Supreme Court of Mauritius, 9 avril 2026, 2026 INT 83 – Police v M. S. Durgahee & Ors

Police v M. S. Durgahee & Ors

2026 INT 83

THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) Cause No.: 153/2023 In the matter of: Police v 1. Mohammad Salim DURGAHEE 2. Mohammad Ali-Noor-Ud-Din DURGAHEE 3. Raeez Noor-Ud-Deen MANGHAR 4. Azhar Ibne Sulaymaan Manghar EMRITTE JUDGMENT Accused No. 1 stands charged with dealing in scrap metal (Count 1) in breach of regulations 3(1) and 18(1)(c) of Consumer Protection (scrap metal) Regulations 2019 (GN 151/2019) made under s. 35 of the Consumer Protection (Price and Supplies Control) Act and possession of stolen property obtained by larceny external breaking (Counts 9 and 19) in breach of s. 40, 301 (1) and 309(1) of the Criminal Code. He pleaded guilty to Count 1 and not guilty to Counts 9 and 19. Accused No. 2 stands charged with dealing in scrap metal (Count 2) in breach of Regulations 3(1) and 18(1)(c) of Consumer Protection (scrap metal) Regulations 2019 (GN 151/2019) made under s. 35 of the Consumer Protection (Price and Supplies Control) Act and possession of stolen property obtained by larceny scaling (Counts 5, 8 and 15) in breach of s. 40, 301(1) and 309(1) of the Criminal Code, possession of stolen property obtained by larceny by two (Count 12) in breach of s. 40, 301(1) and 305(1)(b) of the Criminal Code, knowingly receiving stolen property obtained by larceny by two (Count 18) in breach of s. 40, 301(1) and 305(1)(b) of the Criminal Code and possession of stolen property obtained by means of larceny (Counts 22 and 25) in breach of s. 40 and 301(1) of the Criminal Code. He pleaded guilty to Count 2 and not guilty to the others. Count 2 was subsequently dismissed for want of prosecution (Page 18 of proceedings).

Accused No. 3 stands charged with larceny scaling (Counts 3, 6,13, 26 and 28) in breach of s. 301(1) and 309(1) of the Criminal Code, larceny by two (Counts 10 and 16) in breach of s. 301(1) and 305(1) of the Criminal Code and larceny (Counts 20 and 23) in breach of s. 301(1) of the Criminal Code. He has pleaded guilty to those counts and Counts 4, 7, 11, 14, 17, 21, 24, 27 and 29 were dismissed as alternate counts. Accused No. 4 stands charged with larceny by two (Counts 10 and 16) in breach of s. 301(1) and 305(1) of the Criminal Code. He has pleaded guilty to both counts and counts 11 and 17 have been dismissed as alternate counts. Accused No. 1, 3 and 4 were not legally represented and Accused No. 2 was represented by Mr. L. Gunputh, of counsel. Case for prosecution The police prosecutor produced a letter dated 3 rd June 2022 from the Permanent Secretary, Ministry of Commerce and Consumer Protection (Document A), certifying that Accused No. 1 has never been issued with any Scrap Metal Licence/Permit. PC 11498 Thomas recorded one statement from Accused No. 1 on 08.03.21 at 15.16hrs (Document B), one statement from Accused No. 2 on 02.03.22 at 13.15hrs at (Document C) and two statements from Accused No. 3 on 22.02.22 at 14.35 hrs and 24.02.22 at 14.27hrs (Documents D and D1), following a voire dire, all at CID Metro South. On 24.02.22 at CID South office, he carried out an identification exercise between Accused No. 3 and one ‘Bayo’ whom he identified as Accused No. 2. In relation to OB 659/2022, pertaining to Counts 3, 4 and 5, Accused No. 3 agreed having stolen 2 aircons of an approximate value of Rs. 30,000/- each. None was recovered. Accused No. 3 having stated that he sold stolen articles to Accused No. 2, a search was carried out at the residence of Accused No. 2. Several metals, copper wires and copper tubes were recovered. These were scattered in a room and some were in raffia bags. The metals secured at Accused No. 2’s originate from the larceny at Lim Fat building. PC 11498 Thomas (W1) was not cross-examined by Accused No. 1. Under cross- examination by learned counsel for Accused No. 2, he confirmed that he also recorded a statement from Accused No. 2 on 02.03.22. He agreed that Accused No. 2 stated that he was unaware that the articles were stolen. The search at Accused No.2’s was carried out at La Rue Magon, Plaine Verte where it is the latter’s residence and place of work. Accused No.2 also has another residence at Vallee Pitot. He agreed that the place where the search was carried out belongs to one Taslima Muliko and not to Accused No. 2. There is no evidence to link the metal secured to the stolen aircons and he could not confirm for sure whether they

