In the matter of R v Kumar & Ors (FH 16/2024) [2024] SCSC 78 (27 May 2024)

B Adeline, J

1. This is an application made by the Republic pursuant to Section 101 (1) of the Criminal Procedure Code for an order of this court for further holding of 6 suspects in police custody suspected of having committed the offence of fishing without a foreign fishing license contrary to Section 11 (1) read and punishable under Section 58 (a) of the Fisheries Act, Cap82.
2. The evidence in support of the application is tendered before this court by Detective, Police, Sergeant Vanessa Racombo, the Investigating Officer, by way of her affidavit sworn on the 27^th of May 2024.
3. The application seeks for an order of this court for the 6 suspects to be remanded in police custody for 14 of days as of today.
4. Learned Counsel for the Respondent vehemently opposed the application, contending, that remand in police custody would mean incarceration that would include the suspects being kept in police cells. It was the submission of learned counsel, that such an order would be a violation of the United Nations Convention on the law of the sea, UNCLOS, which Seychelles is a party to, and under which it has certain obligations. It was submitted by learned Counsel, that in the absence of a proper detention centre to keep those suspects, they should be allowed to stay on their boat under supervision with restriction imposed on their right of movement.
5. Learned counsel for the Applicant expressed concern about the practicality of the proposal, contending, that the investigation is still in its early stage, and that there are exhibits that are still on the boat that have to be removed from the boat, and until that exercise is completed the suspects should not have access to the boat.
6. I have carefully considered the application and the averments in the supporting affidavit to the application made by detective Sergeant Vanessa Rolando. On account of the affidavit evidence, I am satisfied, that the police did have probable cause to arrest the 6 suspects now under investigation.
7. I am equally satisfied, that Sergeant Racombo has made out the grounds averred for further holding of the six suspects. However, I do subscribe to the view of learned defence Counsel that to remand those suspects in police custody the effect of which they would be kept in police cells would be against UNCLOS. UNCLOS is the 1982 United Nations Convention on the Law of the sea. It sets out the legal framework for the Seas and the Ocean by defining the rights and obligations of state parties with respect be maritime environment.
8. Moreover, I note, that the offence of fishing without a foreign fishing license in our statute book carries a non-custodial Sentence in the form of a fine. The truth, therefore, is that the law does not provide for a custodial sentence that a court can impose on someone convicted of such offence. The logic that therefore follows, is that the court cannot grant this application to remand those suspects in police custody. To do so would be to defy Logic.

9. In the circumstances, I therefore order that the 6 suspects be detained in an appropriate detention centre under the supervision of the police for 4 days as of today. Should such facility not available, the police should do the needful, (as per their undertaking) to keep them in a safe place under police supervision and to cause them to reappear before this court on the 31^st of May 2022 at 9 Am.

Signed, dated and delivered at Ile du Port 27^th May 2024.

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Adeline J