Supreme Court of Mauritius, 5 février 2020, 2020 INT 24 – POLICE VS MUNGUR JEAN ATHOS DIDIER THIERRY

POLICE VS MUNGUR JEAN ATHOS DIDIER THIERRY

2020 INT 24

POLICE VS MUNGUR JEAN ATHOS DIDIER THIERRY Cause Number : 724/19 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS MUNGUR JEAN ATHOS DIDIER THIERRY JUDGMENT INTRODUCTION The Accused stands charged with the offence of drug dealing – possession of synthetic cannabinoids for the purpose of selling in breach of sections 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs Act. The Accused pleaded not guilty and was not assisted by Counsel. The particulars of the charge against the Accused are that on the 9 th May 2018, he unlawfully and knowingly possessed synthetic cannabinoids, 5-Fluoro-ADB present in 13.2 grams of leaf matter enclosed in one transparent plastic parcel, secured with black tape.

THE FACTS On the 9 th May 2018, following information received, PC Sarnain proceeded to Avenue Berthaud Trefles together with PC Johur and saw the Accused standing on the road. Upon seeing the ADSU officers, the Accused threw down a parcel and bolted away to a side road. PC Sarnain picked up the parcel and ran after the Accused with PC Johur. They intercepted the Accused and revealed their identity. PC Sarnain opened the parcel in front of the Accused and the parcel was found to contain leaves suspected to be synthetic cannabinoids. Upon being confronted with same, the Accused agreed to the contents thereof and averrred that he

intended to sell same. The Accused was then arrested and brought to ADSU office where the drugs were weighed and sealed. The drugs were sent to the Forensic Science Laboratory (FSL) for examination where it was found that the leaf matter revealed the presence of synthetic cannabinoid, 5-Fluoro-ADB. The Accused declined to give a statement to the police in this case when he was interviewed under warning and his rights duly explained to him.

OBSERVATIONS I have assessed the evidence on record. 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 selling.

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 noted that PC Sarnin credibly deposed that he saw the Accused throw down a parcel before bolting away. When he intercepted the Accused and confronted him with the parcel, the Accused agreed to the contents thereof. In Court, the Accused did not challenge the version of PC Sarnin, leaving the version of PC Sarnin credible and reliable. Therefore, the Accused did not deny that he was in possession of the synthetic cannabinoids. It can safely be concluded that the Accused was in physical possession of the synthetic cannabinoids and was aware of the contents of the drugs. I deem it to refer to the case of WARNER V METROPOLITA N POLICE COMMISSIONE R (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 found in his possession as he was in possession of synthetic cannabinoids which he threw down when he saw the police. The overt act connecting the Accused to the drugs is the fact that the drugs were on the Accused and the fact that the Accused did not deny that he kept same. In the circumstances, I find that the Prosecution has established that the Accused was in possession of synthetic cannabinoids.

FOR THE PURPOSE OF SELLING

Having found that the Accused was in possession of synthetic cannabinoids, I shall proceed to determine whether the Accused was in possession of same for the purpose of selling. The DANGEROUS DRUGS ACT does not define the word ‘selling’. It must therefore be given its ordinary dictionary meaning”. (PUTTAROO VS THE STATE (2008) SCJ 92) . The Oxford dictionary defines the term ‘sell’ as ‘’give or hand over something in exchange for money”. It has been expressly laid down in our case law that the onus of discharging the legal requirement “for the purpose of selling” by the Prosecution can be established either directly or through an inference from surrounding facts and circumstances. (RE: A. BOODHOO VS THE STATE (2004) SCJ 235). In the case of JAYSEN CHENGEBROYEN VS THE STATE (2010) SCJ 87 which concerns a case of possession of heroin for the purpose of selling, the Court laid down as follows: “It is clear that in order to establish the charge under this section of the law, it is not necessary for the prosecution to adduce evidence of an actual sale. The element relating to sale may be inferred from the circumstances.”

I also 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.”

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 selling.

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”. In the present case, the police secured 13.2 grams of leaf matter containing synthetic cannaboids from the Accused. The Accused did not give any explanation for being in presence of the drugs. Given that the police secured 13.2 grams of synthetic cannabinoids from the Accused, I find that the quantity of the drugs secured from the Accused is of much larger quantity than was needed for the Accused’s own personal consumption. (RE: SHERIFF VS R (2008) SCJ 92). There is no logical explanation as to why the Accused would be in possession of 13.2 grams of synthetic cannabinoids for his personal consumption.

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 selling, 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 selling purposes. I have noted that the synthetic cannabinoids secured from the Accused was in one transparent plastic parcel. In the present case, the Accused was found in possession of 13.2 grams of synthetic cannabinoids on a public road. He immediately threw the parcel containing the drugs upon seeing the police. I find that the action of the Accused to be in possession of such quantity of synthetic cannabinoids on the road to imply that he intended to sell the drugs. I therefore find that the quantity of drugs secured from the Accused is more reflective of selling than consumption. Taking into account all the co-existing circumstances, namely the quantity of the drugs secured ,and the fact that the Accused was standing on the road with a considerable amount of

drugs, I find that they support the inference that the drugs were meant for selling. There are no factors or circumstances which destroy this inference. I therefore reach the logical, reasonable and irresistible inference that the synthetic cannabinoids secured from the Accused was for the purpose of selling.

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 synthetic cannabinoids for the purpose of selling in breach of sections 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs Act.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 5 th February 2020