Supreme Court of Mauritius, 3 avril 2026, 2026 UPW 13 – Police v Oliver Wayne Leung How Teng

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Police v Oliver Wayne Leung How Teng

2026 UPW 13

IN THE DISTRICT COURT OF UPPER PLAINES WILHEMS

In the matter of: –

CN 4120/24

Police

v

Oliver Wayne Leung How Teng

RULING

1. The Accused stands charged with the offence of drug dealing (possession of heroin for the purpose of distribution) in breach of section 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs Act (DDA).

2. The present case was lodged on 28 June 2024.

3. On 22 January 2026, the Supreme Court sitting on appeal in the case of the K.M Ratseezanunt v The State [2026 SCJ 29] (Ratseezanunt) held that the District Court does not have jurisdiction to try offences of drug dealing under the DDA.

4. On 17 March 2026, when the present case came for trial, the Court invited the Prosecution to take a stand. The latter, whilst relying on the authority of A. A. Soobiah v. The State [2012 SCJ 435] (Soobiah), then informed the Court that its stand was for the case to proceed before this Court. The reasons advanced for its position were two-folds, namely that –

(a) there is no provision under the Dangerous Drugs Act 2000, the Courts Act or the District and Intermediate Courts (Criminal Jurisdiction) Act that expressly ousts the jurisdiction of the District Court in respect of drug dealing offences; and

(b) there is likewise no statutory provision conferring exclusive jurisdiction to try drug dealing offences upon any specified court.

5. Having regard to the decision in Ratseezanunt and the position adopted by the Office of the Director of Public Prosecutions, this Court is effectively being called upon

to determine which of the approaches adopted in Soobiah and Ratseezanunt ought to be followed and considers that a determination as to whether it ought to assume jurisdiction in the present matter is warranted. I shall accordingly address these issues proprio motu.

6. For reasons which shall become apparent later on, the Court did not call for or entertain submissions on these issues.

The criminal jurisdiction of the District Court

7. The general provisions pertaining to the criminal jurisdiction of the District Court are reproduced hereunder –

(a) section 114 of the Courts Act

“114. Criminal jurisdiction of District Courts (1) Subject to subsection (2), every District Court before whom any person is charged with having committed an offence, not being one of the offences mentioned in section 116, shall have power and jurisdiction to hear, try and determine the charge and all questions of fact and law arising in the case and to convict the person, and on conviction, to award against him any penalties not exceeding the maximum penalties applicable to the offence of which the person is convicted. (2) A District Court shall not award against any person imprisonment with or without hard labour for more than 5 years, and a fine exceeding 100,000 rupees.” [underlining is mine]

(b) Section 116 of the Courts Act

“116. Matters excluded from summary jurisdiction

(1) Subject to subsection (2), a District Magistrate shall have no jurisdiction to convict, but shall proceed to hold a preliminary inquiry and, if necessary, to commit for trial in accordance with the law relating to preliminary inquiries and commitment for trial if an accused is charged with any of the following offences—

(a) offences under sections 50 to 79, 82, 83, 86, 88 to 91, 100 (1), 101, 102, 104, 122 to 124, 215 to 223, 228 (3) and (4), 234, 235, 236 (1) and (2), 239 (1), 249 (1) and (4), 257, 259, 276 to 281 (where the offence is committed before the Supreme Court), 283, 284, 291, 346 and 347 of the Criminal Code;

(b) attempts at or complicity in offences excepted from the jurisdiction of the Magistrate;

(c) offences which, under any other enactment, are punishable by death or penal servitude for life, or are excluded from the jurisdiction of the Magistrate.

(2) A Magistrate of the Criminal Division of the Children’s Court shall have no jurisdiction to convict, but shall proceed to hold a preliminary inquiry and, if necessary, to commit for trial, in accordance with the law on preliminary inquiries and commitment for trial, if an accused, being a juvenile aged 14 or above but below the age of 18, is charged with any of the following offences –

(a) an offence under section 249(1) and (4) of the Criminal Code;

(b) an offence which, under any other enactment, is punishable by penal servitude for life.”

