\ ,J

IN THE SUPREME COURT OF MAURITIUS

In the matter of: S.N. 1047 /2015

Satyajit Boolell

APPLICANT

v.
1. The Independent Commission Against Corruption
2. The Commissioner of Police
RESPONDENTS
And in the presence of:
The Ministry of Housing and Lands

CO-RESPONDENT

I, Chimunlall Ghoorah, the Director of Corruption Investigation Division

MAKE SOLEMN AFFIRMATION AS A HINDU AND SAY THAT
1) I am the Director of the Corruption Investigation Division of Respondent No. 1
and am duly authorized to affirm this affidavit on its behalf.
2) The Respondent No.1 has taken cognizance of the Applicant's affidavit solemnly
affirmed on 14th July 2015 in relation to the above matter (hereinafter referred
to as 'AA1').
3) At the outset, the Respondent No.1 avers that this affidavit contains information
which would not have been normally disclosed, but which, given the facts,
matters and issues contained in AA1, has to be disclosed to the Honourable ,
Judge in Chambers, in the public interest and for the setting out of the stand of
Respondent N o.1 with respect to the present case.
4) The Respondent No.1 takes note of paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of AA1.
5) The Respondent No.1 takes note of the facts, matters and issues set out in
paragraphs 9 and 10 of AA1 but makes no admission in relation thereto. The
Respondent No.1 expressly denies the information relating to it and purporting
to be its intentions.

Sivakumaren Mardemootoo
Attorney At law
.

3rd Floor, Jamalar- ,. .

Vieux Conseil StrPr:i'!

Tel : (230} 217.1
,_,e!)}_i_l_:_ ~l:'.r1!~f:!..

,.J

A'

6) The Respondent No.1 takes note of paragraphs 11, 12 and 13 of AA1, makes no
admission in relation thereto and avers that in so far as it is concerned, these are
irrelevant to the matter in lite.
7) The Respondent No.1 admits the first part of paragraph 14 of AA1, i.e. "By
virtue ... [Annex DJ." The Respondent No.1 makes no admission with regards to
the second part of paragraph 14 of AA1 and avers that in so far as it is
concerned, that part is irrelevant to the matter in lite.
8) The Respondent No.1 takes note of paragraph 15 of AAl but makes no admission
in relation thereto. The Respondent N o.1 expressly denies the accuracy of the
information relating to the Applicant_ and purporting ta be the intention of
Respondent No 1.

9) The Respondent No.1 takes note of paragraphs 16 of AAl.

10)The Respondent takes note of paragraph 17 of AAl, makes no admission in
relation thereto and avers that in so far as it is concerned, these are irrelevant.
11)The Respondent No.1 takes note of paragraph 18 of AAl, but avers that such
articles were inaccurate, did not give a true perspective of the status of the
investigation, more so as Respondent No.1 was yet to complete its investigation
and had not envisaged the possibility of requesting Respondent No. 2 to effect
any arrest at this stage.
12)The Respondent No.1 takes note of paragraph 19 of AA1 and makes no
admission in relation thereto.
13)The Respondent No.1 denies paragraph 20 of AA1 and avers that it has initiated
an investigation in accordance with the law, following a referral by Co
Respondent. Hence, neither bad faith nor ulterior motive can be imputed to
Respondent No. 1 in its decision to initiate such investigation, which in so far as
it is concerned, is a statutory obligation. (A copy of the Ministry Referral letter
bearing reference number CGEN/MHL/GNMCR/00001 is herewith annexed and
marked
14)The Respondent further avers that it is duty bound to consider every allegation,
subject to the person/s under an investigation being granted the opportunity to
provide his/their explanations. Therefore and in the light of the facts set out
hereunder, any contention that the allegations are frivolous, baseless, malicious
with the intention to cause harm to the Applicant's reputation, preventing him
from exercising his duties and calculated to oust him from office,is manifestly ill
founded. The Respondent No. 1 avers that the Applicant's.version at paragraphs
21 and 22 of AA1 could have been communicated to Respondent No.1, by means
of a statement to assist Respondent No.1 in the proper discharge of its duties,

