Supreme Court of Mauritius, 20 février 2020, 2020 INT 38 – P v Puron & Another

P v Puron & Another

2020 INT 38

CN710/19 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Side)

In the matter of:- Police v/s 1. Puron Mohammad Shabaz 2. Korumtollee Muhammad Faynan JUDGMENT The Accused Parties stand charged as follows:

1) Under Count 1: Accused No. 1 and Accused No. 2 (hereinafter referred to as A1 and A2 respectively) stand jointly charged with one Count of Drug Dealing: Possession Of Synthetic Cannabinoids For The Purpose Of Selling, contrary to ss. 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs Act (hereinafter referred to as DDA) coupled with [G.N. 242/2013]; 2) Under Count 2: A1 stands charged with one Count of Offering Synthetic Cannabinoids For Personal Consumption, contrary to ss. 35(1) and 47(5)(a) of the DDA coupled with [G.N. 242/2013]; 3) Under Count 3: A2 stands charged with one Count of Possession Of Synthetic Cannabinoids, contrary to ss. 34(1)(b) and 47(5)(a) of the DDA coupled with [G.N. 242/2013]; 4) Under Count 4: A2 stands charged with one Count of Possession Of Articles For Use In Connection With The Smoking Of Synthetic Cannabinoids, contrary to ss. 34(1)(c) and 47(5)(a) of the DDA coupled with [G.N. 242/2013]; and

5) Under Count 5: A1 stands charged with one Count of Possession Of Cannabis, contrary to ss. 34(1)(b) and 47(5)(a) of the DDA.

Both Accused Parties pleaded Not Guilty to Count 1. A1 pleaded Guilty to Counts 2 and 5, and A2 pleaded Guilty to Counts 3 and 4.

The Accused Parties were not assisted by Learned Defence Counsel.

The Prosecutor conducted the case for the Prosecution.

The Proceedings were held in Creole.

The Prosecution Case It was the case for the Prosecution that on or about 18-03-17: 1) Under Count 1: at Rivière Dragon, Camp Diable, in the District of Savanne, A1 and A2 did unlawfully and knowingly possess dangerous Drug for the purpose of Selling, to wit: one piece of transparent plastic enclosing: (i) Synthetic Cannabinoids, MDMB-FUBICA and FUB-AMB in 1,93g of leaf matter wrapped in 19 aluminium foils; and (ii) Synthetic Cannabinoids, 5-Fluoro-AMB, AB-CHMINACA and FUB- AKB48 in 0,04g of leaf matter wrapped in one piece of printed paper with markings “UBS, UBS Transport Ltd”; 2) Under Count 2: at Cité Calyptus, Port-Louis, in the District of Port-Louis, A1 did unlawfully and knowingly offer dangerous Drug to a person for his personal consumption, to wit: A1 did offer Synthetic Cannabinoids, MDMB-FUBICA and FUB- AMB in 0,03g of leaf matter enclosed in 01 aluminium foil to A2 for his personal consumption; 3) Under Count 3: at Rivière Dragon, Camp Diable, in the District of Savanne, A2 did unlawfully and knowingly possess dangerous Drug, to wit: Synthetic Cannabinoids, MDMB-FUBICA and FUB-AMB in 0,03g of leaf matter enclosed in 01 aluminium foil; 4) Under Count 4: at Rivière Dragon, Camp Diable, in the District of Savanne, A2 did unlawfully and knowingly possess articles for use in connection with the smoking of

dangerous Drug (Synthetic Cannabinoids), to wit: 44 sheets of Roll your own cigarette paper contained in a booklet labelled “RIZLA+”; and 5) Under Count 5: at Ramjeawon Lane, Camp Diable, in the District of Savanne, A1 did unlawfully and knowingly possess dangerous Drug, to wit: Cannabis present in 0,48g of leaf matter wrapped in a piece of transparent plastic.

The Defence Case In relation to Count 1 A1, whilst admitting being in possession of the said Drugs (Exhibit I) at the relevant time, denied the charge as per Count 1 in his unchallenged out-of-Court statement (Doc. C).

In Court, A1 elected to exercise his Right to Silence.

A2 admitted being aware of the said Drugs (Exhibit I) but denied the charge as per Count 1 in his unchallenged out-of-Court statement (Doc. D).

In Court, A2 elected to state from the Dock inter alia that he apologised for what he had done, and that he would not do this again.

Analysis The Court will only analyse the evidence in relation to Count 1, given A1 pleaded Guilty to Counts 2 and 5, and given A2 pleaded Guilty to Counts 3 and 4.

