Supreme Court of Mauritius, 6 mai 2026, 2026 INT 111 – Police v Darran Karuthasami

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Police v Darran Karuthasami

2026 INT 111

The Intermediate Court of Mauritius (Criminal Division)

In the matter of: CN 381/2025

Police

V

Darran KARUTHASAMI

Ruling

1. The Applicant stands charged with the offence ‘drug dealing: possession of cannabis for the purpose of distribution’ in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act. He is represented by counsels Me. A.Kallee, together with Me Sydamah. The Prosecution is represented by Me Bissessur, Senior State Counsel.

2. A Prohibition Order was imposed on the Applicant and the latter has made an application for its variation in order to allow him to travel to the United Kingdom from 8 th to 24 th May 2026 to attend the funeral of his father and to return to Mauritius on 25 th May 2026.

3. The police is objecting to the present application on the ground that the Applicant may abscond if he is allowed to travel.

4. SI Guptar, of ADSU Headquarters, deposed on behalf of the police. In examination-in-chief, he stated that on 19 th December 2023, following a search carried out at the place of the Applicant, some leaf matter was found thereat, suspected to be cannabis. The Applicant was arrested and according to him the street value of the drugs secured amounts to Rs

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109,000. He stated that the main case has been lodged before the Intermediate Court and is fixed for continuation on 26 th June 2026. According to SI Guptar, being given that the Applicant is being prosecuted before the Intermediate Court and a heavy penalty is provided for the abovementioned offence, there is a great likelihood that if the Applicant is allowed to travel, he may fail to appear before Court as and when required. He added that the Applicant is of both British and Mauritian nationalities. He has both passports and he is not borne on record.

5. In cross-examination, SI Guptar admitted that in fact the main case of the Applicant has not started yet given the fact that there was a motion made by the defence following which it has been fixed for stand on 26 th June 2026. SI Guptar confirmed that the Applicant has a car rental business company named Bhuna Car Rental in Mauritius and he is the owner of 10 cars. He is also aware that the Applicant has his place of residence in Tamarin and he owns a flat in Flic-en-Flac. He is also the owner of a portion of land of about 50 perches in Tamarin. SI Guptar agreed that the Applicant intends to travel to the UK for the funeral of his father and the death certificate has been produced to the police. He has already provided to the police the address where he will be staying in the UK and he has produced a copy of his return air ticket. The funeral is scheduled for 14 th

May 2026. SI Guptar confirmed in cross-examination that the Applicant is the holder of both British and Mauritian passports but he is aware that the British one has been lost. There is a memo to that effect. He confirmed that the Applicant came back to Mauritius under the Returning Residence Skills and as a returning resident, he had to swear an affidavit to the effect that he will permanently reside in Mauritius. SI Guptar stated that there is an apprehension that the Applicant will abscond but there is no evidence that he has failed to abide by his bail conditions. SI Guptar was not re- examined by the prosecution.

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6. The Applicant deposed under oath. His father passed away on 20 th April 2026 and his family needs his support there. Moreover, as per the Tamil rituals, as the youngest son, he is the one to perform the final rites for his father’s funeral which is scheduled for 14 th May 2026. The funeral has not yet been held as they are waiting for him to attend and perform the last burial rituals as per the requirements of the Tamil faith. His family will not be able to postpone the funeral any further. He confirmed being a returning resident since 2022 and he has been living in Tamarin. He has a car rental company and a plot of land in Tamarin where he is about to start a construction. He is also the owner of an Air B&B apartment in Flic en Flac. In reply to the ground of objection by the police, the Applicant stated that he is purely going for his father’s funeral. He has his return ticket. He has the abovementioned business in Mauritius to take care of. He added that if he were to abscond, he would have applied for a Variation Order well before inasmuch as this case started in December 2023. He has always complied with all bail conditions. He gave his undertaking to abide by all conditions to be imposed by the Court should he be allowed to travel. In view of the above, he stated that it is an absolute necessity for him to attend his father’s funeral.