c . . c/

but he failed to do so. The version of the Applicant-would have been given
utmost consideration within the context of the enquiry.
15)The Respondent No. 1 avers that at this stage of the investigation, there is
evidence to the following:
a) The Applicant's wife was and still is a shareholder in the company Sun Tan
Hotels Pty Ltd, which itself has interests in -leasehold rights in Pas
Geometriques situated in Palmar. She also owns a bungalow there;
b) In or about 2008, at a time when the Applicant was Parliamentary Counsel at
the Attorney General Office, his legal opinion was 'sought by the Ministry of
Housing and Lands on the legality of an indemnity to be claimed by the
Government from those persons who held rights in State land leases which
had expired and who were occupying-such-State-land whilst awaiting-new
leases to be executed;
c) The applicant then issued an advice to the effect that these persons should be
claimed an indemnity for the occupation of the land based on the new annual
rental provided for in the law. A copy of this advice is annexed herewith and
marked
;
d) The indemnity fee calculated and claimed from Sun Tan Hate~.
amounted
to
Rs. 1, 611, 722. A copy is annexed herewith
and
marked
e) On 20th April 2011 Mr. Farook Hassen, representative of Sun Tan Hotels Pty
Ltd requested a meeting with the Ministry of Housing and Lands (i.e. the Co
Respondent) to discuss the indemnity claimed. A copy of the request is
annexed herewith and marked Annex E

fJ

On 19th July 2011 the Applicant, accompanied by Mr. Farook Hossen and
other representatives of the company attended the meeting at the Ministry of
Housing and Lands;

g) In the minutes dated 29th July 2011, sent by Mr. Seebun the then Chief
Surveyor to Mr. S Teckman Principal Surveyor, Mr Seebun referred to those
present at the meeting of the 19th of July 2011 as follows namely: "under the
Chair of Permanent Secretary in the presence of CTO, Maitre S. Boo/ell DPP &
Mr. F.Hossen and others representing the company." A copy of the minutes is
herewith annexed and marked
h) In the statements given to Respondent No 1, Mr. Teckman and Mr Seebun
stated that the representatives of the company "Sun Tan Hotels Pty Ltd",
having attended the meeting of 19th July 2011, were amongst others Mr.
Farook
Hossen
and
the
Applicant.
3

of the 19th of July 2011, the Applicant was leading the

discussions particularly with regard to the indemnity claimed.

i) At the meeting,

j) One of the Co-Respondent's representatives proposed that legal advice be

sought from the State Law Office on the issue of indemnity fee and the said
proposal was agreed by all those present. The Applicant then suggested that
advice be sought from the Solicitor's General Office and more specifically
from Mr. Ramloll.
k) On or about the 10th February 2012, the Co-Respondent wrote to Mr. Ramloll
at the State Law Office and requested the advice; a copy of the said letter is
annexed herewith and marked
; The 'said letter
made reference to the previous advice tendered by Applicant on that issue;
1) Following the issue of letter dated 10th February 2012, the Chief Technical
Officer of Co-Respondent met with the Permanent Secretary who allegedly
told him the following: "Sa ene Jette pou zotte envoyer sa? ()"
m) The first letter sent to the Solicitor General was thereupon withdrawn
and a second letter, dated 21st February 2012, with
an amended content (i.e. without any reference to the previous adv4werr;;

issued. A copy of that second letter is annexed herewith and marked

;
n) The advice tendered by the Solicitor General under the signature of Mr. R.
Ramlall, Assistant Solicitor General, provides for the terms and conditions of
the old lease to prevail until such time as a new lease is signed. A copy of that
advice is annexed herewith and marked

16)Save and except that Respondent No 1 is not aware that Co-Respondent sought
legal advice from the office of the Attorney General in similar cases, the
Respondent No. 1 takes note of the other averments at paragraph 23 of AAl,
makes no admission in relation thereto and avers that the matter in lite is still
being investigated into.
17)The Respondent No. 1 takes note of Paragraphs 24, 25 and 26 of AAl and avers
that when conducting any investigation, Respondent No. 1 is duty bound to
consider every complaint and/or allegation and give the opportunity to any
person, subject to such investigation, to provide his explanations.

