Muktar Ali and Gulam Rasool v R

1991 MR 138
1991 SCJ 311
Glover CJ*, Lallah SPJ, Pillay J
The question at issue in this case was remitted to the Supreme Court from the
Judicial Committee of the Privy Council in a judgment (Privy Council Appeals Nos 4 and
5 of 1989) dated 20 February 1991 before Lord Keith of Kinkel, Lord Brandon of
Oakbrook, Lord Oliver of Aylmerton, Lord Jauncey of Tuilichettle and Lord Lowry.
That judgment which was delivered by Lord Keith of Kinkel reads:
The appellant in each of these appeals was convicted by a Supreme Court Judge
sitting without a jury of the offence of importing heroin, contrary to section 28(l)(c) of
the Dangerous Drugs Act 1986. Each appellant was found to be a trafficker in drugs
under the provisions of section 38(l) of that Act and was sentenced to death under
section 38(4).
At the hearing before the Board counsel for the appellants took two points. The
first point was this. In each case the alleged offence took place before the coming into
force, on
25 September 1987, of the Criminal Procedure
(Amendment) Act 1986 which introduced a new section 10(l) to the Criminal Procedure
Act, providing that offences under certain enactments specified in a Schedule to the
Amendment Act, including the Dangerous Drugs Act 1986, may be prosecuted by the
Director of Public Prosecutions before the Supreme Court without a jury. So it was
argued that the trial Judge had no jurisdiction to try the accused without a jury,
notwithstanding that section 28(8) of the Dangerous Drugs Act 1986 which came into
force on
12 September 1986, before the date of the alleged offences, provides:
Any person who is charged with an offence under subsection (1)(b) or (1)(c)
shall be tried before a Judge without a jury, the Intermediate or the District Court
at the discretion of the Director of Public Prosecutions.
This point was argued before the trial Judge and the Court of Criminal Appeal of
the Supreme Court. It was rejected by them upon grounds which in their Lordships'
opinion are entirely sound, and which it is unnecessary to recapitulate. That argument
therefore fails.

C:\My Documents\Judgmt1991\Muktar Ali.doc

The second point taken for the appellants is one which was not argued before
either of the Courts below. Their Lordships would not normally allow a fresh point to
be taken for the first time before the Board, but capital cases are exceptional. The point
is a constitutional one. Section 28(8) of the Dangerous Drugs Act 1986, which has
already been quoted, confers upon the Director of Public Prosecutions a discretion as to
the Court before which he may choose to prosecute an offence under section 28(l)(b) or
(1)(c) of the Act. Section 38(4) of the Act provides that any person who is charged
with an offence under section 28(l)(c) before a Judge without a jury and who is found
to be a trafficker in drug shall be sentenced to death. It is to be noted that section 41
of the Act, in relation to drugs offences, enlarges the jurisdiction of the Intermediate
Court so as to enable it to impose any of the penalties prescribed by the Act other than
the death penalty provided for in section 38(4). It was argued that the effect of sections
28(8) and 38(4) was to enable the Director of Public Prosecutions, an officer of the
executive branch of government, to make the decision, through his choice of the Court in
which he decided to bring a prosecution under section 28(1)(c), as to the particular
penalty to be inflicted on the accused if found guilty. If he opted for trial before a
Supreme Court Judge sitting without a jury, a finding of guilty, combined with a finding
that the accused was a drug trafficker, necessarily involved imposition of the death
penalty. It was maintained that to give an executive officer a discretion which could lead
to that result was contrary to the Constitution of Mauritius. It may be observed that
although section 28(8) confers a specific discretion on the Director of Public Prosecutions
it appears that section 72(3) of the Constitution which gives him a general discretion as
to the Court in which to prosecute any offence, is capable, in the light of section 38(4)
of the Act of 1986, of leading to a similar result. The existence of the discretion was
said to contravene, in the circumstances, the doctrine of separation of powers between the
legislative, executive and judicial branches of government.
Reference was made to
Noordally v Attorney-General and Director of Public Prosecutions [1986 MR 204],
Liyanage and ors v R [1966] 1 All ER 650 , Hinds v R [1977] AC 195, State v O'Brien
[1973] IR 50, and Deaton v Attorney-General and Revenue Commissioners [1963] IR 170 .
The vice of the provisions in question was that they enabled an executive officer to select
the penalty which might be imposed on a particular individual in a particular case.

