GOVINDRAMEN A.

v THE COMMISSIONER OF POLICE & ORS

2021 SCJ 179

THE SUPREME COURT OF MAURITIUS

In the matter of:

Avissen Govindramen

Applicant
v

1. The Commissioner of Police

2. The Director of Public Prosecutions
3. His Honour, The District Magistrate,
Bail and Remand Court

Respondents

JUDGMENT

This is a bail review of the decision of respondent no.3 who denied bail to the applicant
provisionally charged under 3 counts, namely –

Count 1 - Drug dealing with aggravating circumstances: possession of synthetic

cannabinoids for the purpose of selling with averment of trafficking (sections 30(1)(f)(ii),
41(3)(4) and 47(2)(5)(a) of the Dangerous Drugs Act);

Count 2 - Drug dealing: Possession of cannabis for the purpose of distribution (sections
30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act),

Count 3 - Money Laundering (sections 39(1)(a)(2), 47(5)(a) and 48 of the Dangerous

Drugs Act).

Respondent no.3 is abiding by the decision of the Court whereas respondent nos.1 and
2 are resisting the present application.
 Respondent no.1 raised two grounds of objection against the release of applicant before
the Bail and Remand Court (BRC), namely, risk of absconding and risk of re-offending.
Prosecution led evidence that on 10 March 2020, a search was carried out by ADSU
officers in the compound of Medine Kali Mata Mandir in Bambous. ADSU officers found 100
grams of synthetic cannabinoids, 8 grams of cannabis and the sums of Rs.16,500 and €2350 in
a bedroom occupied by applicant. The value of the synthetic cannabinoids and cannabis are
estimated to be worth Rs.500,000 and Rs.9,800 respectively. Applicant has denied being in
possession of the said drugs. He had instead made allegations that he had been set up by the
ADSU officers conducting the search on 10 March 2020 and that drugs had been planted in his
room. Following the allegations made by applicant, another team of officers took charge of the
present case and the allegations are still being enquired into.

It is on record that the street value of the drugs was reassessed from 1.5 million rupees
to five hundred thousand rupees.

As regards the risk of absconding, the learned Magistrate was satisfied insofar as
applicant is a person of means, has family ties, resides with his parents and has a fixed place of
abode, there was no risk for applicant to abscond. He concluded that the first ground of
objection was only a mere apprehension and did not uphold same.

In relation to the second ground of objection, that is, the risk of re-offending, the learned
Magistrate found that it was justified in the present case. In assessing this ground, he took into
account the nature of the charges against applicant and the penalty provided for such offences
which is a fine up to one million rupees and penal servitude up to 25 years. According to him,
the possibility of a long term of imprisonment may result in applicant re-offending if he is
released on bail.

Prior to considering the grounds of objection to the release of applicant on bail, the
learned Magistrate considered the application of section 5(3) of the Constitution to the present
case. He also applied the principles and rules governing bail application by referring to the
cases of M.G. Maloupe v The District Magistrate of Grand Port [2000 SCJ 223], Hurnam v
The State [2005 UKPC 49], Labonne v Director of Public Prosecutions & Anor [2005 SCJ
38], Deelchand v The Director of Public Prosecutions and Others [2005 SCJ 215] and
Director of Public Prosecutions v Marthe [2013 SCJ 386a]. He carried out the balancing
exercise required of him in a bail application. He did consider whether the imposition of bail

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conditions will curb the risk of applicant re-offending but he was of the view that there were no
conditions of bail which would diminish or minimise the risk of re-offending.

Learned senior counsel identified various flaws in the judgment which according to him,
warrant the intervention of this Court to review same, namely, that the learned Magistrate was
wrong to find that –

(1) there is a possibility of applicant being lured into earning easy money in the business
of drugs on account that he was of no calling as mentioned in the information and
with no evidence to the contrary. According to counsel, it was confirmed in the
statement given by applicant that he works in a mandir and earns a monthly salary of
Rs.15,000;

(2) there is the risk of re-offending after having found that there is no risk of absconding.
Counsel for applicant submitted that these two grounds of objections co-exist and
are inextricably linked. Thus, having found that there is no risk of absconding, in the
same breath, the learned Magistrate should have found that there could not be any
risk of applicant re-offending;

(3) conditions of bail could not be imposed to minimise the risk of applicant re-offending;

(4) the nature of the evidence for drug dealing against applicant is such that applicant
had denied the charge of drug dealing, made allegations that drugs had been
planted in his room, a cctv footage had been provided and the estimate worth of the
drugs secured had been reassessed from 1.5 million rupees to Rs.500,000.

Learned counsel for respondent nos.1 and 2 supports the decision of the Magistrate of
the BRC. She disagreed that having found that there was no risk of absconding, the Magistrate
should have also found that there would also be no risk of re-offending. She submitted that
drugs were found in the room of applicant and even if the estimate worth of drugs had been
revisited from 1.5 million rupees to Rs.500,000 worth, it was still a substantial amount. She did
not find the Magistrate to have erred when he concluded that drug business is lucrative.
Considering that applicant was of no calling, there was the risk for applicant to be lured into
getting involved with drug business and thus satisfying the risk of re-offending. She added that
on the evidence before the BRC at the material time, the Magistrate was right to conclude that

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applicant was of no calling and could only consider evidence brought before him at that material
time.

The guiding principles governing a bail decision have been clearly laid down in the cases
of M.G. Maloupe v The District Magistrate of Grand Port [supra], Hurnam v The State
[supra] and Deelchand v The Director of Public Prosecutions and Others [supra]. Section
5(3)(b) of the Constitution also finds its importance, relevance and application to bail.

