THE REPUBLIC vs. KWABENA GYASI
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2015
THE REPUBLIC
KWABENA GYASI

DATE:  8TH JUNE, 2015
CASE NO:  CC/13/15
JUDGES:  HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS: 
JUDGMENT

It is provided under section (2) 1 of the NARCOTIC DRUGS (CONTROL, ENFORCEMENT AND SANCTIONS) ACT, 1990 PNDCL 236 as follows:

 

“2 (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."

 

The accused person before me was charged under this law as follows:

 

STATEMENT OF OFFENCE

 

POSSESSING NARCOTIC DRUGS WITHOUT LAWFUL AUTHORITY: SECTION 2 C) OF NARCOTIC DRUGS (CONTROL, ENFORCEMENT AND SANCTION) ACT, 1990 PNDCL 236.

 

PARTICULARS OF OFFENCE

 

KWABENA GYASI: AGED 27:- For that you on the 29th day of June, 2014 at Agona in the Ashanti Region and within the jurisdiction of this Court without lawful authority, did have in your possession Fourteen (14) pieces of compressed dried leaves and quantity of seeds all suspected to be a narcotic drug.

 

He pleaded not guilty to the charge and is now standing trial. A summary of the facts are that whilst the police were conducting a search in the accused person's room and kiosk after they had received information that some suspected armed robbers were hiding in Agona Ashanti, they found a black and white polythene bag containing 14 pieces of dried leaves suspected to Cannabis . The accused was handed over to the Drugs Law and Enforcement Unit and he claimed ownership in his cautioned statement to the Police. The exhibits tested positive for cannabis after the same had been tested by the Ghana Standards Authority.

 

In this trial, the prosecution is enjoined by sections 11(2) and 13(1) of the Evidence Act, 1975 NRCD 323 to prove the guilt of the accused person beyond every reasonable doubt. From the wording of section 2(1) of PNDCL 236, the following ingredients must be established to the requisite degree of proof before the prosecution can secure a conviction:

 

1. The accused had custody or control of the drugs

2. He knew of the presence of the drugs ; and

3. He knew of the nature of the drugs possessed.

 

This means that apart from proving physical possession, the prosecution must prove legal possession which entails knowledge of the nature of the drugs.

 

A case in point is Ellis Tamakloe v The Republic (Unreported) Criminal Appeal J3/2/2009, 17/02/2010 SC where Ansah JSC stated with approval the Ghanaian view on possession of narcotic drugs as expressed by Ollenu 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 Bonsu v The Republic (1999-2000) SCGLR 199 at pages 225 to 226 and Nyameneba v The State (1965) GLR 723 SC which also followed the decision in Amartey v The State, supra.

 

In discharging this legal burden, the prosecution relied on the evidence of two witnesses who are service men. PW1 is a detective Chief Inspector Stationed at Agona Ashanti District CID. His evidence was very brief and the relevant portion is indicated below:

 

"On 29/06/2014, The District Police Commander, ASP Mr.  Francis Asante, led 17 police men to conduct a swoop on suspected armed robbers. In the course of the exercise, accused person was arrested in his room and the room was searched. We further took him to his kiosk located at Agona market area where he opened the kiosk to the police.

 

I being the Senior Detective among the men on duty conducted the search in the room and 14 parcels of dried leaves and some quantity of seeds suspected to be Indian Hemp was found in the kiosk. Accused was questioned and he admitted ownership of the exhibits. The following morning, he and the exhibits were brought to the DLEU at Regional Headquarters for further investigation."

 

Counsel for the accused person cross-examined PW1 and suggested to him that the narcotic drugs were planted in the Accused person's wooden kiosk and that the police did not follow their own laid down procedure in handling narcotic drugs. To these line of questioning, PW1 was very emphatic that the kiosk had been locked and it was the accused who opened it for the police to conduct the search. Further, PW1 stressed that all protocols in handling narcotic drugs were followed in transferring the accused to the DLEU in Kumasi.

 

PW2 is a Detective Lance Corporal stationed at the DLEU, Kumasi. He told the court that whilst on duty on 30/06/2014, an extract of occurrence from Agona together with the accused person, 14 pieces of dried leaves and a quantity of seeds suspected to be Cannabis were referred to him for investigations. He tendered in evidence the police extract No. 75/2014 as exhibit A. On the same day, the witness said he obtained an investigation cautioned statement from the accused person and he tendered the same as exhibit B. Continuing, PW2 said he forwarded the dried leaves and seeds to the Ghana Standard Authority for examination and he tendered the report as exhibit C. PW2 indicated that he charged the accused person and he volunteered a statement ( exhibit E). Concluding, the witness put in evidence as exhibits F and G the Dried Cannabis leaves and Seeds.

 

During cross-examination, Counsel for the accused person sought to discredit PW2's testimony that exhibits F and G were found in the accused person's kiosk. To the extent that the extract (exhibit A) indicated that the drugs were found in the accused person's bedroom, Counsel suggested to the witness that the evidence led by the prosecution witnesses cannot be true and that they had teamed up to implicate the accused person. The following part of the cross-examination of PW2 on 13/05/2015 is worth considering:

Q. When the matter was transferred to you, did you find out whether the exhibits were actually found on him?

A. No but the accused confirmed that the exhibits were found in his kiosk or store.

Q. So the officer who transferred the exhibits told you they found it in the Accused' s kiosk?

A. The accused confirmed that the exhibits were found in his store.

Q. Take a look at exhibit A, read the middle portion?

A. On 27/06/2014 at about 3;30am, Suspect Kwabena Gyasi and four others who were arrested in robbery when a search was conducted in the above name, suspect's bedroom found the stuff and when he was interrogated, he claimed ownership of it.