were the items which Accused No. 3 said he had sold to Accused No. 2. Under cross- examination by Accused No. 3, he explained that police proceeded to the arrest of Accused No. 3 through intelligence gathered and enquiry. Accused No. 3 did not mention one Bilal Hossenally to him at enquiry stage. PC 11498 Thomas was not cross-examined by Accused No. 4. Under re-examination, he stated that the search was carried out at the place of Taslima Muliko in light of information received. PC 3895 Silvere (W3) produced two defence statements recorded from Accused No. 1 on 02.03.22 at 13.30 hrs and on 09.03.22, both at Port Louis South CID (Documents B1 and B2), following a voire dire. Under cross-examination by Accused No. 1, he confirmed that the statement was given voluntarily by Accused No. 1 and Accused No.1 was never slapped by one officer Nazir or hit by a bottle. There was no cross-examination on behalf of Accused No. 2 and Accused No. 3 and No. 4 did not cross examine him. W3 was not re-examined. PS 8275 Domun (W2) produced two defence statements recorded from Accused No. 2 on 23.02.22 at 11.30hrs at Line Barracks, Port Louis and on 07.06.22 at 20.40hrs at Vallee Pitot police station (Documents C1 and C2). Under cross-examination by Accused No. 1, he affirmed not having slapped Accused No. 1. Under cross-examination by learned counsel for Accused No. 2, W2 confirmed that Accused No. 2 stated that he buys and sells scrap metal. The charge against Accused No. 2 and based on the statement of Accused No. 3. He agreed that in Document C1, Accused No.2 stated that he was unaware that the article which he purchased were stolen goods. No stolen goods were secured at the place of Accused No. 2. In Document C2 as well, Accused No. 2 was unaware that the articles were stolen. Under cross-examination by Accused No. 3, he stated that as per Document C2, Accused No. 3 brought articles from Lim Fat. W2 was not cross-examined by Accused No. 4. He was not re- examined. PC 10091 Mahooney produced two statements recorded from Accused No.1 on 02.03.22 at 15.30hrs and 09.03.22 at 13.00hrs, both at Line Barracks, (Document B3 and B4), two defence statements recorded from Accused No. 2 on 24.02.22 at 11.15hrs and 26.02.22 at 10.52hrs at Line Barracks (Document C3 and C4) and two statements recorded from Accused No. 3 on 23.02.22 at 13.15hrs and 28.02.22 at 12.00hrs, also at Line Barracks (Documents D3 and D4). He confirmed that the value of the stolen compressor is Rs. 25,000/-. During the enquiry, police secured 3 ‘thalis’, 2 ‘lotas’ and a copper bowl, of value Rs. 25,000/-, stolen from the Kovil of Chateau D’eau St., Tranquebar. These were returned to the president of the Kovil.