In Ong Ah Chuan v Public Prosecutor [1981] AC 648 this Board was asked to
consider whether a certain provision of the Misuse of Drugs Act conflicted with the
Constitution of Singapore, a point which had not been raised in the Courts below. It was
decided that there clearly was not any such conflict, but Lord Diplock, giving the Board's
advice, said at page 644 that if there had been any doubt about the matter the
appropriate course would have been to remit the case to the Court of Criminal Appeal in
Singapore in order that the Board might have the benefit of its views.
In the present case their Lordships have not been able to conclude that the
constitutional argument is so obviously ill-founded that it ought to be dismissed without
C:\My Documents\Judgmt1991\Muktar Ali.doc

the Board having the benefit of the views upon it of the Supreme Court of Mauritius.
They will therefore remit the two cases to that Court in order that it may consider and
adjudicate upon the following question: whether, by reason of the discretion conferred
upon the Director of Public Prosecutions by section 28(8) of the Dangerous Drugs Act
1986 or by section 72(3) of the Constitution of Mauritius or otherwise, the provisions of
section 38(4) of the Dangerous Drugs Act 1986 are repugnant to the Constitution of
Mauritius inasmuch as the said subsection prescribes, in relation to a person charged with
an offence triable before the Supreme Court, an Intermediate Court or a District Court
and found to be a trafficker in drugs, a mandatory penalty on conviction only in the
Supreme Court.
It does not appear that the validity of the appellants' convictions is a matter which
can now be reopened before the Supreme Court. It will therefore be necessary for the
Board to resume consideration of the appeals after the Supreme Court has pronounced
upon the question remitted to it.]

[His Lordship briefly recited the facts and history of the case, stated the issue which the
Judicial Committee referred to the Supreme Court and continued:]
..
It was submitted for the appellants that section 38(4) of the Act was
unconstitutional because it provided for a mandatory death penalty for an offence, which
would be imposed as a result of the exercise of a discretion by the Director of Public
Prosecutions, a member of the executive branch of Government and because it offends
the principle of equality before the law by providing for a penalty which was different
from that which can be imposed for the same offence by other Courts. The Director of
Public Prosecutions in essence submitted that no such discretion existed and that there was
only one penalty for the offence.
The first question to be determined is this: what is the offence with which the
appellants were charged? The information in each case averred that the person charged
(1) had imported heroin and (2) was a trafficker within the meaning of section 38(2) of
the Dangerous Drugs Act 1986, and that he had acted in breach of sections 28 and 38 of
the Act. The learned trial Judge found that they had been proved to have imported
heroin and to be traffickers. That was, in our judgment, as it should have been. We
may in this connection refer to Heerah v R [1988 MR 249], which was a case where the
accused had been charged only with possession of heroin under section 28.
The
Magistrates of the Intermediate Court, having found that charge proved, then invoked
section 38(l) of the Act which reads as follows:

