{"id":1055914,"date":"2026-06-06T16:50:33","date_gmt":"2026-06-06T14:50:33","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\/"},"modified":"2026-06-06T16:50:33","modified_gmt":"2026-06-06T14:50:33","slug":"supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\/","title":{"rendered":"Supreme Court of Mauritius, 23 juin 2020, 2020 BRC 172 – Police v David Kervin Dianat"},"content":{"rendered":"
\n
\n

Police v David Kervin Dianat<\/p>\n

2020 BRC 172<\/p>\n

IN THE BAIL AND REMAND COURT<\/p>\n

Provisional Cause Number 186\/2020 (Black River)<\/p>\n

In the matter of:<\/p>\n

Police<\/p>\n

v\/s<\/p>\n

David Kervin Dianat<\/p>\n

RULING<\/p>\n

The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF SYNTHETIC CANNABINOID S FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (ii) and 47(5) (a) of the Dangerous Drug Act coupled with GN 93\/2019. The Applicant has moved that he be admitted to bail and he stood inops consilii at the bail hearing. The proceedings were held in Creole language for the benefit of the Applicant and the Respondent is resisting the motion and is objecting that the Applicant be granted bail on the ground of risk re-offending.<\/p>\n

THE CASE FOR THE PROSECUTION<\/p>\n

PS 2104 Jules posted at ADSU Western and the main enquiry officer in this case was called by the Police Prosecutor for the Prosecution and he explained that he had been deputed by the Commissioner of Police to resist the present bail application on the above mentioned ground. He went on to explain that on 6 th<\/p>\n

February 2020 at 17 00 hours the police searched the place of Applicant at Bambous and 14 folded aluminium foils were secured and found to contain suspected synthetic cannabinoids worth Rs 1400. The Court was also informed that the Applicant had confessed to the charge. The main enquiry officer explained that based on the previous conviction of Applicant and the fact that drug dealing is a lucrative business, the police fear that he will re-offend. Doc X was filed showing that the Applicant was borne on record for drug related offences. The main enquiry officer stated further that only the FSL report was missing to complete the police enquiry. The Applicant elected not to cross examine the main enquiry officer and the case was closed for the Prosecution.<\/p>\n

THE CASE FOR THE DEFENCE<\/p>\n

The Applicant was explained his Constitutional Rights and he elected to make a statement from the dock. He went on to state that he will comply with all bail conditions imposed by the Court. The case was then closed for the Defence.<\/p>\n

THE RELEVANT SECTIONS OF THE LAW<\/p>\n

In the case of Hurnam v The State [2005 UKPC 49], the Privy Council held that only section 4(1) (a) of the 1999 Act specifies the core reasons for refusing bail. Individually, they are to be considered to provide a conclusive reason for refusing bail. Section 4(1)(a) of the Bail Act 1999 reads as follows:<\/p>\n

4. Refusal to release on bail<\/p>\n

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where (a) (a) he is satisfied that there is reasonable ground for believing that the defendant or detainee if released is likely to \u2013 (i) (i) fail to surrender to custody or to appear before a court as and when required (ii) (ii) commit an offence, other than an offence punishable only by a fine not exceeding 1000 rupees (iii) (iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person.<\/p>\n

Secondly, as regards to paragraphs 4 (1)(b) to (f) of the Bail Act which are not compelling grounds or core reasons per se to deprive an individual of his liberty but, if relevant, the court need to take into account in order to determine the likelihood of the risks listed in section 4(l)(a) to materialise. The section of the Bail Act 1999 provides as follows:<\/p>\n

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where-<\/p>\n

(b) he is satisfied that the defendant or detainee should be kept in custody – (i) for his own protection; or (ii) in the case of a minor, for his own welfare; (c) the defendant or detainee, having been released on bail, has \u2013 (i) committed an act referred to in paragraph (a); or (ii) breached any other condition imposed on him for his release: (d) the defendant or detainee is charged or is likely to be charged with a<\/p>\n

serious offence; (e) there is reasonable ground for believing that the defendant or detainee has – (i) given false or misleading information regarding his names or address; or 5 (ii) no fixed place of abode; (f) a detainee has failed to comply with section 12(2).<\/p>\n