Q. You own exhibit A, you are telling the court this extract was found in his bedroom?

A. That is correct. I built my investigation on this extract which was prepared by the Counter NCO.

 

Exhibit B, which the accused relied on in exhibit E, was taken in the presence on an Independent witness and the accused stated among other things thus:

 

“On Sunday 29/06/2014 at about 3:30am, I was sleeping when policemen from Agona Police Station knocked at my door. When opened the door for them they searched my room but found nothing on me so they then sent me to my store and found fourteen compressed polythene wrap of dried leaves suspected to be Cannabis and quantity of seed suspected to be Cannabis in a white and black polythene bag. I was arrested with the exhibit and later handed over to the Drug Law Enforcement Unit, Kumasi."

 

In exhibit C, the laboratory test results showed that all the samples analyzed tested positive for delta 9-tetrahydrocannabinol, the principal active ingredient in Cannabis sativa which is classified as a narcotic drug under the Narcotic Drugs (Control , Enforcement and Sanctions) law, 1990 PNDC Law 236.

 

When the accused person was being cross-examined by the prosecutor, he admitted that the dried leaves and seeds in issue were found in his kiosk but he is not the owner as the prosecution would want the court to believe. He said he admitted ownership of the drugs because the police had subjected him to beatings.

 

In his evidence, the accused said he was escorted to his kiosk by the policemen. On reaching there, he remained in the police vehicle with a policeman whilst handcuffed; one policeman called Owusu collected the key to his kiosk and gave the same to another policeman by name Nyamekye and they opened the kiosk. Accused said whilst conversing with the policeman in the police vehicle, he lifted his head and realized they were holding one polythene bag from the shop and coming towards the vehicle. He denied ownership when interrogated and when he looked in the polythene bag, it contained narcotic drugs. Accused said he was subjected to severe beatings and the police threatened to beat him again the following day if he did not admit ownership. So, he was compelled to admit ownership. He testified further that at the time he gave the investigation cautioned statement, only the investigator was present.

 

On the face of exhibit B, there are two distinct signatures attributed to the investigator and the independent witness as well as the thumb print of the accused person. The signatures attributed to the Independent witness have similar identifying characteristics suggesting that they were signed by the same person. I do not think those signatures were forged by the investigator as the accused person's evidence seems to suggest that no other person was present. The Independent witness added a certificate that the statement was given by the accused voluntarily. Whilst Exhibit B was taken on 30/06/2014, exhibit E was taken on 28/04/2015. The accused relied on his earlier statement in exhibit B. When exhibits B and E were tendered in evidence and read out in court, neither the accused nor his counsel raised any objection and the same were admitted in evidence. Thus, the court can rely on the same. Indeed, the Accused person's own evidence suggests that the police treated him with dignity else a policeman would not have been chatting with him whilst under arrest. It can also be inferred from the manner in which the cannabis had been wrapped that the accused person knew of the nature of those drugs and had thus concealed them in his kiosk. There is no evidence on record to show that some other person had control over the contents in the kiosk owned by the accused person herein. It can therefore be reasonably inferred that he had control over the drugs just as he had control over his stock-in-trade. It is unusual for ordinary dried leaves and seeds to be so concealed and kept in a shop. He locked his kiosk at the close of business and it was not possible for anyone to have planted those drugs in there merely to implicate him. The instant case can be contrasted with Logan v The Republic (2007/2008) SCGLR 76. In that case, the appellants happened to be present at the premises where the narcotic drugs were found during a police raid. The Supreme Court quashed the majority sentences of the Court of Appeal and upheld the Minority Judgment on the ground that there was no direct or circumstantial evidence linking the appellants to the charges.

 

The inconsistency in the police extract (exhibit A) and the evidence of the prosecution witnesses as regards the exact place where the drugs were found can be explained away by some other evidence on record. It is clear that the Counter NCO who wrote the extract was not part of the team that arrested the accused and conducted the search in his house and kiosk. PW1 who found the drugs in the kiosk of the Accused has given oral evidence on his findings. The accused does not also dispute that the Cannabis Leaves and seeds were found in his kiosk. Thus, the inconsistency becomes insignificant at this point and can be ignored. I am of the opinion that the defence put up by the accused is just an afterthought and that the police did not tell him they will "teach him a lesson" if he failed to admit ownership of the drugs. Indeed, the seeds are used to cultivate the cannabis and I do not want to believe that they accidentally got into the accused person's kiosk.

 

On the totality of the evidence produced by the prosecution, it has been established beyond every reasonable doubt that the dried leaves and seeds found in the accused person's kiosk on 29/06/2014 are indeed Cannabis; that the accused was very much aware that the dried leaves and seeds are cannabis and that he knew of the presence of those drugs in his kiosk and had control over the same. I also find that when the burden of persuasion shifted onto him, the accused could not prove that he had any lawful authority for keeping the narcotic drugs in his kiosk where he carries on his usual trading activities.

 

In the circumstance, I find the accused guilty of the offence of Possessing Narcotic Drugs without Lawful Authority contrary to section 2(1) of the NARCOTIC DRUGS (CONTROL, ENFORCEMENT AND SANCTIONS) ACT, 1990 PNDCL 236 and he is accordingly convicted.

 

SENTENCE.

The accused person was 27 years at the time of his arrest in June, 2014. The quantity of Cannabis found in the accused person's possession is not so large comparatively even though the seeds could have been used to cultivate more Cannabis. These are mitigating factors. I therefore sentence him to ten years imprisonment with hard labour in consonance with the Ghana Sentencing Guidelines.

 

Before I put down my pen, I must say that Counsel for the accused who was to file his written submissions on or before 03/06/2015 failed to meet the time line. I therefore proceeded to write this judgment without having the benefit of his submissions. It is my hope that Counsel will respect time lines set by the Court in future so as not to slow down the administration of justice.