R vs.

Mazar Khan Chinkan Ali 1987 MR 162 1987 SCJ 411 Ahnee J The accused is charged with having, on the 12 September 1986,imported heroin to wit: 3 kgs 150 grams of heroin powder, contained in 93 plastic bags, in breach of section 28(l)(c) of the Dangerous Drugs Act 1986, hereinafter referred to as the Act. The information filed before this Court by the Director of Public Prosecutions, acting under section 28(8) of the Act, further avers that having regard to all the circumstances of the case against him, the accused was engaged in trafficking of drugs, as provided by section 38(2) of the Act. The accused pleaded not guilty and was assisted by Sir Harold Walter QC. The evidence adduced by the prosecution and which I accept as true proves that the accused, an Indian national, arrived in Mauritius from Bombay at about 7 am on the 12 September 1986.After going through immigration formalities he went into the customs hall where he collected his suitcase. He was approached by Senior Customs Officer Gooly, who had detected his suspicious looks, and asked whether he had anything to declare. He answered that he only had personal effects and a few saris. His suitcase was searched and inside, perfectly hidden between the inner and outer linings, the customs authorities discovered no less than 93 plastic packets containing 3.150 kgs of a powder suspected to be heroin. Samples taken from the ninety three packets found in the accused's suitcase were submitted to the Forensic Science Laboratory and Mr Jackaria, whose evidence I accept in toto, found the samples submitted to him to be what he called "illicit heroin", namely a powder containing a substantial amount of heroin, fifty per cent or more. Mr Jackaria further said that the substance examined was of the same type as the substances seized in connection with criminal cases since the appearance of heroin as a drug in Mauritius, some four years ago. The whole economy of the Act, and more particularly section 28(2) thereof, makes it clear that it aims at prohibiting not only the use, importation etc of heroin but also any preparation of which heroin forms the base. Be that as it may, there can be no doubt that a person who introduces into this country a powder found to contain fifty per cent or more of heroin, does, in fact, introduce heroin. I therefore find proved that the accused did introduce into Mauritius a substantial quantity of heroin although not 3 kg 150grams as particularised in the information. In a statement given to the police on the very day of his arrest, the accused explained how he was approached, in Bombay, by a man who, after introducing himself as Allam Khan, told him that he could obtain money by going overseas for him. The trip was arranged and he was to deliver a suitcase containing a bedsheet and a few saris to an unknown man who, in turn, was to remit to him a certain quantity of gold coins and the sum of Rs 25,000. He goes on to say that he did not know that the suitcase remitted to him in Bombay by

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Allam Khan and in which the said Allam Khan himself placed his (accused) clothings before he left for the airport contained drugs. It was only at Santa Cruz Airport that Allam Khan handed over the key of the suitcase which he had locked at the hotel and informed the accused that he was not proceeding to Hong Kong but to Mauritius. The accused was careful not to come into the witness box. I simply reject the accused's unsworn assertions of innocence and do not have the slightest doubt that he knew of the presence of the drugs in his suitcase. I therefore find that the accused did import heroin and from the evidence adduced, particularly the quantity of heroin and accused's own statement, I further find that it can reasonably be inferred that he was engaged in trafficking in drugs, as provided by section 38(2) of the Act. Sir Harold, counsel for the accused, submitted that this Court, sitting without a jury, has no jurisdiction to try the accused for an offence committed on the 12 September 1986 since the Criminal jurisdiction to a Judge sitting without a jury to try a case under the Dangerous Drugs Act, only came into force in September 1987, one year after the date on which the alleged offence was committed. The short answer to Sir Harold's submission is that the Criminal Procedure Amendment Act 1986, is a law regulating procedure and conferring jurisdiction (comp6tence). It does therefore give to this Court, sitting without a jury, jurisdiction to try offences committed under the Dangerous Drugs Act even before the coming into force of the Criminal Procedure Amendment Act without, in any way, offending the sacrosanct principle of the non retroactivity of laws. I need only quote the following notes from Dalloz, Encyclopedie Pnale, Vo "Lois et D6crets"51. En Principe, les lois de comptence et de procdure s'appliquent ds leur publication, mme aux faits commis ant6rieurement. Le principe est rappel dans de nombreux arrts (Crim 21 dc1954, Bull Crim no 417; 12 mai 1959 ibid, no 260; 22 juillet1959, ibid no 373; 4 avr 1960, ibid no 204). . . .En I'absence de toute ddcision sur le fond, le texte modifiantla comptence est immdiatement applicable, qu'il s'agisse de l'action publique ou de l'action civile, mme pour les faits antrieurs la loi nouvelle.