C:\My Documents\Judgmt1991\Muktar Ali.doc

(1) The Court which tries a person for an offence under sections 28, 29, 30, 32,
33 or 34 shall make a finding whether the accused person is a trafficker in drugs.
They proceeded to make such a finding and to say specifically that they were
inflicting the higher penalty provided by section 38(3) on that account. On appeal, the
Supreme Court was of opinion that such a literal interpretation of section 38(l) would
produce a result that would offend against the principle of a fair trial, since an accused
person cannot be made to stand trial without being given the chance to defend himself
against the charge of being a trafficker. It accordingly held that the correct approach
was to treat section 38 as one which introduced an aggravating circumstance that had to
form part of the charge and to be averred in the information. It follows that the answer
to the question posed here is that the appellants were charged with an offence committed,
not against section 28 simpliciter, but against sections 28(l)(c) and 38, namely the offence
of importing heroin while being a drug trafficker.
It must be pointed out that, in our view, one of the findings of the trial Judge
and of this Court in these matters was not quite correct. Both those decisions were
handed down before the judgment in Heerah (supra). It will be recalled that it had been
submitted that the Judge sitting without a jury had no jurisdiction to hear the cases
because the offences had been committed before the Criminal Procedure (Amendment)
Act 1986, which enlarged the jurisdiction of the Judge sitting alone to cover a number of
enactments including the whole of the Dangerous Drugs Act 1986, came into force by
Proclamation on 25 September 1987.
The trial Judge overruled the submission for two reasons. Firstly, he held that, as
from that date, the Director of Public Prosecutions was perfectly entitled to file
informations such as the instant ones even where the offence had been committed before
that date. That conclusion was undoubtedly correct. Secondly, he found that section
28(8) of the Dangerous Drugs Act 1986, which had come into force by Proclamation
ever since 12 September 1986, i.e. before the offences were committed, had in any event
conferred jurisdiction on the Judge sitting alone to try offences of importation of drugs
under section 28(l)(c). There can be no doubt about that either, but, on the basis of the
Heerah reasoning, the Judge sitting without a jury derived the power to try persons
charged with importing-cum-trafficking from the combined effect of sections 28(l)(c) and
38. To that extent, the second finding was incomplete. Both the learned Judge's findings
were approved by this Court and, indeed, by their Lordships, to whom no doubt Heerah
was not mentioned. That does not affect the outcome of these appeals but we felt it our
duty to explain the situation.
We may now move to the second question requiring an answer, namely, before
which Court, or Courts, if any, can a person charged with such an offence be tried?
There is, of course, no limitation on the criminal jurisdiction of the Supreme Court
C:\My Documents\Judgmt1991\Muktar Ali.doc

(except in relation to offences against a disciplinary law) or on its sentencing powers

(except in so far as the constitutional provision regarding inhuman treatment or
deprivation of property may affect them). The same applies to a Judge sitting alone
since he is exercising the powers of an Assize Judge, but without the assistance of a jury
and without the prior committal process of a preliminary enquiry. The situation is,
however, quite different in relation to the Intermediate Court and the District Courts.
Let us consider District Courts first. The law, now embodied in sections 114 to
116 of the Courts Act, has always provided, ever since 1888, that, while a person may be
charged before those Courts for any offence, their power is limited in a number of cases
to the holding of a preliminary enquiry followed, where appropriate, by committal to the
proper Court, and the District Courts have no jurisdiction to try such cases. But at the
same time, the law says, that a District Court is only allowed to inflict, on persons tried
and convicted before it, imprisonment for not more than two years and/or a fine not
exceeding Rs 2000. Those provisions must be read along with sections 151 to 155 of the
Criminal Procedure Act, which goes back to 1853, and which read as follows:
151 Imprisonment in lieu of penal servitude
Where under any enactment a court is empowered or required to pass a
sentence of penal servitude other than a sentence of penal servitude for life, the
court may, unless the enactment otherwise provides, inflict imprisonment, with or
without hard labour, for any term not exceeding 2 years.
152 Imprisonment for less than minimum
Where under any enactment a court sentences a person for an offence for
which the penalty of imprisonment with or without hard labour is provided, the
court may inflict imprisonment with or without hard labour for a period less than
the minimum term of imprisonment fixed by the enactment.
153 Fine for less then minimum
Where under any enactment a court sentences a person for an offence for
which the penalty of a fine is provided, the court may, unless the enactment
otherwise provides, inflict a fine less than the minimum fixed by the enactment.
154 Revenue, customs, and quarantine law
Nothing in this Act shall be construed as giving a court the power of
inflicting a penalty less than the minimum penalty provided for by a revenue,
customs or quarantine law.
C:\My Documents\Judgmt1991\Muktar Ali.doc