The Court has duly analysed all the evidence on Record and all the circumstances of the present matter, and the Court has watched the demeanour of the Prosecution Witnesses with the utmost care.

The Court has duly considered all the unchallenged articles of evidence produced in the course of the Proceedings in relation to the present matter: 1) 01 Forensic Science Laboratory (hereinafter referred to as FSL) Report (Doc. A); 2) 01 FSL Report (Doc. B); 3) 20 aluminium foils (Exhibit I); 4) Rs1600/- made up of different bank notes (Exhibit II);

5) 01 aluminium foil (Exhibit III); 6) 01 pack of Rizla paper (Exhibit IV); and 7) 01 pouliah of Gandia (Exhibit V).

The Court places it on Record that a sum of Rs1600/- was produced in Court (Exhibit II), and that it was a slip of the pen of the Court when on the Court Record (page 09) it is mentioned that there were 06 Bank Notes of Rs200/- that were produced in Court. In fact, a total of Rs1600/- made up of different Bank Notes was produced in Court. This was not challenged by the Accused Parties in the course of the Proceedings, nor was it challenged by the Accused Parties in the course of the Proceedings that the said money had been secured from A1 at the relevant time.

In relation to Count 1, the Court has considered in particular the abovementioned items 2), 3), and 4).

The Court is alive to the fact that evidence of one Accused Party cannot be used against another Accused Party, and the version of A1 is only taken into account for A1, and the version of A2 is only taken into consideration in relation to A2 respectively.

Synthetic Cannabinoids As per the unchallenged FSL Report (Doc. B), the leaf matter in the 19 aluminium foils was examined and analysed, and revealed the presence of Synthetic Cannabinoids, MDMB-FUBICA and FUB-AMB, and the leaf matter contained in the one piece of printed paper with markings “UBS, UBS Transport Ltd” was examined and analysed, and revealed the presence of Synthetic Cannabinoids, 5-Fluoro-AMB, AB-CHMINACA and FUB-AKB48.

The Court is therefore of the considered view that it has been established that the said items as per (Exhibit I) secured at the relevant time were Drugs, i.e. Synthetic Cannabinoids, as mentioned above.

Further, A1 admitted the said substance (Exhibit I) secured from him was Synthetic Drugs (Folio 16 / 226853 of Doc. C).

A2 admitted that the said Drugs (Exhibit I) was secured from A1’s trouser pocket (Folio 16 / 226491 of Doc. D) at the relevant time.

As per PS 9107 Seedam (hereinafter referred to as W1), the said Drugs (Exhibit I) had a value of Rs6000/-.

In light of all the above, the Court is of the considered view it was not disputed and has been established that the said substance secured from A1 (Exhibit I) at the relevant time was Synthetic Cannabinoids for the purposes of the DDA. Possession In relation to “Possession”, the following passage from the case of The State v Chowrimoothoo [2014 SCJ 253] is found to be of relevance:

In R. v. Ashton-Rickhardt (1977) 65 Cr.App.R. 67, Roskill L.J. said:

“… in Warner v. Metropolitan Police Commissioner … it was laid down by the highest tribunal that there could not be possession of a controlled drug unless the accused person knew that the “thing” which was alleged to contain the controlled drug was in his possession, that knowledge of the presence of the “thing” in question was an essential prerequisite to proof of possession and that therefore the Crown had to prove, as part of its proof of possession of the controlled drug, knowledge that the “thing” (which was in fact a controlled drug) was there. As was pointed out, and indeed had been pointed out earlier by Lord Parker C.J. – how can you have possession of something of the existence of which you do not know?”

In relation to A1 and A2 CPL 4796 Ramgutty (hereinafter referred to as W3)’s testimony was somewhat confusing as to which items were secured from which Accused Party, as is apparent from the Transcript. Be that as it may, the Court is of the considered view it has been established that A1 and A2 were jointly and knowingly in possession of the said Drugs (Exhibit I), for all the reasons given below.

A1

At the time of the Enquiry (Folio 16 / 226853 of Doc. C) and in Court from the line of cross- examination adopted by A1, A1 admitted he had been found in possession of the said (Exhibit I) on the spot, on the day in question, knowing same to be Synthetic Cannabinoids.

The Court is therefore of the considered view that it has been established that A1 had full knowledge that the said (Exhibit I) was on his person at the relevant time and place, knowing same to be Synthetic Cannabinoids, and therefore that A1 was knowingly in possession of (Exhibit I) at the relevant time and place.

