As concerns the first point of law raised, Section 156 (1) of the Customs Act reads as follows: “any

person who smuggles into Mauritius any goods shall commit an offence”
 
At Section 2 of the Customs Act, which is the interpretation section, the word ‘smuggling’ is defined as
“any import, introduction, export or attempted import, introduction or export of goods with the intent-
(a) (a)   to defraud or evade the payment of duty, excise duty, taxes and other payable charges, as
the case may be; or
(b) (b)   to evade any prohibition of, restriction on, or regulation as to, the import, introduction or
export of any goods”
Section 125 (1) of the District and Intermediate Courts (Criminal Jurisdiction) Act provides that “The
description in the information of any offence in the words of the enactment creating such offence, with the
material circumstances of the offence charged, shall be sufficient”
 
In the case of Municipality of Beau Bassin- Rose Hill V. S.B.Khodabaccus and D.P.P [2002 SCJ 77]
the Court referred to the case of Beekhan v The Queen [1976 MR 3] and it was stated that “section
125(1) of the District and Intermediate Courts (Criminal Jurisdiction) Act simply restated the fundamental
principles of our law that all essential elements of an offence must be averred in the information and
proved by the prosecution. An information which fails to aver particulars of an offence may still disclose
an offence (vide Moussa v Q [1972] MR 99) but it is a different matter where an essential element of the
offence has not been averred.
 
In the case of Lallchand V. The State [2000 SCJ 178] the law provided that the offence of failing to
comply with a condition attached to a licence could be committed either willfully or negligently, that is
without intention. The Supreme Court held that where the particular section of the Statute creates two
ways in which an offence can be committed viz. either wilfully or negligently, it is incumbent on the
prosecution to spell out in the information in which one of the two ways the offence has been committed.

In the present case, the charge against the accused recites the very words of the enactment creating the
offence and is in strict compliance with Section 125 (1) of the District and Intermediate Courts (Criminal
Jurisdiction) Act. The information also avers that the act of smuggling had been committed “willfully and
unlawfully” indicating the fraudulent intent of the accused. It can be said that all the material and essential
ingredients of the offence of smuggling has been averred and the accused has been made fully aware of
the charge he has to meet. Since the guilty intent has been averred it was not necessary for the
prosecution to spell out in the information what were the objectives the accused had when he allegedly
smuggled gold necklaces into Mauritius, that is whether he was trying to evade duties and taxes or
whether he was trying to evade a restriction or a prohibition. The present case is different from the
situation in Lallchand in which the offence could be committed either with intent (willfully) or without intent
(negligently) and it was necessary for the prosecution to spell out on which basis it was charging the
accused. In the present case the accused could only commit the offence with a fraudulent intent. Since
the information has recited the very words of the enactment creating the offence it cannot be said that the
information is bad in law or incomplete and since all the essential ingredients of the offence has been
averred, the rest are considered to be the particulars of the charge which the prosecution was not bound
to aver. It was however open to the defence to ask for precise particulars so as to bind the prosecution
but they chose not to do so. For all the above reasons the court is of the view that the information against
the accused has been properly drafted and is not bad in law.

 Indeed “If one count of an information charges an accused party with having committed two or more
distinct offences then the information is bad for duplicity”- vide Cossigny v R [1988 MR 204]. In
Mangalkhan v The State [1997 SCJ 391] it was reiterated that ‘the prosecution was under no legal
obligation to charge the appellant with an “omnibus count” of unlawful possession of both heroin and
gandia’.
 information is flawed ?
In the present case where the two accused stand jointly charged with Drug Dealing -
( Possession of Cannabis for the Purpose of Selling), Defence Counsel has raised a po int of law to the
effect that, ex facie, the information is flawed insofar as it fails to comply with a statutory requirement set
out in section 17© of the Criminal Procedure Act. He has therefore moved that the information be
dismissed as the material circumstances of the offence have not been set out therein.
 
Basing himself on section 17© of the Criminal Procedure Act and section 125(1) of the District and
Intermediate Courts (Criminal Jurisdiction) Act, Defence Counsel argued that with the “for the purpose of
selling” ingredient of the above offence, no facts or circumstances have been set out ex facie the
information whereby the parties and the Court could infer that the accused possessed the drug for selling.
Did they sell or offer to sell? Was there any money transaction involved? No such facts were set out so
that the accused could mount an effective defence. For example, if it was set out that the accused had
offered to sell or sold etc, the defence would have enquired about the credibility of the person to whom
the accused allegedly sold the drugs. Counsel relied on the case of Toussaint v. The Queen [1872 MR
94].
 
Prosecuting Counsel took the opposite view.
 
Having considered the submissions offered on both sides, I had no difficulty whatsoever adopting the line
of argument put forward by the prosecution. In my view, the information as worded, is ‘direct and certain’
and strictly complies with section 17©; and its description of the offence is ‘sufficient’ in the terms
provided for by section 125(1). Indeed, the particulars of the offence are set forth thus: that on or about
the 26/09/05, in a house under construction near the junction of Bois D’Oiseaux and Laventure Roads, in
the District of Flacq, the two accused did unlawfully and knowingly possess dangerous drug for the
purpose of selling, to wit: (i) 43.75 grams of Cannabis wrapped in 34 rolls in a black plastic bag. The
exact wording of the law has been used. As reiterated in Ramburn M.F. v. The State [1996 SCJ 64], the
test is: do the particulars provided, whether in the indictment or elsewhere, make clear to the defence the
nature of the case which it must meet?
 
It is clear that the offence here is very clearly and sufficiently particularized. Further, as stated in
Toussaint v. The Queen, the description of the offence charged does here include in “express terms
every ingredient required” by section 30(1)(i) of the Dangerous Drugs Act or a statement of the facts
which constitute the offence.”
 
As rightly pointed out by Counsel for the prosecution, here the defence has been provided with a copy of
the brief and is therefore in presence of all the statements that are going to be used by the prosecution
against both accused. In the circumstances, it can indeed hardly be said that the defence will be
prejudiced by not knowing what case it has to meet.