Supreme Court of Mauritius, 4 juin 2020, 2020 ROD 28 – POLICE V BEGUE ANICET

POLICE V BEGUE ANICET

2020 ROD 28

Cause No: 1561/2019 THE COURT OF RODRIGUES

In the matter of:- POLICE

VERSUS

ANICET BEGUE ———- JUDGMENT Introduction. 1. Accused stands charged under three counts. 2. Under the first count, Accused stands charged with the offence of cultivating a cannabis plant in breach of section 30 (1) (e) (i) and 47 (5) (a) of the Dangerous Drugs Act, as amended. 3. Under the second count, Accused stands charged with the offence of cultivating 5 cannabis plants in breach of section 30 (1) (e) (i) and 47 (5) (a) of the Dangerous Drugs Act, as amended. 4. Under the third count, Accused stands charged with the offence of possession of an article for use in connection with smoking dangerous drug in breach of section 34 (1) (c) and 47 (5) (a) of the Dangerous Drugs Act, as amended. 5. Accused pleaded not guilty under all three counts and Accused was not assisted by Counsel at trial. 6. The following documents were produced during the course of the trial.

i) A report from the Forensic Science Laboratory stating that (i) the plants were identified after examination and analysis as Cannabis plants and (ii) the metal cone revealed the presence of cannabis ( Doc.A). ii) An album containing 6 photographs, showing the locus and the cannabis plants secured (Doc.B, B1 to B6). iii) A plan and reference table of the locus (Doc.C). iv) A self recording statement by Police Sergeant Perrine explaining the photographs taken (Doc.D). v) A statement recorded from Accused (Doc.E). The trial

7. The main witness for the prosecution was Police Constable Milazar (“W3”). He testified that on 22 January 2019, a team of police officers posted at the Anti Drug Smuggling Unit (“ADSU”) searched the premises of Accused and this was following information that Accused cultivated cannabis. During the course of the search and in presence of Accused, a metal cone used to smoke cannabis was found on the floor of the house made of corrugated metal sheet.

8. The search continued outside and one cannabis plant measuring 70 centimetres was found in a container of soil which was in small plantation of flowers. The search continued and 5 cannabis plants measuring 20 to 70 centimetres were found under cultivation 20 metres further.

9. Accused elected to speak from the dock but he then stated that he had nothing to say. As regards to the version of Accused, same is found in the statement which he gave to the police. In his out-of-court statement, Accused agreed that at the time the search at his place, he did tell the police of not having any knowledge regarding the cannabis plants and also regarding the metal cone which were found at his place. However, when Accused was asked as to the provenance of those plants during the recording of his statement, Accused changed his version and stated that the cannabis plants seized at his place belong to his concubine and him. Accused further stated that it is his concubine

and him who planted the cannabis plants and in his absence, it is his concubine who waters and take care of the plants.

The law. 10. Section 30(1) of the Dangerous Drugs Act provides that: Any person who unlawfully – … (e) cultivates opium poppy, coca bush or cannabis plant; shall commit an offence and shall, on conviction, be liable – (i) where the offence is in respect of a dangerous drug specified in Part I of Schedule I, Schedule II or Schedule III, to a fine not exceeding one million rupees and to penal servitude for a term not exceeding 25 years; …

Assessments.

11. I have assessed all the evidence on record.

12. For the prosecution, its case rests on the evidence adduced by W3. He testified regarding the cannabis plants which were secured in the yard of Accused and also regarding the metal cone. There is also the version which Accused gave in his out-of- court statement. His statements were read and produced without objection and in same, Accused admitted that the cannabis plant which were found in his yard were his property and also it is him who mainly look after them. Now, in the present matter, at no point in time did the confession of guilt made by Accused came under challenge.

12. In R v Skyes 8 Cr. App. R 233, The Court of Appeal held that:

“A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession, which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it…”

13. In the case of Ibrahim v The King AC 599, their Lordships of the Privy Council stated that:

‘no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.’

14. Hence, In the present circumstances, I am of the opinion that I can safely rely on the truthfulness of the confession made by Accused in the absence of the allotment of any substance to an argument made as to the falsity of the confession or having been given involuntarily or not from his own free will and accord. In that respect, I find that the prosecution has been able to prove beyond reasonable doubt that Accused cultivated cannabis under the first and second count.

15. As regards to the third count, Accused is being prosecuted for having been in possession of an article, namely a metal cone used to smoke dangerous drugs, namely cannabis.

16. It is not in dispute that traces of cannabis were found in the metal cone. This is relying on the report emanating from the Forensic Science Laboratory (Doc.A). It is also not in dispute same was found on the floor close to the metal sheets wall inside the house of Accused. True it is that Accused put a question to W3 regarding how the metal cone could be found at that place but W3 gave a plausible explanation stating that the metal cone was found at a place where the corrugated metal sheets used as walls of the house were rusted. The answer given by W3 was accepted by Accused who did not probe further.

17. It has 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”.

18. Hence, in the present circumstances, I find that there is an irresistible inference that the metal cone found at the place of Accused belongs to Accused and I have not found any co-existing circumstances or evidence to destroy that inference.

Conclusion.

19. Therefore, for the reasons referred above, this Court finds that the case for the Prosecution should succeed inasmuch as it has been proved beyond reasonable doubt. Accordingly, finds Accused guilty as charged.

D.J.A Dangeot Senior District Magistrate Delivered on 4 June 2020.