Presiding Magistrate Abdoulie Fatty of the Banjul Magistrates’ Court recently convicted and sentenced one Kawsu Ceesay to pay the sum of D150,000 in default to serve 3 years imprisonment after he was found guilty of possession of prohibited drugs for the purpose of drug trafficking contrary to section 43(4)(e) of the Drug Control Act 2003.
Delivering judgment, Magistrate Fatty disclosed that the prosecution had indicated that the convict, Kawsu Ceesay, on or about the 5th day of February 2014 at Sukuta in the West Coast Region of the Republic of The Gambia, had in his possession 4kg 520g of Cannabis sativa, a prohibited drug and thereby committed an offence.
He said at arraignment, the charge was read and translated to him in Mandinka language and pleaded not guilty to the charge.
Magistrate Fatty asserted that as in all criminal trials, the burden of proving the guilt of every accused person beyond reasonable doubt rests on the prosecution except where it is provided by statute.
He pointed out that in order to discharge that burden, the prosecution called five witnesses and tendered the following exhibits: Exhibit A – Weightment Certificate; Exhibit B – a black handbag containing a bundle of suspected cannabis and a blue nylon bag containing two bundles of suspected cannabis; Exhibit C – Analytical Report and Exhibits D and D1– Cautionary and voluntary statements respectively of the accused/convict.
Magistrate Fatty further pointed out that the accused/convict testified as DW1, the sole witness in his defence and tendered the following exhibits: Defence Exhibits A, B and C – statements of PW2, PW1 and PW4 respectively.
He said in determining the case certain issues arose for determination and they were:
(i) Whether the suspected cannabis was Cannabis sativa, a prohibited drug?
(ii) Whether the prohibited drug was found in the possession of the accused?
(iii) Whether the accused was in possession of the prohibited drug for the purpose of drug trafficking?
Magistrate Fatty stated that trafficking is an aggravated form of possession, adding that in this matter it was not in dispute that some 4kg 520g of Cannabis sativa was seized. The issue here now is – whether or not prosecution has proved beyond reasonable doubt that the accused/convict was found in possession of the said cannabis?
He revealed that the testimonies of the 1st, 2nd and 4th prosecution witnesses were very material to the case because they were present on the ground when the convict was arrested and therefore found their evidence against the convict direct, strong and mutually corroborative.
He remarked that it is well established that where evidence remains unchallenged and uncontroverted, the court has no choice than to regard it as establishing the facts alleged therein, citing the Antoine Banna versus Ocean View Resort Limited and ors (2008) 1 GLR, and also Jayesena versus the Queen [ 1970] AC 618 at p.624.
Magistrate Fatty said the convict did not offer any strong and credible evidence to lend probative value to his evidence as a result he found the entire evidence rather implausible, simplistic and incredible.
He asserted that the fact that the cannabis in the instant case weighed more than 2kg, does not automatically prove the ingredient of trafficking, stating that weight is just one of many factors to be considered.
Magistrate Fatty disclosed that for trafficking to be made out, there should be an intention on the part of the possessor of the drugs to supply to another or being concerned in supplying the drugs. It follows therefore that there ought to be evidence before this court that the accused/convict was in possession of the Cannabis sativa for the purpose of supplying the said cannabis to another.
“In that regard, no compelling evidence has been adduced by the prosecution to show the court that the accused was in possession for the purpose of trafficking,” he said
He therefore held that the prosecution discharged its legal burden to the required standard pursuant to section 144(1) of the Evidence Act 1994 with regards to possession, and pursuant to section 151 of the Criminal Procedure Code, convicted him for the offence of possession of prohibited drugs without a valid licence contrary to s.35(2)(c) of the Drug Control Act 2003, as amended.
In passing sentence, the trial magistrate said the convict is a first time offender and for that reason the court would temper justice with mercy and therefore sentenced him to pay a fine of D150,000.00 and in default to serve three years imprisonment.
Magistrate Abdoulie Fatty said in pursuant to section 259 of the Criminal Procedure Code, the term of imprisonment is suspended for five months and shall come into force if the convict defaults to pay the fine.
He said the fine may be paid by instalments within the five-month period and he was admitted to bail in respect of the fine on condition that he provides the following:
i. Two Gambian sureties who shall enter into recognizance in the sum of D150,000.00; and
ii. The sureties shall depose to an affidavit of means and also deposit their national ID Cards with the registrar of this court.