S v Apav (CC/389/202) [2024] GHACC 403 (30 September 2024)

IN THE CIRCUIT COURT OF JUSTICE, SITTING AT ASHAIMAN ON FRIDAY THE 30TH DAY OF SEPTEMBER, 2024 BEFORE HIS HONOUR SIMON NKETIAH GAGA CIRCUITCOURTJUDGE SUITNO: CC/389/202 THE REPUBLIC VRS: DANIEL APAV, a.k.a. RASTA J U DGMEN T The accused personwas charged withthe following charges. 1. Unlawful Possession of Narcotic Plant material without Authority, Contrary to Section 41 (2) (b) of the Narcotic Control Commission, (Act 2020 Act 1019.) 2. Unlawful Possession of Narcotic Plant material for USC, Contrary to Section41(2) (a)oftheNarcoticControlCommission, Act 2020(Act 1019) The accused person pleaded guilty on count two. However, he pleaded not guiltyoncount one. The court, on the 25th of April, 2023 dealt with the accused person on count two accordingly. On count one, the particulars of the case are that the accused, on the 5th of September, 2022 at Santoe and within the jurisdiction of this court did has in his Page1of10 possession one hundred and eighteen(118) wraps of Narcotic plant material with intentto sellwithout lawfulauthority. The facts, as presented by the prosecution are that Complainants are No. 54448G/L/Cpl Bright Adomako and No. 55592 G/Constable Kennedy Amponsah stationed at Kanewu Police Station Ashaiman. Accused person Daniel Apau aged 37 is unemployed and lives in uncompleted building at Santoe. On5th September 2022, the complainant were deployed on patrol duties with Police Apsonic motorbike with registration number GP2476 Colour, white within Santoe and its environments. At about 1330 hours same day whilst on routine patrols, they observedthat two young men were smoking aherbalsubstance which smells like Indian hemp under a tree close to Abizy drinking spot at Santoe. The patrol officers proceeded to the scene and one of the suspect upon seeing police approaching fled into the bush. However, the suspects upon seeing police approaching fled into the bush. However, the complainants managed to arrest the accused person who was sitting on a bench smoking a substance suspected to be Indian hemp with a chicken bone smoke pipe. Abrownish dark hand bag was found on the bench containing three (03) additional chicken bone smoke pipes, pieces of brown cement papers, a match box with sticks, one bundle of arzzler paper, pens and exercise book which the accused person claimed ownership. A search was then conducted at the scene and aback polythene bag containing one hundred and eighteen (118) pieces of dry leaves wrapped with brown cement paper and a white polythene sheet, nine (09) compressed Toffees, fifty (50) pieces of dry leaves package in a form of cigarette all suspected to be narcotic drugs were found under the woodenbench which the accused person was seated. Both the accused person and the exhibits were brought to the station and a complaint was filed. The accused person was cautioned and the exhibits retained for forensic analysis and confirmation. The accused person was charged and arraigned beforecourt. Page2of10 To proof his case against the accused person on count one, the prosecution called onewitness. Lance Corporal Bright Adomako at Ashaiman Kanewu Police Station testified as PW1. PW1 told the court that on the 5th day of September 2022 he led a team of Police Officersonamotorbike patroldutyat AdjeiKojoand its environs. When they got to a section of the road at Santoe, there was a drinking spot, where they saw the accused person and another person smoking some herbs, which they suspected to be Narcotics. They were smoking under a tree near the drinking spot smoking thesubstance. That upon seeing the police, the other person bolted leaving behind the accused person smoking the substance in a bone pipe which the police seized from him foeevidential purposes. According to PW1, they conducted a search around the scene and they found a brownish bag on a bench on which the accused was seated which contained additional three bone pipes. The bag also contained pieces of brown cement paper,amatch boxwith matchsticks. One bundle of razor paper, pens, and exercise book which the accused person claimed ownership. A further search was conducted and a black polythene bag containing 118 wraps ofdried leavessuspected tobe narcotic substance. According toPW1,allthe substances were seize and latertested tobe cannabis. The accused personcross-examined the PW1and this waswhat ensured. Q: Did yousee me smoking herbsonthatday? Page3of10 A: Yesmy Lord. Q: Did you take what I was smoking to the forensic laboratory for testation? A: Yesmy lord. Q: Iput it toyouthat Iwas smoking tobacco and notnarcotic. A: That isnot true. Q: Do Ilive where yousaid yousearched forthe herbs? A: No. Q: Yousaid you sawme under atree? A: Yesmy lord. Q: Youagreewithme thatanybody cancome and situnder thetree? A: Yesmy lord. Q: Anybodycanput anything under the tree? A: Yesmy lord. Q: I put it to you that what you found under the tree could belong to someone? A: Yes, my lord. After the cross-examination of PW1 by accused person, prosecution told the court that she has closed her case and would not call any other witness. Page4of10 Now, it is the duty of the court to ascertain if the prosecution has been able to establish a prima facie case against the accused for the accused toopenhisdefence. ANALYSISOF THE OFFENCE The accused person was charged for Possessing of Narcotic Plant material without