office with security escort arranged privately. I have attached hereto the report made to DGC dated 03-07-2001 marked “X32”, regarding the entry made to the police which also contained the note by the DGC regarding his request to the Army Commander, and is pleaded as part and parcel of this affidavit.

50. I state further that threat to my life became ominous in September 2001, with the commencement of a revenue fraud inquiry [CRTF/304/2001] in which the then Minister Reggie Ranatunga’s family was involved. The said case referred to a revenue fraud committed in relation to a Benz car imported on a duty free permit. At the inquiries conducted into this fraud it was revealed that the Koggala Beach Hotel had unlawfully sold four duty free permits, issued for the importation of cars to be used for tourist purposes. Three of these permits had been sold to The Finance Company and Ranatunga had imported the benz car on the forth permit. At the Customs Inquiry before me into the case where The Finance Company was involved, the Managing Director of the Koggala Beach Hotel admitted the illegal transfer of the permits. And The Finance Company conceded that it had imported three luxury Toyota Land Cruiser Jeeps duty free. Accordingly three directors of The Finance Company were dealt according to law and a penalty of Rs.7,317,483 was imposed. The company honoured the order and paid the penalty.

51. However, when the inquiry into the forth vehicle imported by Ranatunga was commenced I had to face a fierce resistance from Ranatungas. I was threatened to abandon the inquiry. Reggie Ranatunga, then Cabinet Minister, refused to surrender the vehicle and various plots were used to suppress the inquiry. At the behest of Minister Reggie Ranatunga, then deputy DGC and now the DGC, Sarath Jayathilake ordered me to stop any action on the search warrant issued to arrest the vehicle. In the meantime, the President Kumaranatunga directly intervened and the DGC, Janak Gunaratna was ordered to abandon the inquiry. In fact, further to accusations levelled against him in the parliament, for compel me to leave the country on the death threats levelled against me, Reggie Ranatunga admitted that he had advised his son [Arjuna] not to surrender the vehicle to customs. I have attached hereto the relevant part of the parliamentary proceedings dated 09-10-2001 marked “X33” and is pleaded as part and parcel of this affidavit.

52. I state further that, whatever the pressure brought on me I refused to give into the unwarranted demand, particularly in a situation where one suspect [The Finance Company] had been dealt with according to law. I declined to abandon the inquiry and summoned the parties before me for an inquiry into the fraud. At this stage I was summoned by the DGC and strongly advised to call off the case. By then he had already promised the President that customs inquiry into the fraud would not be continued. It was apparent to me that Ranatunga family had attended at the inquiry relying on the pledge given by the DGC Gunaratna that case would not be heard but postponed until further notice.

53. At the inquiry held into the fraud on 06-09-2001, under extremely difficult conditions, the following facts were established.

a. That the management of Koggala Beach Hotel had illegally disposed four duty free permits. Whereas The Finance Company had imported three vehicles Ranatunga had imported a Mercedes Benz car defrauding the revenue of customs.

a. That Arjuna or his wife Samadara Ranatunga, were neither directors nor shareholders of the Hotel and that Ranatunga had imported the vehicle on a permit issue to the hotel for their private use.

54. I state that at the conclusion of the inquiry [CRTF/304/2001] a mercidez Benz car [Reg. No. 65-3583], which Ranatunga refused to surrender was forfeited in absentia and in-lieu of the vehicle a penalty of Rs. 4,198,255/- was imposed on Samadara Ranatunga, who had been made the scapegoat. The managing Director of the Koggala Beach Hotel who admitted unauthorised disposal of 4 duty free permits was imposed a penalty of Rs.400,000.00 which was paid the Hotel. I state that Ranatunga family, who never expected any action against them, vehemently refused to abide the order and I was compelled to confront very difficult situation for defying the political pressure. I state that as a result my family was subjected to endless intimidation.

55. In these life-threatening circumstances, denied any protection by the government, I realised that the life had become unbearable. In the said circumstances I was offered a placement in the Queen Mary, University of London and I use that golden opportunity, which I considered a blessing in disguise, to leave the country. The government on the other hand was keen to facilitate my demise and hence no hesitation whatsoever I was granted permission to leave the country. I have attached hereto the letter issued in this regard dated 10-09-2001 by the then DGC Gunaratna marked “X34” and is pleaded as part and parcel of this affidavit.

