Supreme Court of Mauritius, 10 juillet 2020, 2020 INT 94 – POLICE VS LAFORME JEAN ELISEE

POLICE VS LAFORME JEAN ELISEE

2020 INT 94

POLICE VS LAFORME JEAN ELISEE Cause Number: 846/18 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS LAFORME JEAN ELISEE JUDGMENT INTRODUCTION In the present case, the Accused stands charged under 2 Counts of the Information and they are as follows: (i) Under Count 1, he stands charged with the offence of 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; (ii) Under Count 2, he stands charged with the offence of drug dealing – possession of cannabis seeds for the purpose of cultivating cannabis plans in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act. He pleaded not guilty to both Counts and was not assisted by Counsel. The particulars of the charge against the Accused under Count 1 of the Information are that on the 1 st December 2016, he unlawfully and knowingly possessed 21.2 g of cannabis contained in one transparent plastic sachet, 9.0 g of cannabis contained in one white plastic parcel and 0.23 g of cannabis contained in one resealable plastic sachet. The particulars of the charge against the Accused under Count 2 of the Information are that he unlawfully and knowingly possessed 916 cannabis seeds, weighing 13.1 g, contained in one transparent plastic sachet for the purpose of cultivating cannabis plants.

THE FACTS On the 1 st December 2016, following information received, PC Valsain went with ADSU officers to effect a search in a bungalow occupied by the Accused in virtue of a search warrant. Upon reaching on the spot, the Accused was absent. The police officers noted that the bungalow was under lock and key and the Accused’s concubine was in the premises. They, therefore, revealed their identity, the reason for their presence on the spot and showed the search warrant. PC Valsain questioned the Accused’s concubine about the whereabouts of the Accused but she was unaware of same. With the permission of the concubine of the Accused, the ADSU officers forced open the door of the bungalow to have access inside. After about 10 minutes, the Accused came on spot and he was explained the presence of the ADSU officers and the circumstances as to how they had access inside the bungalow. A police search on the Accused did not reveal anything incriminating. PC Valsain then searched the kitchen in the presence of the Accused, his concubine and PC Bikhari. In a wooden cupboard, he found 3 plastic bags, 2 containing cannabis leaves and 1 containing 916 cannabis seeds. He also found a recyclable plastic containing cannabis. It is the contention of PC Valsain that he questioned the Accused about the offence and cautioned him to which the latter replied: “gandia ca, Mo dans beze, mo vender sa” and “la grain gandia ca. Mo in garde ca pou planter”. PC Valsain also secured an electronic scale, a cellophane paper and 20 cut pieces of cellophane paper, which he suspected would have been used to wrap drugs. The exhibits secured by PC Valsain were sent to the Forensic Science Laboratory (FSL) where they were examined. The leaf matter revealed the presence of cannabis and the seeds were identified as cannabis seeds. The version of the Accused is contained in his statement to the police. He averred that on the 1 st December 2016, he went swimming in Blue Bay. After his swim, he noted that he had received miss calls from his concubine and he went home where he saw ADSU officers. He conceded that a police search in his kitchen revealed the presence of a transparent plastic sachet containing cannabis leaves, a white plastic sachet containing cannabis, a transparent plastic sachet containing cannabis seeds and another plastic sachet containing cannabis leaves in a wooden cupboard. He also agreed that the police found a digital scale and cellophane papers. The Accused averred that on the 28 th November 2016, he bought the cannabis leaves for about Rs 3000. After the purchase, when he went back home, he separated the seeds from the cannabis leaves bought and put the seeds in another plastic sachet. It is the version of the Accused that he would have consumed cannabis and would have thrown away the cannabis seeds. He also added that he would

have used the cellophane paper as a book cover and the electronic scale for cooking purposes. He contended that he smokes 1 dose daily. In Court, the Accused stated from the dock that he was not in possession of cannabis and he only agreed in his statement to the police because the police threatened to refuse him bail if he did not confess. OBSERVATIONS I have assessed the evidence on record. The Accused is charged with two Counts of drug dealing. In relation to both Counts of the Information, it is incumbent on the Prosecution to establish that the Accused was in possession of drugs and then establish whether he was in such possession for the purposes of distribution or cultivation. It is clear from the testimony of PC Valsain who effected a search in the residence of the Accused that there were 3 plastic bags, 2 containing cannabis leaves and 1 containing 916 cannabis seeds as well as a recyclable plastic sachet containing cannabis in a cupboard in the kitchen. In his statement to the police, the Accused conceded that, in truth and in fact, the ADSU officers did secure the said items containing cannabis leaves and cannabis seeds from his residence. However in Court, he stated from the dock that the drugs did not belong to him and he only confessed to being in possession of same because he was threatened to be refused bail. On this score, I have borne in mind the dicta in the case of GENEVIÈVE ALAIN STEEVE V THE STATE (2001) SCJ 159 referring to the case of R V. BALDRY, CROWN CASES RESERVED: 1852 , 169 E.R. 568, as follows: “In R v. Baldry, Crown Cases Reserved: 1852, 169 E.R. 568, Pollock C.B. explained in very clear terms the rationale of the rule which excludes a confession induced by threat or promise made by a person in authority. We believe there is a need to remind enquiring officers what that rationale is by quoting a passage from his judgment: "The ground for not receiving such evidence is that it would not be safe to receive a statement made under any influence or fear. There is no presumption of law that it is false or that the law considers such statement cannot be relied upon; but such confessions are rejected because it is supposed that it would be dangerous to leave such evidence to the jury."

