Republic vrs Adjei (D21/045/24) [2025] GHACC 93 (21 May 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON WEDNESDAY, THE 21ST DAY OF MAY, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D21/045/24 THE REPUBLIC VRS NII ADJEI ACCUSED PERSON ABSENT A.S.P. KOFI ANANEY HOLDING THE BRIEF OF A.S.P. ISAAC BABAYI FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT The Republic v. Nii Adjei Page 1 of 11 THE CHARGE The accused person was arraigned before this Court on the charge of possession of narcotics drugs without authority contrary to section 37(1) of Narcotics Control Commission Act, 2020 (Act 1019). The particulars of the offences are given as follows: “For that you, on the 7th day of December, 2023 at Cantonment in the Greater Accra Region and within the jurisdiction of this Court, did have in your possession 0.43 grams of cannabis for the purposes of use without lawful authority.” THE PLEA The accused person pleaded not guilty to the charge after same had been read and explained to him in Ga, being his language of choice. The accused person having pleaded not guilty to the charge, the burden of proof was on the prosecution to establish the guilt of the accused person beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that on 7/11/2023 at 0445hrs, the Police Intelligence Directorate, Headquarters, Accra embarked on an intelligence-led operation in and around some residential areas in Accra to clamp down criminals. In the course of the operation, accused Nii Adjei was spotted trying to fix his motorbike at Cantonment residential area. Accused upon seeing the Police took to his heels and was given a chase and was arrested on his suspicious act. A search conducted on him revealed sealed plain polythene sachet of plant material substance suspected to be narcotic drug. During investigation, the accused admitted the offence in his caution statement to the effect that, the suspected narcotic drug was for his personal use. On 25/01/2024 the above- mentioned exhibit was forwarded to Police Forensic Science Laboratory for examination. The Republic v. Nii Adjei Page 2 of 11 A report received from the Police Forensic Science Laboratory indicated that the exhibit plant material tested positive for cannabis. Accused person after investigation was charged with the offence as stated on the charge sheet and rearranged before this honourable court. To discharge their legal burden, the prosecution called one witness and tendered the following documents without objection. 1. Caution statement of accused person as exhibit ‘A’. 2. Charge statement of accused person as exhibit ‘B’. 3. Forwarding of exhibit – exhibit ‘C’. 4. Test Report – exhibit ‘D’. EVIDENCE OF THE PROSECUTION WITNESS PW1 who is also the investigator herein D/L/CPC Emmanuel Abaya testified that on 7th December 2023, a case involving the accused was referred to him for investigations. That his investigations disclosed that the accused on 6th December, 2023 was sighted by personnel of the Police Intelligence Directorate on their routine patrol duties. That the accused upon seeing the police attempted to run away but was arrested by the personnel of the Police Intelligence Directorate. That a search conducted on the accused by the arresting officers disclosed sealed plain polythene sachet of plant material substance suspected to be narcotic drugs. That the accused was cautioned on the offence and he admitted in his caution statement that the substance retrieved from him was a narcotic drug for his personal use. PW1 tendered the caution statement of the accused person as exhibit ‘A’. That on the 25th January 2024, the exhibit was sent to the police forensic science laboratory for examination which was tested positive for cannabis. The said report was tendered in evidence as exhibits ‘C’ and ‘D’. That on the strength of the forensic report, the accused The Republic v. Nii Adjei Page 3 of 11 was charged with the offence; and the charge statement of the accused person was tendered as exhibit ‘B’. Thereafter, the prosecution closed its case. After the close of the case of the prosecution, the Court examined the evidence of the prosecution witness to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then made a finding that the prosecution had made out a prima facie case against the accused person; and he was called upon to enter into his defence. In view of the above, the Court found that the accused person had a case to answer. The court however explained the rights of the accused person to him that he can decide to remain silent, make an unsworn statement from the dock or give evidence on oath. The court also reminded the accused person of the charge against him. The trial was adjourned for the accused person to decide the option to choose, however the accused person subsequently jumped bail and failed to attend court notwithstanding being very much aware of the next court sitting. Although Bench Warrant was ordered to be issued for the arrest of the accused person, the police have still not been able to arrest him. Article 19 (3) of the Constitution of Ghana, 1992 provides as follows “The trial of a person charged with a criminal offence shall take place in his presence unless;- The Republic v. Nii Adjei Page 4 of 11 (a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; or (b) he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence.” Relying on the above authority, the court closed the trial and adjourned the case for judgment. LEGAL ISSUES The legal issue to be determined by this court is whether or not the accused person possessed a narcotic drug for use without lawful authority. BURDEN AND STANDARD OF PROOF A fundamental principle of our criminal justice system is that a person accused of a crime is presumed innocent until he has pleaded guilty or proven guilty. It is trite learning that in criminal cases, the prosecution bears the burden to prove the guilt of the accused person beyond reasonable doubt. See sections 11(2), 13(1) and 15 of the Evidence Act, 1975, (NRCD 323). In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held as follows; “Under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused The Republic v. Nii Adjei Page 5 of 11 person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence is proof on a balance of probabilities. Refer: Osae v. The Republic [1980] GLR 446 ANALYSIS Section 37 (1) of Act 1019 provides that: “A person who, without lawful authority, proof of which lies on that person, has possession or control of a narcotic drug for use or for trafficking commits an offence.” For the prosecution to succeed in proving a charge under section 37(1) of the Narcotics Control Commission Act, 2020 (Act 1019), they must prove the following ingredients:- 1. That the accused had in his physical or constructive possession or control of the narcotic drug. 2. That the accused knew of the presence of the drugs. 