56. I respectfully state that I would never have left the country if not for the endless degrading treatment that I was subjected to for my uncompromising stance against the revenue fraudsters whose actions were openly condoned by the dishonest political leadership. I state that not only myself but my innocent wife who had nothing to do with my duties was also subjected harsh treatment by this fraudster-mafia. She was subjected to intimidation and threats; some times at mid night phone calls threatening the life of the whole family.

57. I state that although I lost everything in my life and decided to leave the country I decided to use that opportunity to educate the people about the true nature in the government business. On 22-09-2001 I invited some media personnel home and informed them as to the true circumstances that surrounded my departure, on the understanding that nothing would be published until I depart from the country. On the following day [23-09-2001] I left the country and on the following weekend the print media exposed the political pressure and the death threats I was subjected to and the true circumstances that led to my departure. I have annexed hereto, a number of such news items marked “X35”, “X36” published in “Ravaya” newspaper dated 30-09-2001 and is pleaded as part and parcel of this affidavit. Another news report published in this regard sometime after I left the country marked “X37” in the “Sunday Leader” dated 27-01-2002 is also attached hereto and is pleaded as part and parcel of this affidavit.

58. I state further that in consequent to my decision to leave the country there was plausible information received about a concocted plot to arrest me at the airport on a fabricated charge. Hence I state that for my future protection I made a complaint to the Mirihana police before departing to the airport. A copy of the said complaint dated 22-9-2001 marked “X38” is attached hereto and pleaded as part and parcel of this affidavit.

59. I state further that, what transpired in the Ranatunga revenue fraud inquiry [CRTF/304/2001], referred to in para 50 above, after my departure was an embarrassment to all honest and upright public officers who fought corruption single-handedly with protection denied by the government, some times sacrificing everything. I state that having waited dust to settle, and succeeded in getting me out of their way, the President directed the DGC Gunaratna shutting the case with a mitigation of my order of the further forfeiture of Rs. 4,198,255/- imposed on Ranatunga. I state that the mitigation ordered by the president is unlawful and has no legal effect. Nevertheless, in keeping with her illegal directive, and paying no attention to the fact that the entire quantum customs duty had been defrauded by Ranatunga, the DGC Gunaratna, closed the case on 19-12-2001 on recovery of a mitigated penalty of Rs 1,000.000/=. I have annexed hereto a newspaper report published in this regard in the “Sunday Leader” dated 27th 01-2002 marked “X39” wherein the government’s deceitful action is brought to light by the print media and is pleaded as part and parcel of this affidavit.

60. I state further that on 09-10-2001, two weeks after my exit, the issue of my exit from the customs amidst death threats was raised in the parliament by some of the members in the opposition. They accused Minister Reggie Ranatunga for the death threats made and compelling me to leave the country. It was further alleged that no straightforward officer could any longer live in the country under the given circumstances and that I had left the country with the family to protect my family from death threats post by Ranatunga. I state that further to these allegations, Mininster Reggie Ranatunga, who was helpless with no answer, went on to make a serious counter allegation. He admitted the fact that he has advised Arjuna Ranatunga not to surrender the vehicle to customs, but denied the allegations on death threats. He alleged further that I solicited a bribe of 2.5 million rupees to abandon the case. The relevant section of the Hanzard [an English translation] dated 09-10-2001 marked “X40” annexed hereto and is pleaded as part and parcel of this affidavit.

61. I also state that allegations made by the Minister Reggie Ranatunga were given publicity by the media controlled by the government. In this situation I sent a letter to the speaker with a copy to the Minister of Finance seeking redress from the serious character assassination charges. I have annexed hereto a copy of the said report sent to the Speaker and the Minister under recorded delivery on 17-05-2002 marked “X41” and is pleaded as part and parcel of this affidavit.