(c) Section 72 of the District and Intermediate Courts (Criminal Jurisdiction) Act

“72. The hearing … (5) Where, under the law applicable to the offence, the Magistrate inflicts both fine and imprisonment, the fine shall not exceed 100,000 rupees and the imprisonment shall not exceed 5 years.”

8. At the outset, it can be observed that section 30 of the DDA (which pertains specifically to drug dealing offences) does not appear among the provisions listed in section 116 of the Courts Act. Furthermore, this Court has not come across any provision in our laws ousting the jurisdiction of the District Court in respect of offences under section 30 of the DDA.

The approach in A.A. Soobiah v. The State [2012 SCJ 435]

9. In Soobiah, the appellant was prosecuted before the District Court of Pamplemousses for unfair practice in breach of sections 4(1) and 10 of the Protection Against Unfair Practices (Industrial Property Rights) Act 22/02(PAUPA). At the material time, section 10 of the PAUPA provided, upon a conviction under section 4(1), for a fine of Rs 250,000 and a term of imprisonment not exceeding five years. It was argued on behalf of the Appellant that the provisions of section 114(2) of the Courts Act (as it stood on 3 December 2008) limited the jurisdiction of the District Court in criminal matters to a fine not exceeding Rs 10,000 and to imprisonment not exceeding two years so that the District Magistrate could not have heard the case and ought

not to have assumed jurisdiction inasmuch as the sentence provided for the offence, exceeded her jurisdiction by far.

10. The Supreme Court (sitting in its appellate jurisdiction) in Soobiah went on to hold that –

“We do not agree that the Magistrate did not have jurisdiction to hear the case. We have not found any provision be it in the PAUPA, the Courts Act or the District and Intermediate Courts (Criminal Jurisdiction) Act, ousting the jurisdiction of the District Court in respect of offences under the PAUPA. Nor is there any provision in the PAUPA conferring jurisdiction to try cases under that Act, upon a specified court.

The criminal jurisdiction of District Courts is set out under the Courts Act at Section 114, entitled Criminal jurisdiction of District Courts as follows:

“114. (1) Subject to subsection (2), every District Court before whom any person is charged with having committed an offence, not being one of the offences mentioned in section 116, shall have power and jurisdiction to hear, try and determine the charge and all questions of fact and law arising in the case and to convict the person, and on conviction, to award against him any penalties not exceeding the maximum penalties applicable to the offence of which the person is convicted.”

The only offences which a District Court does not have jurisdiction to hear, are those which are specified under Section 116 as follows:

“(a) offences under sections 50 to 79, 82, 83, 86, 88 to 91, 100 (1), 101,102,104,122 to 131, 215 to 223, 228(3), and (4), 234, 235, 236(1) and (2), 239(1), 249(1) and (4), 251, 257, 259, 276 to 281 (where the offence is committed before the Supreme Court), 2,83, 284, 291, 346 and 347 of the Criminal Code;

(b) attempts at or complicity in offences excepted from the jurisdiction of the Magistrate;

(c) offences which, under any other enactment, are punishable by death or penal servitude for life, or are excluded from the jurisdiction of the Magistrate.”

An offence under the PAUPA not being among the offences in respect of which the jurisdiction of the District Court is ousted, we find that the District Court could proceed to hear, try and determine the case.

However, although the District Court had jurisdiction to try the case, in so far as sentencing is concerned, in the absence of any specific provision entitling

the District Court to impose penalties exceeding its normal jurisdiction, the court was not entitled to impose the sentence provided under Section 10 of the PAUPA i.e. a fine of Rs 250,000 and imprisonment up to five years. The jurisdiction of the District Court was limited to a penalty which did not exceed its jurisdiction as provided at the time of the offence under Section 114(2) of the Courts Act and Section 72(5) of the District and Intermediate Courts (Criminal Jurisdiction) Act i.e. a fine of Rs 10,000 and imprisonment not exceeding two years.”

