Intermediate Court of Mauritius Decisions

POLICE v SUJEEBUN SHARMILA DEVI & ANOR

2006 INT 74

Cause Number 1161/2004

In the Intermediate Court of Mauritius

In the matter of: -

Police

V

1. Sharmila Devi Sujeebun
2. Phanindradas Dharmanand Sujeebun

Ruling

Both accused are charged with the offence of possession of cannabis seeds for the purpose of cultivation, to wit: - 26.15 grams of cannabis seeds, in breach of Sections 30(1)(f)(i), 45(1), 47(5)(a) and 48 of the Dangerous Drugs Act as amended by Act 29/2003.   They both pleaded not guilty and they were represented by counsel.

Learned counsel for the defence has moved that the present proceedings be stayed on the following ground:

The circumstances in which the two accused have been brought to court to answer the charge against them are a clear manipulation of the process of the court by the prosecution.   Such a course of action by the prosecution is an affront to the rule of law which has to be upheld by any court of law.

Learned State Counsel is objecting to the motion of the defence.

I have duly considered the submissions of learned counsel and the circumstances leading to the motion of Mr. Hurnam appearing for the defence.  

  In the course of the proceedings, whilst giving evidence, PC Dwarka referred to the search warrant that was issued and which led to the search of the premises of the accused parties.   Upon enquiry ordered by this court it was revealed that the search warrant, which, according to Section 14 (3)(b) of the Police Act had to be forwarded to the appropriate District Court was actually untraceable.

The question which the court has to ask itself is whether the prosecution has manipulated the process of the court and by so doing has committed an affront to the rule of law.

Learned counsel for the prosecution was of the view that the basis of the prosecution’s case was the incriminating evidence found on the premises of the accused parties and not the warrant. The enquiry that was ordered by the court was not to ascertain whether the warrant was properly issued but   to ascertain whether the warrant was forwarded to the appropriate district court pursuant to Section 14 (3)(b) of the Police Act. This Court is not the forum to sanction any breach of Section 14 (3)(b) of the Police Act. The fact that the warrant cannot be traced out does not prejudice the defence in the preparation of its defence. The fact that the warrant could not be traced out does not amount to a manipulation of the process of the court as the warrant has been duly issued.

  Mr. Hurnam has submitted that this court has been established by law and is the guardian of the rules as to fairness and its duties is to protect its process from abuse from the prosecution.   The basis of the prosecution itself is the search warrant which brought about the securing of incriminating objects. The whole process starts from the search warrant and he invited the court to consider whether the conduct of the police complied with the provision of the law.    In support of his submissions he referred to Section 3 of the Constitution which provides for the protection of the privacy of the individual, to Section 9 of the Constitution which provides that a criminal trial is a matter of public order and to Section 10 of the Constitution which provides for the protection of the law.

Ex facie the search warrant that was produced as Document K, the signature of the ASP appears in conformity with Section 14 (1) (2) of the Police Act. Now, according to Section (3)(b) of the said Act, the police officer who acted under subsection (1) had to forward to the appropriate District Court within the shortest possible delay the warrant endorsed with the result of the search.   The enquiry has revealed that the search warrant has not been forwarded to the appropriate District Court and was untraceable.   Now Section 24(3) (c) of the Police Act provides that any person who contravenes the said Act shall commit an offence. However, as rightly submitted by learned counsel appearing for the prosecution, this court is not the proper forum to sanction this shortcoming on the part of the police officer who had acted under Section 14 (1) of the Police Act.

At this juncture I would invite the Director of Public Prosecutions and the Commissioner of Police to take any action they may deem fit.

Now, if Section 14(3) (b) of the Police Act has not been complied with by the police, does this amount to a manipulation of the process of the Court by the prosecution?   Has there been an affront to the rule of law to such an extent that this court should stay proceedings?   I do not think so.   I do not find that unlawful means have been used to put the accused on trial.

It would be apposite   to refer to what Lord Steyn said at pages 101 and 112H in R. v. Latif   [1996] 2 Cr. App. R 92 [1996] 1 W.L.R.104, HL :

“The law is settled. Weighing countervailing considerations of police and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R.v. Horseferrry Road Magistrate’s Court, ex p. Bennett (1994) 98 Cr. App. R. 114,[1994] 1 A. C. 42.   Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws.   The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful.   But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.”

Given the circumstances of the case, I do not find that the shortcoming of the police affect the fairness of the trial of the accused parties.   I shall accordingly decline to stay the present proceedings and order the case to proceed.

V. Kwok Yin Siong Yen

Magistrate

17.2.2006