Kuala Lumpur High Court Abdul Kadir Musa has declared that the arrest and detention of human rights lawyer P Uthayakumar on Sept 9, 2004 "invalid and unlawful".

The arrest and detention was considered invalid and unlawful respectively because the notice was "service ineffective' as it was not served personally by the investigative officer DSP Gan Tack Guan to Uthayakumar.

The law under section III (ii) requires DSP Gan to personally serve the notice to Uthayakumar, he pointed out.

DSP Gan issued the notice dated June 17, 2004, addressed to Uthayakumar and it was delivered by L/Cpl Zulkifli Samsudin to his lawyer M Manoharan's office. The notice has the effect of ordering Uthayakumar to personally be present at Kuala Lumpur Police Contingent Headquarters, Main Criminal Division on June 24, 2004 for the purpose of investigation to provide information to the police about allegations he has made.

"The notice under section III of the Criminal Procedure Code (CPC) was not served personally to the applicant (Uthayakumar)," Abdul Kadir said in his judgement yesterday.

The judgement also read, "As such, UK-9 (notice) must therefore be served by DSP Gan himself and not L/Cpl Zulkifli as reflected by the intended words in the issuance of a warrant of arrest under section III (ii) of the CPC."

Uthayakumar was arrested in his office in Bangsar, Kuala Lumpur, on Sept 9, 2004 by the police for failure to cooperate with them in investigations into several assault reports lodged by him.

The reports he referred to were made after he alleged that the police had assaulted him and damaged his car. Since then the police had sought to obtain a court order to compel the lawyer to present himself at a police station to give a statement regarding the report.

He was released four hours later after police officers produced him before a magistrate. Then, the police recorded a statement from him at the Brickfields district police headquarters.

Did not trust police

Uthayakumar reiterated in his statement that he did not trust the police to investigate his case as they were the perpetrators themselves. He said he asked for the matter to be taken up by independent bodies like the Police Royal Commission and the Human Rights Commission of Malaysia (Suhakam).

The judge further said that DSP Gan, as senior police officer in section II of the 1967 Act should be the one to deliver the notice to Uthayakumar and not allow a constable to handle the job.

Abdul Musa also said that the police arrest warrant was not properly issued and cancelled. Subsequently, Uthayakumar's detention was unlawful as consequential effect.

When met later, Uthayakumar expressed his joy at the judgement, declaring that "justice has prevailed."

Ipoh Barat MP M Kulasegaran was also present in the court to lend his support.