62. I state further that Speaker never responded to my request whereas the Minister sent a reply, which I assert that not worth the paper it was written on. The Minister, with no remedy whatsoever offered, simply informed me that the issue raised requires to be dealt with by the Parliament under Parliamentary Privilege Act and the Standing orders. However, neither the Minister nor the Speaker ever took action in keeping with the Parliamentary Privilege Act or the Standing orders to rectify the character assassination caused by the Minister Reggie Ranatunga. I state that in this background, where I was subjected to endless harassment and also to character assassination I was made to feel abandoned, letdown and of no value by the futile letter sent by the Minister. I state that one of the major facts for my concern was that the severe loss of self-esteem as the allegation was never challenged. I have attached hereto the reply received from the Ministry of Finance dated 31-May 2002 marked “X42” and pleaded as part and parcel of this affidavit.

63. I state further that in Sri Lanka, most of the politicians and the revenue fraudsters work together in their endeavour to defraud government revenue and it has proved by some of the laws enacted to protect the interests of the government revenue fraudsters. For instance the very same Finance Minister, KN Choksy, who failed to take any action on the character assassination charges made by Minister Reggie Ranatunga presented a bill before the parliament offering general amnesty to all forms tax fraudsters who had already found guilty in serious tax crimes. The said law [Act No 10 of 2003] which came into force with effect from 17-03-2003 provided a blanket cover to tax fraudsters and all inquiries and court actions pending against them were withdrawn as a result of this law, resulting loss of billions of revenue to the government. At the second reading of the said tax amnesty bill it was observed by the MP Ronnie de Mel that nowhere in the world such an unprecedented tax amnesty has been granted to revenue fraudsters except Sri Lanka. In fact, it was brought to the notice of the House that the very same Finance Minister, KN Chokcy, who brought the said bill, was defending some of the tax fraudsters in the Court of Appeal who were to be benefited from his amnesty law. I have attached hereto the relevant section of the Parliamentary Debates [Hanzard] dated 19-02-2003 marked “X43” and is pleaded as part and parcel of this affidavit. I state further that later on an application made to the Supreme Court, the said tax amnesty law was declared unjust, illegal and had violated the fundamental rights of the people of Sri Lanka. I state by the time the court pronouncement was made the bill had already become law and serious damage had been done causing a huge loss of government revenue running into several billion of rupees.

64. I state further in these circumstances as I had already lost my fight against the government corruption and made to live in exile, I made public a detailed article in the print media, showing the collusion of the politicians who rule the country with the revenue fraudsters; the mockery of the government fiscal policy designed to protect the interests of the fraudsters not the public interest. I state that the said law enacted by the corrupt politicians is a clear example that showed corrupt politicians have no regard whatsoever for the law enforcement officers, some of whom refused to give into the unlawful demands of the fraudster-political-mafia and risked their livelihood and even the life itself in their fight against government corruption. I have attached hereto a copy this article published in the “Sunday Times” of 27-04-2003 marked “X44” and is pleaded as part and parcel of this affidavit.

65. I state further that in the aforesaid despicable circumstances, where I suffered enormous harassment and ignominy in the hand of the fraudster administration and made to live in exile, the mental and physical suffering I had had a tremendous harmful effect in my whole life. I state that for the endless mental trauma that I was suffering, caused me to take treatments in the UK. I was directed to the Consultant Psychiatrist, Dr Parshall, of the West London Mental Health Hospital by my GP and I had to undergo a treatment of antidepressant medication prescribed by the Psychiatrist. I have set out below the diagnosis of my mental health condition by the said Psychiatrist as “consistent with frank depressive disorder with prominent anxiety symptoms… horrified by his circumstances…” I have attached hereto the said medical diagnosis marked “X45” that contained in the international protection award in the UK marked “X46” and is pleaded as part and parcel of this affidavit.

66. I also state that for the aforesaid agonizing mental conditions I was provided continuous counselling at the Queen Mary, University of London where I was provided advise regarding international protection claim in the UK to avoid further damage to my mental health. I have attached hereto one such peace of advice provided by the Counselling Service of the Queen Mary, University of London [an email dated 29-04-2002, marked “X47” offering their sincere support in claiming protection in the UK and is pleated as part and parcel of this affidavit. I state further under the aforesaid conditions I claimed protection in the UK, in March 2002 from the degrading treatment I was subjected by the corrupt administration in Sri Lanka.

67. I state that the Secretary of State of the government of the UK accepted that I had suffered difficulties because of the corruption within the authorities in Sri Lanka but my claim for international protection was declined on the basis that difficulties that I suffered does not fall with the Geneva Convention reasons for international protection. The decision of the Secretary of State marked “X48” contained in the declaration awarding international protection in the UK marked “X46” is attached hereto and is pleaded as part and parcel of this affidavit.

