The hearing before the Colombo Permanent High Court-at-Bar, concerning the misappropriation of Rs. 144.4 million in public funds through the procurement of substandard Immunoglobulin and Rituximab for government hospitals, was yesterday dedicated to the cross-examination of witnesses and legal inquiries regarding the authenticity of documentary evidence presented as case productions.
The trial was taken up before a Trial-at-Bar bench comprising Presiding Judge Priyantha Liyanage, alongside Judges Viraj Weerasuriya and Thilakarathna Bandara.
Testimony of Buddhika Nishan, Pharmacist at the Medical Supplies Division
Counsel Asela Serasinghe, representing the second accused, conducted the further cross-examination of Buddhika Nishan, who had commenced his testimony the previous day.
• Suspension of the Drug: The witness stated that following notification from the National Medicines Regulatory Authority (NMRA) regarding the suspension of the Immunoglobulin drug, he took the necessary steps to update the ‘Swastha’ system and maintained the relevant minute notes.
• Company Information: He noted that although the email dispatched by the NMRA identified the company as ‘Live Health Bio Pharmaceutical Private Limited’, he cross-checked the system and took measures to rectify the name. He testified that the drug was supplied by ‘Live Health’ and ‘Reliance’, and that he verified the details against the drug and its SR number, publishing the confirmed information on the Swastha system for public visibility.
• Issuance of Circulars: The witness further testified that he drafted the circular to ‘withdraw’ the drug and forwarded it to the Director via two superior officers. Clarifying standard procedures, he explained that while a ‘withheld’ drug could potentially be reinstated for use, a ‘withdrawn’ drug cannot be reused under any circumstances. He confirmed that there was no obstruction or undue influence from Director Dr. Kapila Wickramanayake in issuing this circular.
During re-examination by the Deputy Solicitor General (DSG) on behalf of the prosecution, the witness affirmed that he dispatched the required email to ‘withhold’ the drugs based on verbal instructions received, and subsequently secured formal approval for the action.
Testimony of Minduli Jayamanna, State Health Manager at the Health Minister’s Office
The witness testified that she had been employed at the Ministry of Health since 2011, and by 2023, was attached to the personal staff of the then Minister of Health, Keheliya Rambukwella. She formally identified Mr. Rambukwella, who was present in the dock.
The exchanges between the Deputy Solicitor General and the witness were as follows
• Recording Meeting Minutes: “I attend to take minutes when notified by the Minister’s Private Secretary (Amali Rambukwella) or a staff officer. I was not provided with a specific duty roster. Discussion minutes were primarily maintained by an officer named Eranga; I was summoned only in her absence. Audio recordings were not made; I transcribed what I heard verbatim and later provided a typed copy.” She added that since the notes were for the Minister’s perusal, she was instructed to record them in English.
• Identification of Documents: She confirmed viewing a specific note she had prepared (marked as production 10v63) at the Criminal Investigation Department (CID). She stated she had assigned a title to the document corresponding to the heading on the attendance register for that respective meeting.
• Deletion of Computer Data: She further revealed that all soft copies of these typed minutes were deleted when the Minister vacated his portfolio, claiming this was a routine administrative procedure.
Cross-Examination by Counsel Nayantha Wijesundara for the Eighth Accused
Upon confirming the witness’s participation in the meetings held on September 05 and October 10, 2022—which she admitted took place in the auditorium adjacent to the Minister’s office—the defense counsel commenced his cross-examination.
• Legal Debate on the Plea of Alibi: Counsel Nayantha Wijesundara: “Are you aware that by September 5th, the eighth accused had travelled to Bhutan to attend a World Health Organization conference?” (The Deputy Solicitor General raised a strong objection at this juncture, prompting the court to ask the witness to temporarily step outside).
• Deputy Solicitor General: “My Lord, if the defense is advancing an alibi that the eighth accused was in Bhutan on 2023/09/05, as per Section 126 (A) of the Code of Criminal Procedure, it must be recorded in the initial statement or notified within the stipulated timeframe of the indictment. His statement provided on 2024/02/02 makes no mention of him being in Bhutan.”
