{"id":1056470,"date":"2026-06-06T20:25:43","date_gmt":"2026-06-06T18:25:43","guid":{"rendered":"https:\/\/kohenavocats.com\/jurisprudences\/supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah\/"},"modified":"2026-06-06T20:25:43","modified_gmt":"2026-06-06T18:25:43","slug":"supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah","status":"publish","type":"kji_decision","link":"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah\/","title":{"rendered":"Supreme Court of Mauritius, 1 juin 2020, 2020 BRC 149 – Police v Atish Baumah"},"content":{"rendered":"
\n
\n

Police v Atish Baumah<\/p>\n

2020 BRC 149<\/p>\n

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

Provisional Cause Number 1492\/2019 (Curepipe) BRC Cause Number 3530\/19<\/p>\n

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

Police<\/p>\n

v\/s<\/p>\n

Atish Baumah<\/p>\n

RULING<\/p>\n

The Applicant stands provisionally 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 Drug Act coupled with GN 93\/2019. The Applicant has moved that he be admitted to bail and he was represented by Defence Counsel at the bail hearing. The case for the prosecution was conducted by Police Prosecutor and the proceedings were held in Creole language for the benefit of the Applicant. This is a fresh bail hearing for the Applicant after the first bail application heard by HH Ms Jugnauth was set aside on 20 th December 2019. The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the following grounds: Risk of re-offending and Risk of absconding<\/p>\n

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

PS 7253 Bruno, the main enquiry officer was called by 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 grounds. The police officer went on to explain that on 24 th September 2019 at 18 00 hours, following certain information received by police officers the officers went to Hollywood Road, Vacoas and Applicant was seen on the locus. Following a search exercise carried out, five parcels wrapped in black insulating tape were found in Applicant\u2019s pocket and were found to each contain thirty-six aluminium foils. In all one hundred and eighty foils were seized suspected to contain synthetic cannabinoids and the value of the drug seized is Rs 18 000. The court was informed that the Applicant had confessed to the<\/p>\n

charge and the main enquiry officer went on to state that the police believe that if granted bail, the Applicant will re-offend as drug dealing was a lucrative business. The officer further explained that the Applicant was borne on record for six cognate offences and Doc X was filed accordingly. The officer further explained that the Applicant was borne on record for breach of condition of release and Doc A was filed. The main enquiry officer explained that the Applicant was on bail for a cognate offence when he was arrested for the present offence as per Doc A on record. The court was informed that only the FSL report was missing to complete the police enquiry and that a reminder had been sent dated 4 th February 2020.<\/p>\n

In cross examination the officer confirmed that Applicant had confessed to selling drugs and that in the past he had failed to report as per bail conditions imposed. The officer confirmed that the Applicant had a fixed place of abode and he stated that he could not say when the FSL report would be obtained and he maintained that both grounds of objections were real. The case was then 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 stated that he would comply with all bail conditions imposed by the Court and had a child of five years who needed him. The case was then closed for the Defence.<\/p>\n

Defence Counsel submitted briefly and reminded the Court that this was a second bail application on the grounds of delay and that the enquiry officer was still awaiting the FSL report and invited the Court to use its discretion and grant bail to the Applicant relying on the case of Lutchigadoo v\/s Presiding Magistrate of the Bail and Remand Court 2020 SCJ 79.<\/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<\/p>\n

(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 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 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 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 ABSCONDING<\/p>\n

The Court shall deal with the second ground of objection raised by the police namely that there is a likelihood that the Applicant could abscond if released first. I shall refer to the case of LABONNE (JV) VS DIRECTOR OF PUBLIC PROSECUTIONS [2005 SCJ 38], whereby it has been averred as follows:<\/p>\n

\u201cthe seriousness of the offence or the likelihood of the suspect being charged with a serious offence is obviously just a consideration to be weighed in the balance and not by itself a ground for refusing bail\u201d.<\/p>\n

Therefore, the very fact that the Applicant might eventually face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. The Court has further considered the principle stated in the case of WEMHOFF V GERMANY [1968 ECHR 2] namely that:<\/p>\n

\u201cWhen the only (\u2026) reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance.\u201d<\/p>\n