This Court is therefore only being called upon to review the decision of the Magistrate of
the BRC for having found that there was a risk of applicant re-offending. Further, was it justified
by the learned Magistrate of the BRC to find that any imposition of bail condition will not
minimise this risk so that bail has been denied to applicant.

At the outset, we disagree with learned senior counsel for applicant that the risk of
absconding and the risk of re-offending are inextricably linked and one cannot exist without the
other. We are of the considered view that these are two different types of risks which the Court
will assess and consider.

As of note, the risk of absconding has a direct bearing on the proceedings of the Court
regarding the danger of the suspect obstructing the course of justice whereas the risk of re-
offending is not directly related to the proceedings. The risk of re-offending is relevant to the
responsibility or duty to protect the offender, the community at large and victims.

The judgment of Deelchand v The Director of Public Prosecutions and Others [2005
SCJ 215] gives an in-depth analysis of what the risk of re-offending entails that it must be “a real
one and there must be adequate reasons to explain its existence”. The case of Clooth v
Belgium [1991 ECHR 71] was referred to in the case of Deelchand [supra] where it was held
that it should also be plausible that there is a risk that applicant can commit a serious offence
whilst on bail. It is worthy of note that at the time of the bail hearing, the applicant was
described to be of no calling. We find that the learned Magistrate was right in concluding that
the likelihood for applicant who is of no calling and who is provisionally charged with serious
drug offences to be tempted in re-offending. In the present case, the risk of re-offending is a
“plausible” and “real” one based on the nature of the provisional charge coupled with the
personal circumstances of the applicant at the material time.

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 It has been made an issue before us that when the applicant gave his statement, he
explained that he worked in the mandir with his father and earns a salary and it would be
incorrect to say that he was of no calling as described in the information. However, as a Court
reviewing the decision of the Magistrate of the BRC, we are only bound as to what was adduced
before the said Magistrate. We shall now proceed into determining and deciding whether the
Magistrate correctly considered this risk of re-offending in his determination of either granting or
denying bail. Applicant being of no calling coupled with the evidence which led to the present
provisional charge and that it is commonly known that drug business is lucrative, we are
satisfied that the risk of re-offending has been correctly considered by the Magistrate of the
BRC.

Whether conditions of bail could be imposed to minimise this risk of re-offending, on this
score, we are also satisfied that the Magistrate considered the conditions of bail and concluded
that no condition could be adequate to minimise the risk. As held in the case of Deelchand
[supra], the nature of the offence which the applicant is suspected to have committed also finds
its importance and significance. In the present matter, the learned Magistrate had in fact
considered for –

(i) the alleged money laundering offence, it is borne out during cross examination of
the enquiring officer that the father has confirmed the source of funds of money
found in the safe;

(ii) the alleged drug dealing offences, the evidence of the prosecution that drugs
were found and seized and whereas the defence had denied the charge and put
forward those drugs had been planted by the ADSU officers. He made it clear
that “….. I do not think it is appropriate that I go into great detail about the state of
the prosecution case. Suffice to say that there is evidence, which if accepted,
could lead to a conviction in relation to the drug dealing charges.” He also held
that “the drug dealing offences for which the applicant stands provisionally
charged fetches, upon conviction, a fine up to one million rupees and penal
servitude for a period up to 25 years. I cannot exclude the possibility that the
thought of a long term of incarceration may spur the Applicant to re-offend whilst
on bail.”

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 The above considerations of the learned Magistrate of the BRC are in fact
considerations which the case of Deelchand [supra] held to be important –

“5.8 The sentence expected in case of conviction is also a relevant consideration

because of the greater risk that the offender may think he has nothing to lose by
offending whilst on bail. 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.

5.10 The likely consequences of re-offending are important too. As pointed out in
Matznetter v Austria (supra, at para ...): “A judge may reasonably take into
account the seriousness of the consequences of criminal offences when there is
a question of taking into account the danger of seeing such offences being
repeated, in order to decide if the person concerned can be released in spite of
the existence of such danger.”

We have been made aware that applicant has a clean record but as held in the case of
DPP v Poonye [2018 SCJ 182], this does not automatically result into him being granted bail or
necessarily means that applicant has never been involved into illicit and unlawful acts and
doings.

In the light of the above, we find that the learned Magistrate was right in not granting bail
to the applicant. However, we must place on record that the Supreme Court is the guardian of
the Constitution and is embedded with the duties of ensuring that the sacrosanct principles
derived from the application of the provisions of the Constitution are complied with and adhered
to. The applicant was arrested on 20 March 2020, a few days prior to the start of the COVID-19
period as defined in section 2 of the Interpretation and General Clauses Act and the country had
another lockdown period from 10 March 2021 until 1 May 2021. We would be denying the
obvious to say that COVID-19 has not impacted on the time factor in criminal proceedings or
criminal enquiries. However, notwithstanding the prevailing sanitary conditions in the country
and by virtue of the constitutional right of accused under section 5(3) of the Constitution, we
press on the prosecution to complete the enquiry and lodge the case at the earliest.

M. J. Lau Yuk Poon

Judge

M. Naidoo
Judge
08 June 2021

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Judgment delivered by Hon. M. J. Lau Yuk Poon, Judge

For Applicant: Mr P. Thandarayan, Attorney at Law

Mr G. Glover, Senior Counsel
Ms Y. Moonshiram, of Counsel
Mr S. Seebaruth, of Counsel

For Respondents: Ms B. Bhagwan, State Counsel

Nos. 1 & 2 Mr M. Lallah, Chief State Attorney

Respondent No.3 - abiding