Under cross-examination by Accused No. 1, he disagreed with the affirmations of Accused No. 1. Under cross-examination by learned counsel for Accused No. 2, he agreed that in Document B3, there is no mention of Accused No. 2 being incriminated by Accused No. 1. In Document B4, Accused No. 1 stated that he is innocent. In Documents C3 and C4, there is no mention that Accused No. 2 was aware that the articles were stolen. In Accused No. 3’s statement Document D3, Accused No. 3 did not mention that he told Accused No. 2 that the articles which he sold to Accused No. 2 were stolen. Under cross-examination by Accused No. 3, W6 disagreed that he had beaten Accused No. 3 to identify Bayo. W6 was not cross examined by Accused No. 4. He was not re-examined. PS 4072 Mohidinkhan (W8) produced two defence statements recorded from Accused No. 3 on 22.02.22 at 13.45hrs and 25.02.25 at 12.15 hrs at CID South (Documents D5 and D6). On 22.03.22 at 14.35hrs at Line Barracks, he gave instruction to PC Narisimulu (W16) to take one photograph (Document E) of stolen articles recovered. The total value stolen was Rs. 82,000/- and they were returned to the owner. Under cross-examination, he did not know of what ‘thali’ Accused No. 1 was talking about. There was no cross-examination from Accused No.2’s counsel. Under cross- examination by Accused No. 3, W8 could not answer why Accused No. 3 would hide the articles if the purpose of stealing them was to buy drugs. Accused No. 4 did not cross-examine W8 and he was not re-examined. PC 6710 Chinamoothoo (W7) recorded two defence statements from Accused No.2 on 24.02.22 at 11.40hrs and on 25.02.22 at 12.35hrs (Documents C5 and C6) and two defence statements from Accused No. 3 on 23.02.22 at 11.40hrs and on 25.02.22 at 11.30hrs (Documents D7 and D8). As main enquiring officer, he stated that the value of the stolen articles for Count 20 is Rs. 25,000/-. These were not recovered. He was not cross-examined by Accused No.1. Under cross-examination by learned counsel for Accused No. 2, W7 confirmed that Accused No.1 and No.2 know each other and that Accused No. 2 denied any involvement in the larceny of a compressor. Accused No. 2 stated in Documents C5 and C6 that he usually buys scrap metal from Accused No. 3 and that he was unaware that he bought stolen articles. W7 was not cross-examined by Accused No.3 and No. 4. He was not re- examined. WPC 512 Appavoo (W10) produced two defence statements recorded from Accused No. 2 on 25.02.22 at 10.40hrs and 26.02.22 at 10.05hrs at P. Louis South CID (Documents C7 and C8) and two defence statements recorded from Accused No. 3 on 24.02.22 at 11.00hrs and 28.02.22 at 12.45 hrs at P. Louis South CID (Documents D9 and D10). In relation to Count 13, there were 3 aircons stolen of an approximate value of Rs. 61,616 and these have

not been recovered. Accused No. 1 did not cross-examine W10. Under cross-examination by learned counsel for Accused No. 2, she confirmed that in Document C7, the charge against Accused No. 2 is based on the statement of Accused No. 3. Further in Document C7, when Accused No. 2 asked Accused No. 3 where he had obtained the articles, Accused No. 3 had told Accused No. 2 that he walks around shouting “acheter feraille”. At no point in Document C7 did Accused No. 2 state that he knew that the articles were stolen. Save for the statements of Accused No. 3 (Documents D9 and D10), she agreed that there is no evidence of Accused No. 2 being in possession of stolen articles. W10 was not cross-examined by Accused 3 and No. 4. There was no re-examination. Former Inspector Daby (W9) carried out a direct confrontation exercise between Accused No. 3 and Accused No. 2, which they had voluntarily agreed to after being explained their constitutional rights and the different types of identification. They identified each other positively. He was not cross-examined by Accused No. 1 and learned counsel for Accused No. 2. Under cross-examination by Accused No.3, he could not recall who was present at the time of the identification exercise. He did not see PC Mahoonee hit Accused No. 3. W9 was not cross-examined by Accused No. 4 and he was not cross-examined. PS 7788 Emrith (W4) produced three defence statements recorded from Accused No. 2 on 23.02.22 at 14.11hrs, 02.03.22 at 15.35 hrs and 23.02.22 at 13.31 hrs at CID P. Louis South (Documents C9, C10 and C11). He also produced two defence statements recorded from Accused No. 3 on 22.02.22 at 15.45 hrs and 28.02.22 at 13.17hrs at CID P. Louis South (Documents D11 and D 12). He further produced two defence statements recorded from Accused No. 4 on 22.02.22 at 12.05hrs and 28.02.22 at 11.55hrs also at CID P. Louis South (Documents F and F1). As main enquiring officer in OB 525/22 Pope Henessy police station, for Counts 10 and 12, he confirmed that the value of the stolen articles is Rs. 15,000/-. W4 was not cross-examined by Accused No. 1. Under cross-examination by learned counsel for Accused No. 2, he agreed that in Document C9, Accused No. 2 stated that he had nothing to do with the larceny of aircon compressor Taichi and at no point was he aware it was a stolen property. The said compressor was not retrieved. Accused No. 3 and No. 4 did not cross-examine W4 and he was not re-examined. PC 3817 Nemdhary (W5) produced two defence statements recorded from Accused No. 2 on 25.02.22 at 11.10hrs and on 02.03.22 at 15.15 hrs at P. Louis South CID (Documents C12 and C13), two statements recorded from Accused No. 3 on 24.02.22 at 11.05hrs and 02.03.22 at 13.10hrs at P. Louis South CID (Documents D13 and D14) and two defence statements recorded from Accused No. 4 on 22.02.22 at 12.40hrs and 02.03.22 at 13.45hrs at P. Louis South CID (Documents F2 and F3).