,1
''!>

18)The Respondent No. 1 takes note of paragraph 27 and 28 of AAl and makes no
admission in relation thereto inasmuch as they are absolutely irrelevant to the
present matter.
19) The Respondent N o.1 denies paragraph 29 of AA.1 insofar as there was no
attempt by the Director General of Respondent No. 1 to "induce" the Applicant in
filing a Discontinuance of Proceedings against the Honourable Pravind Kumar
Jugnauth. I am informed by the Director General of Respondent No. 1 that there
was a meeting at the Applicant's office whereby the Director General of
Respondent No. 1 raised certain concerns pertaining to legal issues concerning
the case that had been entered against the Honourable Pravind Kumar [ugnauth
in breach of section 13(2) of PoCA. However.The Applicant's office explained
that these legal issues had been canvassed at the time the case was being advised
and that these hurdles were not un-surrnountable. The matter was prosecuted
before the Intermediate Court of Mauritius and Honourable P [ugnauth was'
convicted. It is to be noted that there is at present no authority from the
Supreme Court as to the extent of the application of Section 13(2) of PoCA and
that the said Honourable Pravind Kumar Jugnauth has given notice to appeal
against his conviction by the Intermediate Court of Mauritius.
20)The Respondent No. 1 denies paragraph 30 of AAl, reiterates paragraphs 13, 14
and 17 above and strenuously avers that such insinuations are preposterous.
21)The Respondent No. 1 denies paragraph 31 of AAL The Applicant's averments
are speculative inasmuch as he has not been privy to and has not been
confronted with any evidence gathered so far.
22)The Respondent No. 1 takes note of the content of paragraph 32 of AAl but avers
that same are absolutely irrelevant to the present matter.
23)The Respondent No.1 takes note of paragraph 33 of AA1 and admits that the
Director General received a call from the Applicant on the 8th July, as averred and
that during the said call, the Applicant complained about the negative impact of
the media on his office. The Respondent No.1 avers that it was under no
obligation to communicate with the Applicant at that stage of the investigation
and cannot in any way be held responsible for the publication of the said press
articles.
24)The Respondent No.1 takes note of paragraph 34 of AAl, makes no admission in
relation thereto and denies having mandated any retired Judge of the Supreme
Court to act on its behalf in any manner whatsoever.
25)The Respondent No. 1 admits paragraph 35 of AA1 to the extent that the
Director General did call the Applicant on Friday 10 July 2015 and did mention
that there was "pressure" but denies the other averments as styled. The
Respondent No. 1 avers that it did invoke the possibility that the Applicant gives
5

his version by way of letter and that no arrest was being envisaged at that time. I
confirm that Respondent No. 1 always works and operates under tremendous
pressure.
26)In response to paragraph 36 of AAl:
I admit that I called at the office of the Applicant on 13th July 2015. I also admit
that I voiced my personal opinion that incriminating evidence was probably
lacking. I had in mind the offence of-conflict- of interest basing myself on the
evidence gathered at preliminary investigation stage. However, as set out in ,
paragraph 15 above, there was definitely a basis for the investigation to proceed
to Further Investigation stage for possible offence under PoCA. I informed the
Applicant that the enquiry was at the stage of Further Investigation and I
explained to him that his version was being sought in respect of all allegations
made. The Applicant was given a time frame to respond and during which time
the evidence gathering exercise from other parties would have also progressed.
I admit that at some point reference was made to Vice Prime Minister Soodun
and Minister Bhadain. However, I must add that at no time did I speak to these
two Ministers. It is apposite to note that despite having given a statement to the
police on the 15th of July 2015 stating that I could not comment on paragraph
36(i) of AAl as the matter was sub judice, on the 16th of July the Police called at
my place at 2 30 am and I was requested to give a' further statement at 5 55 in
the morning where I was questioned concerning theconversatlon I had with the
Applicant.
Otherwise I make no admission on paragraph 36(i) of AA1.