AuthorityContrary toSection 41(2)(b) ofthe Narcotic ControlCommission Act of2020(Act 1019)which statesas follows: a. “41 (2) A person who commits an offence of unlawful Possession or ControlofaNarcotic Plant. b. For trafficking is liable on summary conviction to the fine and imprisonment specified in the second schedule and an additional term of imprisonment specified in the schedule if the fine is not paid. The second schedule states that a person who commits the offence Under Section 41(1) (b) of the Act is sentenced to Ten thousand Penalty Units and not more than 25,000 Penalty Units or in default not less than ten (10) years and not more than twenty-five years’ imprisonment. By Section 41 92) (b) of the Act 1019, the person must be in possessionofthesubstance. A person is said to be in possession of an object or substance if he has physical control of the substance as to its disposal, control or otherwise. SEE:THEREPUBLICVRS: MUNKAILA (1996-97) SCGLR445. Page5of10 Atuguba JSC, speaking through the case KAMIL V: THE REPUBLIC (2011) ISCGLR 300, among others states that on a charge of possessing a narcotic drug, the prosecution must prove thefollowing against the accused. (1) Custodyorcontrolofthe drugby the accused. (2) Knowledgeofthe presence ofthe drug. (3) Knowledgeofthe natureofthe drugpossessed. SEE also: BONSU ALIAS BENGILLO V THE REPUBLIC [2000] SCGLR112. It is trite law that in criminal trial the prosecution has to prove all the ingredients of the offence with which the accused has been charged beyond reasonable doubt. The burden of proof remains on theprosecution. It is after a prima facie case has been established that the accused wouldbe called upontoopenhis case. SEE: GLIGAH & ANOTHER V THE REPUBLIC (2010) SCGLR 878. It therefore means that it is the prosecution who should prove the guilt oftheaccused person. The accused is not to prove his innocence. Has the prosecution been able to prove the guilt of the accused person to warrant the accused persontobe called upontoopenhis defence? Section 173 of the criminal and other offences procedure, Act 30 of 1960 states that if at the close of the evidence in support of the charge, it appears to the court that a case is not made against the Page6of10 accused sufficiently to require him to make a defence, the court shall astothat particular charge acquit him. The courts have upheld such submissionwhere there is no evidence to proof an essential element of the offence charge or where the evidence adduced by the prosecution has been discredited under cross-examination that no reasonable court minded of doing justice wouldconvict onit. SEE:THESTATEV ALIKASSENA (1962) IGLR44 SEE: Also APALOO & ANOTHER V THE REPUBLIC (1975) IGLR 156. Now could it be said that the evidence led by the prosecution falls within the ingredients. The question can be answered by looking at thecharge levelledagainst the accused personby the prosecution. The accused person has been charged for unlawful possession or control of narcotic plants. The question that should be asked at this stage is whether the prosecution adduced evidence to the effect that theaccused committed the offence. PW1 in his evidence before the court said that he led a motor bike patrol team at Adjei Kojo that on reaching a section at Santoe, the team saw the accused person and another suspect smoking same substance which they suspected to be cannabis. On reaching the accused person and the suspect, the suspect bolted and they arrested the accused. Upon searching the area, they saw some 118 wraps of dried leaves in a polythene bag. When same was tested they proved to be cannabis. Page7of10 It should be noted that after the prosecution led PW1 to testify, the accused asked the PW1 these question Q: Did Yousee me smoking herbsonthat day? A: Yes, my lord Q: Did youtakewhat I wassmoking totheforensic laboratory. A: Yes, my lord. Q: Iput it toyouthat Iwas smoking tobacco and notnarcotics. A: That isnot true. Flowing from this cross-examination, the burden was on the prosecution to produce the results of the forensic laboratory. However, prosecution failed to. Also, the prosecution failed to tendered in evidence the alleged cannabis that PW1 said his team accused took under the tree where the accused and the other suspect where smoking under the tree nearthe drinking spot. It should also be noted that the accused during cross-examination of the PW1 said what he was smoking on that faithful day was tobacco and notcannabis. The position therefore of the accused person is that he was not in possessionofcannabis. It is therefore my considered opinion that for the court to accept the evidence of the prosecution, the prosecution has to tendered in evidence the forensic report and the alleged cannabis that prosecutionclaimed belongsto theaccused. Page8of10 It is trite law that if prosecution fails to produce amaterial evidence, it ensurestothe benefit ofthe accused person. SEE: KWAKA FRIMPONG @ IBOMAN V THE REPUBLIC (2012) 2SCGLR27 From the above analysis, I am firmly grounded to say that the prosecution has failed to prove her case against the accused person for unlawful possession or control of narcotic plants. I therefore entersubmission ofno case for the accused person. The accused personis thereforeacquitted and discharged. H/HSIMONNKETIAHGAGA CIRCUITCOURTJUDGE Prosecution ChiefInspectorJoyce Nyarko present Accused personpresent. Page9of10 Page10of10