11. If the approach in Soobiah was to be adopted in the case at hand, this would imply that the District Court has jurisdiction to hear an offence under section 30(1)(f)(ii) since there is neither any statutory provision expressly ousting the jurisdiction of the District Court in this respect and nor is there any provision in the DDA conferring exclusive jurisdiction to try cases under it upon a specified court. It would accordingly follow that, in so far as sentencing is concerned, in the absence of any specific statutory provision empowering the District Courts to impose penalties exceeding its normal jurisdiction, its sentencing powers would remain circumscribed by section 114(2) of the Courts Act and section 72(5) of the District and Intermediate Courts (Criminal Jurisdiction) Act — namely a fine of Rs 100,000 and imprisonment not exceeding five years.

12. Now, section 30 of the Dangerous Drugs Act (DDA) provides as follows –

“30. Drug dealing offences (1) Any person who unlawfully— (a) organises, manages, or finances any of the offences specified in this section; (b) imports, exports, causes to be imported or exported, aids, abets, counsels or procures the importation or exportation of any dangerous drug; (c) produces, manufactures, extracts, prepares or transforms any dangerous drug; (d) offers, offers for sale, distributes, sells, brokers, delivers or tran- sports on any terms whatsoever, dispatches, or dispatches in transit any dangerous drug; (e) cultivates opium poppy, coca bush or cannabis plant; (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 the First Schedule, Second Schedule or Third Schedule, to a fine not exceeding one million rupees and to penal servitude for a term not exceeding 25 years; (ii) where the offence is in respect of a dangerous drug specified in Part II of the First Schedule, to a fine not exceeding one million rupees together with penal servitude for a term which shall not be less than

5 years and not more than 25 years.” [underlining is mine]

13. It would be apposite at this stage to highlight the difference between penal servitude and imprisonment as can be garnered from sections 11 and 12 of the Criminal Code which provide as follows –

“11. Penal servitude (1) The punishment of penal servitude is imposed for life or for a minimum term of 3 years. (2) Where in any enactment the punishment of penal servitude is imposed without a term being specified, the maximum term for which the punishment may be imposed is 40 years.

12. Imprisonment Where in any enactment the punishment of imprisonment is provided for an offence without a term being specified, the term for which imprisonment may be imposed may exceed 10 days but shall not exceed 10 years.”

14. With regard to the penalty for dealing in dangerous drugs specified in Part II of the First Schedule, section 30(1)(f)(ii) of the DDA provides for “a fine not exceeding one million rupees together with penal servitude for a term which shall not be less than 5 years and not more than 25 years”. Section 47 of the Interpretation & General Clauses Act provides that the underlined words “together with” appearing in section 30(1)(f)(ii) mean that the penalties are to be inflicted cumulatively (vide J C J Anna v The State [2008 SCJ 204]). Therefore, upon a conviction under section 30(1)(f)(ii), the Court must inevitably impose both a fine and a term of penal servitude of not less than 5 years. Unfortunately, the District Court simply has no power to impose penal servitude for a minimum term of 3 years let alone penal servitude for a term of 5 years.

15. Section 151 of the Criminal Procedure Act (CPA) would have empowered the District Court to inflict imprisonment in lieu of penal servitude but for section 47(4) of the DDA which reads as follows –

“47. Jurisdiction … (4) Sections 151, 152, 153 and 197 of the Criminal Procedure Act, sections 50 and 51 of the Reform Institutions Act and the Probation of Offenders Act shall not apply to a conviction for an offence under any of the provisions of this Act other than section 34.” [Emphasis added]

16. Section 47(4) of the DDA hence expressly excludes the application of section 151 of the CPA to a conviction under section 30(f)(ii) of the DDA so that the imposition of imprisonment by virtue of section 151 of the CPA is impossible.

17. Consequently, irrespective of the fact that section 116 of the Courts Act or other provisions of the law do not expressly oust the jurisdiction of the District Courts to hear offences under section 30(1)(f)(ii), the mere fact that they do not have the power to inflict the penalty contemplated by the legislator would seem to indicate that the District Courts are not mandated to hear offences under section 30(1)(f)(ii) since they cannot impose the mandatory sentence imposed by law ab initio.