There is evidence that Applicant has breached a condition of release in the past, that is reporting when required and since the ground regarding the fact that the Applicant might abscond is therefore not based on a mere apprehension, I find that this ground succeeds. The Court has further considered the risks of the Applicant\u2019s absconding, namely \u201c(\u2026) his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.\u201d (RE: NEUMEISTER VS AUSTRIA [1968 1 ECHR 91].<\/p>\n

In the present case, I note that the Applicant has both strong family ties and a fixed place of abode and he has spent a further five months on remand since his last bail application. Hence, the risk of him absconding have been rendered negligible.<\/p>\n

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

Regarding the first ground of objection, there is no doubt that drug trafficking being a lucrative business, there is a serious risk of the applicant being tempted to commit further offences. The more so when one considers the value of the drugs recovered in this case and the long list of drug related offences for which Applicant is borne on record as per Doc X on record. Also Applicant was on bail for a cognate offence when he was arrested for the present case. 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 DISTRICT MAGISTRATE OF GRAND PORT (2000) MR 64) . 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 therefore taken into account the past records of the Applicant. In the present case, the Applicant has confessed to the charge as confirmed by the main enquiry officer. I note that there is real evidence against him. I have borne in mind that although there is a risk of the Applicant re-offending, the Court should consider whether conditions can be imposed on the Applicant to render these risks 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 also taken into account the Applicant\u2019s statement from the dock that he is prepared to abide by any conditions that the Court may impose. I further considered the fact that the main enquiry officer has stated has the police enquiry was not completed and that the FSL report was yet to be obtained. I find that there are conditions, severe ones, which could be imposed to effectively reduce the risk of the Applicant re-offending to a negligible level.<\/p>\n

The Applicant is admitted to bail on the following bail conditions:<\/p>\n

(1) The Applicant is to furnish a surety in cash in the sum of Rs 45,000; (2) The Applicant is to enter into a recognizance in his own name for the sum of Rs 100,000; (3) The Applicant is to report to the nearest police station daily between 06 00 hours and 18 00 hours; (4) A curfew order is imposed on Applicant. He is to remain indoors between 19 00 hours and 05 00 hours daily at his place of residence, address given to the enquiry officer. In case of any emergency, the Applicant is to inform the police before proceeding outdoors; (5) The Applicant is to reside at a fixed place of residence, address to be provided to the enquiry officer; (6) The Applicant is not to re-offend whilst on bail<\/p>\n

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 1 st 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 Atish Baumah 2020 BRC 149 IN THE BAIL AND REMAND COURT Provisional Cause Number 1492\/2019 (Curepipe) BRC Cause Number 3530\/19 In the matter of: Police v\/s Atish Baumah RULING The Applicant stands provisionally 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…<\/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":[93515,128302,8066],"kji_language":[7611],"class_list":["post-1056470","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-atish","kji_keyword-baumah","kji_keyword-police","kji_language-anglais"],"yoast_head":"\nSupreme Court of Mauritius, 1 juin 2020, 2020 BRC 149 - Police v Atish Baumah - 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-1-juin-2020-2020-brc-149-police-v-atish-baumah\/\" \/>\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, 1 juin 2020, 2020 BRC 149 - Police v Atish Baumah\" \/>\n<meta property=\"og:description\" content=\"Police v Atish Baumah 2020 BRC 149 IN THE BAIL AND REMAND COURT Provisional Cause Number 1492\/2019 (Curepipe) BRC Cause Number 3530\/19 In the matter of: Police v\/s Atish Baumah RULING The Applicant stands provisionally 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...\" \/>\n<meta property=\"og:url\" content=\"https:\/\/kohenavocats.com\/en\/jurisprudences\/supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah\/\" \/>\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=\"12 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-1-juin-2020-2020-brc-149-police-v-atish-baumah\\\/\",\"url\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah\\\/\",\"name\":\"Supreme Court of Mauritius, 1 juin 2020, 2020 BRC 149 - Police v Atish Baumah - Ma\u00eetre Hassan Kohen, avocat en droit p\u00e9nal \u00e0 Paris\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/#website\"},\"datePublished\":\"2026-06-06T18:25:43+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah\\\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah\\\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/kohenavocats.com\\\/en\\\/jurisprudences\\\/supreme-court-of-mauritius-1-juin-2020-2020-brc-149-police-v-atish-baumah\\\/#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, 1 juin 2020, 2020 BRC 149 – Police v Atish Baumah\"}]},{\"@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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