• Counsel Nayantha Wijesundara: “My Lord, there is no assertion that a criminal act was committed on this specific day. For a criminal offense to occur, there must be both criminal intent and a criminal act (mens rea and actus reus). If a crime was being committed, charges should be filed against all those present. Furthermore, My Lord, who commits a fraud by formally convening meetings, taking minutes, and maintaining records? If one is committing a crime, who keeps the minutes?”
• Deputy Solicitor General: “The charge of conspiracy is explicitly stated from the very first count. A conspiracy does not materialize in a single day. If an alibi is being invoked, it must be declared following due legal process.”
• Judicial Order: Presiding Judge Priyantha Liyanage declined to allow the cross-examination question, ruling that an alibi cannot be advanced in any alternate manner if the mandatory requirements of Section 126(1) of the Code of Criminal Procedure have not been satisfied.
Meeting Minutes and Disciplinary Inquiries:
Following the recall of the witness, the defense counsel continued his probing. The witness acknowledged that the minute note dated 2023/12/05 (marked 1v13) indicated the attendance of Additional Secretary of Health, Mr. Nawawi, assigning him responsibilities as “Additional Secretary Procurement.” When the counsel suggested no such responsibility was officially delegated to Mr. Nawawi, she maintained that she transcribed what she heard and that the Secretary had authorized it with his signature.
The counsel then revealed that the witness is currently facing a disciplinary inquiry. She admitted to this, stating, “A disciplinary inquiry is being conducted based on political motives, accusing me of leaking information to Facebook regarding vehicle and fuel quotas allocated to the Minister’s personal staff. There is no inquiry regarding the meeting minutes.” She firmly rejected the counsel’s suggestion that she was testifying favorably for the prosecution to secure leniency in her ongoing investigation.
• Destruction of Original Notes and Marking of Omissions: The defense highlighted that minutes 10v63 and 10v53 were recorded specifically for the Minister’s requirements—a fact omitted in her CID statement. The court formally marked this as an omission.
• Counsel: “For what reason were the relevant minutes handwritten? Where are those A4 sheets?”
• Witness: “I take down shorthand notes so that I can read them. After typing out the comprehensive document, the original sheets are destroyed.”
• Counsel: “Is it justifiable to destroy the original notes of such a critical record? I put it to you that your claim of participating in that meeting and taking minutes is an absolute fabrication.”
• Witness: “No, My Lord, I wrote them after actively participating in the meeting.”
Regarding the typed soft copies, her admission that they were deleted upon instructions received when the Minister vacated office was also marked as an omission, as it was absent from her CID statement.
Allegations of Misusing State Property and Document Tampering
Presenting the hard copies of the documents to the witness, the counsel pointed out multiple staple holes in a mere three-page document, suggesting potential tampering. Counsel: “A single staple leaves only two holes. There are numerous holes here, are there not? I put it to you that you are misusing state property. Does a three-page document require multiple staples?” Witness: She admitted to stapling the three-page minute note twice and acknowledged the presence of multiple staple holes. The prosecution objected to this line of questioning, stating that the Government Printer would need to be summoned to verify such claims. The defense counsel retorted, “That is excellent. Tell them to come and testify.
- Dispute Regarding the Minister’s Presence on 2022.10.10:
- Finally, the defense counsel suggested that by 10:00 a.m. on October 10, 2022, the eighth accused was not physically present at the Ministry of Health. The prosecution strongly objected.
- Judge Priyantha Liyanage: “This is not an alibi. The assertion here is merely that the accused was absent from that specific location. An alibi strictly involves claiming physical presence at a different, specific location at a given time.”
- Deputy Solicitor General: Maintained the objection under Section 126 (A) of the Evidence Ordinance, arguing it still constitutes an issue of alibi.
- Counsel Nayantha Wijesundara: Clarified that he did not claim the accused was at another specific location, but simply highlighted his absence from the Ministry. He further emphasized that the fact the Minister was elsewhere at that time is corroborated by a ‘Dialog telephone records list’—a case production submitted by the prosecution itself.
The court adjourned the day’s proceedings, postponing the delivery of the ruling regarding this final objection to the next trial date.