Supreme Court of Mauritius, 13 mai 2026, 2026 RDR 88 – Marie v Police

1

Marie v Police

2026 RDR 88

IN THE DISTRICT COURT OF RIVIÈRE DU REMPART (Criminal Jurisdiction) In the matter of: PCN: 397/26 Jose Samuel Jordane Cammy MARIE APPLICANT v Police RESPONDENT RULING 1. The Applicant is provisionally 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”.

2. The police objected to bail on the ground of risk of re-offending. Applicant was represented by Counsel Mr S. Teeluckdharry. Proceedings were in creole.

CASE FOR THE RESPONDENT

3. PS Chantar of ADSU Trou aux Biches (E.O) was deputed to resist the bail application on the ground of risk of re-offending. He stated under oath that:

3.1 On 09.04.2026 at around 18.55 hours, the ADSU officers searched the Applicant at Geranium Street Grand Bay and secured a resealable plastic sachet containing a certain amount of leaf matter suspected to be cannabis; 3.2 Upon questioning the Applicant, he stated “gandia sa missier, mo pe trace aine la vie”;

3.3 the value of the drugs is estimated at Rs 10,200; 3.4 there is direct evidence against Applicant; 3.5 a defence statement has already been taken and enquiry is short of FSL report; 3.6 Applicant has a clean record and is not on bail.

4. The E.O was cross examined by Counsel and upon questions put to him, he stated that:

4.1 Applicant admitted being only in possession of drugs and denied that he told the officers that “gandia sa missier, mo pe trace aine la vie”; 4.2 Applicant cooperated with the police and has a fixed place of abode; 4.3 No time frame regarding the FSL report and he cannot confirm when the main case will be lodged; 4.4 Applicant is of clean record, not on bail and only 21 years old; 4.5 Risk of offending is a mere apprehension. CASE FOR APPLICANT 5. Applicant made a statement from the dock stating that he shall respect all the conditions imposed by Court should he be granted bail. SUBMISSIONS 6. Learned Counsel submitted that this is a fit and proper case where bail should be granted in view of the circumstances. It is trite law that bail is the law and detention is the exception. He submitted that there are no exceptional circumstances warranting denial of bail in the present matter. LAW 7. Enshrined under Section 5 of the Constitution is the right to liberty. Every person is entitled to bail under Section 3 of the Bail Act subject to Section 4 of the said Act which are as follows: “3. Right to release on bail Notwithstanding any other enactment and subject to section 4, every defendant or detainee shall be entitled to be released on bail. […]

4. Refusal to release on bail (1) A Court may refuse to release a defendant or a detainee on bail where – (a) it is satisfied that there is reasonable ground for believing that the defendant or detainee if released is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required; (ii) commit an offence, other than an offence punishable only by a fine; (iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person; (b) it is satisfied that the defendant or detainee should be kept in custody – (i) for his own protection; […]” [Emphasis is mine]

8. The above rationale for bail is that the suspect's remaining at large is the rule and his detention on the ground of reasonable suspicion is the exception. This principle has been established by a string of cases ranging from Sheriff Y. v The District Magistrate of Port Louis [1989 MR 260], Maloupe v The District Magistrate of Port Louis [2000 SCJ 233], Deelchand v DPP [2005 SCJ 215], Labonne J v. DPP [2005 SCJ 38] to Nullatamby v DPP [2011 SCJ 258]. ANALYSIS 9. Applicant is provisionally charged with offence of drug dealing and the police objected to bail on the ground of risk re-offending. The E.O deposed to the effect that the risk of re-offending is a mere apprehension.

10. On the risk of re-offending, Court relies on the following extracts in the case of Deelchand (supra): “5.6 It goes without saying that the risk of offending must be a real one, and that there must be adequate reasons to explain its existence. In Clooth v Belgium [1991] ECHR 71 (12 December 1991), at para 40, the Court said that the “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one”.

5.7 Several factors may be relevant in the assessment of the seriousness of the risk and the propriety of detention to avert the danger. The criminal record of the applicant is an important consideration. So, too, the nature of the offence or offences which the applicant is suspected to have committed as some offences are more likely to be repeated than others […]

5.11 The character of the applicant, notably a clean or criminal record, is also a relevant consideration in considering the risk of offending (as it may indicate an inclination which increases that risk). So too the nature of the evidence against him: if he happens to be a criminal, then -if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending; if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.” (emphasis is mine)”

11. As E.O stated in his examination in chief and confirmed during cross examination, Applicant has a clean record and regarding the nature of evidence, the E.O confirmed in examination in chief that there is direct evidence against Applicant. The risk of offending must be a real one and there must be adequate reasons to explain its existence.

12. I have duly considered the facts and evidence on record. The enquiry is nearly finished and it is only short of the FSL report. However, the E.O could not give a time frame for the FSL report. Applicant denied drug dealing but admitted to being in possession of the drugs. Based on the testimony of the E.O, I am of the view that the risk of re-offending is not a real one as no evidence has been adduced to substantiate the existence of the risk of reoffending. Additionally, Applicant is of young age and has a clean record. He is not on bail.

13. In light of all the above and after carrying a balancing exercise (vide Maloupe v The District Magistrate of Grand Port (supra)), I am of the view that although Applicant stands provisionally charged with the offence of drug dealing, his constitutional right to freedom outweighs the risk of re-offending. Such risk can be reduced to a negligible level with the imposition of strict conditions.

14. I am equally alive to the fact that any bail condition should be reasonable and proportionate to the offence allegedly committed. Given the nature of the offence, it is just that a reporting condition be imposed. Applicant has to furnish a surety and to enter into a recognizance in his own name.

CONCLUSION: 15. In light of the above, Applicant is admitted to bail subject to the following conditions:

15.1 Applicant has to furnish a surety of Rs 15,000; 15.2 Applicant has to enter into a recognizance of Rs 50,000 in his own name; 15.3 A fixed place of abode and mobile phone number of Applicant to be made known and available to the police and; 15.4 Applicant to report to the nearest police station to his place of abode once on a daily basis between 06 00 to 18 00.

Ms O. LUCHOO Temporary District Magistrate 14.04.2026