JUDGMENT

The accused person before me has been charged on one count of Possession of Narcotic Drugs Without lawful Authority, contrary to section 2(1) of PNDCL 236. The particulars of the offence are that on 29/05/2014, the accused had in his possession ten (10) black polythene parcels of cannabis with net weight of 818.3080 grams.

A summary of the facts which led to this case are that at about 3pm on 29/04/2014, the accused was arrested by members of Old Zongo Community Watch Committee at the Kumasi Central Market on suspicion of carrying narcotic drugs. When the complainants collected a black polythene bag which he was holding, it was found to contain ten (10) black parcels of dried leaves suspected to be cannabis. He was handed over to the Drug Law Enforcement Unit (DLUE), Kumasi and after further investigations and on the advice of the Attorney General, he was charged with the offence.

This being a criminal trial, the burden of proof of the offence rests on the prosecution. Under sections 11(2) and 13(1) of the Evidence Act, NRCD 323 the prosecution must prove the guilt of the accused beyond reasonable doubt.

Section 2 (1) of PNDC law 236 provides as follows:

"A person who, without lawful authority, the proof of which lies on that person, has possession or control of a narcotic drug commits an offence."

The prosecution must prove the under listed ingredients of the offence beyond reasonable doubt so as to secure a conviction:

The accused had custody or control of the drugs

He knew of the presence of the drugs ; and

He knew of the nature of the drugs possessed.

Atuguba JSC in the case of Bonsu v The Republic ( 1999-2000) SCGLR 199 at pages 225 to 226 stated among other things that " A person who does not even know the nature and quality of the substance he possesses cannot be said to be engaged in illicit dealing in narcotic drugs but is merely a luckless victim whom our legislature, prima facie does not hold to ransom..."

Similarly, in the case of Ellis Tamakloe v The Republic (Unreported) Criminal Appeal J3/2/2009, 17/02/2010 SC, Ansah JSC stated with approval the Ghanaian view on possession of narcotic drugs as expressed by Ollennu JSC in Amartey v The State (1964) GLR 256 at 261 thus:

“ What is the possession proof of which without more makes a person guilty of an offence under the section 47(1) unless he proved that his possession was lawful. Upon a proper construction of the section, the possession must be possession with knowledge of the nature and quality of the article; that he possessed awareness that what he possessed is 'opium or Indian hemp'; or residue from the smoking of 'opium or Indian hemp'. Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must prove legal possession; that is in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew or ought to have known, that the article he possessed was 'opium or Indian hemp', or was 'residue from smoking of opium or Indian hemp." See also Nyameneba v The State (1965) GLR 723 SC which also followed the decision in Amartey v The State, supra and Kamil v The Republic (2011) SCGLR 300 (holdings 1 and 2)

It is a cardinal principle of law criminal law that mens rea, that is, an evil intent or knowledge of the wrongfulness of the offence must be proved at all times as was held in Sweet v Parsley ( 1970) A.C. 132 at 152. This is not always capable of been proved by direct evidence and the courts have relied on circumstantial evidence, when necessary. Circumstantial evidence is evidence of relevant facts from which the existence or non-existence of a fact in issue may be inferred.

The Court of Appeal in the case of Duah v The Republic ( 1987-88) 1 GLR 343 ( holding 3) expressed its view on circumstantial evidence which a court can rely on in these words:

"Circumstantial evidence was evidence of surrounding circumstances which by undersigned coincidence was capable of proving a proposition with the accuracy of mathematics. In criminal cases, it was sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eye-witnesses was not available, the jury was entitled and indeed permitted to infer from those facts which the prosecution had proved other facts necessary either to complete the elements of guilt or establish innocence. However before drawing the inference of the guilt of an accused from circumstantial evidence, it was very important to make sure that there was no other co-existing circumstances which would destroy or weaken the inference. Thus circumstantial evidence had to be closely examined and acted upon only when the circumstances were such that the guilt of the accused had of necessity to be inferred and that the facts led to no other conclusion."

Also, in Logan v The Republic ( 2007-2008) SCGLR 76 at 78 the supreme court held:

“Circumstantial evidence relied on by the prosecution to support a conviction, must be inconsistent with the innocence   of the accused. It must lead to irresistible conclusion not only that the crime charged had been committed, but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence which is not supported by the facts is wrongful..."