3. He knew of the nature of the drugs possessed. The Supreme Court held in the case Bonsu alias Benjilo v The Republic [1998-99] SCGLR 112 holding 4 on proof of section 2 of PNDCL 236 which is similar to section 37(1) of Act 1019 as follows: - “To prove the charge of illegal possession of a narcotic drug under section 2 of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), it must be shown that the appellant not only had physical possession but also knowledge of the nature and The Republic v. Nii Adjei Page 6 of 11 quality of what was possessed; namely, a narcotic drug since physical possession without the requisite knowledge would amount to no offence”. See also the dictum of Ollenu JSC in Amartey v The State [1964] GLR 256 at page 261. The accused person has been charged with possession of narcotics drugs without authority. The accused person on whom the narcotic drug was found did not dispute that the drug was found on him. From the evidence on record, the drug that is the cannabis was found on the accused person. He was therefore in physical possession. It is also clear from the evidence particularly exhibit ‘D’ which is the forensic test report from the Forensic Science Laboratory of the Criminal Investigation Department that the substance which was found on the accused person was cannabis. The accused person in his charge statement being exhibit ‘B’ admitted that the said substance was found on him and it was for his personal use. Exhibit ‘B’ was taken in the presence of an independent witness in accordance with section 120 of the Evidence Act, 1975 (NRCD 323). The accused was therefore in possession of the narcotic drug. The accused person did not show that he had lawful authority to be in possession of the drug. If the accused person was in possession of the drug without lawful authority, that is to say that, the accused person never offered any evidence as to having lawful authority to possess the drug as provided in section 37(1) of the Narcotics Control Commission Act, 2020 (Act 1019); then the next obvious question is whether or not the accused person had knowledge of the substance in his possession being a narcotic drug, for mere possession or control of a narcotic drug would not establish the guilt of the person in possession. In Bonsu alias Benjilo v. The Republic [supra], the Supreme Court held that in addition to possession or control of a narcotic drug, the prosecution must go further to establish that the accused person had knowledge of the nature and quality of the substance. From The Republic v. Nii Adjei Page 7 of 11 the circumstances surrounding the possession or control of the substance, it could be established whether the accused had knowledge or not of the substance. This, the prosecution is duty bound to prove. It has been held in a plethora of cases that to prove the charge of illegal possession of narcotic drugs, it must also be shown that the accused not only had physical possession but also knew of the presence of the drugs and the nature of the drugs possessed. Possession means not only physical possession but knowledge of the nature of the thing possessed. From the evidence on record, the accused knew that the substance he was carrying was narcotic drugs because he mentioned in his charge statement that he had in his possession the said substance and the purpose was for his personal use. Also, PW1 testified that the accused person attempted to run away when he saw the police but he was chased by the police and got arrested. The conduct of the accused person when he saw the police and his admission in exhibit ‘B’ indicate that he well knew of the nature of the substance he possessed and knew same was unlawful that is why he attempted to run away upon seeing the police. Therefore, it cannot be said that the accused person did not know the nature of substance he was carrying. The accused person never gave any evidence to the effect that he had lawful authority to possess the said narcotic drug. He also did not cross examine the prosecution witness to discredit the evidence he adduced. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. The Republic v. Nii Adjei Page 8 of 11 This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). Section 11(3) provides that: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution but he could not do so. The accused person did not give evidence to attempt to raise a reasonable doubt in the case of the prosecution. The accused person could not give any explanation that showed that he did not have knowledge of the cannabis he had in his possession. Indeed, the accused person rather admitted in exhibit ‘B’ that the said substance was for his personal use. It is therefore very clear that the accused person knew of the nature and quality of the thing he possessed as cannabis. I thus find that the accused knew that the nature and quality of the item he possessed was cannabis as in exhibits ‘B’ and ‘D’. Section 37(1) of Act 1019 as stated above puts the burden on the accused to show that he had lawful authority to possess the cannabis. However, the accused led no such evidence to the effect that he had lawful authority to possess the cannabis. I consequently find that the prosecution has succeeded in proving their case beyond reasonable doubt against the accused as having possessed a narcotic drug for use without lawful authority contrary to section 37(1) of Act 1019. CONCLUSION The Republic v. Nii Adjei Page 9 of 11 On consideration of the entire evidence on record, I find that the accused person had in his possession a narcotic drug for use without lawful authority. For the foregoing reasons, I find and pronounce the accused person herein guilty of the offence of possession of narcotic drug for use without lawful authority and the accused person is accordingly convicted in absentia. Pre-Sentencing hearing Court: Is the accused person known to the police? Prosecutor: No, he is a first-time offender. SENTENCING In sentencing the accused person, the court takes into consideration the fact that he is a first-time offender. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody by the accused person before his bail bond was executed, is also considered by the court. However, the court has equally considered the entire evidence on record and the fact that the crime in narcotics continues on daily basis. The court has further considered the fact that the accused person jumped bail and failed to appear before the court for continuation of the trial. The accused person therefore deserves a deterrent sentence to send a strong signal that such conduct is not countenanced by the courts. The court has also considered the punishment prescribed for possession of narcotic drugs for use without lawful authority. I consequently sentence the accused person to a fine of five hundred (500) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of fifteen (15) months in hard labour. The police shall obtain commitment warrant which will authorize the apprehension of the convicted person for the purpose of carrying out the sentence. The person effecting The Republic v. Nii Adjei Page 10 of 11 such apprehension shall endorse the date thereof on the back of the warrant, and the sentence of imprisonment imposed on the accused person apprehended on such warrant shall commence from the date of his apprehension. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Nii Adjei Page 11 of 11