The relevance of D. Maherally vs The State [2021 SCJ 133]

18. However, to further compound matters, the pronouncement in D. Maherally vs The State [2021 SCJ 133] (Maherally) adds another layer to the discussion in the form of the principle of proportionality. The Supreme Court held –

“Pursuant to section 151 of the Criminal Procedure Act, the Court has a discretion, where an enactment provides for the sentence of penal servitude other than penal servitude for life, to pass a sentence of imprisonment for a term not exceeding five years. However, section 47(4) of the DDA precludes the Court, in a prosecution for an offence under any section of the DDA other than section 34, to rely on section 151to inflict a sentence of imprisonment when an accused is prosecuted for an offence which is punishable by penal servitude.

In view of the above, the learned Magistrate could not have purely and simply relied on section 151 of the Criminal Procedure Act (supra) to pass a sentence of imprisonment in lieu of penal servitude. The sentence of 18 months’ imprisonment under count 1 for drug dealing in breach of sections 30(1)(e)(i) and 47(5)(a) of the DDA was therefore, on the face of it, wrong in principle.

We, however, hasten to add that, it would have been open to the learned Magistrate to pass a sentence of imprisonment under count 1 by applying the principle of proportionality. [Vide Gangasing Aubeeluck v The State of Mauritius [2010 UKPC 13]. Regretably, in the case at hand, no such exercise was carried out by the Magistrate who simply passed a sentence of 18 months’ imprisonment on the appellant.

In this respect, we believe that it can safely be assumed that the prosecution itself was of the view that the principle of proportionality might apply, since it chose to lodge the offence under count 1 before a District Court while it must be taken to have been fully aware that a District Magistrate has no jurisdiction to pass a sentence of 3 years’ penal servitude.“ [Emphasis added]

19. True it is that, in Maherally, the Court dealt with an offence under section 30 of the DDA which pertained to a dangerous drug specified in Part I of the First Schedule as opposed to a dangerous drug specified in Part II of the First Schedule. Nevertheless, the decision in Maherally is authority for the following propositions –

(a) section 151 of the CPA cannot be relied upon to pass a sentence of imprisonment in lieu of penal servitude in respect of offences under section 30 of the DDA;

(b) a District Court can try certain drug dealing offences irrespective of the impossibility to impose penal servitude and proceed to pass a sentence of imprisonment where it finds that the principle of proportionality should apply; and

(c) it is possible for the Prosecution to lodge drug dealing cases before the District Court regardless of its lack of jurisdiction to pass a sentence of penal servitude where it deems that the principle of proportionality might apply.

The principle of proportionality

20. In Aubeeluck v The State of Mauritius [2010] UKPC 13 (Aubeeluck), the Judicial Committee of Privy Council (JCPC) held that a trial Court is not bound to indiscriminately impose a minimum sentence prescribed by law but may, on the facts of a particular case, impose a lesser sentence where it is of the view that the imposition of the minimum sentence would be grossly disproportionate when strong mitigating factors exist on the specific facts and where imposing the minimum sentence would be tantamount to inflicting an inhuman or degrading treatment in breach of section 7 of the Constitution.

21. In Sabapathee v The Director of Public Prosecutions [2014] UKPC 19 (Sabapathee), the JCPC held as follows: –

“9. …. However, section 7 of the Constitution, which provides that ‘no person shall be subjected to torture or to inhuman or degrading punishment or other such treatment’, has been interpreted as making it unconstitutional for a court to impose a sentence which is grossly disproportionate to what the offender deserves and therefore capable of overriding a statute dictating a minimum sentence: Aubeeluck v The State of Mauritius [2010] UKPC 13. In the case of a cannabis related offence under section 30 of the DDA, the combined effect of that section and section 7 of the Constitution is that if the court considers a custodial sentence to be necessary, it must pass a sentence of penal servitude for not less than three years, unless a sentence of that length would be grossly

disproportionate. If a sentence of that duration would be grossly disproportionate, the proper sentence will be a custodial sentence for such shorter term as will not involve a violation of section 7 of the Constitution.” [Underlining is mine]

22. It therefore follows that where the law provides for a mandatory minimum penalty, the trial court must impose the said penalty unless it finds that the circumstances of the case are such that the principle of proportionality necessitates that the statutory penalty be overridden. Therefore, since section 30(1)(f)(ii) of the DDA dictates that a fine together with penal servitude for a minimum term of 5 years should be inflicted upon conviction of the said offence, a trial court may instead impose a fine together with imprisonment in certain exceptional circumstances through the application of the principle of proportionality.

