IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
DATE: 8TH MAY, 2015
CASE NO: 155/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
Standing trial before this court on a charge of possessing narcotic drug without authority is a 22 year old male adult. Specifically, he has been charged under Section 2(1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Act 1990 PNDC law 236 which states:
Section 2 Prohibition on possession of narcotic drugs
"(1) 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."
A summary of the facts of this case are that the accused was arrested for stealing and was detained at the Suame Police Station. Police intelligence revealed that the accused was dealing in narcotic drugs. The accused was escorted by the complainants who are police personnel, to his room at Suame. Upon a careful search, 15 wraps of cannabis, some compressed cannabis in a brown paper and GH¢ 6.00 were found hidden in a wardrobe wrapped in a violet polythene bag. During investigations, accused admitted ownership of the cannabis and stated that he had been selling to smokers at GH¢1.00 per wrap. The exhibits tested positive for Cannabis when tested by the Ghana Standard Authority. They weighed 23.9298 grams and 88.7413 grams respectively.
The prosecution is enjoined by sections 11(2) and 13(1) of the Evidence Act, 1975 NRCD 323 to prove beyond reasonable doubt that the cannabis in issue was found in the possession of the accused person. Conversely, the burden of proving lawful possession rests on the accused. Two witnesses testified for the prosecution. By their evidence, they are the police personnel detailed to conduct a search in the accused person's room where these exhibits were found. PW1, Detective Sergeant Favour Adukpo's evidence was very concise and the relevant part is as follows:
" ... Accused willingly led police to their house and pointed a room to police as where he and his mother were occupying. We conducted a thorough search in the room and I found a polythene bag containing 15 wraps and one compressed one all suspected to be Indian hemp at that time. I showed the stuff to the accused in the room. In the presence of my colleagues, accused admitted ownership of these stuff. There was GH¢6 in GH¢1 denomination in the bag. He told police that he had been selling the stuff to people and that is what he does for a living. Accused person was escorted to the charge office together with the exhibits ..."
PW2, General Corporal Emmanuel Kwadwo Sosu of Suame Station CID corroborated the evidence of PW1 in the foregoing paragraph. He added that the accused told them he smokes as well. He tendered in evidence the investigation and charge cautioned statement of the accused as exhibits A and E. Similarly, he tendered the cannabis which he and PW1 found as exhibit C and the advice from the Attorney General's office as exhibit B.
In cross-examination, the accused challenged the evidence of PW1 and PW2 that exhibit C was found in his room and suggested to them that another person whom he was fighting with, resulting in his initially arrest at the police station, could have planted the cannabis in his room. He also said in cross-examination that he never told the police he is a "wee" smoker. However, both prosecution witnesses maintained their evidence that exhibit C was found in a room which the accused pointed out to them, he admitted ownership in their presence and also indicated that he sells and smokes "wee".
In exhibit A, which the accused relied on in exhibit E, he stated thus:
"... The police officers escorted me to my house at Suame and I led them to my room. During the search, the police saw 15 wrappers of dried leaves and a compressed one all suspected to be Indian Hemp and an amount of GH¢ 6.00. The police officers asked me and I told them that it belong to me and moreover I sell them to my customers at GH¢1.00 per wrap. I also told the police I smoke as well...".
Exhibit A amounts to a confession statement. It was taken in the presence of an independent witness who understood the language spoken by the accused. No evidence has been introduced to show that exhibit A was extracted from the accused under any form of duress or threats. Accordingly, I hold that exhibit A was voluntarily taken. These statements are further corroborated by the testimonies of PW1 and PW2 who effected the arrest. I also find from the evidence of the prosecution that the search which took place was done in accordance with section 24 of PNDC law 236 and it is proper. Counsel's suggestion that the accused was not made to search the police officers prior to the search in his room is just a "smoke screen" to blur the court's vision.
On the totality of the evidence adduced by the prosecution, particularly exhibits A and E, the accused person kept exhibit C in the room for the purpose of selling and smoking the same. The Indian hemp had been wrapped in small brown papers, "ready for sale" and "ready to be smoked". This, coupled with the cash of GH¢ 6 in GH¢1 denomination found in the bag containing the individually wrapped Indian Hemp from the room of the accused leads to an irresistible conclusion that the accused person sells Indian hemp. With the above evidence, it is my considered opinion that the prosecution have proved a case of supplying narcotic drugs under section 6 of Act 236 against the accused.
Under section 6 (1) of Act 236,:
“A person who, without lawful authority, the proof of which lies on that person, supplies a narcotic drug to any other person commits an offence."
At this point, the accused assumes the burden of persuasion to lead evidence to the contrary. This is the burden placed on him under section 13(2) of NRCD 323 as follows:
" Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt."
In his evidence before the court, the accused denied ever selling or smoking "wee" He expressed his dissatisfaction about the failure of the police to investigate his complaint of "causing harm". He also said in evidence that the police did not permit him to search them before they entered his room.
The defence put up by the accused contradicts his statements given to the police which he has also denied. There is evidence on record which point to the fact that the accused person is not credible. The accused stated in exhibits A and E that he lives at Suame. Yet, under cross-examination, he told the court that he eats at Suame but sleeps at Adankwame. Later, he turned round to admit that he lives at Adankwame. If this is true, why did he lead the police to a room at Suame where he claimed to live? Also, his evidence that the room which he shares with his mother at Suame is never locked can never be true in the light of his evidence that his mother who is a trader leaves home at 6am and returns at about 10pm. I find from the evidence on record that the defence put up by the accused in court is just a sham. He has not passed the test of credibility under section 80 of NRCD 323. He has not offered any convincing proof as to why he kept the Indian Hemp in his room at Suame for sale. In short, he has failed to raise any reasonable doubt as to his guilt.
It is provided under section 154(2) of the Criminal and Other Offences Procedure Act, 1960 Act 30 as follows:
“(2) Where a person is charged with an offence and facts are proved which reduce it to a lesser offence, that person may be convicted of the lesser offence although not charged with it."
It is my considered opinion that in terms of punishment, the offence created under section 6(1) of Act 236 is lesser than that created under section 2(1) of the Act. Even though the accused was not charged under section 6(1) of Act 236, the circumstantial evidence on record and his own confession statement support the offence of supplying narcotic drugs without authority. He is accordingly convicted for that offence under section 6(1) of Act 236.
The punishment for supplying narcotic drugs without authority is a term of imprisonment of not less than five (5) years. See section 6(3) of Act 236.
That notwithstanding, section 7 of the Act makes provision for a lesser sentence when there are mitigating factors. It states:
" 7. Special mitigating factors
Where a person if found guilty of an offence under section 5 (1) or section 6 (1), and the Court finds that having regard to the unaggravated nature of the offence and any special circumstances relating to the offence or the offender, the imposition of the minimum sentence provided in respect of the offence is harsh, it may sentence the accused to a lesser term of imprisonment and in addition to a fine of not less than one hundred penalty units"
The quantity of "ready for sale" Indian Hemp retrieved from the convict is relatively small. The accused is only 22 years of age. There is no evidence of his prior conviction for a similar offence. He has already been on remand for about nine months. These are mitigating factors. The imposition of the minimum sentence of five years on him will be too harsh. Accordingly, he is sentenced to three months imprisonment without hard labour and a fine of 100 penalty units or in default six months imprisonment with hard labour.
Finally, I must say that this judgment was written without having the benefit of the written submissions of counsel for the Accused who failed to file his submissions on time as ordered by the court. Counsel must learn to respect time lines as "time and tide wait" for no man!