Noordally vs.

Attorney-General & Director of Public Prosecutions

1986 SCJ 339

1986 MR 204

Moollan CJ, Glover SPJ*

This is a motion whereby we are asked -

(1) to declare that section 46(2) of the Dangerous Drugs Act1986 violates sections 3
and 5 of the Constitution;
(2) to order in consequence the release of one N Jaggessur, the applicant's husband,
and of one A Goolfee.

The affidavit in support recites that-

(1) Jaggessur was, on 18.9.86 at I am sitting in Goolfee's livingroom with the latter
when the police raided the premises;
(2) the police seized an attache case and a sum of Rs 2,500 but found no drugs there;
(3) the two persons were arrested, brought before the District
Court of Port Louis and charged with the offence of possession of heroin;
(4) they were remanded in custody first to October 2nd and again to October 29th;
(5) the "police authorities" have refused to allow them to be bailed out on the ground
that no person who is charged with an offence relating to drugs shall be admitted to
bail.

A police sergeant has, on the other hand, affirmed an affidavit to say that, when he entered
Goolfee's premises at that time of the night in company of three other colleagues, they found no
money but seized a plastic sachet suspected to be stained with heroin, 4 small plastic sachets full
of a powder suspected to be heroin powder, one charred foil suspected to contain heroin, one
improvised paper pipe suspected to have been used in connection with the smoking of heroin and
two pieces of paper wick and a candle suspected to have been used in connection with the
smoking of heroin. The affidavit goes on to say that all the articles seized (except the wicks and
the candle) have been sent to the laboratory for analysis. That affidavit stands unrebutted.

In spite of the procedural difficulties, to which we shall refer later, the matter was argued on
its merits without any objection being raised. It has been established for centuries in England that
the proper test of whether bail should be granted or refused is, whether it is probable that the
defendant will appear to take his trial, and that bail is not to be withheld merely as a punishment.
The Courts have also evolved, over the years, a number of considerations to be taken into account
in making the decision, such as the nature of the charge and of the evidence available in support
thereof, the likely sanction in case of conviction, the accused's record if any, and the likelihood of
interference with witnesses. Further, we find, as far back as the time of Blackstone's
Commentaries, the law of England saying that "Refusal or delay by any Judge or Magistrate to bail
any person bailable is at common law an offence against the liberty of the subject". In Archbold's
Criminal Pleadings, Evidence and Practice, 39th ed at paragraphs 290 et seq, where we find those
principles enunciated, it is further stated that "it (such a refusal or delay) is also a violation of the
Habeas Corpus Act 1679 and of the Bill of Rights 1689".

The matter is now governed in England by the Bail Act of 1976 but it is significant to note
that our statutes, namely the District and Intermediate Court (Criminal Jurisdiction) Act and the
sections of the Criminal Procedure Act relating to habeas corpus have, since long, made provision
for these matters. Our Courts have of course followed the English case law on the procedural
aspects of the question. One may also point out that our statutory law has also provided that,
even for the gravest of crimes, for example in the case of someone committed to stand trial for
murder, a Judge may admit the prisoner to bail subject only to the limitation that he should first
consult the Director of Public Prosecutions.

Section 46 of the Dangerous Drugs Act 1986 reads thus –

“46. Arrest without warrant and detention

(1) Any police, forest or customs officer may, without warrant arrest any
person who has committed or attempted to commit, or is reasonably suspected by
such officer of having committed or attempted to commit an offence against this
Act, where he has reasonable grounds for believing that that person will abscond
unless arrested or where the names and address of that person are unknown and
cannot be ascertained.
(2) No person who is charged with an offence under sections 28, 30 or 33
shall be admitted to bail.”

It is to be noted that, contrary to the normal drafting technique, section 46(2) does not start
with the words "Notwithstanding anything to the contrary in any other enactment", as it should
have done since, as it appears, it was meant to derogate from the principles enshrined for years in
the other enactments we have referred to.

