Supreme Court of Mauritius, 7 mai 2026, 2026 MOK 16 – Police v Ausmann Babita

Police v Ausmann Babita

2026 MOK 16

IN THE DISTRICT COURT OF MOKA Cause Number: 366/2026 In the matter of: POLICE v/s AUSMANN BABITA RULING 1. The applicant stands provisionally charged under two counts, namely (i) drug dealing with aggravating circumstances: attempt to deliver heroin, in breach of sections 2(b) and 45 of the Interpretation and General Clauses Act (‘IGCA’) coupled with sections 30(1)(d)(ii), 41 (1)(i)(2) and 47(2)(5)(a) of the Dangerous Drugs Act (‘DDA’); and (ii) attempt to introduce prohibited article in a reform institution in breach of section 45 of the IGCA coupled with section 61(2)(b) of the Reform Institution Act as amended by Act No 4 of 2018.

2. The applicant, has through her counsel, moved to be admitted to bail.

3. The prosecution objected on the following grounds: (i) risk of absconding; and (ii) risk of re-offending.

4. The enquiring officer, PS 10015 Ramdanee (the ‘EO’) averred that on the 20th of April 2026, at 10.35hrs, the applicant in company of her daughter who has been provisionally charged in provisional cause number 367/26, called at Eastern High Security Prison to visit her son who is undergoing sentence. The EO claimed that the applicant remitted to the prison officer four batteries of make Varta and requested that same be delivered to her son.

5. Being suspicious of same, the batteries were scanned and subsequently the prison officer, in company of the applicant and daughter opened the batteries and three of them contained a certain quantity of white powder suspected to be dangerous drugs mixed with flint stones, four memory cards and two sim cards Emtel and MyT.

6. The EO stated that the applicant and her daughter were confronted with the evidence and the applicant stated “mo meme mo fine amene sa bane pile la pu remette mo garcon Davish Ausmann” while her daughter replied “moi memo fine met sa bane sim cards, memory cards, la poudre et roche briké dan sa 3 piles la”

7. The EO affirmed that the services of ADSU were summoned and the exhibits were handed over to the ADSU Officers.

8. In relation to the nature of evidence the EO averred that there is direct evidence and a strong prima facie case inasmuch as the applicant was the first person who remitted the batteries and signed the exhibits before handing over to the Prisons officer.

9. With respect to the charge, the applicant admitted having left the batteries but denied knowledge knowledge of the articles inside the batteries. The EO claimed that the street value of the suspected drugs is Rs 577,500.

10. The EO further stated that the enquiry is short of FSL report and of photographs.

11. It transpires from the evidence of the EO that the applicant has a fixed place of abode, is not borne on criminal record and was not on bail at the time of commission of offence.

12. The EO substantiated the grounds of objection as follows:

Risk of absconding The detainee is likely to be charged with a serious offence and if found guilty she may be sentenced to a heavy penalty and may thus abscond.

Risk of reoffending The drug is a lucrative business and the police strongly believes that if released on bail she might indulge anew in the activity.

13. The EO was duly cross examined during which the following salient features were borne out: 13.1 All the statements have been recorded except one with respect to the probable FSL report; 13.2 The enquiry is short of FSL report at this stage; 13.3 At this stage, save and except the daughter there is no other co-accused whose statement need to be recorded; 13.4 FSL reports take a lot of time and may take years although an early examination has been requested but still there is no indication when the report will be ready; 13.5 With respect to the risk of absconding, there is a strong perception, a strong apprehension and there are conditions which may be imposed that may curtail the risk; 13.6 In relation to the risk of reoffending, the suspected drugs have not yet been tested and the EO agreed that it cannot be said that they are dangerous drugs; and 13.7 The fact that the applicant has the right to visit her son, she may indulge in such activity anew and the EO could not confirm if a bail condition is imposed to restrict her right to visit whether this will alleviate the risk.

14. On the other hand, the applicant from the dock averred that she will abide by any bail conditions imposed by the Court.

15. I have duly considered the present application, the objections thereto and it is apposite to note that no submissions were offered on behalf of both parties.