The separation of powers between the Judiciary , the Executive and the Legislature

23. It is undisputed that, by virtue of section 72(3) of the Constitution and section 47(1) of the DDA, the Director of Public Prosecutions (DPP) has an unfettered discretion to choose a jurisdiction before which an offence under the DDA is to be tried. However, as was observed in Auchraje v The State [1992 MR 235], the exercise of this discretion must take into account the various sentencing limits of the different courts.

24. The following passage in Muktar Ali & Anor v The Queen [Privy Council Appeals Nos 4 and 5 of 1989] (Muktar Ali), is of pertinence –

“The principle which is said to have been breached is that of the separation of the powers of the legislature, the executive and the judicial branches of government. The Director of Public Prosecutions is an officer of the executive branch. The argument for the appellants is that the discretion available to him to select the court before whom a person is to be tried for an offence under s 28(1)(c), that person being alleged to be a trafficker in drugs, in effect enables the Director to select the penalty to be inflicted on that particular person. If he chooses trial before a judge without a jury, and conviction follows plus a finding of trafficking the sentence must be that of death. In Hinds v R [1976] 1 All ER 353, [1977] AC 195 the question arose as to the constitutionality of certain provisions of the Jamaican Gun Court Act 1974. One of these provisions was s 8, which prescribed a mandatory sentence of detention at hard labour for specified offences, determinable only by the Governor General on the advice of the review board. The review board established by s 22 of the 1974 Act consisted of five members of whom only the chairman was a member of the judiciary. The Judicial Committee of the Privy Council advised Her Majesty that

ss 8 and 22 were contrary to the constitution and void. Lord Diplock, after referring to the doctrine of the separation of powers, said ([1976] 1 All ER 353 at 370, [1977] AC 195 at 226):

'In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence, as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case. Thus Parliament, in the exercise of its legislative power, may make a law imposing limits on the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge's own assessment of the gravity of the offender's conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted on an individual member of a class of offenders.'

Lord Diplock later referred with approval to the case in the Supreme Court of Ireland of Deaton v A-G and Revenue Comrs [1963] IR 170. The Customs Consolidation Act 1876, as applied to Ireland, prohibited the importation into that country of certain goods. One of the provisions of the Act provided that any person contravening 'shall for each … offence forfeit either treble the value of the goods … or one hundred pounds, at the election of the [Revenue] Commissioners …'. The plaintiff was prosecuted by the commissioners for importing butter without a licence, and they elected to proceed for treble the value of the goods. The Supreme Court held that the provision in question was repugnant to the constitution and accordingly void. Ó'Dálaigh CJ said (at 182– 183):

'There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case … The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the Courts … the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive …'” [Underlining is mine]

25. In Muktar Ali, the JCPC ultimately observed that:

“…The vice of the present case is that the Director's discretion to prosecute importation with an allegation of trafficking either in a court which must impose the death penalty on conviction with the requisite finding or in a court which can only impose a fine and imprisonment enables him in substance to select the penalty to be imposed in a particular case.

As their Lordships have observed, a discretion vested in a prosecuting authority to choose the court before which to bring an individual charged with a particular offence is not objectionable if the selection of the punishment to be inflicted on conviction remains at the discretion of the sentencing court.” [Underlining is mine]

26. In Muktar Ali, the Judicial Committee thus held that a prosecuting authority may legitimately exercise a discretion as to the court before which an accused is tried provided that the determination of the punishment remains within the province of the sentencing court.

Issues with the approach in Soobiah in respect of offences under section 30 for dangerous drugs specified in Part II of the First Schedule

27. In Soobiah, it was held that –

(a) in the absence of any statutory provision ousting its jurisdiction to try a specific offence, the District Court could proceed to try and determine that offence; and

(b) where the law prescribes a penalty exceeding its sentencing powers, the District Court would be confined to imposing a sentence within its jurisdictional limits.