Thirdly, a set of consideration is provided under section 4(2) of the Bail Act 1999 to assess the likelihood of the risks enumerated under section 4(l) (a) to materialise. This section provides that:<\/p>\n

In making a determination under subsection (1), the Judge or Magistrate shall have regard to such considerations as appear to the Judge or Magistrate to be relevant, including \u2013<\/p>\n

(a) the nature of the offence and the penalty applicable thereto; (b) the character and antecedents of the defendant or detainee; (c) the nature of the evidence available with regard to the offence.<\/p>\n

Hence, the wording of section 4(1) of the Bail Act 1999 makes it clear that release on bail at pretrial stage is the release upon conditions designed to ensure that the suspect:<\/p>\n

(1) appears for his trial, if he is eventually prosecuted; (2) in case he happens to be the author of the offence of which is he suspected, does no further harm to society whilst being at large; and (3) does not interfere with the course of justice, should he be so minded.<\/p>\n

The rationale as to bail was clearly set out in the case of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where it was held as follows:<\/p>\n

\u201cThe rationale of the law of bail at pre-trial stage is, accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks referred to above- i.e risk of absconding, risk to administration of justice, risk to society- to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance when the imposition of the above conditions is considered to be unlikely to make any of the above risks negligible, then bail is to be refused.\u201d<\/p>\n

It is also trite law that in deciding whether to grant bail to the applicant, a balance must be struck between \u201con the one hand the need to safeguard the necessary<\/p>\n

respect for the liberty of the citizen viewed in the context of the presumption of innocence and, on the other hand the need to ensure that society and the administration of justice are reasonable protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be\u201d [Labonne v. DPP & Anor 2005 SCJ 38]<\/p>\n

RISK OF RE-OFFENDING<\/p>\n

Regarding the sole ground of objection, there is no doubt that there is a serious risk of the Applicant being tempted to commit further offences as drug dealing is a lucrative business and also in light of the fact that the Applicant has been listed as being a \u201cmason\u201d has weak professional ties. I am therefore satisfied that the danger of re-offending is \u201cplausible\u201d [as stated in Deelchand v. DPP & Anor (supra) citing Clooth v. Belgium [1991] ECHR 71 (12 December 1991) at para 40].<\/p>\n

I have therefore addressed and applied the two-limbed test as laid down in the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (Supra), namely that:<\/p>\n

(i) if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending;<\/p>\n

(ii) if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.<\/p>\n

I have assessed an overview of the evidence. (RE: MALOUPE VS DISTRICTMAGISTRATE OF GRAND PORT [2000 MR 64]. In the present case, the Applicant has denied the charge against him and as confirmed by the main enquiry officer there is real police evidence against him. In the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES, DISTRICT COURT, PAMPLEMOUSSES (2011) SCJ 101 , his Lordship laid down as follows:<\/p>\n

\u201cAlthough the risk of re-offending would necessarily be based on conjecture, the nature of the offence charged and the record of an applicant are useful pointers for a court to decide on this issue\u201d.<\/p>\n

I have borne in mind that even if there is a risk of the Applicant re-offending, the Court should consider whether conditions can be imposed on the Applicant to render the risk negligible. (RE: MALOUPE VS DISTRICT MAGISTRATE OF GRAND PORT). An imposition of a heavy security will ensure the Applicant\u2019s appearance before Court and will be an incentive for him not to indulge in any other offence. In the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SUPRA), the Learned Judge had this to say:<\/p>\n

\u201cSecurity appears applicable to all the risks as it may be an incentive to the applicant to appear for trial, to behave whilst on bail and to refrain from interfering with witnesses, or tampering with evidence\u201d.<\/p>\n

