Police v Akil Bissessur

2023 BMB 21

P/CAUSE NO 1098/2022

IN THE DISTRICT COURT OF BLACK RIVER

In the matter of:-

POLICE

V/S

AKIL BISSESSUR

RULING

The Applicant has been provisionally charged for the offence of Drug Dealing (Possession of
synthetic cannabinoids for the purpose of distribution) in breach of sections 30(1) (f)(ii) and
47(5)(a) of the Dangerous Drugs Act on the 22nd of August 2022.

The Applicant was represented by Mr Teeluckdharry, of Counsel, appearing together with Mr

Valayden and Mr Goodary. Mr Teeluckdharry moved for the provisional information to be
struck out on 16 grounds which may be loosely summarised as follows:

(i) Lack of reasonable suspicion and fairness

(ii) Prejudice being suffered by the Applicant

The motion was objected to by the prosecution. Mr Dawoodary appeared for the Respondent
assisted by Inspector Dhondee.

Detective Inspector Ramlugun, who is the main enquiring officer in the present case, testified
as to the facts and circumstances of the case.

THE BACKGROUND TO THE PRESENT CASE

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The Applicant was arrested by the Special Striking Team, hereinafter referred to as “SST” led
by ASP Rashid Jagai on the 19th of August 2022 and he was brought before the Week-End
Court on the 20th of August where he applied for bail. His application was denied and he made
a second application before the Black River District Court on the day the present provisional
charge was lodged. On the 12th of September 2022, date at which the bail hearing was meant
to be heard, Mr Dawoodary informed the Court that “…in view of the new developments in the
case, the prosecution is no longer objecting to the motion of Applicant’s Counsel…” in respect
of admitting the Applicant to bail. The Applicant was thereafter admitted to bail on conditions.
These conditions included two sureties in bank cheques, a recognisance, being available to
the police around the clock for the purposes of the enquiry, providing a fixed residential
address and calling once a week at the police station. The present application in respect of
the motion to strike out the provisional charge was heard on the 9th of February 2023.

THE FACTS OF THE CASE

DI Ramlugun stated that the enquiry had been completed and the file was going to be sent for
advice in a week’s time.

Under cross-examination, he stated that the search was conducted by the SST, GIPM, SSU
and SMF officers. Following the arrest by the SST, the enquiry was entrusted to the CCID.
This, he stated was a novel practice. The SST was set up in August itself. It is the defence of
the Applicant that his name appears at the top of a SST Hit List. This has not been verified by
the CCID and no enquiry has been conducted in relation to this matter. The Applicant has
stated that he was not shown a search warrant by the SST officers. He also alleged in his
Defence Statements that he was assaulted with a truncheon by police officers and that the
drugs were planted by the police officers. The drugs secured were all examined and the FSL
report showed that the DNAs of the Applicant, his partner and his partner’s mother were not
present on the parcels. Nor were their fingerprints found on those parcels. The Applicant had
voluntarily submitted to the police his laptop, mobile phone, fingerprints and DNA for the
purposes of the present enquiry. Nothing incriminating was found upon analysis of the devices
he submitted. The SST smashed a TV set, broke the Applicant’s iphone, two CCTV cameras
and a DVR in an attempt to create an atmosphere of terror. No enquiry has been conducted
by the CCID in this respect. Following the search in Palma, the Applicant was taken to his
apartment in Quatre Bornes. On the way, the SST stopped for 15 minutes on the road during
which time ASP Jagai sought instructions from a lady over the phone. The Applicant invited
the CCID to secure the Safe City camera images to confirm the veracity of his assertions but
up to now these images have not been verified. He also requested for the itemised bill of ASP
Jagai’s phone to be examined to conform the veracity of his assertions as well as the identity

