POLICE v SHIBOO PREM & ANOR

2006 INT 333

CN: 1735/ 2004

IN THE INTERMEDIATE COURT OF MAURITIUS

IN THE MATTER OF:

JUDGMENT
Both accused parties are jointly charged for knowingly cultivate cannabis plants in breach
of Sections 30(1) (e) (i), 45, 47 and 48 of the Dangerous Drugs Act 2000. It is averred that
the accused have cultivated 30 cannabis seedlings. Both accused parties are represented
by counsel and both have entered a plea of not guilty.

The prosecution produced the exhibit contained in one sealed (Exhibit 1) together with a
forensic report (Doc. A). PS Jeanine (W6) took three photographs which was bound in a
first booklet (Doc.B, B1 to B3) and PC Lee Choo (W5) took 8 photographs which was
bound in a second booklet (Doc.C, C1 to C8). PC Seeraullee (W7) took notes and
measurements of the locus and drew a plan (Doc. D). Under cross-examination W7 stated
that spots A, B and C (where cannabis seedlings have been found) is at 30m from the
vegetable plantation. He further said that the spot where there is a vegetable plantation is
clear but the area is generally bushy.

PS Seeburn (W1) produced the unsworn statements of A1 (Doc. E1 and E2) and those of
A2 (Doc. F1 and F2) together with a statement explaining the photographs taken by W6
(Doc. G). PS Seeburn explained that both accused have denied the charge and that it was
A2 who reported a case of missing person to the police concerning his father (A1). He
admitted that there are other vegetable planters in the vicinity whose have not been
interviewed.

PS Goolab (W3) attended to the locus following certain information received. The area is
a vegetable plantation and there is a strip of bushy land bordering that plantation. The

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bushy area was searched and several cannabis plants were found. The plants, which
were in plastic bags, ranged from 5cm to 20cm and appeared to have been freshly
watered. Next to those plants there was a rattan basket and a watering can. The cannabis
plants were at some 1.5m to 2.0m from the vegetable plantation. The police watch which
was set up was not positive after 2 hours. As A1, who is the owner of the vegetable
plantation, was arrested. On the same day A2 was arrested when he came at the
Curepipe CID office. W3 further explained that he took into account the distance between
the vegetable plantation and the place where the cannabis plants were found, the fact that
the two accused have admitted that they had cultivated vegetables and the fact that the
land was freshly laboured and the plants watered, to reach the conclusion that both
accused are the ones who have cultivated the drugs.

The accused parties did not give evidence. From the dock, A1 denied having committed
such an offence. In his unsworn statement to the police he has denied the charge but
admitted that the watering can and the rattan basket, which he kept in a hut or store on his
plot of land, belong to him

A2 stated that he does not know anything in the present case. He has also denied the
charge in his unsworn statement to the police.

On the evidence on record it is admitted by both accused parties that 30 cannabis plants
have been found growing in plastic bags on a strip of bushy land bordering the vegetable
plantation of both accused. In the case of Avinash Bhoyrub V. The State [2004 SCJ
307] the following definition was given: “what constitutes cultivation is the act of bestowing
labour, care and attention in order to raise the plant”. Having regard to the way the plants
have been found growing in plastic bags and protected by metallic nets, it is obvious that
those cannabis plants have not been growing in the wild and must have been cultivated,
that is grown by the labour of man. The only issue is whether, in the circumstances of the
present case, the only irresistible inference that could be reached is that the cannabis
plants must have been cultivated and looked after by both accused bearing in mind that
there is no direct evidence implicating them.

On this score I find that, from the photographs produced, the land occupied by the
accused parties to cultivate vegetables is not fenced and access is very easy whether
across the vegetable plantation itself or from the other side by crossing the river or rivulet.
The cannabis plants have been found, not on that part of land occupied by the accused

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parties to cultivate vegetables but on the strip of bushy area bordering the plot of land
(spots A, B and C) and those spots are nearer the river bank and river reserve and are not
as close to the vegetable plantation as PC Goolab would have this court to believe but at
some 30m away on a strip of land that slopes downward to the river bank among some
bushes as evidenced by the police draughtsman (W7). This indicates that anyone could
have access to that part of the land and have the possibility to cultivate the cannabis
plants and have easy access to water through the adjoining river to cater for the plants
without the accused’s knowledge. In any case the cannabis have been found on a strip of
land that is not occupied by the accused parties (see plan Doc. D). It is not because that
strip of land is found near the vegetable plantation of the accused parties that it can be
inferred that they must have cultivated those plants especially bearing in mind the easy
access to that strip of land.

True it is that, as far as A1 is concerned, there are some disturbing factors such as the
fact that his watering can and basket were found near the plants and also the fact that he
“disappeared” for a day after a fishing trip with A2 at Mare Longue, which is not very far
from their vegetable plantation, as could be seen in Doc. D. However strong suspicion is
insufficient to infer guilt (see Lam Chan Kee and Ors. The State [1994 SCJ 74].
Similarly although A1 has admitted that the rattan basket and watering can found near the
cannabis plants were his, this is insufficient to establish guilty. Indeed the small hut used
by A1 to keep his working tools and utensils is not closed but left in the open (See
photographs Doc. C1 and C2) so that anyone can have access to it and make use of
those tools incognito. Besides, if A1 was the one who has cultivated the cannabis he
would certainly not have readily accepted that the watering can and the basket were his
knowing that those utensils have been secured near the cannabis plants.
Finally some assumptions and hasty conclusions have been made by the police. It is not
because the plants appeared to have been freshly watered and the nearby vegetable
plantation to have been recently laboured that one can conclude that the cannabis plants
must have been looked after by the owners of that same vegetable plantation. PS
Seeburn admitted that there are other land occupiers who cultivate vegetables in the
vicinity (even sugarcane on photograph C1) and he admitted that none of the other
planters have even been interviewed in relation to the case. This by itself raises serious
doubts as it is more probable than not that one of the other planters or even any drug
dealer could have been involved in the cultivation of the cannabis bearing in mind the
easy access across the plot of land occupied by the accused parties where tools are
freely available, the fact that there is easy accessibility to water because of the nearby

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river and those spots are relatively hidden by bushes. Those places are thus ideal to grow
prohibited cannabis plants far from the prying eyes of an onlooker and more particularly
that of the police.

Moreover, as regards A2, I find that if he had been in any way involved in the cultivation of
cannabis he would not have, in the first place, reported a case of missing person about his
father whose autocycle was found unattended in the vegetable plantation and knowing full
well that the vegetable plantation and its vicinity would be the very first areas which the
police would be searching to look for his father and the police would inevitably come
across the cannabis plants.

In A. Boodhoo V. The State [2004 SCJ 235], the court stressed that when making an
inference from circumstantial evidence “…it is necessary to be sure that there are no
other co-existing circumstances which could weaken or destroy such an inference” (Teper
v. R. [1952 AC 489], Mootoosamy V. State [1998 MR 222], Mohabeer V. The State
[2001 SCJ 185] and in view of the all the above I find that there are co-existing factors
that would even weaken, if not destroy any suspicion that one might have. There are
material doubts that have been cast and which would make it most unsafe to conclude
that the accused parties must have been those involved in the cultivation of the 30
cannabis plants. I am of the view that the accused parties should, at the very least, be
given the benefit of the doubt.

For all the above given reasons, I accordingly grant to both accused parties the benefit of
the doubt and find that the prosecution has failed to establish beyond reasonable doubt
that both accused have knowingly cultivated 30 cannabis plants.

I accordingly dismiss the information against both accused parties.

P.M.T.Kam Sing
June 30, 2006