A.S.

Mamode v The Queen

1991 MR 223
1991 SCJ 126

Ahnee*, Pillay JJ

JUDGMENT

The Appellant was prosecuted before the District Court of Port Louis on a charge
of possession of heroin. He pleaded not guilty and was assisted by Counsel.

The only evidence adduced by the Prosecution consisted of the statement which
the Appellant gave to the Police on the 14.6.89, in the presence of his Counsel, and the
evidence of P.C. Gandabhai who, in the company of one P.C. Ramasawmy, had allegedly
found the Appellant to be in possession of 7.8 gms of a powder which proved to be
heroin.

In his statement, the Appellant said that on 12.6.89 at Boulevard Victoria, Port
Louis, two cars of the Police stopped near him. 0fficers alighted from the said cars and
searched him. They found nothing. An officer whom he pointed out and who was
identified as P.C. Gandabhai showed him a small parcel and asked him to accept that it
had been found in his left hand. He refused, whereupon he was arrested and taken to the
ADSU office where the small parcel was placed in an envelope on which he was asked to
affix his signature. He refused. He denied that any powder had been found with him and
further denied that he had at any time begged for excuse.

P.C. Gandabhai deponed to say that he and P.C. Ramasawmy had arrested and
searched the Appellant at about 10.15 p.m. on 12.6.89 at Boulevard Pitot. In the
Appellant’s left hand he secured a sachet containing a greyish powder which was later
found to be heroin. The Appellant was taken to the station where he refused to sign on
the envelope in which the powder was placed and sealed.

In cross-examination P.C. Gandabhai who accepted that he was present while the
Appellant’s statement was being recorded had to concede that at one moment the
Appellant pointed at him but he pretended that he did not recollect whether the Appellant
had levelled any accusation against him. He denied that he had planted the drug on the
Appellant.

Police Sergeant Rujeedawa, the enquiring officer who produced the statement of
the Appellant revealed that no inquiry was made into the allegation of the Appellant
against P.C. Gandabhai. He had the following to say:

“accused has not made any declaration against P.C. Gandabhai. There was no
inquiry relating to the allegation of accused. I did not consider it important to

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 rebut the allegation of the Accused. That was his defence. Had he made a
declaration I would have proceeded differently … P.S. Geega and P.C.
Ramasawmy were present when accused was arrested”.

P.C. Ramaswamy whose name appeared on the list of witnesses was not called by
the Crown.

The Appellant went into the witness box and solemnly affirmed as to the truth of
his statement. He maintained his allegation against P.C. Gandabhai and said that he had
been detained since his arrest on 12.6.89 viz for already 2 months and 5 days when the
case came for trial on 17.8.89.

Counsel appearing for the Crown contended herself to ask the Appellant whether
he could say “why the Police Officers would lay a charge against him”.

After hearing the submission of learned Counsel for the defence, Counsel for the
prosecution having apparently left the matter in the hands of the Court, the learned
Magistrate postponed the case for judgment to the 8 September 1989.

The judgment was postponed on three occasions and it is only on 27.9.89 that it
was finally delivered. The poor Appellant was every time purely and simply remanded to
jail.

After reciting the evidence adduced by P.C. Gandabhai and the Appellant the
learned Magistrate concluded as follows:

“after considering all the evidence, I find the version for the prosecution proved
beyond reasonable doubt. I accept the evidence of P.C. Gandabhai who I find had
no reason whatsoever to plant the drug on Accused to lay a false charge … I reject
the Accused explanation because I am satisfied that he is lying. He himself has
been unable to explain why the Police Officer would lay a false charge on him”.

The judgment of the learned Magistrate is now challenged on the following

grounds:

1. Because having regard to the evidence on record it was unsafe for the learned
magistrate to act solely on the evidence of P.C. Gandabhai in order to find that
the case for the prosecution has been proved beyond reasonable doubt.

2. Because the learned Magistrate was wrong to reject the version of the
Appellant on the ground that he was lying.

3. Because having regard to all the circumstances of the case the Appellant was
at least entitled to the benefit of the doubt.

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 Before considering the various grounds of appeal we would like to refer to the
fact that notwithstanding the serious allegations made by the Appellant in his statement
against P.C. Gandabhai, the Police did not think it necessary to probe into the matter on
the flimsy ground that the Appellant had not made a formal declaration against the
officer. It is unfortunately not the first time that we come across such laches of the Police
– particularly when an allegation is made against one of their men. An accused party is
entitled to expect that an accusation made against a police officer will, in a democratic
state, be probed into. By virtue of section 9 of the Police Act it is the duty of the Police
to take all lawful measures to prevent and detect offences whether a formal declaration
has been made or not, a proposition with which, we are glad to say, the learned Counsel
who appeared for the Respondent before us, fully agrees. It is perhaps necessary to
remind the Police that no one in this country is above the law. The concept of fair trial
guaranteed by section 10 of the Constitution implies fair and impartial inquiries into the
allegations of accused parties, the more so when, as in the present case, the accused is
detained pending his trial.

We may now turn to the three grounds of appeal which may be considered
together.

It is a matter for regret that the learned Magistrate gave the impression that he
considered the Appellant to be a liar because he could not suggest any reason why the
officer would have decided to plant the drug on him. This is dangerously near to the
proposition that it is for an accused party to prove his innocence.

Be that as it may, the present case is one where, at the end of the day, the Court
was faced with two versions: that of the Appellant as opposed to that of P.C. Gandabhai.
In Goburdhun v R [1956 M.R. 503] the Court said the following at page 507:

“When, therefore, the sum total of the evidence in the case is taken into account,
there was, in effect, the word of the victim as against the denial of the appellant.
It is in such a case, particularly, that the principle of the presumption of innocence
comes into operation. The application of that principle in every criminal case is
the foundation of the right of the accused person to insist that the prosecution
should discharge the onus that rests upon it to prove that he is guilty”.

In the present case, we have it that P.C. Ramasawmy was present when the
appellant was searched. His evidence would certainly have helped the learned Magistrate
in deciding between the version of the Appellant and that of the police officer. He was
not called although his name appeared on the list of witnesses. The Crown is, of course,
free to decide whom to call as witness but when the sum total of the evidence amounts to
the credible word of one person as against equally the plausible word of another person,
failure to call a witness who, on the prosecution’s version, could have corroborated the
version of the prosecution, should have raised an inference in the Magistrate’s mind that
the person who was thus not called might not have been prepared to support the
prosecution’s case. See Moonien v R [1953 MR 246] at p. 248.

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 For the above reasons, we hold that it was unsafe to convict the Appellant on the
sole and uncorroborated evidence of P.C. Gandabhai. We therefore quash the
Appellant’s conviction.

Record No. 5208

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