155 Derogation
Sections 150, 151 152 and 153 shall not apply to a conviction under sections
269A, 299 and 301A of the Criminal Code.
The upshot of it all is that a District Court:
(1) may substitute imprisonment in a case where the offender is, according
to the relevant statute, punishable by penal servitude for a number of
years;
(2) may inflict less than the minimum term of detention or the fine
prescribed; and
(3) is in any event limited by the two years and Rs 2000 prescriptions: but
(4) is not competent to try cases which are punishable by penal servitude
for life or by death or which are otherwise excluded from its
jurisdiction.
So that with regard to offences created by enactments passed subsequent to the
Courts Act and the Criminal Procedure Act a District Court has jurisdiction to try them
unless (i) they are punishable by death or penal servitude for life (ii) they are
specifically excluded therefrom or (iii) they are excluded therefrom by necessary
implication where the possibility of bringing the prescribed penalty within its limitations
pursuant to (1) or (2) above is denied to the Court.
If our reasoning regarding the charge with which the appellants were faced is
correct, it follows that even if section 28(8) of the Dangerous Drugs Act is interpreted
literally, we fail to see how its meaning could be stretched to say that it also enables the
Director of Public Prosecutions to direct that a person charged under section 28(l)(b) or
(c) coupled with section 38 may, at his discretion, be charged before a District Court.
We shall, however, go further and say there is an added reason for which section 28(8)
should not be taken at its face value but be considered, in relation to the Intermediate
Court and the District Courts, to have been inserted through error.
We must here recall what has been said in Heerah (supra) and in other cases to
the effect that this Court has notice of the fact that the Bill which became the Act was
prepared in haste, admittedly because the drugs problem in this country had assumed the
proportions of a national calamity. We also know that clauses 28, 38 and 39 of the Bill
underwent considerable change at the committee stage in the Assembly. That no doubt
C:\My Documents\Judgmt1991\Muktar Ali.doc

explains why, for example, subsection (1) of section 27 creates an offence with no
penalty, why subsections (2) and (3) of section 27, which were no doubt designed to
create offences, appear as mere unpunishable prohibitions and why section 39(l)(b)
contains an incorrect reference to subsection (8).
It also, in our view, explains to a large extent the confusion which has arisen
regarding the problems now posed to us, particularly when we consider, as explained in
the earlier judgment of this Court, the fact that two Bills, namely the Criminal Procedure
(Amendment) Bill and the Dangerous Drugs Bill of 1986 had been published together and
were meant to dovetail into each other, but followed different routes thereafter. It is of
particular significance that clause 28 of the Dangerous Drugs Bill originally contained no
counterpart to section 28(8). What is clear, however, is that both in the Bill and the Act
the clear intention had always been that the death penalty was only reserved for the
offence of importing drugs while being a trafficker.
While it was necessary to legislate so as to confer jurisdiction on a Judge sitting
alone, instead of with a jury, to try cases involving certain offences under the Act, there
was, as we have seen, no need to make provision, as has been done, in section 28(8) of
the Act to enable the Director of Public Prosecutions to direct that an offence under
section 28(l)(b) or (c) be tried by a District Court.
One cannot either read into section 28(8) an intention by Parliament that the basic
provisions referred to earlier have been impliedly repealed quoad the Dangerous Drugs
Act 1986 so that a District Court is not competent to hear cases involving offences under
sections 29 to 36. Moreover, this would produce the absurd result that District Courts are
excluded from hearing cases involving the relatively minor offence of smoking a cigarette
containing some gandia, under section 28(l)(a)(i), which our District Courts frequently try
and visit with relatively small fines.
We conclude that a District Court has jurisdiction to try any case under the Act
provided it is not excluded penalty-wise. Since section 37 of the Act lays down that
sections 150 and 151 (but not the immediately following sections) of the Criminal
Procedure Act do not apply to the Dangerous Drugs Act 1986, it follows that a District
Court will not be able to do otherwise than inflict only a fine not exceeding 2000 rupees
in certain cases, namely offences under section 28(1)(b) or (c), 29, 30, 32, 33, 34 (i.e.
by excluding mandatory penal servitude for a term of years), while being also able to
impose imprisonment up to two years in cases coming under sections 28(1)(a), 28(7), 31,
35 or 36, and that it cannot try offences under section 38(3) or (4).
We would add that, while section 72(3) of the Constitution purports to enable the
Director of Public Prosecutions to institute proceedings before any Court (other than a
court-martial), that section must be taken to mean that he can only prosecute before a
C:\My Documents\Judgmt1991\Muktar Ali.doc

Court which has jurisdiction to hear the case. Section 76 of the

confers on the Supreme Court alone unlimited jurisdiction in criminal
implies that all other Courts, including Intermediate and District
described as subordinate Courts, will have such limited jurisdiction
confer on them.