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of the person who was giving instructions to the SST. Up to now, the police have not probed
into this. The Applicant had informed the SST officers on the way to Quatre Bornes that he
had CCTV cameras connected to Cloud recording. The Applicant stated that it can be seen
from these images that the officers were carrying the bag with drugs and were staring at the
CCTV cameras at the Applicant’s apartment looking for a blind spot. One officer also picked
up a sweet and ate same. All of this is available on the CCTV images and same has been
provided to the CCID but no enquiry has been carried out on this. No drugs were secured at
the Applicant’s apartment. One SST officer was filming the operation at Palma but there is no
footage of drugs being secured in the presence of the Applicant. The defence of the Applicant
that the drugs were planted has not been looked into at all. The Applicant’s version that the
SST were looking for a file in relation to one “Rigg Needroo” was also not looked into. The
Applicant has given his itinerary to the police and the CCTV images of his itinerary has been
verified by the police. They all corroborate with the version of the Applicant. No drug
paraphernalia or incriminating articles have been secured during the searches except for the
drugs. No gloves were secured from either premises. The Applicant reported that intimate
images found on the mobile phone of the Applicant’s partner, which was remitted to the SST
as part of the enquiry, were leaked in the public but no enquiry has been carried out into the
matter by the CCID. The Applicant also stated in his defence statement that the jeans from
which drugs were secured belonged to his partner and not to him. His version that he is being
victimised because of his political views has not been investigated.

The Applicant deposed under oath and stated that he was framed in this case and that the
drugs were planted at his partner’s house. He stated that he is a barrister with 13 years of
standing at the bar. He has a stable source of income. He has given over 30 statements in the
present case and volunteered all information to the police. He gave his fingerprints, DNA,
mobile phone and access to his bank accounts to the police. He has spent 18 days on remand
in this case. The bag which contained the drugs belonged to his partner as well as the jeans
from which the drugs were secured. He took the bag to the toilet to change when the SST
arrived at the house of his spouse. He can show footage from his home CCTV recordings of
him and his partner packing the bag at his apartment and there were no drugs in it. The SST
officers assaulted him with a truncheon. They smashed his phone whilst he was doing a live
when they entered the house of his partner at Palma. The jeans from which the drugs were
secured belonged to his partner as can be seen by its size. He further stated that he had to
apply for an injunction before the Judge in Chambers to prevent ASP Jagai from arresting him
again after he was granted bail.

In cross-examination, the Applicant stated that the DNA report came on the 6th of September
2022 following which the DPP did not object to his release on bail.

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PROVISIONAL CHARGES AND THE POWERS OF THE COURT

The Applicant has been provisionally charged under section 30(1)(f) of the Dangerous Drugs
Act which reads as follows:

(1) 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…

In Mootoosamy v The Queen 1981 MR 476, a provisional information was described as “a

well-established practice” which “apparently evolved from an application of s. 5 of Ordinance
23 of 1988”. The then Chief Justice Rault and Justice Glover went on to state that “Its
distinctive features are that it is fundamentally a process to bring a suspect before the Court,
and at the same time to inform him of the nature of the charge against him. If the enquiry
results in a prosecution, the suspect is never tried under the provisional information, which is
struck out and replaced by a regular information.”

In DPP vs IOIB and Ajay Shanto 1989 MR 110, the Court reiterated the following:

“As everybody knows, a provisional information is entered when a suspect is arrested or is

brought into custody. Its purpose is to bring the detention of the individual under judicial
supervision and control so as to prevent an administrative detention and to enable a judicial
authority to decide whether the detainee should be released on bail or not and, if not, for how
long he should be detained. No detainee pleads to a provisional information and no trial takes
place. Consequently, no question arises as to whether evidence is required to be given in
those proceedings. When the need arises for evidence to be given, the provisional information
is simply struck out and an information is lodged to which the accused pleads and in respect
of which a trial takes place.”

In the case of Alain Gordon-Gentil v State of Mauritius 1995 MR 38, the Court went further
and stated that

“When a person is arrested, he must be taken before the Magistrate who is informed by the
prosecutor of the reason for the arrest. This is but a prolongation of the initial process of arrest.
Whereas at the initial stage the person arrested should be told the reason for his arrest, the
next important step is to inform the Court why the person is detained and taken before the

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Court. This is not merely a formality. The Court acts as arbiter between the executive
and the citizen and, in such cases, may control the regularity of an arrest if the need for
it arises.” (Emphasis added)

In the case of Manraj D & Ors v ICAC 2003 SCJ 75, the then Justice Domah stated the
following:

“The concept of fair trial includes an important element in today’s case-law: that of equality of
arms. A court that stands between the citizen and the State or machineries of the State should
ensure that the State or State institutions, on the one hand, and the citizen, on the other hand,
face each other on level terms. Where judicial process is seen to give an unfair advantage
to the State or the State institutions over the citizen for whose justice the State, the
State institutions or their machinery are the sacred repository under the Constitution,
the Courts would be laundering justice not delivering justice.” (emphasis added)

He stated that “equality of arms between the parties ran throughout the whole process,
from the beginning of an investigation, through trial stage and appeal stage up to the bitter
end” (emphasis added) and that “(the) principle is of pervasive application from investigation
to final decision”.

He went on to quote an extract of the European Court of Justice case of Migon v Poland
HRDC 2002 which reads as follows:

“It thus follows that, in view of the dramatic impact of deprivation of liberty on the fundamental
rights of the person concerned, proceedings conducted under Article 5, Section 4 of the
Convention should in principle also meet, to the largest extent possible under the
circumstances of an ongoing investigation, the basic requirement of a fair trial…”

It is clear from all the above-mentioned authorities that the Court does not rubber stamp
provisional charges. It is empowered to assess the regularity of an arrest and is duty-bound
to prevent abuses on the part of the executive.

The Law in relation to striking out of provisional charges

Section 5(1) of the Constitution provides that

“No person shall be deprived of his personal liberty save as may be authorised by law.”

In that respect, one of the permissible derogations which may be authorised by law, by virtue
of Section 5(1)(e) of the Constitution, is the arrest or detention of a person – “upon reasonable

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suspicion of his having committed, or being about to commit, a criminal offence” (Emphasis
added)

Sections 5(2) and 5(3)(b) of the Constitution further provide that any person who is arrested
or detained, must be informed as soon as reasonably practicable of the reasons for his arrest
or detention and must be brought without any undue delay before a court.

The powers of arrest of the police emanate from section 13F of the Police Act which states
that a police officer who has reason to suspect that any person has committed or is about to
commit an offence which will endanger public safety or public order may arrest that person. A
person who is arrested by the police is to be brought before a Court of law within 48 hours.

The above safeguards provided by the law are in practice adhered to by way of lodging a
provisional information. No provisional charge can stand unless it meets with the above
requirements. The first limb of the requirement is for police to show that the suspicion upon
which they arrested the accused was reasonable. The concept of “reasonable suspicion” was
extensively explained in the leading case of Manraj (supra) where it was held as follows:

“Reasonable suspicion” must necessarily be grounded on facts:

“Reasonable suspicion, in contrast to mere suspicion, must be founded on fact. There must
be some concrete basis for the officer’s belief, related to the individual person concerned,
which can be considered and evaluated by an objective third person.”

“Reasonable suspicion” must necessarily be distinguished from mere suspicion. “Mere

suspicion, in contrast, is a hunch or instinct which cannot be explained or justified to an
objective observer.”

“Reasonable suspicion” is no instinct, allows no guess, no sixth sense. It is scientific. It has to

find support on facts, not equivocal facts but facts consistent with guilt. All that an investigatory
authority may do with its hunches is keep the person under observation but it cannot act on
it.”

The Court went to summarise the principles which should apply when determining whether
there is reasonable suspicion which may justify an arrest:

“… First, the suspicion should be reasonable: King v Gardner (1979) 71 Cr. App. R. 13;
Prince [1981] Crim. L. R. 638. Second reasonability should be gauged not from the personal
point of view of an officer or his subjective standard. It should be appreciated from the objective
standard, the point of view of a dispassionate bystander: Inland Revenue Commissioners v
Rossminster Ltd [1980] A.C. 952. Finally, and importantly, the suspicion should be based

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on facts: King v Gardner (supra); Prince (supra); Ware v Matthew February 11, 1981,
1978 W. No. 1780 (Lexis). The facts relied on should be such as are consistent with the
implication of the suspect in the crime: Pedro v Diss [1981] 2 All ER 59, D.C.; [1981] Crim.
L.R. 236. It should not be equivocal with his implication and his non implication. Only then will
an Officer’s exercise of powers on reasonable suspicion be democratic and not autocratic and
the power user be said to be making a difference between democracy and dictatorship”