7. In cross-examination, the Applicant stated that a family member will handle his business in Mauritius in his absence. He has a fiancée but no children. Although being a returning resident, he is still the holder of a British passport. He agreed that, in view of the nature of his business, he can still monitor it even though he is not in Mauritius. He has one brother and one sister in the UK. His mother spends 6 months in Mauritius and his siblings come regularly. He sold his properties in the UK in order to start a business in Mauritius. He agreed that if he is unable to travel, the funeral would still take place but it is very hard for him and his family. The Applicant was not re-examined by his counsel.

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8. In submissions, learned counsel for the prosecution referred to the case of Peerthum v The District Magistrate of Riviere du Rempart & Anor [2009 SCJ 283] to say that the Accused has to show an absolute necessity to travel. It is the submissions of the prosecution that the reasons put forward by the Applicant do not satisfy that test inasmuch as he stated that the funeral will still be proceeded with in his absence. Furthermore, the Applicant himself stated that his business can be run from abroad. Being the holder of both Mauritian and British passports, the risk of absconding is therefore a strong one such that no condition can be imposed to minimise it.

9. On the other hand, Mr Kallee submitted that as far as the legal test is concerned, the Applicant has shown that there is a necessity for him to attend the funeral of his father to perform the last rites as the youngest son. The Applicant has a fixed place of abode in Mauritius, a fiancée and a well- established business. He intends to travel for a very short time. Although being the holder of 2 passports, the British one has been lost. He has always abided by his bail conditions and he has a clean record. He has given his undertaking to abide by all conditions. Learned defence counsel prayed the Court to grant the Variation Order as attending his father’s funeral is a one-time situation.

10. I have duly analysed all evidence adduced as well as the submissions of both learned counsels. Section 16 of the Bail Act provides that:

(1) A person against whom an order has been made under section 14 may apply to the court before which his case is pending for a variation of the order.

(2) Where an application is made under subsection (1), the Court may vary the order if it is satisfied that it is necessary to do so –

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(a) to avoid loss or prejudice to the applicant; (b) to avoid damage or loss to the applicant's property; (c) because of the health of the applicant or his next of kin; or (d) in such other cases as the Court thinks fit.

(3) Where a court makes a variation order under subsection (2), the court may– (a) on being satisfied that there are sufficient reasons for so doing, allow the applicant multiple departures from, and returns to, the country within a period specified by the court; (b) impose on the applicant such other terms and conditions as it deems fit.

11. Hence, there are reasons set out in the said section on which the Court may vary the Order. Relying on the case of Peerthum (supra), it is the contention of learned counsel for the prosecution that the legal test is one as to whether there is an ‘absolute necessity’ for the Applicant to travel. However, as per the wording of section 16(2) of the Bail Act, this Court has to be satisfied that the Applicant has shown that there is a ‘necessity’ for him to travel for one of the reasons set out under paragraphs (a) to (d) as opposed to an ‘absolute necessity.’

12. Admittedly, a Prohibition Order is a restriction to the fundamental freedom of movement of the Applicant as guaranteed under section 15(1) of the Constitution, which also includes right to leave the country. However, as held in Dookhy v Passport and Immigration Officer [1987 SCJ 196], there is nothing inconsistent in such restriction being imposed unless it is shown not to be reasonably justifiable in a democratic society. Clearly, there is no such issue here as regards such restrictions imposed on the movement of the Accused by way of the Prohibition Order. The issue is whether he should now be allowed to have a variation of such

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an order so as to allow him to travel to the United Kingdom for the funeral of his father.