Accused No. 1 did not cross-examine W5. Under cross-examination by learned counsel for Accused No. 2, he confirmed that in Document C12, Accused No.2 stated that he had nothing to do with the larceny. In Document C13, there is also a complete denial by Accused No. 2. Under cross-examination by Accused No. 3, he confirmed that no exhibit was recovered from Accused No. 3. Accused No. 4 did not cross-examine W5. W5 was no re- examined. Mr. Soondeeren Pillay Iyaloo (W21), IT Officer, stated that on 16.02.22 at 11.15hrs, he gave a declaration at Pope Henessy police station for larceny at Kovil Ganesha at Chateau D’eau, Tranquebar. Several items had been stolen, namely ‘thalis’, ‘lotas’ and lamps. On 18.02.22, Mr. Armoogum (W22) identified those and on 21.02.22, the articles were returned to Mr. Armoogum. W21 was not cross examined by all four Accused. Case for Defence Accused No. 1 deposed under oath. On the day of the operation, he was not present. Police beat him up to give the statement. If he did not accept the charge, he would be remanded to jail. Since his son was already in jail, he accepted the charge. Under cross- examination, he agreed that he did not make any declaration to police to having been beaten up. On 18.02.22, he accepted having been in possession of 3 ‘deksi’ which had been reported stolen by one Emraz Ramkissoon. Accused No. 2 deposed under oath. He buys and sells ‘ferailles’ since he was 19 years old. He buys same from everyone. He is acquainted to Accused No. 3 and No. 4 and he usually buys ‘ferailles’ from them. He is aware of the charges against him and when police searched his house, nothing incriminating was secured. He would not know whether articles which he buys are stolen. It is police that informed him that the articles which he bought were stolen. He apologised because he was unaware of the tainted origin of the articles. Under cross-examination, he affirmed having no knowledge that the articles were stolen. He denied having been in possession of stolen articles on 12.02.22, on 03.03.22, on 05.02.22 and 17.02.22 at Plaine Verte. Under cross-examination by Accused No. 1, he confirmed that he usually buys metals from Accused No. 3 and No.4. He was not cross- examined by Accused No. 3 and No.4. Accused No. 3 opted to speak under oath. At the time he used to take drugs and he acknowledged having committed the offences. He apologised to the Court and promised not to do it again. All he said in his statements are accurate save for the fact that he sold the aircons to one Bilal Hossenally. He did not sell anything to Accused No. 2. He was not cross- examined by the prosecutor and Accused No.4. Under cross-examination by Accused No. 1

and No. 2, he affirmed again not having sold the aircons to Accused No. 2 and when he sold scrap metal to Accused No. 2, he did not tell the latter that same were stolen. Accused No. 4 opted to remain silent.