a) As a matter of fact, there are at this stage of the investigation several options
at the level of the Respondent No.1 regarding potential offences and they are,
viz:

i) There is a possibility that pressure could have been exercised for the Co
Respondent to cancel the first letter and substitute it with the second
letter in order for the State Law Office to disregard the first letter that
was sent by Co-Respondent and for the advice be issued. The advice
which was eventually issued by the State Law Office was on more
advantageous terms to Sun Tan Hotels Pty Ltd and clearly on a different
basis of assessment as set out in the first advice tendered by Applicant in
2008, hence warranting pursuing further investigation for a possible
offence under section 9 of PoCA;
ii) There is also the possibility that the Applicant could have committed a
section 13(2) offence under PoCA, i.e. conflict of interest. It is a moot
point as to whether "proceedings" referred to under the said section

13 (2) Po CA relate to the same proceedings of a public body where the

actual final decision of that public body is taken. The prime factor that
has to be ascertained at the level of investigation is whether the Applicant
was acting within his private capacity or as a public official;
iii) In the course
evidence that
consumed, in
matter to the
PoCA and the
2002.

of the enquiry there may also be the possibility of finding

may lead to an inference that a conspiracy offence has been
which case the Respondent No. 1 may have to refer the
police inasmuch 'as it can only enquire into offences under
Financial Intelligence and Anti-Money Laundering Act of

b) The point is that the Preliminary Investigation has been trigerred by the
referral made by the Co-Respondent to the Respondent No.1 on the 6th July
2015 under section 45 of PoCA. Further to this Preliminary Investigation, the
Respondent No.1 has decided to proceed with the Further Investigation
under section 46(3)(a) of PoCA. The Applicant is being invited to provide his
explanation to Respondent No. 1 relating to the allegation made. Upon the
Applicant providing his explanations, the Respondent No. 1 being guided by
law and the cursus being adopted in past cases would certainly not request
Respondent No 2 to consider the evidence and effect arrest unless the Office
of the DPP has advised prosecution.
c) In so far as pressure is concerned, I told the Applicant that the officers of
Respondent No. 1 are constantly under pressure and by pressure I was
referring to public scrutiny and obligation to discharge my duties in an
efficient manner. This case being in the headlines, the pressure was even
stronger.
27)1 admit paragraph 36(ii) of AA1. In fact, in the light of the allegations reproduced
above and because the matter has proceeded to further investigation, I did
mention that a statement would have to be recorded under warning. I wish to
add that such a course of action would only have been taken after having
reviewed all the evidence gathered prior to Applicant's examination.
28)1 deny paragraph 36(iii) of AA1 and aver that the Applicant flatly refused to

accept the formal convocation in my possession, prompting Respondent No. 1 to

thereafter send the convocation letter through despatch to the Registry of the
ODPP as well as by post to the Applicant's residential address.
29)1 admit paragraphs 36(iv) and (v) of AA1.
30)The Respondent No.1 takes note of paragraph 37 of AAl, makes no admission in
relation thereto, denies that his investigation is being made in the light of mere
allegations or unverified evidence as alleged. On the contrary, the Respondent

cs.. .

'

. .-'
No.1 avers that its operations including this investigation are strictly compliant
with the provisions of PoCA.
31)Save and except that the Respondent No.1 initiated an investigation following a
referral it received from the Co-Respondent, Respondent No. 1 denies the other
averments at paragraph 38 of AAI and more specifically those referring to the
present investigation being carried out with "levity and lack of seriousness".
32)The Respondent No.1 admits paragraph 39 of AA1. 33)The Respondent No.1 admits paragraph 40 of AA1 and avers that following a
publication in the press on 21st June 2015, which did not make reference to Vice
Prime Minister Soodhun, an officer of ICAC did seek further information from Co
Respondent No 1, but to no avail. Hence, no investigation was initiated by
Respondent No. 1.
34)The Respondent No.1 denies paragraphs 41 and 42 of AA1.
35)The Respondent No.1 takes note of paragraph 43 of AA1 and concurs with
Applicant that he may be amenable to proceedings under section 93 of
Constitution, and which possibility could be envisaged at the end of
investigation. The Respondent No 1 reiterates that its operations, insofar as
matter in lite is concerned, are governed by PoCA and the laws of Mauritius.

