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State v Kumar [2010] FJMC 76; Criminal Case 366 of 2009 (24 August 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 366/09

BETWEEN

THE STATE

AND

DOMINIC LATCHMAN KUMAR

JUDGEMENT

1. The accused in this case is charged for being in possession of illicit drugs.
   
2. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Possession of Illicit Drugs: Contrary to Section 5(a) of Illicit Drug Control Act 2004.

Particulars of offence

Dominic Latchman Kumar on the 9th day of September 2008 at Lautoka in the western division without lawful authority had in his possession 6.5g of Cannabis or Indian hemp, an illicit drug.

3. The accused was charged on the 21st September 2009. Later the High Court extended the Jurisdiction for the Magistrate Court to hear the case and the case was taken up for hearing on the 14th May 2010.
   
4. A State Counsel of the DPP office prosecuted the case while the accused was unrepresented. The prosecution called 6 witnesses. The government analyst report was tendered as evidence with the consent of the accused. After the prosecution case, the court decided that the prosecution made out a case for the accused to reply. Only the accused gave evidence for the defense.
   
5. The section 5(a) of the Illicit Drugs Control Act reads as follows;
   

"Any person who without lawful authority acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or imprisonment for life or both."

6. It appears that in this case the prosecution has to prove the following ingredients beyond reasonable doubt.
   
   1. The time and place of the alleged offence
      
   2. The identity of the accused
      
   100. The substance found by the police is an illicit drug
        
   4. The substance was found in the possession of the accused
      
   5. The accused possessed the substance without lawful authority.
      
7. The prosecution witness, Simione Tuivuya PC 2891 gave evidence and said that on the 19th September 2009 at about 2 pm he was on duty and received information regarding a person dealing dry leaves believed to be Marijuana. He said according to the information the accused was committing the offence at his house in Guruwaiya street. The witness said he prepared a search warrant and went to the said place with a team. The witness identified the accused as the person who was arrested for the alleged offence. According to the prosecution evidence a metal Benson and Hedges packet containing 21 sachets wrapped in aluminum foils was taken charge by the police.
   
8. The accused did not dispute the time, place and the identity of the accused. Further the evidence led by the prosecution regarding these issues was not challenged by the accused. Therefore I am satisfied that the prosecution proved the first two elements beyond reasonable doubt.
   
9. The Government Analyst report was tendered in evidence by the prosecution. The accused consented to the report being marked without calling the Government analyst. According to the report the substance sent to the Government analyst has been identified as Indian Hemp leaves botanically known as Cannabis sativa. The weight is measured as 6.5g. The accused did not dispute the findings of the government analyst. Therefore I am satisfied that the substance produced in this case is an illicit drug.
   
10. The only contention of the accused was that the substance found by the police was not found in his possession. The accused admitted that the Police officers found illicit drugs from his compound yet he contend that it was not any where on his body.
    
11. The prosecution witness PC 2891 Simione Tuivuya said in evidence;
    

"We stopped about 10 meters away from the house and observed from which place we can enter the compound. After a while we saw Dominic came from his house to open the gate for one of his cousins to enter the compound. I informed my group to proceed and I executed the search warrant. Informed him that there is information to say that he deals with dry leaves believed to be Marijuana. Then Dominic voluntarily showed us a packet of Benson and Hedges. He said this is the thing you came for. He informed me that it's the only dry leaves in this house. Search list was done and signed. A copy was given to him. After that arrest was taken place. Dominic was taken to Lautoka Police Station.

12. The accused cross examined this witness. Yet he did not challenge what the witness said. All what he asked from the witness was whether they found anything from his body. The accused cross examined the witness in the following manner;
    

"Q: Did you find any thing in me?

A: No

Q: Did you find anything on my body or in my clothes?

A: No

Q: Is it the only tin in Lautoka?

A: No

Q: after how many days was it sent for analysis?

A: I am just the arresting officer. I handed it over to the investigating officer. So I don't know

Q: How can you say the 21 sachets are drugs?

A: We believed it to be Marijuana

Q: You didn't know whether it is or not?

A: On that particular day we believed it to be Marijuana.

Q: who did you hand it over to?

A: Constable Jitend.

13. Therefore it is clear that the accused did not dispute the fact the illicit drugs were found in his compound. Further he did not dispute the fact that he showed it to the Police. His contention is that it was not in his clothes or on his body. At this juncture it is worthwhile to ascertain what is meant by "in possession". In Luisa Wakehem V The State (2003) HAA 0040J2003S Justice Shameem discussed what is meant by the term "in Possession" at length. Accordingly the court has to ask the following questions to ascertain the possession.
    
    1. Was the Benson and Hedges tin under the accused's physical control?
       
    2. Did he know of the existence of the Benson and Hedges Tin?
       
    100. Did he therefore knowingly possess the drugs?
         
14. According to the evidence led by the prosecution the metal Benson and Hedges packet containing 21 sachets of illicit drugs was shown by the accused. The police officer who did the raid said in evidence that the accused showed the item saying "this is the thing you came for". At any point during the cross examination the accused did not challenge this evidence. The police witness said "upon approaching him he pointed out the packet on top of the counter".
    
15. After the prosecution case the following evidence was given by the accused;
    

"The drugs were not found in my possession. It's true that the foils were found in the compound. But it was not found in me. It could be any one I don't know. Many years ago I did use drugs. Even I had to do trafficking and sell the drugs. But this packet is not mine. I don't have anything else to say".

16. In answer to the questions put by the prosecution, the accused said that he admits that the drugs were found from his compound but it was not found in his body. He said that his understanding is that the drugs have to be found in his body. The prosecution evidence revealed that the metal Benson and hedges packet was shown to the Police by the accused. That evidence was not challenged by the accused. Thus it is clear that the accused was aware of the existence of it and was in physical control of it. Further the prosecution witness said that the accused said that's what they came for. It appears that the accused knew what was inside the Benson and Hedges packet. I am convinced that the accused knowingly possessed the drugs. In the circumstances I am satisfied that the prosecution proved beyond reasonable doubt that the accused was in possession of the items found by the Police.
    
17. The witnesses who gave evidence for the prosecution established the chain of custody of the items found from the accused's possession. The evidence of the prosecution witnesses could not be discredited by the accused. The prosecution proved that the items which were in the possession of the accused were taken charge by the police and were delivered to the Government Analyst for testing. The accused did not dispute the findings of the government analyst report. Further there was no evidence to suggest that the accused has a lawful authority to possess drugs.
    
18. Accordingly I decide that the prosecution discharged its burden of proving. I decide the charge against the accused is proved beyond reasonable doubt. I find the accused guilty of the offence he is charged with and convict him accordingly.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
24.08.2010