Supreme Court of Mauritius, 29 mai 2020, 2020 ROD 24 – POLICE v OLIVIER DORIAN DIDIER

POLICE v OLIVIER DORIAN DIDIER

2020 ROD 24

POLICE v OLIVIER DORIAN DIDIER Cause No: 1258/2019 THE COURT OF RODRIGUES

In the matter of:- POLICE

VERSUS

DIDIER DORIAN OLIVIER ———- JUDGMENT 1. Accused stands charged with the offence of drug dealing in that of being in possession of cannabis seeds for the purpose of distribution in breach of sections 30 (1) (f) (i) and 47 (5) (a) of the Dangerous Drugs Act, as amended. 2. Accused pleaded not guilty and Accused was assisted by Mr. Stephen of Counsel at trial. The trial. 3. This is a case where Accused was found in possession of cannabis seeds during a search carried out by police officers posted at Anti Drug and Smuggling Unit at Plaine Corail Airport.

4. On 26 May 2019. at 20.20 hours, Accused landed at Plaine Corail Airport from a flight coming from Mauritius. Accused was searched by two police officers posted at the Anti Drug and Smuggling Unit, namely Police Constable Severy (“W4”) and Police Constable Guillaume

(“W3”). During the course of the search, 148 seeds of cannabis was found in the side pocket of a bag belonging to Accused.

5. As per the evidence adduced by W4, after the cannabis seeds were found in possession of Accused, the latter replied: “la grain gandia sa, sorry mo fin oublié sa la dans, donne moi ene chance.”

6. As regards to Accused, he testified that the 148 cannabis seeds were secured in a bag which he was carrying at Plaine Corail Airport. He further testified that he is a musician and he performs in Mauritius and in other countries such as Seychelles, Madagascar and South Africa. Accused also testified that his stage name is Neguson and he produced some posters in support. Accused stated that he is married to one Collet since 2017 and they have a baby girl of 2 months. Accused further stated that he came to Rodrigues on 21 March 2018 and left Rodrigues after two weeks as he had to perform in a concert. He then came back to Rodrigues on 26 march 2018 to take his wife and his baby to Mauritius as the baby was ill. He went on to say that he was given the 148 cannabis seeds from someone he met when he was coming from the seaside and he eats the cannabis seeds as they are rich in magnesium and iron compared to beef. Accused stated that he does not carry the bag in which the cannabis seeds were found on a daily basis and that he completely forgot that the cannabis seeds were in the bag. He further stated that he used to be searched and that he would not carry those seeds with him. To conclude, Accused denied that he was going to distribute the cannabis seeds and also that he was unaware that those cannabis seeds were in his possession at the material time.

The law

7. Section 30(1) (f) (i) of the Dangerous Drugs Act provides that:

Any person who unlawfully – ………..(f) possesses, purchases or offers to purchase any dangerous drug for the purpose of any activity in this section, shall commit an offence and shall, on conviction, be liable –

(i) where the offence is in respect of a dangerous drug specified in Part I of Schedule I, Schedule II or Schedule III, to a fine not exceeding one million rupees and to penal servitude for a term not exceeding 25 years; …

8. Section 47 (5) (a) of the Dangerous Drugs Act provides that:

The Court before which a person is convicted of an offence shall, in addition to any penalty imposed by the Court, order any dangerous drug or any article, utensil or any instrument in respect or by means of which the offence was committed or any money obtained from the commission of the offence to be forfeited;

Assessments.

9. I have assessed all the evidence on record and submission of both counsel. I have also taken into consideration the further submission of counsel for the State Law Office who submitted regarding the element of distribution.

10. As regards the first element of the offence under which Accused is being prosecuted, namely possession of the drugs, in the case of Emambux v R (1988) SCJ 440, the Court identified the elements of possession of drugs consisting of both knowledge and control and it was held that possession might be inferred when there is an overt act of possession.

11. In the present matter, it is not in dispute by Accused that cannabis seeds were found in his bag which he was carrying at the time he landed at Plaine Corail Airport. Furthermore, Accused admitted during his testimony that the cannabis seeds were given to him by an unknown person. Hence, the issue of possession is not disputed.

12. The only issue in contention is that the cannabis seeds were for the purpose of distribution.

13. For the prosecution, Miss Thakoor, Counsel for the prosecution relied on 3 caselaw and submitted that the prosecution has proved beyond reasonable doubt that Accused was in possession of cannabis seeds for the purpose of distribution.

14. For the defence, Mr. Stephen submitted that to prove the element of distribution, factual evidence had to be adduced to prove that the cannabis seeds were for the purpose of distribution. He went on to say that the version that Accused put forward that he forgot the drugs in his bag cannot be disregarded. Mr. Stephen also submitted that the possibility of Accused being searched at the airport was very high.

15. In the case of Bernard v The State [2012 SCJ 31] the Supreme Court held:

“It is not necessary under a charge under section 30(f) of the Dangerous Drugs Act 2000 (possession for the purpose of any of the activities specified under the section) for the prosecution to prove that any of the intended and specified activities did actually take place. It is enough for the prosecution to adduce such facts as to show that the possession was for the purpose of the activities: i.e. sale, import, export, production, manufacture, extraction, preparation, transformation, distribution, brokering, delivery, transportation, cultivation etc as the case may be.