28. After anxious consideration of all the aforementioned authorities, this Court has assessed the applicability of this approach to the instant case. The following observations are hence called for –

(a) in Aubeeluck, the Judicial Committee acknowledged that a sentence of penal servitude is no longer, in practice, any different from a sentence of imprisonment except for the fact that penal servitude is imposed for a minimum term of 3 years. However, our law has maintained the distinction between penal servitude and imprisonment. This bears testimony to the deliberate intention of the legislator to lay stress on the gravity of certain offences since the legislator does not legislate in vain. Thus, in respect of

the offences under section 30 of the DDA for dangerous drugs specified in Part II of the First Schedule, by prescribing a fine together with a mandatory minimum penalty of 5 years’ penal servitude, it can be concluded that the conviction for such an offence was to be met with a degree of severity which falls outside the sentencing powers of the District Court.

(b) Given that section 151 of the CPA has been disapplied by section 47(4) of the DDA for an offence under section 30(1)(f)(ii), a Court has a discretion to pass a sentence of imprisonment instead of penal servitude on an application of the principle of proportionality (vide Pandoo v The State [2006 MR 323]).

(c) The cases of Aubeeluck and Sabapathee confirm that where the law provides for a mandatory minimum penalty, the trial court must impose the said penalty unless it finds that the circumstances of the case are such that to impose the mandatory minimum penalty would prove to be so excessive as to outrage standards of decency and therefore infringe the proportionality principle. It must however be stressed that the application of the principle of proportionality will be at the discretion of the court which discretion shall be exercised within the boundaries set by statutes (vide Director of Public Prosecutions v Couronne [2025 SCJ 278]).

(d) There is a distinctive feature in the present case which must not go unnoticed. Unlike the Intermediate Court, the District Court does not possess the power to impose penal servitude for a term of 5 years, which is the mandatory sentence prescribed by law at the outset of the case for an offence under section 30(1)(f)(ii). Therefore, this present case must be distinguished from one where the Court has the powers to impose the mandatory minimum sentence but elects to impose a lesser sentence where it deems that the principle of proportionality should apply after the exercise of its own judicial discretion.

(e) Consequently, by instituting proceedings under section 30(1)(f)(ii) before the District Court (which only has the power to impose a fine not exceeding Rs 100,000 and a term of imprisonment not exceeding 5 years by virtue of section 114(2) of the Courts Act), the Prosecution (i.e. the DPP) has effectively –

(i) removed the mandatory minimum penalty of penal servitude as expressly contemplated by the legislature from consideration thereby circumventing the legislative intent; and

(ii) predetermined the maximum penalty to be inflicted (and therefore the severity of the punishment) through its prosecutorial decision as to the

forum. The inevitable consequence of such an approach is that the DPP has indirectly influenced the judicial outcome since he has determined that the principle of proportionality should apply when in fact this is an exercise which should instead be left to the judicial assessment of the District Court. This would no doubt be the constitutional vice identified in Muktar Ali.

29. The principles alluded to in Soobiah and Maherally consequently raise the aforementioned issues in relation to offences under section 30 of the DDA involving dangerous drugs listed in Part II of the First Schedule. The approaches in these two cases reveal a dissonance between the exercise of the discretion of the DPP to determine the forum in which proceedings are to be instituted and the principle that the determination of the appropriate punishment must remain within the province of the judiciary. This tension inevitably raises questions as to the extent to which the legislative intent may be curtailed by the Prosecution’s choice of the forum.

30. It is against this backdrop that this Court proposes to consider the decision of the Supreme Court in Ratseezanunt to which this Court now turns.

The pronouncement in K.M Ratseezanunt v The State [2026 SCJ 29]

31. In the recent case of Ratseezanunt, the appellant appealed against his sentence after he was convicted before the District Court of Port Louis (Division II) for the offence of drug dealing (possession of heroin for the purpose of distribution) in breach of sections 30(1)(f)(ii) and 47(5)(a) of the DDA. Irrespective of the merits of the case, the Supreme Court quashed the conviction and sentence on the ground that the District Court does not have jurisdiction to try and sentence for the present offence.