Next we come to the provisions of our Constitution, and we shall deal first with sections 3
and 5 referred to by counsel for the applicant. At the outset it must be observed that section 3,
which introduces the whole of Chapter II relating to human rights and fundamental freedoms, is
worded thus-

“It is hereby recognised and declared that in Mauritius there have existed and shall
continue to exist ... each and all of the following human rights and fundamental
freedoms -
(a) the right of the individual to life, liberty, security of the person and the protection
of the law;
(b) ...
(c) ...
and the provisions of this Chapter shall have effect for the purpose of affording
protection to those rights and freedoms subject to such limitations of that protection
as are contained in those provisions, being limitations designed to ensure that the
enjoyment of those rights and freedoms by any individual does not prejudice the
rights and freedoms of others or the public interest.”

The opening words, besides, have enabled this Court to say that Chapter II of our Constitution has
invented nothing and has merely set out in clearer language the rights and freedoms which our law
previously catered for.

Turning to section 5, what do we find? It is said that no person shall be deprived of his
personal liberty save as may be authorised by a law in a number of circumstances, including the
need to ensure his appearance in Court in answer to a Court order, a reasonable suspicion that a
person has committed or is about to commit an offence or that he is likely to commit breaches of
the peace. But the section goes on at once to state that, firstly the person arrested should be told
of the reason for his arrest, secondly that someone who is arrested or detained in any of the 3
circumstances specified above must be given facilities to obtain legal advice and be brought
before a Court without undue delay, and thirdly that if such a person is not tried within a
reasonable time he shall be released, with or without conditions, without prejudice to the
appropriate authority's power to bring fresh proceedings subsequently, including conditions"
reasonably necessary to ensure that he appears at a later date for trial or for proceedings
preliminary to trial" (obviously meaning including release on bail). It follows that the suspect's
remaining at large is the rule: his detention on ground of suspicion is the exception and, even then,
if he is not put on his trial within a reasonable time he has to be released. The words "if any
person … is not tried within a reasonable time" do not refer to the date on which the case is heard
on its merits but to the time at which the Crown is, ready to lay a formal information against the
prisoner and have the case heard at once if necessary. And it is obviously for the Courts to
determine what is a reasonable time. So that we cannot subscribe to the proposition of learned
counsel for the respondents that section 5 does not grant to an accused party a right to be at
large. Nor do we agree that, as was submitted by the learned Solicitor-General, section 46(2) of
the Act would be perfectly in accord with the Constitution so long as it is not interpreted to mean
that a suspect could be detained for an inordinate period while the prosecution made up its mind.

There is more to it as we shall illustrate. Section 28 of the Dangerous Drugs Act provides
that a person who has in his possession, smokes or consumes any amount of, say, gandia shall
be liable, inter alia, to a fine or to be placed on probation. We have judicial notice of the fact that a
first offender who is caught in the seclusion of his home puffing on a cigarette found to contain,
say, 0.2 g of gandia will in all probability be visited with a fine or placed on probation. One can
envisage a situation where, on coming before
a Magistrate on remand ten days after having been arrested, the detainee may say to the Court: I
have given a statement to the police in which I have made a full confession, I can prove that this
was my first try at the forbidden fruit, I am the sole breadwinner of the family, I am ready to stand
trial and pay the penalty for my sin, I pray that, if the Crown is not ready to put me on trial, I should
be released. And we can understand that, at the present juncture where enquiring officers,
laboratory technicians and scientists, law officers and prosecutors, not to speak of the Courts
themselves, are flooded with drugs cases, a case will come to trial after a much longer interval
than would have been the case a few years ago. The fact remains, however, that, in the situation
we have just described, the effect of section 46(2) would be to enable the Crown to say to the
Magistrate: We can prove that, in the present context, a reasonable time to bring a suspect to trial
is at least six months and you therefore have no jurisdiction to consider any application for bail.

