Former Colombo additional magistrate Thilina Gamage was enlarged on bail today by Gangodawila Magistrate Kanishka Wijeyratne in the case in which he is accused of keeping an elephant in contravention of the Public Property Act and the Fauna and Flora Act.
He was released on four sureties of Rs. 2.5 million each and cash bail of Rs.500,000. The magistrate also imposed a foreign travel ban on him and ordered him to report to the CID on the last Sunday of every month .
The magistrate also ordered the suspect to report to the CID next Tuesday to provide a statement in connection with the inquiry.
Mr. Gamage surrendered in Nugegoda Magistrate's Court yesterday, through a motion, over the inquiry conducted by the CID against him regarding the possession of an elephant in contravention of the Public Property Act and the Fauna and Flora Act.
The CID had filed a facts report on June 1 naming the former magistrate as the fourth suspect in the inquiry in which three other persons -- Upali Padmasiri, Priyanka Sanjeewani and Chandraratne Yatawara -- were also named as suspects.
The CID in the ‘B’ report stated the allegations against the suspect as abetment, conspiracy and cheating under sections, 102, 113, 398 and 400 of the Penal Code and section 5(3) of the Public Property Act.
However, on an earlier occasion the suspect's counsel had requested anticipatory bail over the incident in the Nugegoda Magistrate's Court, and the court had noticed the prosecution to appear in court yesterday to respond to it.
Following the presence in court of the former magistrate Gamage, the defence counsel recalled the anticipatory bail request.
Submitting the bail application, counsel Ali Sabri PC and Ajith Pathirana PC, who appeared for the suspect, said that according to amendment 22, 2009, to the Fauna and Flora Act, under the specific provision of section 21(3) (2) of the amendment, non-bailable offences relating to the Act should be considered in relation to the Bail Act.
However section 22A (12) of the Amendment says that an elephant without a licence can be regarded as an elephant which was taken illegally from the wild and therefore was public property. And it has special provisions under the Public Property Act when considering bail.
Counsel also held that even though the section 22A (12) of the Amendment, contradicts with the special provision, the specific provision shall take the precedence over the general law according the rule.
Counsel also said the Public Property Act cannot be related to the elephant of the suspect when considering bail for the suspect, since the suspect once had a valid licence from the seller, Chandraratne Yatawara, and should be regarded as a bona fide buyer.
However, Senior State Counsel, Dileepa Peiris, appearing for the Attorney General’s Department, told Court that the other suspect, Chandraratne Yatawara, from whom the former magistrate had bought the elephant, had been found by the CID in the Rikillagaskada area and he was the uncle of ‘Ali Roshan’, who is the main suspect in the elephant racket.
The state counsel said that apparently the seller of the elephant was not capable of maintaining an elephant.
He also said that the suspect Yatawara had now disappeared after giving statements to the CID and a magistrate regarding the incident.
The state counsel further stated that the special provision of the amendment, section 21(3)(2), applied only to offences that fell under the Fauna and Flora Act.The state counsel also said that the documents submitted to the Wild Life Department for the registration of the elephant contained false information.
Counsel also said the prosecution had not yet concluded its investigations and that there seemed to be a large scale elephant racket with fraudulent registrations.
He objected to bail as the offence fell under the Public Property Act and as the defence had not submitted any special circumstances in requesting bail.
However, the magistrate considering both parties’ submissions held that under the specific provision of section 21(3) (2) of the amendment of the Fauna and Flora Act, non bailable offences relating to the Act should be considered in relation with the Bail Act.
And he also said that the offences cannot be dealt with under the Public Property Act according to section 22A (12) of the amendment, since the suspect had obtained a licence for the elephant. (Shehan Chamika Silva)