POLICE v. GOOLAUP N. S.

Transcription

1 P v. GOOLAUP A. H LPW 27 Cause Number 12895/12 POLICE v. GOOLAUP N. S. In the District Court of Lower Plaines Wilhems (Rose Hill) In the matter of:- POLICE v Nundkumar Sanjay GOOLAUP Judgment The accused stands charged before this Court with the offence of molesting a public officer in breach of sections 2 and 3 of the Public Officers Protection Act. He pleaded not guilty and was assisted by Counsel. The Prosecution called Health Inspectors Jodha and Boodhun. It is their version that on they were on duty together with their colleagues of Vacoas Health Office. They were doing what they call squad operations to control the selling of food in the locality. At around they arrived at Kol Snack found at Paillote. There were a few people present and a barbecue device was on outside the snack. They introduced themselves and showed their identity card of the Ministry of Health. One person came out of the lot and introduced himself as the owner of the place. They requested from that person, the Accused, the relevant licences. While waiting for the relevant documents, they informed the Accused that the spot where he had placed his grill, i.e. outside the snack and on the road side, was inappropriate. They also noticed, and brought

2 the Accused s attention to the fact, that the ingredients, the brush and tongs were not covered and thus were exposed to smoke from vehicles, dust and flies. The accused grew angry and there followed an incident with a chopping knife, diaries of these two Inspectors and filthy and abusive words uttered to Health Inspector Jodha. The Prosecutor produced a memo from the Municipal Council of Phoenix (Document A) to the effect that the trade licence of the snack was in the name of one Indra Luxsmi Goolaup. He also filed a memo from the Ministry of Health (Document B) confirming that the two witnesses were Health officers at the material time. The Accused agreed that these officers came to the snack but they fiddled with his apparatus and utensils without first introducing themselves as Health officers. He refused to produce the licences requested even after they did introduce themselves and insisted that they show their identity cards. There followed a verbal argument and faced with his opposition, the officers did inform him that they were proceeding to the police station. His defence statement is marked as Document C. I have considered the evidence on record and I have watched with care the demeanour of the prosecution witnesses and the accused. The enabling enactment reads as follows: Molesting public officers (1) Any person who by force or violence resists, opposes, molests, hinders, or obstructs (a) any public officer in the performance of his duty; shall commit an offence and shall, on conviction, be liable to a (2) In the absence of force or violence, the penalty shall be a. I have, purposely, been vague regarding the incident which occurred inasmuch as I have noted a number of disturbing features in the case of the Prosecution.

3 Firstly, with respect to the chopping knife. Inspector Jodha said that the Accused pointed it in his direction and moved it in front of his face before rubbing it on his diary which fell down. Inspector Boodhun on the otherhand said that the knife was thrown in the direction of Inspector Jodha and it hit the latter s diary. Secondly, while Inspector Jodha makes no mention of any incident regarding his colleague s diary, Inspector Boodhun testified that the Accused threw his diary on the floor. Thirdly and more importantly, it is averred in the information that the accused uttered the following words: Guete ki zotte pou fer ene gogot zotte pas pour capave raser mo pe demande zotte charite banne falou zotte mama caca liki. This is what Inspector Boodhun repeated in Court, except that he said mo pas pe demande zote sarite But, Inspector Jodha, the main witness for the prosecution, said something which is somewhat different: Ene gogot zot pa pou capave faire mo pa pe demande zot sarité bane caca liki. And interestingly, something different was put to the accused when his statement was recorded: Guete ki zot pou faire, ene gogot zot pas pou capave rasser, mo pou coupe coupe zot, ene poil zot pas pou capave rasser. Following the case of Marday v. State [2000 SCJ 225] it is agreed that whatever is put to the accused at the time of the recording of his defence statement, is a faithful reproduction of the complaint made by the declarant.

4 It is difficult for me, in the light of the above, to rely on the version of the prosecution witnesses. Be that as it may, in the case of Hurnam v. R 1985 MR 22, the Learned Judges found that It seems to us that the word "molest" which means annoy, disturb or meddle covers a wider range of lesser offences, deeds or actions than an outrage which is defined as an atrocious act of violence, a wanton transgression of law or decency, an enormous insult. From this extract it is gathered that to establish the present offence the prosecution must prove that the acts and doings of the accused annoyed or disturbed the officers or interfered with the proper execution of their duties. The accused explained in very clear terms that he was not happy that the Health officers had touched his utensils without first introducing themselves. Then he refused to show his licences unless they produced their identity cards and even argued with them, preventing the officers from proceeding with their inspection. The Accused plainly did disturb and annoy the officers in the performance of their duties and interfered with their inspection. Under the Public Health Act, the Sanitary Authority, and as such the Health officers, are empowered to enter premises where food is being prepared and/or stored and make the necessary inspections. I have not come across any requirement of them having to introduce themselves and present their card. Nonetheless, in all logic, and out of courtesy, they should make known in what capacity they are requesting an inspection and documents to be shown to them. Even if it is provided that the officers must present their cards, I am of the view that the omission to do so is not of such gravity as to allow the accused to refuse to comply with

5 their requests and interfere with them. I find support in the case of Wong Chai Wah v. State [1960 MR 160] where the Learned Judges held the following Whether or not a public officer is acting in the exercise of his duties in given circumstances is a question which has on many occasions been considered by the French Courts and the trend of the decisions which is in accord with the view held generally by the leading French commentators is that a public officer is protected by the corresponding provisions of the French Penal Code notwithstanding that he has acted to some extent irregularly, but this would not be the case if the illegality was such that the public officer could not be said to be in any way acting in the exercise of his duties. We read in Garçon, Code Pénal Annoté Vol. I Arts. 222 to 225 at note 144: Nous croyons donc qu en principe l outrage est punissable, alors même que le fonctionnaire outragé agirait irrégulièrement. Le délit ne disparaitrait que si l acte était entaché d une illégalité telle qu il serait impossible de le rattacher en aucune manière à l exercice des fonctions de la personne outragée. L outrage, dans ce cas, ne serait plus constitué, parce qu il ne serait pas reçu dans l exercice ou à l occasion de l exercice des fonctions. For the reasons set out above, I am satisfied the offence of molesting a public officer has been established beyond reasonable doubt. The accused is accordingly found guilty as charged. [Delivered by: S. A. S. Sunglee, District Magistrate] [Delivered on: 28 March 2013]