We will, however, go further. The whole of our Constitution clearly rests on two
fundamental tenets, the rule of law and the juxtaposition (or separation as it is more often called)
of powers. More particularly, according to section 10 and Chapter VII, the trial of persons charged
with criminal offences and all incidental or preliminary matters pertaining thereto are to be dealt
with by an independent Judiciary. Only offences against disciplinary laws triable by courts-martial
are excluded from this ambit. Even where the law makes provision for disciplinary offences to be
within the jurisdiction of certain tribunals or service commissions, or where section 5(1)(k) or 18(l)
of the Constitution permits the detention of persons in special circumstances connected with the
maintenance of law and order, any decision of those tribunals or commissions or a decision of a
tribunal set up under section 5(4) or 18(3) is judicially reviewable by the Supreme Court (sections
118 and 119 of the Constitution). We conclude therefore that it is not in accord with the letter or
spirit of the Constitution, as it presently stands, to legislate so as to enable the Executive to
overstep or bypass the Judiciary in its essential roles, namely those of affording to the citizen the
protection of the law and, as guardian of the Constitution, to ensure that no person's human rights
or fundamental freedoms are placed in jeopardy.
 We shall now deal specifically with three submissions made on behalf of the respondents.
We do not think that it can be said, as submitted by their counsel, that a law which would, for
example, exclude bail for an offender charged with riding a bicycle without light, inconsiderate
driving or assault could be struck down on the ground that it was "unreasonable", while one which
denies bail to a class of drug offender such as we have described earlier is perfectly in order. The
test is always one of constitutionality and the law must stand or fall by that yardstick.

Next it was submitted that, in determining whether or not the Legislature has exceeded its
prerogatives, one should have regard to the magnitude of the evil sought to be curbed by the
impugned law. Even so, we would be inclined to say that the importation, cultivation, selling,
procuring or distribution of drugs, excessive indulgence therein, and the social environment which
tolerates and encourages these things do not bear comparison with privately and for the first time
smoking a cigarette containing an infinitesimal amount of gandia.

We must point out, however, that those submissions were offered with reference to the
well-known and learned commentaries of Basu on the Constitution of India. The provisions
thereof, however, dealing with the liberty of the subject, namely sections 21 and 22 are not
couched in the same language as our sections 3 and 5 and the considerations applicable there to
a problem of the kind we are faced with would be different.

Thirdly it was submitted, admittedly with the utmost courtesy and respect, that the Courts
should not question the wisdom of the Legislature. This of course brings us back to the first of
these three points we are presently dealing with. If a law undoubtedly passes the test of
constitutionality, then it would be none of our business even to think of questioning the
reasonableness, or wisdom, of the measure. Within the framework of the Constitution,
Parliament's right to pass laws, however unpalatable, stringent or to our minds unfair, remains
unfettered. But this Court's power to control the Executive, in accordance with its constitutional
role, must also remain, and be seen to remain, unimpaired. So that, since we are faced, not with
an exercise of Parliament's wisdom, but with an illustration of its misprising its powers, no doubt
through being ill-advised, we are entitled to intervene to set matters right.

We have notice of the vicissitudes of the Bill which became the Dangerous Drugs Act and
we can understand that it may have been drafted in circumstances which did not favour calm and
dispassionate cogitation. We note that the provisions thereof relating to this Court's purported
power to order the forfeiture of the possessions of a trafficker in drugs have now been the object of
second thoughts, so much so that a law has just been enacted to amend the Constitution so as to
permit such a forfeiture. One may also point out that while in section 37 of the Act, headed
"Exclusion of probation etc" (the term "etc" itself being rather unfelicitous), it is said that "sections
150 and 151 of the Criminal Procedure Act(which relate to absolute or conditional discharge) and
the Probation of Offenders Act shall not apply to a conviction under this Act", only a careful
scrutineer will discover, tucked away in section 28(3),a provision that the "Probation of Offender's
(sic) Act shall apply to a conviction under subsection (1)(a)". Moreover, in section 39(l)(b) of the
Act, relating to inquiries into traffickers' affairs, there is a reference to subsection (8) which should
be a reference to subsection (10). Finally, we observe that the impugned section 46(2) purports to
exclude bail, as we have seen, in the case of offenders against sections 28, 30 and 33 but not,
surprisingly enough, in the case of someone who, in breach of section 32, while being the owner
or occupier of premises, permits them to be used for concealing, storing, preparing or
manufacturing drugs.
 We must now turn back to the procedural issues to which reference was made earlier.
Section 17(l) of the Constitution provides that applications for redress to this court against
contravention of Chapter II of the Constitution are open to a person who alleges that a provision of
the Chapter is being contravened in relation to him. This would appear to mean that an application
can only be entertained if it is made by the complainant and no one else, while the present motion
is made on behalf of two persons, by the wife of one of them.