68. I state that I contested the decision of the Secretary of State in Courts where I presented my own case, and the Court having minutely inquired into my claim and the relevance of the Geneva Convention and the European Convention for the Protection of Human Rights [ECHR] to my circumstances, granted me international protection in the UK under the Article 3 of the ECHR - [Protection from … degrading treatment…] I have attached hereto a copy of the determination of the Court dated 23rd June 2003 marked “X46” and is pleaded as part and parcel of this affidavit.

69. I said further that while I was living exile the DGC, Sarath Jayathilake, by his dated 26-09-2003 required me to report to work, on the basis that the permitted overseas leave had been expired. I state that DGC, who was then the Deputy Director General, is well aware of the horrendous circumstances under which I left the county. I state Sarath Jayathilake, who joined Customs as an Assistant Director just few months after I joined in 1978 as a Officer of Customs, is well aware of the endless harassment I was subjected to through out my career in the Customs; that more than 50% of my service I had been denied work and subjected harassments like arrest, remand interdiction and dismissal. I said further that, in fact, DGC, Sarath Jayathilake himself is partly instrumental for my exit from Sri Lanka for his involvements in the Ranatunga revenue fraud inquiry [referred to in para 50 above]. I state further that, although on paper I had left the country with permission for two years it is in common knowledge that I felt the country with my family in fear of life. I have attached hereto a copy of his letter dated 26-09-2003 marked “X49” and is pleaded as part and parcel of this affidavit.

70. I state that further to the DGC’s letter, I sent a reply drawing his attention to the letter that I had already sent to the Secretary to the Treasury [ST], with a copy to DGC, wherein I have explained the reasons for my exit to the ST, drawing his attention to the tremendous hardship and mental suffering I was subjected to. By the said letter I had requested ST further leave or permission to retire. I have attached hereto a copy of said letter sent to ST dated 18-09-2003 marked “X50” and is pleaded as part and parcel of this affidavit. Further to DGC’s letter dated 26-09-2003, having drawn his attention to the circumstances under which I left the country, I informed him, unless permission to stay away could be extended, I would resign from the public service, yet against my will and ambition. I have attached hereto the said letter sent to DGC dated 03-10-2003 marked “X51” and is pleaded as part and parcel of this affidavit.

71. I state that, DGC, refused to pay any attention to my request for further leave or permission to retire from the public service and only offered an option to resign from the public service. The letter sent by the DGC dated 28-10-2003 marked “X52” is annexed hereto and is pleaded as part and parcel of this affidavit.

72. I state that further to DGC’s letter [marked X52] I sent him a letter dated 22-12-2003 setting out the compelling reasons that led me to leave the country. I informed him that I would not resign from the public service on my own accord. The aforesaid letter also informed him that I would return to the country once the political climate is conducive under a honest and transparent administration genuinely accountable to the people. The aforesaid letter marked “X53” is attached hereto and is pleaded as part and parcel of this affidavit.

73. I assert that DGC, Sarath Jayathilake denied further leave or permission to retire from the public service but only offered resignation with a purpose. I state that he wanted to take vengeance as I had reported him to the Minister of Finance and the Speaker [then he was the Deputy DGC] regarding his connivance in the Ranatunga revenue fraud inquiry [Referred to in para 50 above]. I have attached hereto the said letter sent to the Speaker and the Minister of Finance dated 17-05-2002 marked “X41” and is pleaded as part and parcel of this affidavit. I state that in the said fraud inquiry, Sarath Jayathilake, then Deputy DGC ordered me to refrain from taking action on the warrant issued against Ranatunga. I strongly believe he ordered me to do so at the behest of the then Minister Reggie Ranatunga. I state further that once I refused to carryout his orders and found Ranatunga guilty Mr Sarath Jayathilake made a baseless complaint [insubordination] against me to the then DGC Gunaratne. I state that regarding his complaint I was compelled to give an explanation to the DGC Gunaratna and once I explained him about Jayathilake’s misconduct and that I am not bound by his unlawful order the DGC Gunaratna dropped further action on his complain.