32. The operative part of the judgment is reproduced hereunder –

“…The penalty provided under section 30(1)(f)(ii) of the Dangerous Drugs Act is a minimum term of five years’ penal servitude together with a fine not exceeding one million rupees. A district court, on the other hand, does not have the jurisdiction to impose the said penalty inasmuch as Section 114(2) of the Courts Act provides that:

“Section 114. Criminal jurisdiction of District Courts (1) … (2) A District Court shall not award against any person imprisonment with or without hard labour for more than 5 years, and a fine exceeding 100,000 rupees.”

As held by the Supreme Court in The State v. Miss R. J. Khamis & 2 Ors [1995 SCJ 313] –

“It must not be forgotten that under section 72(3)(a) of the Constitution the D.P.P is given an unfettered power to institute and undertake criminal proceedings before any Court of law (not being a court established by a disciplinary law). He is consequently free to chose to bring the offenders before the District Court or the Intermediate Court or the Assizes or the Judge without a jury, having regard to various matters like seriousness of the offence and obviously to the limited powers of sentencing which each Court has as provided by the legislator. … Having regard to the jurisdiction of the District Court which is only empowered to inflict a maximum fine of Rs 2000 and a maximum term of 2 years imprisonment, it is clear that it does not make sense for the DPP to charge a trafficker before the District Court which anyway is unable to impose any prison sentence since the minimum term for penal servitude is 3 years (vide Rossan v. The State [1995 SCJ 117]. It is also unable to inflict any fine as the fine is coupled with a term of penal servitude which is mandatory. Section 37 of the Dangerous Drugs Act has further removed the power of the Court to inflict a sentence less than that provided by law.”

The above pronouncement which was made in relation to the jurisdiction of district courts to try the offence of importation of dangerous drugs with an averment of trafficking under section 28(1)(c) of the Dangerous Drugs Act 1986 is equally applicable mutatis mutandis to the jurisdiction of district courts to try the offence of drug dealing under the Dangerous Drugs2000.

The conviction and sentence are therefore quashed for want of jurisdiction…” [Emphasis added]

33. It is evident that the jurisdictional conundrum posed by the approach in Soobiah and Maherally in respect of offences under section 30(1)(f)(ii) has been acknowledged and addressed in Ratseezanunt. Indeed, the approach adopted in Ratseezanunt does away with the difficulties identified from the approach adopted in Soobiah and Maherally in respect of offences under section 30(1)(f)(ii) by ensuring that the statutory penalties enacted by the legislator remain available to the court seized of the matter and ensures that the determination of a suitable punishment remains a matter exclusively within the province of the judiciary. Since it bears directly on the issue presently before this Court, I am therefore of the considered view that the pronouncement in Ratseezanunt is of greater pertinence to the present case than the decisions in Soobiah and Maherally.

34. I open a parenthesis here to observe that the rationale of The State v. Miss R. J. Khamis & 2 Ors [1995 SCJ 313] (adopted in Ratseezanunt) extends to all offences under section 30 involving dangerous drugs specified in Part II of the First Schedule.

35. It must ultimately be stressed that Ratseezanunt is a decision of the Supreme Court in its appellate jurisdiction expressly dealing with an offence under section 30(1)(f)(ii) and which has so far not been reversed by a superior Court or overruled. In application of the principle of stare decisis, this decision constitutes in relation to the jurisdiction I am exercising as a district magistrate a binding judicial precedent which leaves no room for interpretation and which cannot be distinguished on the facts.

36. I hasten to add that given that the decision in Ratseezanunt did not hinge on any factual matrix peculiar to that case but solely upon a definitive construction of the statutory provisions regulating prosecutions under section 30(1)(f)(ii), the principle enunciated therein permits no factual distinction with the case at hand. The issue being purely one of jurisdiction and statutory interpretation, I did not deem it necessary to call for submissions from either party on an issue conclusively settled by a binding authority.

37. Having found that this Court has no jurisdiction to hear the matter, the Prosecution cannot proceed with this case. The present information is accordingly dismissed for want of jurisdiction.

Gavindren S. Coolen District Magistrate 3 April 2026