13. There is also a question of the Applicant’s fundamental human right namely that of freedom to manifest his religion as guaranteed under section 11 of the Constitution. However, whilst it is obvious that the freedom of religion is an absolute right, it goes without saying that the freedom to manifest one’s religion is a qualified right as under section 11(5) there may be restrictions imposed in interest of defence, public safety, public order, public morality or public health. In X v UK (1978) 14 DR 234, it was held by the European Commission at page 235 that such restriction could only be justified if it was legitimate, lawful, necessary and proportionate. It has to be noted here that the freedom of religion as guaranteed by the European Convention of Human Rights is similar to that as our Constitution, hence its appropriateness here.

14. This Court is called upon to carry out a balancing exercise against the various rights involved in the light of the facts of the case in determining whether there is a necessity for the Applicant to travel in order to attend his father’s funeral, a situation which would fall within the ambit of section 16(2)(d) of the Bail Act, that is ‘for any other reasons as the Court thinks fit.’

15. It is admitted that the Applicant is the holder of both British and Mauritian passports. The British passport having been lost and although no memo has been produced before this Court to that effect, the enquiring officer has confirmed under oath that same has been issued. It is undisputed that the Applicant, classified as a returning resident under the Returning Residence Skills, is well settled in Mauritius with a properly set up car rental business and owns several properties. It is further undisputed that he has always abided by his bail conditions and he could certainly have applied for a variation order well before hand if he truly had the intention

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to abscond. It is undisputed that his father has passed away and the reason why he is seeking to travel is to attend his funeral to perform his last rites as the youngest son of the family as per the Tamil rituals. Does such reason qualify as a ‘necessity’ to travel under section 16(2)(d) of the Bail Act? The Court has no hesitation in coming to the conclusion that losing one’s father, regardless of age, is a profoundly shocking, life-altering experience that triggers intense, non-linear grief, often leaving one feeling adrift, orphaned and facing a transformed identity. It is clearly a time during which it is of utmost importance to be with one’s family to deal with the intense grief that comes along with losing a loved one and the Court cannot overlook the fact that since the passing of his father on 20 th April 2026 the Applicant has been on his own in Mauritius whilst his mother and 2 siblings are in the UK. The Court bears in mind the restrictions as set out under section 11(5) of our Constitution with regards to the freedom to manifest one’s right to religion as set out above. However, in the present circumstances, the Court is of the view that it is only fair and most humane to allow the Applicant, as the youngest son of the family, to perform the last funeral rituals of his father as required by his faith and allowing him to pay his last respects. Moreover, the Court is of the humble view that allowing the Applicant to physically view the dead body of his father would indeed contribute towards a crucial part of the grieving process that aids in achieving closure over time and such closure being an absolute requirement in allowing one to physically, emotionally, mentally and spiritually move on in life from such a shocking and life-altering experience.

16. True it is that the funeral will still have to go ahead should the Applicant not be allowed to attend as pointed out by the prosecution, but for reasons set out above, by virtue of section 16(2)(d) of the Bail Act, the Court is satisfied that it is necessary that the Prohibition Order against the Applicant be varied in order to allow him to attend his father’s funeral to perform the last rites as required by the Tamil faith. Indeed, the offence

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against the Accused is a serious one for which the law has provided for a severe penalty but one should not lose sight of the fact that ‘every person who is charged with a criminal offence shall be presumed innocent until proven guilty or has pleaded guilty’ by virtue of section 10(2)(a) of our Constitution.

17. The Prohibition Order against the Applicant is accordingly varied on the following conditions:

(a) Applicant is to travel to the United Kingdom only from 8 th to 24 th

May 2026 and he is to provide a copy of his air ticket to the police prior to his departure; (b) Applicant is to furnish a security of Rs 150,000; (c) Applicant is to provide a telephone number on which he may be contacted at all times by the police when he is in the United Kingdom; (d) Applicant is to provide an address where he will be residing whilst being in the United Kingdom; and (e) Applicant does not travel outside the United Kingdom between 8 th

and 24 th May 2026.

Z.B.Essop (Ms) Magistrate Intermediate Court (Criminal Division) This 6 th May 2026