In that regard, all that was incumbent upon the prosecution to do was to adduce evidence of facts from which the court could draw the inference that the drug was meant for the specified activity or activities”.

16. In the case of A. Boodhoo v. The State [2004 SCJ 235] which was cited with approval in the case of Chengebroyen v The State [2010 SCJ 87], there is no need for the prosecution to adduce direct evidence or facts to prove one of the activities referred in section 30 of the Dangerous Drugs Act.

17. In the case of A. Boodhoo v. The State (supra), before the lower Court, the appellant was charged with the offences of (i) possession of cannabis for the purpose of selling, and (ii) possession of heroin for the purpose of selling in breach of section 30(1)(f) of the Dangerous

Drugs Act 2000. The Supreme Court had this to say regarding the element of for the purpose of selling, namely that the possession of the dangerous drugs is for the purpose of selling.

It was incumbent on the prosecution to prove all the elements of the offence beyond reasonable doubt. This burden can be discharged by adducing direct or circumstantial evidence, but the standard of proof remains that of proof beyond reasonable doubt. Now, unless an accused party has expressly stated his intention, such an intention can only be inferred from the surrounding facts and circumstances. At the same time before drawing such an inference from circumstantial evidence, it is necessary to be sure that there are no other co-existing circumstances which could weaken or destroy such an inference: vide Teper v R [1952 A.C. 489].

18. As regards to the element of distribution, the Supreme Court in the case of The State v Assame [2011 SCJ 177] following the decision of The State v Puttaroo [2008 SCJ 92], held that:

“As distribution has not been defined in the Dangerous Drugs Act, it must be given its ordinary dictionary meaning (see The State v Puttaroo [2008 SCJ 92]). In the Oxford English Dictionary “distribute” means “hand or share out to a number of recipients or to supply.”

19. Now, in the present case, there is no direct evidence that Accused was in possession of those cannabis seeds for the purpose of distribution. It is not in dispute that 148 cannabis seeds were found in a pocket of a bag which Accused was carrying which comes to a total value of Rs.14,800. Furthermore, there is the evidence adduced by Police Constable Samoisy who stated in cross examination that the reason as to why this charge was put to Accused was because Accused said that he is married to a woman of Rodriguan origin.

20. It is a general principle that the quantity of drugs involved is reflective of the purpose of distribution. In the case of State V Assame 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”.

21. In the case of The State v Puttaroo [2008 SCJ 92], the Supreme Court made the following observations:

In the circumstances, there is no evidence of any of the prohibited activities as enumerated under paragraphs (a) to (c) of Section 30(1) of the Dangerous Drugs Act 2000 as amended. There remains the activities prohibited under section 30(1)(d) and of which inferences would have to be made. The established facts would show that activities like sale, offer for sale, delivery, transport, dispatch or brokering would not be an irresistible conclusion. The only reasonable inference is that the amount of drug imported in bulk was meant for distribution which has a wider and neutral meaning that to sell which connotes the payment of money in exchange of the drug.

22. Now, in the Puttaroo case, the appellant attempted to possess 2890 grams of heroin and which comes to a value of 28 million rupees compared to the present case, Accused was found in possession of 148 cannabis seeds coming to a total value of Rs. 14,800.

23. In the case of Karrimbuccus v. The State [2004 SCJ 200], the Supreme Court upheld the inference made by the trial court when it stated that

“…given the facts and circumstances, such a substantial amount of drugs could only be meant for distribution”.

24. However, the co-existing circumstances or evidence to confirm that the drugs found on the appellant were meant for distribution in the case of Karrimbuccus v State [2004 SCJ 200] are not applicable in the present case.

25. In the Karrimbuccus case the heroin was found in five small sealed plastic sachets wrapped in a parcel compared in the present case, the cannabis seeds were found in one lot.

26. In the Karrimbuccus case, an electronic scale bearing traces of heroin was immediately thereafter secured from the appellant’s house but no similar item or anything which could have been connected to the distribution process was secured at the place where Accused intended to reside.

27. In the Karrimbuccus case, a huge sum of money of unexplained origin wrapped in a plastic bag was found with the appellant at the time of her arrest for possession of the heroin compared to the present case, no evidence was adduced to that effect.

28. Furthermore, the present case can be distinguished with the case of Police v Sunnooman Mahmad Reza [2009 INT 122] where apart from the sixty gandia seeds, 89 squarely cut shaped cellophane paper, a large piece of cellophane paper and a pair of scissors were secured.

29. In the light of the authorities referred above, I have not found any co-existing circumstances or evidence to confirm that the drugs found on Accused were meant for distribution (See: O. Lobine v. The State [2004 SCJ 326]). I also find that that the reason put forward by Police Constable Samoisy and the quantity of the cannabis seeds secured on Accused cannot be reflective of distribution.

30. Hence, taking into account, the state of evidence adduced in the present case, I cannot find that there is an irresistible inference that can be reached to say that the cannabis seeds were meant for distribution.

Conclusion.

31. For all the reasons given I find that it has not been established beyond reasonable doubt that the drugs found in the possession of Accused was meant to be distributed. However, in the light of the evidence adduced, in virtue of section 30(3) of the Dangerous Drugs Act 2000, I find Accused guilty of the offence of possession of cannabis seeds under section 34(1) (b) of the Dangerous Drugs Act 2000.

D.J.A Dangeot Senior District Magistrate Delivered this 29 May 2020.