the
the
the
the

36)Save that the Respondent No.l's Director General holds a substantive post of
Assistant Parliamentary Counsel since 8th October 2012 from which he is
currently on leave without pay, paragraph 44 of AAl is denied. The Respondent
No.1 avers that its Director General is employed by the Judicial and Legal
Services Commission. It is to be noted that in the past, several other law officers
of the Attorney General's Office have taken up employment at ICAC and
elsewhere while being on leave without pay from the JLSC.
37)The Respondent No. 1 denies the averments made at Paragraph 45 of AAl
alleging that Respondent No. 1 has not been conducting an investigation by
applying its independent, objective and professional judgment. It reiterates its
averments in paragraphs 13, 14 and 15 above and avers that its investigation is
being conducted within the parameters of PoCA.
38)Save and except that Section 82 of PoCA provides that " ... no prosecution for an
offence under this Act .... shall be instituted except by or with the consent of the
DPP", paragraphs 46 and 47 of AAl are denied.
The Applicant is amenable to an investigation being carried out by Respondent
No. 1. and cannot assert otherwise. The Respondent No. 1 avers that its enquiry
is not geared towards removal of the Applicant from office. Under the statutory

c.c;
8

.\_.

mandate of Respondent No.1,it is bound by law to submit its recommendation to

the officeofthe DPPupon completion of a further investigation.
39)The Respondent No. 1 denies paragraph 48 of AA1 and avers that it intends to
pursue its investigation thoroughly and in an impartial manner.
It further avers that:
(a) Should the evidence gathered reveal no-offence at the completionof the enquiry, Respondent No. 1 shall accordingly submit its
recommendation for no further action against the Applicantto the
officeof the D PP;
(b) Likewise, should the evidence gathered reveal one or more
offences under PoCA, the Respondent No.1 shall recommend
prosecution;
(c) Should the evidence disclose offences not pursuable under the
statutory mandate of Respondent No. 1, recommendations shall be
made for such investigation to be referred to the appropriate
investigative body.
(d) The recommendations of Respondent No. 1 will not necessarily
exclude that the matter be referred to the appropriate authority
under section 93 of the Constitution.
40)1t would be premature at this stage to speculate on any eventual
recommendation to be made by Respondent No. 1 when it is still at the stage of
gathering evidence. Respondent No. 1 holds the officeof the DPP in high esteem
and has constantly collaborated with that office and the Applicant on a
professional basis and it will be preposterous to think that we would be party to
any colourable device to oust him from office.
41)The Respondent No. 1 makes no admission topParagraph 49 of AAl and avers
that it is irrelevant to these proceedings.
42)The Respondent No. 1 denies paragraph 50 of AA1 and avers that Respondent
No. 1 has not communicated the facts regarding the enquiry to the Press and has
even shown concern of the matters that had been published when it issued its
communiques A copy of the communiques dated 9th and 14th of July 2015
herewith attached as
43)The Respondent No.1 admits paragraph 51 of AA1.
44)Save and except that the said articles were published on July 13 2015,
paragraphs 52 and 53 of AA1 are denied. On the contrary, it caused to be
published a communique on the 09th July 2015, which expressly stated the
following:

c.. c;