54.

But there is more. The jurisdiction of the Supreme Court to hear any criminal case is conferred by the Constitution, section 76(l) of which reads There shall be a Supreme Court for Mauritius which shall have unlimited jurisdiction to hear and determine any civil or criminal proceedings under any law other than a disciplinary law and such jurisdiction and powers as may be conferred upon it by this Constitution or any other law. On the 12 September 1986, by virtue of a proclamation under the hand of His Excellency the Governor-General, the Dangerous Drugs Act 1986 came into force. Now, section 28(2) of the Act provides that -

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any person who is charged under subsection 1(b) or 1 (c) shall be tried before a judge without a, jury, the Intermediate Court or the District Court at the discretion of the Director of Public Prosecutions It is therefore clear that independently of the Criminal Procedure Act , a Judge of this Court, sitting without a jury has, ever since the 12 September 1986, had jurisdiction to try offences under section 28(1)(c) and (d) of the Act even if it is undoubtedly true that it is, on the other hand, by virtue of the Criminal Procedure Amendment Act 1986 that such jurisdiction was afterwards extend to cover the other offences created by this Act. I therefore overrule Sir alleged lack of jurisdiction. Harold's submission concerning this Courts

I must now consider a further question raise by Sir Harold and one of great constitutional importance. The Dangerous Drugs Act 1986 was voted by Parliament in August 1986 and published in the Government Gazette of the 30 August 1986. It provides for the repeal of the Dangerous Drugs Act 1976, section 28 of which punished any person found guilty of importing heroin with penal servitude for a term of not less than five years and not more than twenty years whereas, by virtue of the new sections 28 and 38 of this Act, such a person may even be sentenced to death. Section 51 of the Act provides for its coming into force on a day to be fixed by Proclamation. By some extraordinary coincidence, it was on the 12 September 1986, the very day on which the accused arrived in Mauritius at about 7 am with his 93 packets of heroin, that His Excellency the Governor-General signed Proclamation 8 of 1986 to proclaim that the Act should forthwith come into operation. There is of course no evidence as to the time at which His Excellency signed the Proclamation but there is, on the other hand, evidence which makes it clear that the Proclamation was only published in an Extraordinary Gazette late in the afternoon of 12 September 1986. Publication of an enactment is essential. Section 10(4) of the Constitution provides that no law made by Parliament shall come into operation until it has been published in the Gazette and section 12(1)(a) of the Interpretation and General Clauses Act provides that every subsidiary enactment shall be published in a legal supplement to the Gazette. Although the Act itself had been published ever since August 1986 it could not have any effect until the Proclamation of His Excellency the GovernorGeneral, a subsidiary enactment by virtue of section 2 of the Interpretation and General Clauses Act, had itself been published in the Gazette. We do not have, in Mauritius, any law similar Instruments Act, section 3(2) of which provides to the UK Statutory

In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by (Her) Majestys Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public or of the persons likely to be affected by it or of the person charged.

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In the case of Blackpool Corporation v Locker [19481 All ER85 the English Court of Criminal Appeal laid down the general proposition that the condition of publication should attach to all kinds of subordinate legislation and observed that the public who were affected by a law are entitled to know what it is. The Court added that the justification of the maxim "Ignorance of the law is no excuse" is this very right to know the law and the accessibility of the public to it. I may, en passant, earnestly invite the attention of the responsible authorities to that part of the evidence of the Government Printer revealing that the Government Gazette is only available to regular subscribers and that a member of the public cannot, if he so wishes, buy or obtain from the Printing Department one particular copy of the Gazette and the laws published therein! Be that as it may, Proclamation 8 of 1986 was published on the 12 September 1986 and section 13 of the Interpretation and General Clauses Act provides that "every enactment and every instrument made, granted or issued under a power conferred by any enactment shall come into operation on the expiration of the day before commencement". The Act must therefore be construed as having come into force immediately after midnight on the 12September 1986. This legal principle is generally accepted - see the English case of Tomlinson v Bullock (1879) 4 QBD 230, 232 and Lapeyre v United States, 17 Wall 191, 198 (1873) which decided that when no time is fixed by an Act it is effective from the date of its approval, which usually is taken to be the first moment of the day, fractions of a day being disregarded. By virtue of the Interpretation and General Clauses Act, the importation of drugs by the accused at 7 am on the 12 September, 1986 must, consequently, be deemed to have been made in breach of the Dangerous Drugs Act 1986 although such Act, as pointed out earlier, had not yet come into force at the material time and that the accused's illegal importation of the drugs was, at the time, made in breach of section 28 of the Dangerous Drugs Act 1976 which only provided for a maximum penalty of 20 years penal servitude. Section 10(4) of the Constitution provides No person shall be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed. In the case of Thomas v R [1968 MR 27]the appellate Court, composed of Rivalland CJ, Lalouette, SPJ, and Ramphul J, had to deal with what, at first sight, appears to be a similar case. The Court had to consider the question of the possible retroactivity of the Emergency Powers (Control of Arms and Explosives) Regulations1968 published in the Government Gazette on the 22nd January 1968,the very day on which at 11.25 am, the appellants were supposed to have committed the offence of unlawful possession of offensive weapons created by the said Regulations. The Court had this to say It was submitted that there was no indication as to which of the publication or the possession of the knives had been first in point of time and that the question arose whether the appellants could rightly have been convicted of an offence of the existence of which they might not have been aware.

