Friday, September 29, 2023

Acquitted And Discharged Accused Ordered To Pay D150,000 Or Serve Two-year Jail Term

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By: Ousman Saidykhan

Magistrate Jabang of the Kanifing Magistrate Court has acquitted and discharged one Modou Sarr who was under a drug-trafficking charge after leaving the court in doubt as to whether the drug found with the accused meets the 2kg threshold to be classified as drug trafficking.

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However, the accused was sentenced to a fine of D150, 000 in default to serve 2 years in prison for keeping in possession the said prohibited drug, Cannabis Sativa.

“If the accused is unable to pay the D150, 000 at once, he shall be given a grace period of three months to pay the same pursuant to section 259 of the CPC. Under that circumstance, the convict shall be put on bail in the sum of D200,000 or two Gambian sureties in the like sum. The sureties are to swear to an affidavit of means and also deposit their ID card with the court,” Jabang said.

He has also ordered that 75% of the fine be paid to the Drug Law Enforcement Agency Gambia (DLEAG) and 25% to the state.

Modou Sarr was first arraigned at the Kanifing Magistrate Court on the 29th of August 2022 having been charged with “possession of the prohibited drug for the purpose of drug trafficking,” to which he pleaded guilty. The 12 bundles of the illicit drug found with the Tallinding native were said to have been kept in three containers (black suitcase, chair box and carton).

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Section 43(4)(e) of the Drug Control Act 2003 provides that, “A person who is found in possession of more than two kilograms of cannabis commits the offence of possession for the purpose of drug trafficking unless the contrary is proved, the burden of which shall be on him or her.”

It was now required for the prosecution to prove beyond all reasonable doubts despite the accused pleading guilty. That also means proving to the court whether the drug’s weight is up to 2 kilograms to be considered “purpose of drug trafficking” However, the magistrate held that the court was left in doubt with regards to one of the prosecution’s documents, the Weighing Certificate, marked as Exhibit C which details the weight of the drug found in possession of the accused.

According to the weighing certificate, the 12 bundles of cannabis were weighted with the containers which gave them gross weight instead of the net weight.

“There is no evidence before me to suggest that a suitcase, a chair box and a carton are prohibited substances requiring weighment (sic) for the purposes of punishment. There is nowhere in the aforesaid section in the whole Drug Control Act and its Amendment where it is stated that cannabis should be weighed with its content.

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“…I, therefore, hold as a fact that the ingredient of the quantity of cannabis alleged to be found with the accused herein is not proved,” Jabang ruled.

Meanwhile, section 151 of the Criminal Procedure Code provides for the conviction of an individual if the “evidence shows that some integral parts of the offence charged only are proved, and such parts which are so proved or some of them taken together constitute another offence…”

It was pursuant to this section that the accused was sentenced because he accepted to have possessed the illegal drug.

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