A2 A2 admitted the said (Exhibit I) had been secured from A1’s person at the time and place in question (A13, A35, and A47 of Doc. D). And from A2’s very own unchallenged out-of-Court statement (Doc. D), it is clear that A2 was well aware that the said Synthetic Cannabinoids were on A1’s person, given the very fact A2 was present at the time A1 bought same, knowing what A1 was buying (A35 of Doc. D).

In Court, from the line of cross-examination adopted by A2, A2 admitted he was well aware of the said Drugs (Exhibit I).

The Court is therefore of the considered view that it has been established that A2 had full knowledge that the said (Exhibit I) was on A1’s person at the relevant time and place, knowing same to be Synthetic Cannabinoids.

In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that it is amply borne out on Record, and that is has been established that A1 and A2 were jointly and knowingly in possession of the said Drugs (Exhibit I) at the relevant time.

For The Purpose Of Selling The issue to be determined at this stage is whether A1 and A2 were jointly in possession of the said Drugs for the purpose selling same.

In relation to “for the purpose of”, the Court finds the following passage from the Authority of Bernard v The State [2012 SCJ 31] of relevance:

[14] […] 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. [15] In that regard, all that was incumbent upon the prosecution to do was to adduce evidence of facts from which the court could draw the inference that the drug was meant for the specified activity or activities. (emphasis added) And as was held in the case of Chengebroyen v The State [2010 SCJ 87], which cited with approval the case of Boodhoo v The State [2004 SCJ 235]:

Indeed in the case of A. Boodhoo v. The State [2004 SCJ 235] it was stated that the burden for establishing the element “for the purpose of selling” would “be discharged by adducing direct or circumstantial evidence, but the standard of proof remains that of proof beyond reasonable doubt. Now, unless an accused party has expressly stated his intention, such an intention can only be inferred from the surrounding facts and circumstances”.

In relation to “selling”, which is not defined in the DDA, the Court bears in mind the reasoning set out in The State v Puttaroo [2008 SCJ 92] which was cited with approval in The State v Assame [2011 SCJ 177]: “As distribution has not been defined in the Dangerous Drugs Act, it must be given its ordinary dictionary meaning (see The State v Puttaroo [2008 SCJ 92]). In the Oxford English Dictionary “distribute” means “hand or share out to a number of recipients or to supply.” Applying the above reasoning of the Authority of Puttaroo (supra) to the present matter, the Court is of the considered view that “sell” is to be given its ordinary dictionary meaning, and in

the Oxford English Dictionary, “sell” is defined as “give or hand over (something) in exchange for money”.

The Court gives itself the warning as to the dangers of acting on circumstantial evidence and bears in mind the principles set out in the Authority of DPP v Jagdawoo & Others [2016 SCJ 100]:

In contrast to direct evidence, circumstantial evidence is evidence of “relevant facts” from which the existence or non-existence of facts in issue may be inferred. Circumstantial evidence “works by cumulatively, in geometrical progression, eliminating other possibilities” (DPP v Kilbourne [1973] AC 729 at p. 758). However, although the weight to be attached to circumstantial evidence is not in any way less than that attached to direct evidence, “It must always be narrowly examined ….. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference” (Teper v Queen [1952] AC 480 at p. 489).

Furthermore, it is highlighted in the Australian case of Hillier [2007] 233 ALR 634 (22 March 2007) that there is an imperative need to avoid a piecemeal consideration of the evidence in a circumstantial case. “It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed” [para. 46]. “All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged.” [para. 48].

A1 A1 denied that the said Drugs (Exhibit I) were meant for the purpose of selling (Doc. C). A1’s explanation was to the effect that he had bought the said (Exhibit I) for his personal consumption, going on to explain that he would have smoked same with A2 as soon as they had got back to his place. Further, A1 explained that he and A2 would have smoked one dose of Synthetic Drug per week, and that each time, they would have done so together (Folios 16 / 226863 of Doc. C).

The very fact A1 gave one dose of Drug to A2 for his personal consumption (Folio 16 / 226862 of Doc. C) significantly undermines A1’s explanation that he and A2 would have smoked the said (Exhibit I) together each time. Had the said Drugs (Exhibit I) in fact been for A1 and A2 to consume together each time, there would have been no need for A1 to give one dose to A2 for his personal consumption. The Court is of the considered view that it can reasonable be inferred that A1 in fact gave A2 one dose of Drug for his personal consumption as a favour for having given A1 a ride on his, i.e. A2’s, motorcycle, and that the remaining 20 doses were not meant for their consumption.