74. I state that in the aforesaid circumstances DGC’s refusal to grant me further leave is unjust, unfair and that DGC has failed to appraise the true circumstances that led to apply for further leave or permission to retire from the public service; that his decision is based on irrelevant considerations. I also state that I have been subjected to discrimination by his decision since there are a number of other officers who were granted leave up to 5 years. I state that some of these officers have not returned to the Department after the expiry of the leave but the DGC never bothered to serve vacation of post notice on them, whereas prompt action taken to ensure termination of my service just after 2 years. For instance Customs Officer [ASC] Ravi Rupasinghe was granted 5 years leave but he never reported for duty after the lapse of five hear period but DGC never serviced him with a vacation of post notice. I state further that Customs Officer Anura Gunathilake, Nandana Perera, Prasad Kodippily and Director of Customs Nevile Gunawardana were also granted five years overseas leave but when it came to me I was treated differently because the corrupt administration aspire my exit for good from the public service.

75. I state further that DGC refused to pay any attention my letter dated 22-12-2003 [marked X53] and informed me that unless action is taken on or before 31-03-2004 to pay a sum of Rs 84,583.33, enabling him to accept my resignation, action would be taken on the assumption that that I have vacated the post. I have attached hereto the said letter dated 18-03-2004 marked “X54” and is pleaded as part and parcel of this affidavit. I also state that on the orders of the DGC payments of all my rewards also withheld indefinitely. I said that in these circumstances I informed the DGC that if no further leave or retirement could be authorised to take any action, as he deemed appropriate, which would be challenged in any event. I have attached hereto the copy of said letter dated 29-03-2004 marked “X55” and is pleaded as part and parcel of this affidavit.

76. I said that despite the fact I had informed him that I am not prepared to resign from the public service the DGC proceeded to recover the sum of Rs 84,583.33 [the amount of money notified to be paid to accept my resignation] from my reward money withheld and then demanded my consent for resignation from the public service. I have attached hereto the letter sent in this regard by the DGC dated 11-05-2004 marked “X56” and is pleaded as part and parcel of this affidavit. I also state that having recovered the aforesaid money action was taken to pay the balance rewards withheld.

77. I state that this unilateral action by DGC, taken against my will and consent, is manifestly illegal and has no legal effect. In this background I refused to respond to his demand for my resignation. Then, having failed to get my consent for resignation the DGC served me with a vacation of post notice, which I received on 19-06-2004. The DGC has served this notice on the assumption that I had vacated the public service with effect from 19-09-2003. I have attached hereto the DGC’s letter sent in this regard dated 04-06-2004 marked “X57” and is pleaded as part and parcel of this affidavit.

78. I respectfully state that the action by the DGC to termination my service in manner, is unfair, unwarranted and against all norms of justice and against my fundamental right to protection from degrading treatment, and protection from the unequal treatment guaranteed by the Constitution. I state that DGC has absolutely failed to take into notice the compelling circumstance under which I left the country to protect my family. He had also refused to take into notice the fact that I have performed my statutory duty against the organised political-fraudster-mafia amidst death threats and I had been a victim of systematic persecution for a period of well over two decades. I state further that the treatment meted out to me by the DGC is simply a disgrace and smack on the back on all the honest public officers who sacrificed everything in upholding the law and order of the country in the interest of the people.

79. In the aforesaid circumstances I respectfully invoke the jurisdiction of the Court to quash the vacation of post notice served on me by the DGC and to uphold that my right to protection from degrading treatment and protection from unequal treatment guaranteed by Article 11 & 12 of the Constitution had been had been violated by the Executive.

80. I also respectfully invoke the jurisdiction of the court, considering the overwhelming circumstances of persecution that I had been subjected to by the elements in the corrupt Executive, to order the government [the DGC] to grant me further leave and/or permission to retire from the public service with a right to return to the public service if at all I deem the political climate in the country is conducive to do so.

81. I also respectfully seek an order against the DGC, to pay damages of a sum of Rupees One Million, which I assess as reasonable for the violation of my fundamental rights guaranteed by Article 11 & 12 of the Constitution.

82. I state that I have not invoked the jurisdiction of your Lordships court on this matter before.

Readover and explained and affirmed to ]
And signed in my presence in London on]
this 4th day of July 2004 ]

Nagananda Kodituwakku Date

[/b]

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