Therefore a statement is only admissible in Court if that statement is given voluntarily by an Accused party. In the case of THE QUEEN v M. BOYJOO AND R.D. BOYJOO (1991) SCJ 379, the Court referred to paragraph 3(e) of the Introductory notes to the Judges’ Rules which explicitly lays down the principle of a voluntariness of a confession, namely that: “It is a fundamental condition of the admissibility in evidence against any person equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear or prejudice or hope of advantage, exercised or held out by a person in authority or by oppression.”

In the present case, at no point in time, did the Accused contest his statement when it was produced in Court. It was only at the eleventh hour at the close of the Prosecution case that he came up with the version that he was not in possession of drugs at the time the ADSU officers searched his residence. I find that the Accused falls short from a witness of truth. Moreover, I have noted that PC Valsain and PS Gunesee deposed well in Court. They put forward their version of events without hesitation and I find no reason to doubt their versions as being true, the moreso that they deposed in their capacity as police officers on duty at the material time. In relation to the statement given by the Accused, I find that there is no evidence of violence, oppression or force having been exerted on the Accused and I therefore find that I can attach the necessary weight to the Accused’s confession that he was in possession of cannabis leaves and seeds on the material day.

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, the Accused conceded that when the police searched his house, they found in a wooden cupboard in his kitchen transparent plastic sachet containing cannabis leaves, a white plastic sachet containing cannabis, a transparent plastic sachet containing cannabis seeds and another plastic sachet containing cannabis leaves in a wooden cupboard as well as cellophane papers. The Accused explained that he bought the cannabis and kept same in his cupboard in his kitchen. It is therefore clear that the Accused was in physical possession of the leaf matter and seeds and was aware of the contents of the drugs. I deem it to refer to the case of WARNER V METROPOLITA N POLICE COMMISSIONER (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 knowingly bought same and kept the drugs in his house. The overt act connecting the Accused to the drugs is the fact that the drugs were found in the premises of the Accused and the Accused’s own acknowledgment

that he kept same. In the circumstances, I find that the Prosecution has established that the Accused was in possession of cannabis leaves and seeds.

Count 1 Under Count 1 of the Information, the Accused stands charged with the offence of drug dealing, that is, possession of cannabis for the purpose of distribution. Having found that the Prosecution has established that the Accused was in possession of cannabis leaves which were found as 21.2 g of cannabis contained in one transparent plastic sachet, 9.0 g of cannabis contained in one white plastic parcel and 0.23 g of cannabis contained in one resealable plastic sachet, I shall now consider whether they were for the purposes of distribution.

FOR THE PURPOSE OF DISTRIBUTION The DANGEROUS DRUGS ACT does not define the word ‘distribution’. “As distribution has not been defined, it must be given its ordinary dictionary meaning”. (PUTTAROO VS THE STATE (2008) SCJ 92). The Oxford dictionary defines the term ‘distribute’ as ‘hand or share out to a number of recipients or to supply’. In the case of PUTTAROO VS THE STATE (2008) SCJ 92 , the Court laid down as follows: “No doubt it is difficult to have direct evidence of the intention and this can only be inferred from surrounding circumstantial evidence”. 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 distribution.

Quantity of drugs It is a general principle that the quantity of drugs involved is reflective of the purpose of 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 a total of about 30 grams of cannabis leaves bearing a value of Rs 18,258 from the Accused. I find that the quantity of the drugs secured from the Accused is of considerable quantity. It is the version of the Accused that the cannabis leaves were for his own personal consumption. However, I have taken due note of the way in which the Accused kept the cannabis. He separated the cannabis leaves bought in 3 different sachets and kept them distinctly, such that it can be inferred that the leaf matter in the sachets could have been used for distribution. Moreover, the Accused explained that he bought the cannabis on the 28 th November 2016. He was intercepted by the police on the 1 st December 2016. If the Accused was a regular consumer of cannabis as per his version that he smoked 1 dose daily, it is most peculiar that the Accused only separated the cannabis in 3 different sachets and did not consume the drugs. This negates his version that he was a consumer and suggests that he kept the drugs for distribution purposes. I find that the amount of cannabis leaves secured from the Accused’s premises is considerable for one person and suggests that it is of much larger quantity than was needed for the Accused’s own personal consumption. (RE: SHERIFF VS R (2008) SCJ 92). I find that the quantity of drugs secured from the Accused is more reflective of distribution than consumption.