Further, the way the said doses of Drugs were packed, i.e. in 19 aluminium foils (Doc. B) supports the conclusion that the said Drugs were packed in 19 individual aluminium foils in order to be handled with ease. Also, the Court has noted that the said Drugs (Exhibit I) were secured from A1’s rear trouser pocket, and that the money (Exhibit II) was secured from A1’s rear right pocket (Folio 16 / 226854 of Doc. C), which suggests that the said money (Exhibit II) was in fact the proceeds of sale of Drugs. The very sum of money (Exhibit II) secured from A1’s pocked also tends to suggest that the said money was the proceeds of the sale of Drugs, in particular given A1’s own explanation he had not been working since January 2017 and that it was his Father who met all expenses in his Household (Folio 16 / 226852 of Doc. C). No explanation was forthcoming from A1 as to the source of the said money, in light of the above observations.

Further, A1’s version that he went to Cité Calyptus at about 14h00 (Folio 16 / 226861 of Doc. C), where he bought the said (Exhibit I), and was found, more than 02 hours later on a public road, with the said Drugs (Exhibit I) on his person (Folio 16 / 226852of Doc. C), puts in doubt A1’s explanation the said Drugs (Exhibit I) were meant for his personal consumption. At no point in time was it suggested by A1 that the drive from Cité Calyptus back to Camp Diable had taken him more than 02 hours, bearing in mind that 18-03-17 was a Saturday. The question remains as to why A1 was still on a public road with the said Drugs (Exhibit I) more than 02 hours after having bought same, and raises doubts as to A1’s explanation that the said Drugs (Exhibit I) were meant for his personal consumption.

A2 A2 denied the said Drugs (Exhibit I) were meant for the purpose of selling, explaining he and A1 would have smoked same (A13, A43, and A44 of Doc. D).

The Court however finds A2’s explanation that the said Drugs (Exhibit I) were meant for his personal consumption doubtful for the following reasons.

A2 admitted that A1 had given him one dose at the time they bought the said Drugs (Exhibit I) for his personal consumption (A23 of Doc. D). The question arises as to why A1 would have given A2 one dose for his personal consumption, when they were meant to smoke the said Drugs (Exhibit I) together (A43 and A44 of Doc. D).

Also, the very fact that A2 was with A1 on a public road at the relevant time, knowing A1 was in possession of the said (Exhibit I) at the relevant time, significantly undermines A2’s version that the said Drugs (Exhibit I) were meant for his personal consumption. The question arises as to why A2 was still on a public road with A1 having the said (Exhibit I) on his person, more than 02 hours after having bought same.

Further, the fact A2 confirmed it was A1 who had paid for petrol on the way to Cité Calyptus (A35 of Doc. D) suggests that A2 was needed as rider, and further that A1 gave A2 one dose in return for the use of the said vehicle.

In Court, from the Dock, A2 apologised for what he had done, adding he would not do this again.

In relation to A1 and A2 In light of all the evidence on Record, all the circumstances of the present matter taken together, and all the factors highlighted above, the Court is of the considered view that the only reasonable and irresistible inference to be drawn is that A1 and A2 were, at the relevant time and place, jointly and knowingly in possession of the said Drugs (Exhibit I) for the purpose of Selling, for the reasons given above.

The Court is further of the considered view there are no co-existing circumstances on Record which could weaken or destroy such reasonable and irresistible inference that A1 and A2 were jointly and knowingly in possession of the said Drugs (Exhibit I) for the purpose of Selling (Teper (supra) which was cited with approval in the Authority of Vieillesse v The State [2010 SCJ 213]).

Conclusion 1) Under Count 1: In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that the Prosecution has proven its case against A1 and A2 jointly beyond reasonable doubt, and A1 and A2 are therefore found Guilty as jointly charged under Count 1; 2) Under each of Counts 2 and 5: Applying the principles set out in the Authority of DPP v Ramdeen [2005 SCJ 198] that “[…] the best proof of guilt is the fact that the respondent pleaded guilty to the offence – vide DPP v Aumont [1998 SCJ 338]; Gungadin v The Magistrate, Intermediate Court [1995 SCJ 31]. It is trite law that on a plea of guilty the trial Court has to convict, pursuant to section 72 (2) of the District and Intermediate Courts (Criminal Jurisdiction) Act.” and in light of A1’s unequivocal Guilty Plea under each of Counts 2 and 5, A1 is found Guilty as charged on each of Counts 2 and 5; 3) Under each of Counts 3 and 4: Applying the principles set out in the Authority of Ramdeen (supra) and in light of A2’s unequivocal Guilty Plea under each of Counts 3 and 4, A2 is found Guilty as charged on each of Counts 3 and 4.

[Delivered by: D. Gayan, Magistrate] [Intermediate Court (Criminal Side)] [Date: 20 February 2020]