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Under section 35 of the Interpretation and General Clauses Ordinance, 1957, the regulation in question came into operation on the day of its publication in the Gazette and under section 7 of that Ordinance, the regulation must be construed as having come into operation on the expiration of the previous day. In Tomlinson v Bullock (1879) 4 QBD 230, 232, it was held that The only point of time which this Act makes material is the day on which the royal assent was given. It thus recognizes the well known maxim that the law takes no notice of the fractions of a day, and except where there are conflicting rights between subject and subject, for the determination of which it is necessary to ascertain the actual priority, such is the universal rule-an Act which comes into operation on a given day becomes law as soon as the day commences. In strict under the otherwise quoted in law, the accused must be held to have been rightly convicted regulation and their possible ignorance cannot affect the case than as a ground for mitigation of penalty (See R v Bailey Craies on Statute Law, 5th Edn.p. 356-357).

Their Lordships, however, also considered the question from the constitutional angle, namely section 8(4) of the then Constitution, of which section 10(4) of today's Constitution is a faithful reproduction, and said the following Section 8(4) of the Constitution o f Mauritius published under [GN No. 7 of 1967] lays down that no person is to be held guilty of a criminal offence on account of an act that did not, at the time it took place, constitute such an offence. We doubt that the question of retroactivity can arise in circumstances such as the present ones. But even if it could be said that the time of the offence should be considered in relation to the actual time of publication, it seems to us that the convictions could only be quashed if the Court were satisfied that the incriminated act did not constitute an offence at the time it was committed, a fact which, in the absence of indication as to the precise time of publication, the evidence by no means establishes. I may respectfully point out that the Emergency Powers (Control of Arms and Explosives) Regulations 1968 were made before Independence by the then Governor acting not under a local enactment but under section 6 of the Emergency Powers Orders in Council 1939 to 1964 and that one should possibly have turned to the English Statutory Instruments Act rather than to our then Interpretation and General Clauses Ordinance to consider whether they could or could not be applied to the appellants before the actual time of their publication in the Gazette. Be that as it may, it is clear that regards the provisions of section 8(4) of the different if the evidence, as pointed out by given some indication as to the precise time in question. their Lordships' conclusions as then Constitution could have been them, had established or at least of publication of the Regulations

In the present case there can be no doubt that the enactment which proclaimed the coming into force of the Dangerous Drugs Act 1986 had not yet

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been published when at 7 am, on that same day, the accused arrived at Plaisance Airport with the illegal cargo of heroin. After anxious consideration I have no doubt that notwithstanding section 13 of the Interpretation and General Clauses Act and the general principle that fractions of a day are usually disregarded for the application of an Act, I would be violating the sacrosanct provisions of section 10(4) of the Constitution if I were to impose upon the accused any penalty severer than the one provided by the only law which was in force at the time he landed in Mauritius, at 7 am of the 12 September 1986, namely the Dangerous Drugs Act 1976 which Act was, as a result of the legal fiction already referred to, repealed with some retrospective effect later in the day. I consequently find the accused guilty as charged under section 28(l)(c) of the Act but sentence him to undergo only twenty years penal servitude, the maximum penalty provided by section 28 of the Dangerous Drugs Act 1976, as subsequently amended. I further order the forfeiture of all the exhibits produced save the accused's passport which shall be returned to the police for disposal. 15 December 1987 A Caunhye Senior Crown Counsel for the prosecution Sir H Walter QC for the accused Attorneys for the prosecution for the accused

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