Next according to section 17(4), those applications have to be made in accordance with the
Constitutional Rights (Application for Redress or Relief) Rules 1967 which provide that
applications relating to Chapter II of the Constitution are to be entered by way of plaint with
summons, while cases complaining of a breach of the other Chapters of the Constitution must go
to a Judge in Chambers, by way of petition, who will then make the matter returnable in Court.

There is a third matter, which was not mooted at all before us, namely the locus standi of
the respondents. Normally such an action should be directed against the person who is allegedly
contravening or likely to contravene the Constitution. So that it would seem that the motion should
have been directed against the Commissioner of Police, as head of the "police authorities". The
rules referred to above also say that the Director of Public Prosecutions should be notified of the
process, no doubt as a party in whose presence the suit is entered, in other words a co-
respondent.

In Vallet v Ramgoolam & Anor [1973 MR 29], an analogous situation arose and, in answer
to preliminary procedural objection taken by counsel for the respondents, the judgment of the three
Judges who heard that case contains the following at pages 33 to 35-

“This issue has been fought by the parties on principles which govern the making of
an order of mandamus as formulated by the Courts in England, but we have been
invited by the applicant, as judges of a newly independent country, to shake off any
procedural shackles which those principles may impose if we find that they would
unduly hamper us in doing justice. It seems to us, however, that any justification for
relaxing rules of restraint which have come down to us at the same time as the
equitable powers of the High Court of England, vested in this Court by law, and by
which the exercise of those powers ought to be regulated, will be found, not in our
recently acquired independence, but in the distinctive as well as privileged position
of this Court under the Constitution of this country. Unlike the Courts in England,
this Court is, by virtue of a written Constitution which is the supreme law of the land,
endowed with original jurisdiction not only to interpret, but also to enforce
obedience to, its provisions, and for so doing is provided with a wide range of
remedies from which to choose (including an order of mandamus). It is the Court's
duty to determine the validity of any statute which is alleged to be unconstitutional,
because no law that contravenes the Constitution can be suffered to survive, and
the authority to determine whether the legislature has acted within the powers
conferred upon it by the Constitution is vested in the Court. The Court's primary
concern, therefore, in any case where a contravention of the Constitution is
invoked, is to ensure that it be redressed as conveniently and speedily as possible.
…

We must also, we think, disregard a submission made on behalf of the

respondents, in connection with the first objection, to the effect that an application
for mandamus was not the correct way of questioning the constitutionality of an
enactment and that the proper procedure was by application under section 83 of the
 Constitution, which entitled a person to seek redress from this Court for an alleged
contravention of the provisions of the Constitution (not being provisions specifically
excepted). We concede that, at first sight, the procedure adopted by the applicant
appears unusual and may on further consideration be found not to be the most
appropriate. Even if that was the case, we would see no ground in that fact for
dismissing this application without further ado, first because section 83 itself
contemplates other lawful modes of proceeding, secondly, because we think that in
a matter of such great public interest, as the present case is in our view, no useful
purpose will be gained by an insistence on form which would have for consequence
only to postpone a decision on the merits.”

The Court went on, in Vallet, to observe that a similar approach was adopted by the Privy Council
in Kariapper v Wijesinha [196713 WLR 1460.

So that while we agree that, in normal circumstances, the complainant should apply in
person (although there may be cases where this is physically impossible), the application should
be made according to the correct procedure, and the respondent should be correctly cited, we
shall, exceptionally, disregard the errors, for the reasons invoked in Vallet (supra), the more so as
quite fairly, no objection was taken before us.

We accordingly declare that section 46(2) of the Dangerous Drugs Act 1986 is void and of
no effect.

Regarding the second limb of the application, we observe, as we said earlier, that no
application appears to have been made for the release of the prisoners, before the Court which
has remanded them. We consider that, since section 46(2) no longer stands in anyone's way, the
proper course is to enjoin the complainants, if they are so advised, to seek their remedy before the
District Court of Port Louis, reserving to this Court the power, which it has always exercised in
such cases, to review, if asked to do so, any eventual refusal to take bail.

There will be no order for costs.

Applicant: Y. Mohamed, of Counsel

Attorney H M Osman

Respondent: D. Ramsewak, Solicitor-General

Senior Crown Attorney

Record No 33599