Now, it follows from the above principles that no objective conclusion can be reached about
the reasonableness of an arrest without taking into consideration the version of the defendant.
The above, of course, does not mean that the police have to establish a prima facie case,
which has a far higher threshold and which is required to prove a case at trial, to justify an
arrest. It simply means that the police have to objectively consider all the facts and
circumstances and this should include the version of the defendant. The term “reasonable
suspicion” inherently includes the concept of fairness.

In the European Court of Human Rights case of Layijov v Azerbaijan (Application no.
22062/07), drugs were secured from the Applicant’s car. He contended that the drugs had
been planted by the police. He complained that his right to a fair trial under Article 6 of the
European Convention of Human Rights had been violated because his conviction had been
based on unlawfully planted evidence. The relevant part of Article 6 reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...”

This is very similar to section 10(1) of our Constitution which reads as follows:

“Where any person is charged with a criminal offence, then, unless the charge is withdrawn,
the case shall be afforded a fair hearing within a reasonable time by an independent and
impartial court established by law.”

Paragraph 65 of the case of Layijov (supra) is of interest to us to the extent that it held as
follows:

“The Court reiterates that, even if the primary purpose of Article 6, as far as criminal
proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to
determine “any criminal charge”, it does not follow that the Article has no application
to pre-trial proceedings. Thus, Article 6 may be relevant before a case is sent for trial if and
so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply
with its provisions (see Salduz v. Turkey [GC], no. 36391/02, § 50, 27 November 2008).”
(Emphasis added)

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In the case of Sakit Zahidov v Azebaijan (Application no. 51164/07), the European Court
of Human Rights went further and stated the following at para 48:

“In determining whether the proceedings as a whole were fair, regard must also be had to
whether the rights of the defence have been respected. In particular, it must be examined
whether the applicant was given the opportunity to challenge the authenticity of the evidence
and to oppose its use.”

The above principles have been incorporated into our domestic law as far back as 1989 when
the then Justices Ahnee and Boolell held in the case of Sheriff V District Magistrate of Port
Louis 1989 MR 260 that

“…whatever the approach which is taken, a police officer effecting an arrest must take into
consideration the totality of the circumstances including the explanations of the
suspect and the motive of the declarant. We feel that whatever suspicion the police may
harbour against the suspect should be weighed against any factors which tell in favour of the
suspect. A total neglect of the explanations that the suspect may have to offer may well
lead to the conclusion that the suspicion is not reasonable (see Hogate – Mohammed v.
Duke (1984) A.C 437).” (Emphasis added)

In the case of Mamode v The Queen 1991 MR 223, it was held that the concept of fair trial
invariably also implies “fair and impartial inquiries into the allegations of accused parties”.

Applying the above principles, it is evident that the arrest would only satisfy the “reasonable
suspicion” test if the suspicion was objectively reasonable taking into consideration all the
facts and circumstances of the case, including the explanations of the Applicant. Fairness
dictates so.

THE COURT’S ASSESSMENT

Applying the law to the facts of the present case, three parcels of drugs were secured from
the house of the Applicant’s partner. One from a drawer in the bedroom shared by the
Applicant and his partner, one from a pair of jeans and one from the toilet bowl. The pair of
jeans was found in a bag which was seen in CCTV footage being carried by the Applicant.
The explanation of the Applicant in respect of the drugs found in the drawer was that he saw
PC Doro take something out from his pocket and put it in the drawer. As regards the pair of
jeans, the Applicant’s explanation was that same were ladies’ jeans and belonged to his
partner. It was in the bag that he was carrying which also belonged to his partner but is used
to pack both of their clothes. It is not disputed that the DNA and fingerprints of the Applicant
and his partner have not been recovered on the drug parcels. Nor is it disputed that no gloves

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have been recovered on the premises of the Applicant’s partner’s house and the Applicant’s
own apartment in Sodnac. This is material to the extent that it may lead to the inference that
the Applicant has not handled the drugs and may give credence to his version. The more so
that this is the reason why the DPP did not object to the release on bail of the Applicant when
the case came for bail hearing. In light of result of the FSL, coupled with the explanations of
the Applicant that the drugs which have been secured have been planted, the police had a
duty to investigate into the version of the Applicant. Their failure to do so, in the face of the
very serious allegations made by the Applicant, is incomprehensible and unreasonable. It
raises doubts about the fairness and impartiality of the police.