It

"La Commission est tenue a un devoir de confidentialite de par la Section 81 du

PoCA. De ce fait L'icac s'est refuser d'entretenir toute demande d'information
de la part des journaiistes sur le sujet depuis l'ouverture de l'enquete comme
pour toutes autre enquetes. Retablir lesfa its de certains articles publies dans la
presse equivaudraient a devoiler les details de l'enquete."(See annex)
The press article referred to in paragraph 52 AA1 contains serious
inaccuracies insofar as no decision was reached on Saturday 11th July to have
the enquiry referred to Further Investigation stage. ~- --

45)The Respondent No. 1 denies paragraph 54 of AAl and re-iterates the averments
made at paragraphs 30 and 33 above.
46)Save and except that the Weekend newspaper published an article on 12th of July
2015, Respondent No. 1 denies paragraph 55 of AA1 and avers that there was
no intention to ask Respondent No. 2 to cause the arrest of the Applicant, on the
basis of the evidence gathered as at 12th July 2015.
47)The Respondent No. 1 denies paragraph 56 of AA1, reiterates paragraphs 13, 14
and 15 above and avers that its investigation has at all material times been
conducted in accordance with the law.
48)The Respondent No 1 takes note of paragraph 57 of AAl.
49)The Respondent No 1 denies paragraph 58 of AAl.
SO)On the whole:
a. the Respondent No.1 avers and/or reiterates that:
i. Under section 45 of PoCA, there has been a referral made
by the Co-Respondent to the Respondent No.1;

ii. Under Section 46 of PoCA, there has been a Preliminary

Investigation on the matter referred to as aforesaid;
iii. Under Section 46(3)(a) of PoCA, the Respondent No.1 has, further to the Preliminary Investigation, proceeded with a
Further Investigation;

iv. As at date, the investigation has gathered the facts set out
above and more precisely at paragraph 15;

est

10

v. It is urgent and necessary to continue and complete the

Further Investigation and for Respondent No. 1 to submit
its report and recommendation to the office of the
Applicant pursuant to section 4 7(6) of PoCA;

vi. The Respondent No.1 is not concerned with the Applicant's

employment as DPP or his removal from office, both of
which are completely different matters to an examination
under the PoCA.
b. The Respondent No.1 further avers and/or reiterates that:
i. The Applicant, while seeking the equitable remedy of an ex

parte injunction from the Honourable Judge in Chambers

has failed to disclose material facts which are most relevant
to this application, namely the facts set out at paragraph 15
above.
ii. The Applicant has also failed to establish any serious right
which is in danger to warrant the urgent intervention of the
Honourable Judge in Chambers: in the present
circumstances, the Applicant would only have had a right if
he was immune from the PoCA, which he is not;
iii. The application, as styled, is misconceived as it has not
been lodged before the Honourable Judge in Chambers, but
before the Supreme Court and while doing so, has not
followed the established cursus of the Court which requires
any urgent proceedings before the Supreme Court to be
made by way of Motion.
iv. Finally, the Co-Respondent, as styled, has no legal
personality and cannot be a party to these proceedings.

51)The Respondent No.1 has the statutory power to investigate the Applicant and
has at all material times exercised this power in a fair, reasonable and lawful
manner.
52)In these circumstances, the Applicant has no serious or valid ground to restrain
the Respondent No.1 in the exercise of its statutory powers and duties.
53)In light of the above, the Respondent No. 1 avers, with due respect, that the
Honourable Judge should not interfere with the statutory powers of the
Respondent N o.1 to investigate the Applicant. The Respondent No. 1 therefore

11

prays that the interim order issued be discharged and moves that the application
be set aside with costs.
54)1 pray accordingly.

(\r,-C

Solemnly affirm~d by the abovenamed]

Deponent thisZ{day of July 2015}
At Supreme Court, Port Louis]

\yACt>

l~

Before me

~~

_
Sivakumaren Mardemootoo
Attorney at Law

S.~. l'ft!. AY

. fC
~t. :rO\,.ff::;.i.,~-: 'Jr~~-,/Cnurt Ma:-1.:!!~f
Ch re our
r 1c~.r... t. .....~"'-.
,.01.J1""(
.,..,T
.,. Supreme Court

-..I

Sivakumaren Mardemootoo

c.
12