Constitution, which
matters, necessarily
Courts, which are
as Parliament may

The basic provisions relating to the jurisdiction of the Intermediate Court, which
started off as the Intermediate Criminal Court in 1960 when that Court took over from
the former Benches of three District Magistrates, are sections 112 and 113 of the Courts
Act, as supplemented, for example, by section 301A of the Criminal Code and section 10
of the Criminal Procedure Act.
They amount to saying that jurisdiction must be
specifically conferred on that Court by Parliament to try criminal cases, and that its
powers to inflict penalties are limited unless a statute says differently.
What then do we find in the Dangerous Drugs Act 1986 regarding the
Intermediate Court, having regard to what we have said above? Firstly, we do not here
either agree that section 28(8),which purports to confer jurisdiction on the Intermediate
Court to try cases involving offences under section 28(l)(b) and (c), would per se enable
that Court to exercise jurisdiction with regard to traffickers punishable under section 38.
Secondly, an interpretation of section 28(8) along the lines of the submission of learned
counsel for the appellants would, since the Criminal Procedure (Amendment) Act 1986
does not specifically mention the Intermediate Court, lead us to the conclusion that the
Intermediate Court has no jurisdiction in relation to any offence under sections 28(l) and
29 to 36. Quite clearly we have to fall back on section 41 which is headed "Jurisdiction
of the Intermediate Court". It reads as follows:
Notwithstanding any other enactment, the Intermediate Court shall have(a) jurisdiction to inflict the penalties provided in this Act, other than
section 38(4);
(b) power to order sentences imposed under this Act to be served
consecutively, provided that the terms of such sentences shall not in the
aggregate exceed 30 years.
There can be no clearer indication that Parliament's intention was that the
Intermediate Court is competent to hear any case involving an offence under the Act,
except one of importing-cum-trafficking, which alone carries a mandatory death penalty
and which consequently can be tried only by a Judge sitting without a jury.
Learned counsel for the appellants clearly did not expect the Director of Public
Prosecutions, who appeared for the respondent, to submit that, with regard to a charge
C:\My Documents\Judgmt1991\Muktar Ali.doc

such as the one preferred against the appellants, he had no discretion and was bound to
charge them before a Judge sitting alone and nowhere else. Indeed, we can see from the
proceedings before their Lordships that the reference back to us, and the terms thereof,
received the sanction of both parties, the respondent being then represented by both the
Solicitor-General and the Director. And our attention has been invited to the fact that, in
January 1990, the Director of Public Prosecutions directed that a prosecution against one
Jean Clency Cotte, on a charge of importing gandia while being a trafficker, in breach of
sections 28(l)(c) and 34(4) of the Act, should be lodged before the Intermediate Court.
Moreover, that Court, having proceeded to try and convict the accused, purported to act
under section 28(l)(c) and 38(4) to inflict a sentence of eight years penal servitude and a
fine of Rs 10,000. Clearly the whole proceedings in that case were, in our judgment, a
nullity and we invite the respondent to take up the matter with the appropriate
authorities.
Be that as it may, the learned Director, having now found what we feel are his
correct bearings, was entitled to change his mind and make his new submissions and we
have found them to be quite sound. We direct the Registrar to forward copies of this
pronouncement to their Lordships so that they may resume consideration of these appeals.
A copy thereof will be placed in each record.
Appellants: Attorney N Appa Jala
G Ollivry QC
Respondents: Principal Crown Attorney
E Leung Shing Director of Public Prosecutions and S G Domah
Principal Crown Counsel
Record Nos 78 and 81

C:\My Documents\Judgmt1991\Muktar Ali.doc