Supreme Court of Mauritius, 13 mars 2020, 2020 INT 54 – POLICE VS FOWDAR VARMA

POLICE VS FOWDAR VARMA

2020 INT 54

POLICE VS FOWDAR VARMA Cause Number: 512/18 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS FOWDAR VARMA JUDGMENT INTRODUCTION The Accused stands charged with the offence of drug dealing – possession of cannabis for the purpose of delivery with aggravating circumstances in breach of sections 30(1)(f)(i), 41(1)(i)(2) and 47(5)(a) of the Dangerous Drugs Act. He pleaded not guilty and was not assisted by Counsel. The particulars of the charge against the Accused are that on the 16 th September 2015, he unlawfully and knowingly possessed 2.65 grams of cannabis contained in two parcels for the purpose of delivery. It is alleged that the offence was committed in Grand River North West Prison, being a penal institution.

THE FACTS In the year 2015, Mr Betchoo was a principal prison officer and was posted at the Grand River North West prison. He was in charge of the search room and his duty consisted in effecting a search on all prison officers who walk in prison. He testified that on the 16 th

September 2015, at about 9 a.m, a prison officer, namely the Accused, walked in the search room. Mr Betchoo asked him to remove his shoes and socks and in the midst of the search, Mr

Betchoo found a prohibited article wrapped in cellophane paper which had fallen off the sock of the Accused. Upon being questioned, the Accused got scared and averred that he did not know about the article. Mr Betchoo called for a superintendent and carried out a further search. He opened the cellophane wrapped article and found that it contained dry leaves suspected to be cannabis. The ADSU was called and a search in the Accused’s locker revealed mobile phones and money. The dry leaves were secured as exhibits and sent to the Forensic Science Laboratory (FSL) which examined same and identified the leaves as cannabis (Gandia) as per the FSL report produced in Court. The version of the Accused is contained in his statement given to the police. He explained that on the 16 th September 2015, he was on duty at Grand River North West prison when one detainee, Mr Nadeem asked him to collect a parcel at a hide out place near the bus close to the filling station at Grand River North West. At about 08 20 hours, he went to the spot and took the parcel which he put in his left sock before heading back to Grand River North West prison. There reaching, as per established practice, he was searched and Mr Betchoo found the parcel. Thereafter, he was stripped searched and nothing incriminating was found. The Accused confirmed that he knew the contents of the parcel as Mr Nadeem told him.

OBSERVATIONS I have assessed the evidence on record. Before I dwell in the merits of the case, I have taken note of the defence line of cross-examination to the effect that he underwent 2 rub down searches and 1 strip search. He contended that ASP Auzin was not on spot at the time of the rub down search and the exhibit was only secured from him at the time of the strip search. On this score, I have assessed the evidence of Mr Betchoo, ex principal prison officer. He maintained under oath in Court that he conducted the rub down search in presence of ASP Auzin whereby he secured the drugs from the Accused’s sock. I find that Mr Betchoo came across as a witness of truth. He deposed well and confidently and stood up to cross- examination without waver. I find no reason to doubt this version as being true. In addition, the Accused himself conceded in his statement to the police that ASP Auzine was present at the time of the rub down when the exhibit was secured. This negates his own line of defence that ASP Auzine was absent and the exhibit was secured at the time of the strip search. Moreover, the Accused summoned the commission of Prisons to depute an officer to

give evidence with regards the camera footage on the 16 th September 2015. To that effect, ASP Ramdhany was called as a defence witness and he testified that according to the CCTV footage camera dated the 16 th September 2015, at 09 01 hours, there were 4 officers present, that is the Principal Prison Officer Mr Betchoo, Assistant Superintendent Prison Officer Mr Auzine, Officer Venkatasamy and Officer Edward. They were present when a search was effected on the Accused at 09 02 hours. I find the version of ASP Ramdhany based on independent evidence through a CCTV camera to credit the version of the Prosecution. I find little credence in the version of the defence to the effect that he underwent 2 rub down searches, that ASP Auzine was absent and the drugs were secured from him in the midst of a strip search. I have further noted that the Accused elected not to address the Court when he was explained his Constitutional rights but after ASP Ramdhany deposed, he suddenly stated that he underwent two searches and ASP Auzine was absent. Given the statement of the Accused in the midst of the testimony of ASP Auzine which is in breach of procedural exigencies, his own confession that he underwent 1 rub down search in the presence of ASP Auzine where the drugs were secured and the credible testimonies of Mr Betchoo and ASP Ramdhany, I find that I cannot attach any weight to the version of the Accused regarding the searches upon him. I find that the defence has not cast any doubt on the Prosecution case. In relation to the merits of the case, the Accused is charged with the offence of drug dealing. To establish the case against the Accused, the Prosecution must prove the following elements of the offence: (i) possession of drugs; (ii) for the purpose of delivery; (iii) aggravating circumstances.

THE GENERAL PRINCIPLES IN RELATION TO POSSESSION OF DRUGS The concept of possession of drugs has been well laid down in the case of CHORAMUN I v STATE OF MAURITIUS (2014) SCJ 69 . In this case, the basic principle in relation to possession of drugs as explained in DPP V BROOKS (1974) AC 862 which were reproduced in OMARSAIB V THE STATE [1996 SCJ 30] were cited in approval, namely that –

“In the ordinary use of the word ‘possession’ one has in one’s possession whatever is, to one’s own knowledge, physically in one’s custody or under one’s physical control.” It has further been laid down in the case of NAWOOR VS THE QUEEN (1948) MR 104 quoted in approval in the case of CURPENEN VS THE STATE (2000) SCJ 245 that: “(…) it was not necessary to establish manual possession; it was essential, however, in our judgment that there should have been proof of some “overt act” or circumstance connecting that particular accused with the articles found; thus justifying the inference that those articles were at least under his control, exclusive or joint”.

