Police v L.P.G.

GOPAUL

2016 INT 557

IN THE INTERMEDIATE COURT OF MAURITIUS

CN 672/2015

In the matter of:

Police

Louis Pascal Giovanny GOPAUL

Judgment

The accused is charged upon an amended information with the following:

Count 1: unlawfully and knowingly cultivating cannabis plants in breach of Sections 5(1), 29(1)
(a) and 47(5) (a) of the Dangerous Drugs Act.

Count 2: unlawfully and knowingly possessing dangerous drug (cannabis seeds) for the purpose
of cultivating Cannabis plants in breach of Section 30(1) (f) (i) and 47(5) (a) of the Dangerous
Drugs Act.

Count 3: unlawfully and knowingly smoking dangerous drug in breach of Section 34(1) (a) of
the Dangerous Drugs Act.

He pleaded guilty to count 1 and not guilty to counts 2 and 3.

He was represented by Mr A. Dayal.

It is common ground that on the 15th of October 2014, police made a search at the place of the
accused. They did not secure anything from him, but near a window they secured 4 plants
planted in plastic bottles suspected to be cannabis plants. The accused was explained of his
rights, following which he agreed that he planted the cannabis plants. The search extended to
other parts of the house and the police secured from drawer in his room, 52 seeds wrapped in a
cellophane sachet suspected to be cannabis seeds. The accused was again explained of his
rights and he acknowledged that the seeds were his and meant to be cultivated. Police secured
the drugs and accused was brought to the ADSU office.

Were produced in court:

1. A sealed envelope containing the 4 plants - Exhibit I

2. A sealed envelope containing 51 seeds - Exhibit II

3. A sealed envelope containing plastic bottles- Exhibit III

The FSL report confirmed that the 4 plants which weighed 1.7 grams were cannabis plants. The
seeds were identified as cannabis seeds.

Several photos and a plan are on record. The statement of the accused was read and
produced.

The value attributed to the plants was 12,000 rupees and the value of the seeds was 2,600
rupees at the rate of 50 rupees each.

The circumstances of the offence as explained by the accused are contained in his out of court
statement to the police. He agreed that he planted the cannabis plants and that the cannabis
seeds would have been used for plantation: “sa cinquante deux la grain gandia la mo to pu
planter plitard”. He went on to reveal that a month earlier whilst he was walking on the beach at
Grand Gaube when he was approached by an unknown man who proposed to sell cannabis to
him. Since he was in possession of money, he bought it. When he went home, he noticed that
the parcel also contained cannabis seeds. He removed the seeds and kept them. He smoked
the cannabis.

The accused did not adduce any evidence in court.

Learned Counsel submitted in respect of Count 2 that the prosecution has not proved that the
possession of the drug was “for the purpose of cultivating cannabis plants”. He referred to the
case of Bhoyrub v The State 2004 SCJ 307 with regard to the definition of cultivation and
stated that there was no cultivation if the definition given in Bhoyrub were to be applied. He
added furthermore that because there were no cannabis plants, the police having secured only
the seeds, there could not have been cultivation. If the prosecution has not proved the dealing
aspect, the accused can only be found guilty for possession of the cannabis seeds.

With regard to count 3, he referred to the case of Marthe v The State 2010 SCJ 142 and
submitted that the particular part of his statement where the accused revealed that he smoked
cannabis “cannot be used against him for him to be prosecuted on another charge”.

Count 2

The court has considered the submission of Learned Counsel with regard to what constitutes
cultivation.

Section 2 defines cultivation as including: “the entire process of supervising the growth of a
plant, from preparation of the soil up to and including harvest”

In Bhoyrub V The State, Learned Judges observed:

“It was also submitted that the presence of one plant cannot constitute an act of
cultivation which connotes a large scale enterprise. We do not agree that it is the
number of plants grown which is the test of the act of cultivation. In effect, what
 constitutes cultivation is the act of bestowing labour, care and attention in order to raise
the plant. The presence of a packet of fertilizer near the bowl is a clear sign that the
plant was not abandoned on its own but that it was bestowed with care and attention to
flourish into a healthy plant.”

Learned counsel submitted that there is no evidence of bestowing labour, care and attention.
The court finds that his submission is inappropriate. He referred to section 30 (1) (e) of the DDA
which relates to the cultivation of cannabis plant. Clearly the charge here in respect of the
present count is one of possessing dangerous drug (cannabis seeds) for the purpose of
cultivating Cannabis plants in breach of section 30 (1) (f).

Section 30 (1) (f) of the Act reads: “ Any person who unlawfully…possesses, purchases or
offers to purchase any dangerous drug for the purpose of any activity in this section… shall
commit an offence.”

Cultivation is one of the activities mentioned in the above section.