I have duly considered the record of previous convictions of the Applicant and note that the Applicant is borne on record for a drug related offence and that he was not on bail when he was arrested for the present case. I also took into account the fact that the main enquiry officer did not give any indication as to when the formal charge against the Applicant would be lodged. I have further considered the value of the drug being merely Rs 1400 and the statement from the dock of Applicant to the effect that he is prepared to abide by all conditions imposed by the court.<\/p>\n

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances does not outweigh his right to remain at large and that conditions can be imposed to render the ground of objection negligible.<\/p>\n

For all the above mentioned reasons, I find that this is a proper case for the present Court to exercise its discretion under the Bail Act and to grant bail to the Applicant. I therefore grant him bail on the following conditions:<\/p>\n

(1) The Applicant is to furnish a surety in the sum of Rs 3000 (cash); (2) The Applicant is to enter a recognizance of Rs 35 000 (own name); (3) The Applicant is to report to the nearest police station every Saturday between 06 00 hours and 18 00 hours. (4) The Applicant should not commit any offence and reoffend whilst on bail;<\/p>\n

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 23 rd June 2020<\/p>\n<\/div>\n

\n

Sources officielles :<\/strong> consulter la page source<\/a> · PDF officiel<\/a><\/p>\n

Supreme Court of Mauritius – public domain<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Police v David Kervin Dianat 2020 BRC 172 IN THE BAIL AND REMAND COURT Provisional Cause Number 186\/2020 (Black River) In the matter of: Police v\/s David Kervin Dianat RULING The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF SYNTHETIC CANNABINOID S FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (ii) and…<\/p>\n","protected":false},"featured_media":0,"template":"","meta":[],"kji_country":[92666],"kji_court":[92667],"kji_chamber":[127341],"kji_year":[41198],"kji_subject":[7646],"kji_keyword":[14745,128124,100721,8066],"kji_language":[7611],"class_list":["post-1055914","kji_decision","type-kji_decision","status-publish","hentry","kji_country-maurice","kji_court-supreme-court-of-mauritius","kji_chamber-mrs-bhamini-prayag-rajcoomar-acting-senior-district-magistrate","kji_year-41198","kji_subject-divers","kji_keyword-david","kji_keyword-dianat","kji_keyword-kervin","kji_keyword-police","kji_language-anglais"],"yoast_head":"\nSupreme Court of Mauritius, 23 juin 2020, 2020 BRC 172 - Police v David Kervin Dianat - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Supreme Court of Mauritius, 23 juin 2020, 2020 BRC 172 - Police v David Kervin Dianat\" \/>\n<meta property=\"og:description\" content=\"Police v David Kervin Dianat 2020 BRC 172 IN THE BAIL AND REMAND COURT Provisional Cause Number 186\/2020 (Black River) In the matter of: Police v\/s David Kervin Dianat RULING The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF SYNTHETIC CANNABINOID S FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (ii) and...\" \/>\n<meta property=\"og:url\" content=\"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\/\" \/>\n<meta property=\"og:site_name\" content=\"Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data1\" content=\"9 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\\\/\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\\\/\",\"name\":\"Supreme Court of Mauritius, 23 juin 2020, 2020 BRC 172 - Police v David Kervin Dianat - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/#website\"},\"datePublished\":\"2026-06-06T14:50:33+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\\\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\\\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-23-juin-2020-2020-brc-172-police-v-david-kervin-dianat\\\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/criminal-law-attorneys-in-paris-counsel-and-strategic-defense\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Jurisprudences\",\"item\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/\"},{\"@type\":\"ListItem\",\"position\":3,\"name\":\"Supreme Court of Mauritius, 23 juin 2020, 2020 BRC 172 – Police v David Kervin Dianat\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/#website\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/\",\"name\":\"Kohen Avocats\",\"description\":\"Ma\u00eetre Hassan Kohen, avocat p\u00e9naliste \u00e0 Paris, intervient exclusivement en droit p\u00e9nal pour la d\u00e9fense des particuliers, notamment en mati\u00e8re d\u2019accusations de viol. 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