Count 2 Under Count 2 of the Information, the Accused has been charged with the offence of drug dealing – possession of cannabis seeds for the purpose of cultivating cannabis plants. I have already found that the Prosecution has established that the Accused was in possession of cannabis seeds on the day of the offence. I shall now consider whether he was in possession of cannabis seeds for the purpose of cultivating cannabis plants.

FOR THE PURPOSE OF C ULTIVATING CANNABIS PLANTS “To cultivate is to bestow labour, care and attention upon land in order to raise crops or produce” (RE: C. CHELUMBRON V R 1990 SCJ 365). In the present case, the police secured 916 cannabis seeds in a sachet in a wooden cupboard in the kitchen of the Accused. The Accused for his part has averred in his statement to the police that he did not intend to cultivate the cannabis plants but intended to throw away the seeds.

In view of the state of evidence, can I therefore infer that the Accused was in possession of cannabis seeds for the purpose of cultivating cannabis plants? In the case of DEAN LEUNG HOW D v THE STATE (2012) SCJ 196 , the Court found as follows: “We are of the view that an irresistible inference that the accused’s possession of the gandia seeds were indeed for the purpose of cultivation, i.e. cultivating gandia plants, arose from the following basic facts: (1) that gandia seeds are used for cultivating gandia plants, (2) the large number of seeds found in the possession of the accused, (3) the manner in which he kept them, (4) his implicit admission, in his statement from the dock, that he believed the seeds to be capable of growing, and (5) his cock and bull story as to how he obtained the gandia seeds and why he kept them in the way he did”. Applying the reasoning in DEAN LEUNG HOW D v THE STATE to the present case, I have taken into account the circumstances of the present case in relation to the quantity of seeds involved, the manner in which the Accused kept them, and the version of the Accused. First of all, it is clear that cannabis seeds are used for cultivating cannabis plants. Second, the police secured 916 cannabis seeds from the Accused. 916 seeds represent a considerable amount and bear a value of Rs 91,600. Given the quantity of seeds secured, it is likely that the seeds would be used for cultivating cannabis plants as the large number thereof is suggestive of cultivation. Third, I have borne in mind that the Accused kept the seeds in a plastic sachet, in one exclusive parcel, which could have been used for cultivation purposes. I have also considered the version of the Accused. He averred that he intended to throw away the cannabis seeds. I have noted that the Accused came in possession of the cannabis seeds on the 28 th November 2016 and was arrested on the 1 st December 2016. I find that if the Accused intended to throw away the cannabis seeds, he would not have securely kept same in a distinct plastic sachet in his cupboard for 3 days. I find that the version of the Accused is not tenable.

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 distribution or cultivation, 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 that the drugs were meant for distribution”. (RE: LOBINE VS THE STATE (2004) SCJ 326). In the case of KARRIMBUCCUS VS THE STATE (2004) SCJ 200 , the Court reached the conclusion that the drugs on the Appellant were meant for distribution in view of, inter alia, the quantity of the drugs involved, the fact that they were sealed in small plastic sachets, there was an electronic scale bearing traces of heroin in the Appellant’s house and a huge sum of money secured. In the present case, I have noted that the police secured an electronic scale as well as cellophane papers from the premises of the Accused. I find that these constitute paraphernalia which lend credence to the fact that the Accused was indulged in drug dealing activities. I have also taken into account that the Accused has explained in his statement to the police that he earns about Rs 20,000 monthly and his expenses amount to about Rs 8,000 monthly. A total value of drugs amounting to about Rs 109,000 was secured from him. Given the value of drugs found on the Accused and his financial capacity, I find that any money spent by the Accused to obtain the cannabis leaves and seeds is consistent with the fact that the Accused was indulged in drug dealing activities since there is no reasonable justification with regards the source of funds for the obtention of cannabis by the Accused. Taking into account all the co-existing circumstances, namely the quantity of the cannabis leaves and seeds secured and the way in which they were kept, I find that they support the inference that the drugs were meant for distribution and cultivation. There are no factors or circumstances which destroy this inference. I therefore reach the logical, reasonable and irresistible inference that the cannabis leaves secured from the Accused was for the purpose of distribution and the cannabis seeds secured were for the purposes of cultivation. I therefore find that the Prosecution has established the charge under both Counts against the Accused.

CONCLUSION I find that the Prosecution has proved its case beyond reasonable doubt. I find the Accused guilty as charged under 2 Counts with the offence of drug dealing:

(i) Under Count 1, with the offence of 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; (ii) Under Count 2, with the offence of drug dealing – possession of cannabis seeds for the purpose of cultivating cannabis plans in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 10 th July 2020