16. I have taken into account the constitutional right to liberty of the applicant as enshrined in section 5(3) of the Constitution and section 4(1) of the Bail Act which provides that the aim behind the conditional release of an offender is to ensure that a suspect (a) appears for his trial in the event that he is eventually prosecuted; (b) does not harm the society whilst being at large if he or she is the author of the alleged offence; and (c) does not in any way interfere with the course of justice. The object of bail is neither punitive nor preventive.

17. I have also taken note of the rationale of bail law which has been established throughout authoritative case law , to the effect that the “[…] rationale of the law of bail at pre-trial stage is accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks… to such an extent that they become negligible having regard to the weight with which the presumption of innocence should carry in the balance”.

18. Accordingly, a balancing exercise has to be made, by considering all the evidence on record, between (a) the need to safeguard the necessary freedom of liberty of a suspect when viewed in the context of the presumption of innocence, thus favouring the release of the applicant on bail; and (b) on the other hand the need to ensure that the society as well as the administration of justice are necessarily protected against serious risks which may materialise if the detainee is the alleged offender, therefore favouring the refusal of bail.

19. It is apposite to note that the principles underlying the provisions of the Bail Act 1999 and the Constitution bear similar provisions to the following international, regional and comparative law instruments that are not legally binding on Mauritius, notably the Eighth Amendment of the Constitution of the United States of America, article 5(3) of the European Convention on Human Rights and article 7(5) of the American Convention on Human Rights which all guarantee the presumption of innocence.

20. Therefore, similarly, the provisions of the Bail Act can be described as being a procedural right which “entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons”.

21. Now, bearing in mind that under our Constitution, “[…] liberty is the rule and detention is the exception”, 3 I shall assess the evidence of the EO pertaining to each ground to determine whether the imposition of conditions can reduce the risks to a minimum level.

1 Maloupe v the DM of Grand Port ipo DPP [2000 SCJ 223, MR 264] 2 R v Antic [2017] 1 S.C.R 509 at paragraph 1; R v Hall[2002] 3 S.C.R 309 at paragraph 13; R v Oland [2017] 1 S.C.R 250 at paragraph 34

3 Chrishna Ramgati v The Honourable Ag District Magistrate of the Bail and Remand Court & anor [2022 SCJ 373]

22. However, first and foremost, it is important to note that with respect to the nature of evidence as described by the EO I find that there the evidence at this stage, in the absence of the FSL report, is not sufficient to be a reasonable ground for the continued detention of the applicant. True it is that the applicant has admitted to the fact that she gave the articles to the Prisons Officer for same to be delivered to her son but she also denied having knowledge of the contents therein and the EO has confirmed that it is not certain when the FSL report will be ready albeit an early request for examination has been made.

23. Having said so, I shall now address the risk of reoffending.

24. It has been established that the denial of bail for reasons of likelihood of reoffending has been described as “[…]a sufficiently narrow circumstance because bail is denied only for those with a “substantial likelihood” of committing an offence, and only where this likelihood endangers public safety. The circumstance is narrowed further by the requirement that the detention be not simply convenient, but necessary for public safety”

25. Therefore, in dealing with the risk of re-offending, it is important to recall section 4(1)(a)(iii) of the Bail Act which lays down, amongst other grounds, that bail may be refused to an applicant if the Court is satisfied that there is reasonable ground to believe that, if released the applicant is likely to commit an offence other than an offence punishable only by a fine not exceeding Rs 1,000.

26. As such, the danger of a serious offence being committed by the applicant whilst on bail should be a plausible one. I have taken into account the principles enunciated in the authoritative jurisprudence which laid down that the nature of the offence and the expected sentence in case of conviction are relevant considerations when assessing the seriousness of the risk that the detainee may re-offend. It has also been established that “[…] the extent to which the offences which the applicant is suspected to have committed are lucrative should also be considered as the temptation, in case the applicant is guilty, that he may wish to make as much money as possible whilst on bail, is likely to be greater”

4 R v Morales [1992] 3 S.C.R 711 5 Ibid

27. Applying the principles highlighted above to the facts, it is undeniable that indeed the drug business is a lucrative one and the possibility of the applicant being eventually tried before a higher court other than a District Court and being visited by a heavy custodial sentence is not to be excluded.