What the prosecution has to prove is not actual cultivation, but that there was an intention of
cultivation. In J B Bernard v The State 2012 SCJ 31, the Supreme Court found that:

“[14]… It is not necessary under a charge under section 30(f) of the Dangerous Drugs
Act 2000 (possession for the purpose of any of the activities specified under the section)
for the prosecution to prove that any of the intended and specified activities did actually
take place. It is enough for the prosecution to adduce such facts as to show that the
possession was for the purpose of the activities: i.e. sale, import, export, production,
manufacture, extraction, preparation, transformation, distribution, brokering, delivery,
transportation, cultivation etc as the case may be.” (Underlining is mine)

The prosecution has therefore to adduce evidence of facts from which the court can infer that
the drug was meant for cultivation.

Those basic facts have been set out in Leung How v The State 2012 SCJ 196. The Appellant
in that case was in possession of 76 cannabis seeds and the Supreme Court dismissed the
appeal concluding that the possession of the cannabis seeds were indeed for the purpose of
cultivation, relying on the following facts:

“(1) that gandia seeds are used for cultivating gandia plants,

(2) the large number of seeds found in the possession of the accused,

(3) the manner in which he kept them,

(4) his implicit admission, in his statement from the dock, that he believed the seeds to
be capable of growing, and
 (5) his cock and bull story as to how he obtained the gandia seeds and why he kept
them in the way he did. ”

Having considered the evidence on record, the court finds that the circumstances and the
intention of the accused show that the seeds were kept for cultivation.

Of relevance is his verbal reply when he was cautioned upon the drugs being secured at his
place. He immediately conceded that the drugs were meant for cultivation. But there is more.
Whilst giving his statement, he again admitted that he kept the seeds for cultivation. He did not
give any evidence in court and the weight of the statement has not been challenged. The court
therefore finds that due weight has to be attached to his admission. Further to that, the court
has borne in mind the quantity of seeds secured, that they were kept in a hidden place and that
generally seeds are meant to be cultivated. There is also his preposterous explanation that he
found the seeds amongst the cannabis which he bought to smoke.

In view of the circumstances, the Court can reasonably infer that the accused was indulged in
cultivation and there are no other co-existing circumstances which could weaken or destroy
such an inference.

Count 3

The decision in Marthe related to the intrinsic unfairness of using a statement made by way of
defence to one charge as a basis for charging the accused, on the same information, with
another offence. The court agrees with the submission of Counsel for the appellant that an
accused party who is faced with a criminal charge has to defend himself as part of his
constitutional right to a fair trial and he has can invoke the defence he wants. But if by invoking
a defence which is in the nature of a disculpation, this defence is used as a means to prosecute
him for another offence in the same information, this is not warranted. The Court on appeal
found that the appellant’s right to a fair trial was seriously affected and allowed the appeal in
respect of Count II.

However, in the present case, the accused did not give a defence which is in the nature of a
disculpation. He instead explained the circumstances in which he came in possession of the
cannabis seeds and in so doing, he admitted buying cannabis to smoke. It was when he opened
the parcel containing the cannabis at home that he saw the seeds. The circumstances are
clearly different from the case of Marthe where the accused, in his statement to the police,
implicated another person whom he knows is innocent, as defence which he raised in
connection with a drug charge. It was submitted that a statement made under warning cannot
give rise to criminal proceedings against the matter of the statement even if the latter is proved
to be false. The court decided that the appellant’s right to a fair trial was seriously affected.
Here, the court does not consider that there has been a breach of the accused’s right to a fair
trial. The accused confessed in his statement. The admissibility of the statement was not
challenged, nor was the weight to be attached to it.

It is well known that a confession is the best evidence available. When an alleged confession by
an Accused party has been reduced in writing and signed by him, oral evidence need not be
admitted: Lily v R (1900) MR 32.

Furthermore in DPP v Armont JP [1980 SCJ 338] it was held 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.”

Archbold's Criminal Pleading and Practice at page 420 has considered the weight to be
attached to a confession in the following words:

“It has been said that if there be no other evidence in the case, or none which is
incompatible with the confession, it must be taken as true: R. v. Jones, 2 C. & P. 629;
but the better opinion seems to be that, as in the case of all other evidence, the whole
should be left to the jury, to say whether the facts asserted by the prisoner in his favour
be true: Smith v. Blandy Ry. & M. 257; R. v. Higgins, 3 C & P. 603; R v. Clewes, 4 C. &
P. 221."

The accused did not adduce any evidence in court and there is no evidence incompatible with
the confession. In such circumstances the court finds that much weight can be given to it. The
court therefore holds that the submission of learned counsel does not hold good.

For the above reasons, the court concludes that the prosecution has proved its case beyond
reasonable doubt and finds the accused guilty as charged in respect of Counts 2 and 3.

Since the accused pleaded guilty to Count 1, the court finds him guilty as charged in
respect of Count 1.

B.R.Jannoo- Jaunbocus (Mrs.)

Magistrate
Intermediate Court (Criminal Division)
This 16th December 2016.