In the instant case, the prosecution right from the onset indicated to the court that they could not get the persons who arrested the accused to come to testify. Thus, they were restricted to the evidence of the investigator, PW1. PW1 said in his evidence that the accused, together with ten (10) black polythene parcels were referred to him for investigation on 29/04/2014. When he interrogated the accused, the accused told him that the black polythene bag and its contents belong to his friend called "Sule". PW1 said he took an investigation cautioned statement from the accused (exhibit A) and sent the parcels to the Ghana Standard Authority for Scientific Analysis which tested positive for cannabis with a net weight of 818.308 grammes. The Cannabis and the laboratory results were admitted in evidence as exhibits B and C respectively. PW1 also put in evidence the charge cautioned statement of the accused person and the same was admitted as exhibit E.

In exhibit E, the accused relied on his earlier statement in exhibit A as follows:

“ I am a farmer and reside in a village at Dominase in the Ashanti Region. I do not know anything about the Indian hemp in the Polythene bag. The fact of the matter is that , on 29/04/2014 at about 3pm, I arrived in Kumasi from Dominase to buy weed killer. I met one Sule in Kumasi. I got to know Sule when I was in Sefwi. While I was walking with Sule in town, around the Rail Line, Sule handed over his bag to me and told me that I was going to buy something. Just there, two men in plain clothes came and arrested me . I told them to allow me to explain things to them but they did not understand me and brought me to the police station. As a matter of fact, I did not know the content in the bag my friend Sulemana handed over to me. I know Sule very well but I do not know his place of abode but can identify him when I see him. I used to smoke Indian hemp but I stopped about a week now."

In cross-examination, the accused denied any knowledge of the Indian hemp but PW1 insisted that at the time of arrest, the accused had physical possession of the bag containing the Cannabis. Further, the accused said he told the police that he used to smoke cigarette but not "wee" (Cannabis). Here again, PW1 reiterated that the accused told him he used to smoke "wee" but stopped about a week prior to his arrest.

I will analyze the accused persons statements which he volunteered to PW1. If exhibit A did not reflect exactly what the accused told PW1, why did he rely on it in exhibit E when he had the opportunity to volunteer another statement? When exhibits A and E were tendered in evidence, he did not raise any objection to these documents which were being used against him. On the basis of the foregoing, I find that the contents of exhibits A and E are exactly what the accused told PW1 and the court can rely on the same. In exhibit A, the accused said just when Sule handed the bag to him, some plain clothed men apprehended him. If that were true, Sule could not have been even ten metres away at the time of his arrest and would have come to his aid. But what happened in this case? From exhibit A, the accused said he attempted to explain to those who had apprehended him but they would not listen to him. What was he going to explain when the alleged owner of the bag and its contents had not gone far? The evidence shows that the accused had previously smoked "wee". The scent of Indian hemp is unusual and any person who has ever smoked such substance can readily tell of its presence. The accused person said he met Sule and they walked together for a while before he handed over the bag to him. The drugs had been individually wrapped and concealed in a black polythene bag. On this premise, even if somebody had given the polythene bag to the accused for "safekeeping", he knew that the bag contained Indian hemp. It can be reasonably inferred from exhibits A and E that besides the physical possession, the accused who is familiar with Indian hemp knew that the contents of the bag are Indian hemp or cannabis.

At this point, the burden of persuasion shifts onto the accused to prove that he had legal authority for having the Indian hemp in his possession. He testified that when he met Sule, he had a chat with him; Sule placed the polythene bag with its contents in front of him and said he was going to buy something and then one (1) minute later, he (accused) was confronted by some men and eventually arrested. In effect, he told the court that the bag containing the cannabis was not in his hands at the time of his arrest. This piece of evidence contradicts his statement in exhibits A and E that Sule gave the bag to him. I find that the accused is not worthy of credit within the meaning of section 80 of NRCD 323 and reject his evidence that he does not know anything about exhibit B. He has failed to prove that he had any legal authority for having the said cannabis in his possession. He has also not raised any reasonable doubt as to his guilt.

The prosecution has proved beyond reasonable doubt that the accused had physical possession of the cannabis Sativa, he knew of the presence and nature of the same. He is found guilty and accordingly, he is convicted of the offence of possessing Narcotic drugs without lawful authority under section 2(1) of PNDC Law 236.

SENTENCE.

The convict was 21 years at the time of his arrest in April, 2014. He must be approximately 22 years as at now. Considering his age , the absence of any aggravating circumstances and the fact that there is no evidence of a prior conviction for a similar offence, he will be given the minimum sentence under the law. In the circumstance, I sentence him to ten (10) years with hard labour.