28. However, there is nothing on record which suggests that the applicant has the propensity to indulge in drug-related activities in spite of the lucrative nature of the drug business. Hence there is no concluding element to prove that should the applicant be granted bail she would commit another similar offence.

29. In addition the EO has clearly stated that the risk of reoffending is a strong apprehension and conditions may be imposed by the Court to curtail same.

30. As such, I am of the view that the risk of reoffending has not been substantiated.

31. In assessing the risk of absconding, other factors are relevant including the weakness or absence of family, community, professional or occupational ties and financial commitments 6 . I have taken note of the age of the applicant, the circumstances in which the articles were seized from her, the fact that she has a fixed place of abode and strong family ties. The issue of being in breach of any bail conditions does not even arise in such circumstances.

32. More importantly, there is no evidence that applicant has resisted her arrest or tried to escape custody and instead has fully cooperated throughout the enquiry.

33. Having said so, I am of view that there is no evidence which particularly indicates that there is a serious risk of absconding which cannot be rendered negligible by the imposition of conditions.

34. Having considered all the evidence on record and the principles underlying the rationale of bail, I have carried out the required balancing exercise. The prosecution has not offered any submissions in the present matter. The question therefore remains as to whether this Court, on the basis of all the assessment made starting

6 ibid

from the nature of the evidence, the stage at which the enquiry has reached up to the evidence with regards to the grounds of objection, maintain the detention of the applicant merely because the enquiry is short of FSL report and two photographs? The answer is in the negative as the risks will always be present but on the other hand, the prosecution has failed to give reasons as to why and in what manner those risks cannot be minimised by any bail conditions.

35. All of the aforesaid factors must be gauged against the applicant’s constitutional right to personal liberty 7 inasmuch as “[…] liberty is the rule, and detention is the exception”

36. It has been made clear in several authorities from the Supreme Court that the seriousness of the offence cannot by itself be a ground of refusing bail 9 and the pronouncements were upheld by the Judicial Committee of the Privy Council

which held that due consideration has to be given to the right of liberty and the presumption of innocence, as enshrined in our Constitution which substantially follows the European Convention of Human Rights.

37. This being said, considering:

(a) the facts of the case at hand;

(b) the reasons put forward by the prosecution which do not support the grounds of objection denying bail to the applicant;

(c) the presumption of innocence in favour of the applicant and the constitutional right to liberty of the applicant;

and in light of all of the above assessment, I believe that the risks under the grounds of objection can be reduced by the imposition of conditions such that they become negligible. In the circumstances, I order the applicant to be released on bail provided that:

7 Seewoochurn K M v The Commissioner of Police & Ors (2019 SCJ 189) 8 Crishna Ramgati, n3 9 Labonne v DPP & Ors [2005 SCJ 38]; Deelchand v DPP and ors [2005 SCJ 215] 10 Hurnam v The State [2004 PRV 4]

(a) The applicant provides a surety in the amount of Rs 100,000 to be to be furnished by cheque;

(b) The applicant enters into a recognisance in the amount of Rs 500,000 in her own name;

(c) The applicant shall reside at a fixed and permanent place of residence indicated by him, the address of which she shall communicate to the police. The applicant shall not move to another place of abode without the prior consent of the Court;

(d) The applicant shall report to the nearest police station, once daily between 06.30 hours and 20.00 hours;

(e) The applicant shall inform the police of her daily movements each time she reports at the police;

(f) The applicant shall: (i) be permanently equipped with a mobile phone and a landline phone, the numbers of which she shall communicate in advance to one or more enquiring officers designated for that purpose;

(ii) ensure that the mobile phone as well as the landline phone are in good working condition and open for communication at all times;

(iii) ensure that the mobile and landline numbers are solely and exclusively for the present monitoring purposes to enable any enquiring officers at any time to ascertain his movements and location and if necessary to direct her to be in attendance at any indicated spot.

(g) The applicant shall remain inside her residential place between 21.00hours and 05.00hours;

(h) The applicant should not in any circumstance be found at any time at any place which is 200m from Eastern High Security Prison and/or any other place of detention;

[ Delivered by: Bibi Azna BHOLAH (Ms), District Magistrate] [ Delivered on: 07 May 2026]