According to the Enquiring Officer, the enquiry has already been completed. At the time this
case was being heard, the Applicant had been under a provisional charge for approximately
6 months. The case file was supposed to be forwarded to the DPP’s office for advice within a
week. Yet, no enquiry has been made into any of the defences put forward by the Applicant.
Nor was there any enquiry into the allegations he made against the police in respect of their
conduct during the search that was carried out by the SST. His allegations that he was not
allowed to have contact with his Counsel during his initial detention and in respect of any
potential ill-treatment he may have been subjected to due to which he had to attend treatment
at the hospital following his arrest have also not been investigated.

It was submitted by Counsel for the Respondent that it is possible for someone to handle an
object and not leave behind any DNA. I hasten here to highlight that it is not within the purview
of this Court to delve into the merits of the case and analyse to what extent the absence of
DNA exculpates the Applicant. The sole purpose for which the information about the lack of
DNA and fingerprints are being considered here is to ascertain whether in the present
circumstances, based on the facts of the case and the explanations provided by the Applicant,
the suspicion can be said to be reasonable from an objective bystander’s point of view.

After careful consideration, adhering to the principle laid down in the case of Sheriff (supra)
and taking into account all the above, I am of the view that the arrest of the Applicant can no
longer be said to be based on “reasonable suspicion”. At the time of arrest the police did not
have the results from the FSL nor had they recorded the defence statements of the Applicant.
This is understandable given the short span of time within which they had to bring the Applicant
before a court of law and the limited resources available to the police. However, the situation
is no longer the same. The police are now in possession of the version of the Applicant as well
as forensic evidence. The police have totally neglected the explanations of the Applicant and
six months after the arrest, have failed to verify his version. The Applicant is still under arrest
and has been granted bail under strenuous conditions which include reporting conditions. He

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also has a prohibition order against him. The fact that the enquiry has been completed in utter
disregard of the Applicant’s version is not acceptable and reeks of irregularity. To condone
this by keeping the present provisional information would be tantamount to the Court
abstaining from doing its duty to act as an arbiter between the Applicant and what appears to
be an excess of zeal on the part of the executive. However, this is not to say that the Court is
usurping the powers of the trial court and is holding that the explanations and/or defences of
the Applicant are valid and true. It merely means that the lack of enquiry into those
explanations fails to give the required objectivity to the police when assessing whether the
suspicion is reasonable.

CONCLUSION

For all the aforesaid reasons, this Court chooses to exercise its powers to strike out the
provisional information. All orders in respect of the present provisional charge are to lapse.

The dicta in the case of Manraj (supra) bears repeating: “A Court that stands between the
citizen and the State or machineries of the State should ensure that the State or State
institutions, on the one hand, and the citizen, on the other, face each other on level terms.
Where judicial process is seen to give an unfair advantage to the State or the State institutions
over the citizen for whose justice the State, the State institutions or their machinery are the
sacred repository under the Constitution, the Courts would be laundering justice not
delivering justice.” (Emphasis added)

I deem it fit to open a parenthesis here to say that this Court is well-aware of the scourge that
drugs are in our society. The present decision is not to be in any way interpreted as condoning
the behaviour of people who deal in drugs nor is it synonymous to sympathy for the
perpetrators of criminal offences. The present ruling is also not to be construed as an attempt
to reprimand the police in the conduct of their enquiry nor does it make any findings on the
veracity of any allegations made by either party. Neither does it make any findings on the
breach of any right of the Applicant as guaranteed under the Constitution. However, it does
call upon the police to exercise their powers diligently and in accordance with the principles
established under the law.

Mrs Vidya Mungroo Jugurnath

Senior District Magistrate

28 March 2023

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