Supreme Court of Mauritius, 30 juin 2020, 2020 MBG 4 – POLICE V TIMOL. A

POLICE V TIMOL. A

2020 MBG 4

CN: 5134/19

THE DISTRICT COURT OF GRAND PORT

IN THE MATTER OF:- POLICE V TIMOL ABDOOLLA

JUDGMENT Accused stands charged with the offences of:

(1) Possession of cannabis in breach of Sections 34 (1) (b) and 47(5)(a) of The Dangerous Drugs Act; (2) Possession of article for use in connection with the smoking of cannabis in breach of Sections 34 (1) (c) and 47 (5) (a) of the Dangerous Drugs Act; (3) Smoking Cannabis in breach of Sections 34(1) (a) of The Dangerous Drugs Act.

Accused pleaded not guilty under all 3 counts and appeared inops consilii at trial stage. The court proceedings were conducted in creole for the benefit of the Accused.

At the outset, the Prosecution produced an FSL report dated 20.04.18 signed by witness 4 and marked as Doc A.

The prosecution then called PC Dassiha (witness 1) who read and produced two out of court statements of the Accused, both dated 28.01.18 and marked as Doc B and B 1 respectively. The witness was not cross examined.

WPC Jaddoo (witness 2) deposed to the effect that on the 28.01.18, she proceeded to the place of the Accused together with witness 3. Reaching there, the Police met with the Accused and revealed their identity as ADSU officers. The Accused was shown a search warrant by the Police and the former agreed for the search to be carried out. Nothing incriminating was found on the Accused and a search was carried out in the house of the Accused. Whilst searching the bedroom of the Accused, a plastic sachet containing a certain amount of leaf matter was secured on a table. Police also secured an improvised pipe also known as ‘bong’. After the Accused was shown the evidence against him, informed of his constitutional rights and given the usual warning, the Accused replied the following: “Gandia sa boss, bong la mo fine fime gandia ladan.” In the presence of the Accused, the exhibits were secured and sealed. Witnesses no 2 and witness 3 together with the Accused signed on the exhibits. Subsequently the exhibit was sent to the FSL for examination. Witness no 2 identified and produced in Court the sealed exhibits coded LJI/2018 and LJII/2018 which were opened and shown to the Accused who admitted to the exhibits (marked as Exhibit 1 and 2). The witness was not cross examined and that was the case for the prosecution.

The Accused was informed of his constitutional rights to give evidence and elected to make a statement from the dock. The Accused admitted that Police secured Exhibit 1 and 2 at his residence and stated that the said drugs were for his personal consumption.

The Accused made a confession in his defence statement and did not challenge its admissibility in Court.

It is trite law that it is essential for the prosecution to establish the following elements to prove its case, namely that:

(1) the drugs were in physical control or custody of the Accused; and (2) the Accused had knowledge of the drugs.

The word ‘possession’ in the case of dangerous drugs has been defined by the Privy Council in the case of Director of Public Prosecutions v Brooks (1974) A.C. 862, quoted in M. Yousoufkhan Omarsaib v The State [1996 SCJ 30], as follows:

“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.”

In The State v Kanojia Kamala Pannalal [1992 SCJ 381], the Supreme Court pointed out that:

“Knowledge is of course an abstract concept which unless a person tells of what he has behind in mind can only be revealed by examining his conduct in the light of the circumstances surrounding the case.

The Court has duly assessed all the evidence on record. The facts of the case reveal that the drugs were secured in the bedroom of the Accused in his presence and upon being duly cautioned, he replied that the drugs were his. The Prosecution witnesses deposed in a clear- cut manner and their evidence remained unchallenged as the Accused chose not to cross examine them.

Moreover, the Accused in his statement from the dock admitted that the drugs were secured at his place and they were meant for his personal consumption.

Based on the above, I am satisfied from the evidence on record that the accused had control over the drugs secured at his place and also had knowledge that the item over which he had control was a dangerous drug.

The Court also finds that there is no reason to disregard the confession the Accused made in his defense statement and the confession of the accused is in itself sufficient evidence against the accused.

I find it apposite at this stage to refer to the case of DPP v Aumont [1989 SCJ 338], where it was stated that:

“…A voluntary confession by an accused party that was direct and positive and had been satisfactorily proved was the best evidence that could be produced by the prosecution against the accused.”

In the light of the above, the Court is of the view that the Prosecution has proved its case beyond reasonable doubt and accordingly finds the accused guilty as charged on Count I, Count II and Count III.

P. VEERABADRAN- MUDALIAR Ag. District Magistrate 30 June 2020