Avant Garde floating armoury operated legally: Trial-at-Bar Bench

Delivering its judgement regarding the Avant-Garde floating armoury case, the Colombo Trial-at-Bar has ruled that the floating armoury had been operated in accordance with a legal agreement reached between the State-owned Rakna Lanka Security Company and Avant Garde Maritime Security Services Company in line with a Government policy decision.

Against this backdrop, the Trial-at-Bar Bench held that the prosecution had to be more watchful when filing criminal charges against the accused since there is a significant lack of regulations governing floating armouries at international level as well.

Accordingly, Colombo High Court Trial-at-Bar Bench comprising High Court Judges Adithya Patabendi, Manjula Thilakarathne and Mahen Weeraman unanimously ordered to acquit and release Avant-Garde Chairman Nissanka Senadhipathi and seven others from all charges filed against them over floating armoury case.

The Court held that there is no evidence transpired in Court under any circumstance to support the fact that the floating armoury was operated in an illegal manner.

Therefore, the Court maintained that there is no legal basis for arresting the accused. The 13th accused Victor Samaraweera had been arrested for merely being the Chairman of Rakna Lanka Security Company. He was a retired public service officer who had completed 34 years service. The sixth, eighth and ninth accused were arrested for being employed in these companies. The Court held that arrest should be made based on the accepted facts and substantial evidence following a comprehensive investigation.

Meanwhile, High Court Judge Adithya Patabendige observed that when analyzing these facts, a situation has arisen to reconsider the criminal justice process in the country.

At the time the indictments were read out to eight accused including a Ukrainian national, they pleaded not guilty to the charges. The entire trial proceeded with the assistance of a Russian translator following the request of the Ukrainian national who was the captain of the vessel.

On behalf of the prosecution, Nilantha Heenatigala, Widya Gamage Pradeep Weerasinghe, Mahohara Bandara Weththewa, Ravindra Wijegunawardena, Karunasena Hettiarachchi, Kalanamithra Jinadasa, Chandrakanthi Jayasinghe,  Priyangani Basnayake, Inoka Priyadarshani, Aluthge Senarath and Madhushani Weerasekara had given evidence as the prosecution witnesses in the case. The essence of prosecution evidence was that except three firearms, rest of firearms and live ammunition were not licensed when the MV Avant Garde floating armoury was taken into Navy custody on October 6, 2015 under the instructions of the Navy Commander.

The case was mainly centered on 7549, 7560 and 7571 counts which were filed for operating vessel ship MV Avant Garde carrying a stock of 813 firearms including automatic firearms and 200,935 rounds of ammunition in the seas off Galle.

The seventh accused Nissanka Senadhipathi in his evidence had said the Ministry of Defence had given permission to Avant- Garde Company to operate a floating armoury together with Rakna Lanka Security Company in the Red Sea. He said although this project had gained international recognition, indictments were filed against him maliciously.

Former Defence Secretary Karunasena Hettiarachchi testifying before the Court as a prosecution witness had mentioned that the floating armoury operated by Avant-Garde and Rakna Lanka in the Red Sea was a legal operation. Since the Avant-Garde Company does not have legal authority to possess firearms and live ammunition, the Rakna Lanka Security Company was authorised to possess them because it was established as a company belonging to the Government. The main investigative officer Chief Inspector Aluthge Senarath (89th witness) had given evidence to the effect that firearms given for the Rakna Lanka Company had been issued by the Sri Lanka Army, Air Force and Navy under the instructions of the Defence Secretary. It was further revealed that a certain amount of firearms had also been purchased by the Rakna Lanka Company itself.

The Court was of the view that all the firearms and live ammunition in the possession of Rakna Lanka Security Company belonged to the Ministry of Defence. Thereby, the Court held that there is no necessity to obtain a license in terms of section 30(1) of the Explosive Act.

In terms of the charge number 7571, the prosecution alleged that the three accused including Avant Garde Chairman Nissanka Senadhipathi had fabricated evidence insisting that they forwarded an application to the Ministry of Defence requesting permission to operate the vessel MV Avant Garde carrying weapons and ammunition from Red Sea to Galle Port. The Trial-at-Bar Bench held that there is no cogent evidence to support the claims that the accused have fabricated evidence by presenting a forged document.

Having analysed the evidence placed before Court, the Trial-at-Bar Bench ordered to acquit former chairman of Rakna Lanka Company Victor Samaraweera, Wishwajith Nandana Diyabalanage, Sumudu Nilupul Costa, former Additional Secretary to the Ministry of Defense Saman Dissanayake, Albert Thilakaratne and the Ukrainian national Gennadiy Gavrylov who served as the captain of the ship. P. B. Premachandran, who was named as another accused in the case, had passed away during the trial.

Initially, the Attorney General had filed indictments comprising 7,573 charges in connection with this Avant-Garde floating armoury case against the 13 accused.

Subsequently, the defence raised preliminary objections challenging the maintainability of those charges and Trial-at-Bar ruled that out of 7573 charges only 19 could be maintained.

Senior State Counsel Janaka Bandara with State Counsel Shakthi Jagoda Arachchi and State Counsel Akila Dalpadadu appeared for the Attorney General.

President’s Counsel Sampath Mendis with Kuvera de Zoysa PC, Senior Counsel Ajith Pathirana, Senior Counsel Gamini Alwis, Counsel Sanjaya Ariyadasa, Asela Serasinghe, Iresh Seneviratne and Harith Hettiarachchi appeared for the defence.

 

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