Analysis Due consideration has been given to the evidence and submissions of learned counsel for Accused No. 2. At the outset, this Court notes that there is no document marked Document D2 on record. The prosecution’s case rests solely on the defence statements of the Accused parties. Accused No. 1 In light of Document A, his confession in Document B and his guilty plea, Accused No. 1 is found guilty as charged under Count 1. As for Counts 9 and 19, in Documents B1 and B3, Accused No. 1 accepted that he purchased those articles from people who sold same to him. A voire dire was held into the admissibility of Accused No. 1’s statements. The confessions were found to be voluntary and untainted by any sort of coercion. As held in DPP v Aumont [1989 SCJ 338], a voluntary confession is the best evidence against an Accused party. Under Count 9, Accused No. 1 clearly accepted that he paid Rs. 400/- for ‘deksis’ which normally cost Rs. 2,500/-. Under Count 19, Accused No. 1 agreed that the articles were stolen articles. In J. P. D. Prayag v The State [2004 SCJ 29], it was held that “Where the charge is “possession without sufficient excuse or justification, once the prosecution has established the possession, the onus of proving that such possession is justified or sufficiently excused shifts on to the accused party: vide Calteaux v The King [1909 MR 16], Toofany v The Queen [1957 MR 186], Wong Kwock Yow v R [1935 MR 171] and Seeneevassen v R [1974 MR 225].” This Court finds that no plausible explanation has been offered by Accused No.1 justifying an innocent possession of the articles in both Counts 9 and 19 and is satisfied that Accused No. 1 was aware that the articles which he purchased were stolen articles. Having paid for the articles at a much lower price than their value, gives an indication of his knowledge of their tainted origin.

Accused No. 1 is also found guilty as charged under Counts 9 and 19 of the information. Accused No. 2 Accused No. 2 has denied the charges against him and pleaded not guilty. In Prayag(supra), it was held that s. 40 of the Criminal Code “contemplates two distinct cases which ought not to be confused: the first one is when an accused party “knowingly receives articles obtained by means of a crime or misdemeanour”, which is an extension of the offence of “recel” borrowed from the French Penal Code, and the second, peculiar to our Mauritian law, is when he is “found in possession of such articles without sufficient excuse or justification”. It is well established that where the charge is “knowingly receiving”, the onus of proving guilty knowledge rests upon the prosecution… Therefore, once possession of stolen property has been established, the next step for the Magistrate is to consider the explanation of the accused party and decide whether such explanation is acceptable. It is only then that the test laid down in Gobin v The Queen [1896 MR 45] may be applied i.e. “Is the story of the possession a plausible, straightforward one, and one which he can believe? If he cannot believe it, the law, and not the Magistrate, says that the possessor of the property is guilty and is to be convicted.” Prosecution’s evidence is lacking against Accused No. 2. Accused No. 2, in his statements, agreed having bought articles from Accused No. 3. However, he denied being aware that the articles were stolen. Accused No. 3 stated in his defence statements that he sold the stolen articles in the different counts to Accused No. 2. However, under oath, Accused No. 3 stated that he did not sell aircons to Accused No. 2 and when he did sell stolen articles to the latter, he did not tell Accused No. 2 that those were stolen. This Court only has the sworn evidence of Accused No.2 and Accused No.3 on record. There is no evidence beyond reasonable doubt of guilty knowledge on behalf of Accused No. 2 established. Counts 5, 8, 12, 15, 18, 22 and 25 are dismissed against Accused No. 2. Accused No. 3 Accused No.3 having pleaded guilty and in light of his confessions, Accused No. 3 is found guilty as charged under Counts 3, 6, 10, 13, 16, 20, 23, 26 and 28 of the information. Accused No. 4 Accused No. 4 having pleaded guilty and in light of his confessions, is found guilty as charged under Counts 10 and 16 of the information.

K. Poollay Mootien Magistrate 9 th April 2026