THE REPUBLIC vs. MORO ISSAH [2015]DLHC3567

Date	2015-06-02
Suit No.	CASE NO.CC/05/15
Citation No.	[2015]DLHC3567

HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

[2015]DLHC3567
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>MORO ISSAH<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CASE NO.CC/05/15&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 2ND JUNE, 2015<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HER
LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>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.<o:p></o:p>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&nbsp; 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 &nbsp;and on the advice
of the Attorney General, he was charged with the offence.<o:p></o:p>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.&nbsp; <o:p></o:p>Section 2 (1)&nbsp; of PNDC law 236 provides as follows:<o:p></o:p>&nbsp;&nbsp; "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."<o:p></o:p>The prosecution must prove
the under listed ingredients of the offence beyond reasonable doubt so as to
secure a conviction:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
accused had custody or control of the drugs<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; He
knew of the presence of the drugs ; and<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; He
knew of the nature of the drugs possessed.<o:p></o:p>&nbsp;Atuguba JSC in
the case of Bonsu v The Republic ( 1999-2000) SCGLR 199&nbsp; 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&nbsp; but is merely a luckless
victim whom our legislature, prima facie does not hold to ransom..."<o:p></o:p><o:p>&nbsp;</o:p>Similarly, in the case of Ellis Tamakloe v The
Republic&nbsp; (Unreported) Criminal Appeal
J3/2/2009,&nbsp; 17/02/2010&nbsp; 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)&nbsp; GLR 256 at 261 thus:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; "
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&nbsp; '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&nbsp; 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&nbsp; v The
State, supra</main>