POSSESSION OF DRUGS In the present case, I have assessed with care the version of Mr Betchoo. He testified in his capacity as a principal prison officer whose duty consisted in searching every officer who walks in Grand River North West prison in line with the established rule and practice. He deposed credibly in Court and explained that upon searching the Accused, he found a parcel containing cannabis in the latter’s sock. He spoke easily and without any hesitation and I find no reason to doubt his version that he searched the Accused in presence of ASP Auzin before performing a strip search on the Accused. It was during the rub down search that he secured the drugs from the Accused. In his statement to the police, the Accused also conceded that when Mr Betchoo searched him, he found a parcel containing drugs in his sock. The Accused never challenged the contents of his statement which I find admissible and reliable. The Accused even went further to explain that he went to fetch the parcel outside the prison to remit same to a detainee called Mr Nadeem. The Accused has admitted knowing the contents of the parcel and hence, he knew that he was collecting drugs to be delivered in the prison to a detainee. I deem it to refer to the case of WARNER V METROPOLITA N POLICE COMMISSIONER (1969) 2AC 256 where the concept of possession was defined as follows: “POSSESSION, the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a

sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possession… …”. The question resolves itself into one as to the nature and extent of the mental element which is involved in “possession” as that word is used in the section now being considered. In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was asserting to being in control of it”. Applying the above dicta in the present case, I find that the Accused had knowledge and control over the drugs. The overt act connecting the Accused to the drugs is his confession that he collected the drugs, knowing the contents thereof, and the fact that he kept same in his sock in his possession. I therefore find that the Accused was in possession of cannabis.

FOR THE PURPOSE OF DISTRIBUTION Having found that the Accused was in possession of cannabis, I shall proceed to determine whether the Accused was in possession of same for the purpose of delivery. At this juncture, I deem it fit to refer to the case of J B BERNARD VS THE STATE (2012) SCJ 31 , where the Court reiterated the principle that: “It is not necessary under a charge under section 30(f) of the Dangerous Drugs Act 2000 (possession for the purpose of any of the activities specified under the section) for the prosecution to prove that any of the intended and specified activities did actually take place. It is enough for the prosecution to adduce such facts as to show that the possession was for the purpose of the activities: i.e. sale, import, export, production, manufacture, extraction, preparation, transformation, distribution, brokering, delivery, transportation, cultivation etc as the case may be.”

In the case of PUTTAROO VS THE STATE (2008) SCJ 92 , the Court further laid down as follows: “No doubt it is difficult to have direct evidence of the intention and this can only be inferred from surrounding circumstantial evidence”.

I have therefore considered all the circumstantial evidence in this case to determine if the Accused was in possession of drugs for the purpose of delivery.

The quantity of drugs It is a general principle that the quantity of drugs involved is reflective of the purpose of selling or distribution. In the case of STATE VS ASSAME H D AND ANOR (2011) SCJ 177 , the Court found that given the quantity of drugs involved and the street value thereof, “the only logical, reasonable and irresistible inference that can be drawn is that the drug could not have been meant for their consumption but was meant for distribution or supply”. The police secured 2.65 grams of cannabis and bearing a value of Rs 2,280 from the Accused. I find that the quantity of the drugs secured from the Accused is reflective of a drug dealing transaction. (RE: SHERIFF VS R (2008) SCJ 92).

Co-existing circumstances I have borne in mind that before the Court can reach the conclusion that the Accused was in possession of drugs for the purpose of delivery, it must consider whether “there are no other co-existing circumstances which could either be consistent with the fact that the drugs were meant to be used for the appellant’s (Accused’s) consumption or could weaken or destroy the inference”. (RE: LOBINE VS THE STATE (2004) SCJ 326). In the present case, I have considered if there are any co-existing circumstances or evidence to confirm that the drugs found on the Accused were meant for delivery. I have noted the version of the Accused to the effect that he went to collect the parcel containing drugs from a hide out place with the intention of handing same over to a detainee at the Grand River North West prison. In so doing, it is clear that the Accused was in possession of cannabis for the purpose of delivery to a detainee. Moreover, the Accused explained to the police that he earned about Rs 15,000 monthly. He has a monthly expense of about Rs 5,000 to Rs 6,000. This will leave the Accused with a spending allowance of about Rs 9,000. In the circumstances, I find no justifiable reason why the Accused would keep Rs 5,978 and 2 mobile phones in his locker at work. I find that the money

secured from the Accused is consistent with the fact that the Accused was indulged in drug dealing activities. Taking into account all the co-existing circumstances, namely the quantity of the drugs secured, the way in which the Accused conveyed the drugs to prison for the purpose of handing same to a detainee, and the money as well as the mobile phones secured from the Accused, I find that they support the inference that the drugs were meant for delivery. There are no factors or circumstances which destroy this inference. I therefore reach the logical, reasonable and irresistible inference that the drugs secured from the Accused was for the purpose of delivery.

Aggravating circumstances For the purposes of section 41(1)(i) of the Dangerous Drugs Act, aggravating circumstances are deemed to exist when the offence is committed in a penal institution. In the present case, the offence was committed in Grand River North West prison which is a penal institution. I therefore find that the Prosecution has established that the Accused committed the offence of possession of cannabis for the purpose of delivery with aggravating circumstances.

CONCLUSION In light of the above, I find that the Prosecution has proved its case beyond reasonable doubt. I find the Accused guilty as charged for the offence of drug dealing – possession of cannabis for the purpose of delivery with aggravating circumstances in breach of sections 30(1)(f)(i0, 41(1)(i)(2) and 47(5)(a) of the Dangerous Drugs Act.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 13 th March 2020