Principal Magistrate Omar Jabang of the Kanifing Magistrates’ Court on the 1st September, 2022, convicted and sentenced one Modou Sarr to a fine of D150,000 in default to serve two years imprisonment for being in possession of prohibited drugs for the purpose of drug trafficking contrary to Section 43( 4 ) (e ) of the Drug Control Act.
He stated that if the convict is unable to pay the D150,000 at once, he shall be given a grace period of three months to pay the amount pursuant to Section 259 of the CPC. Under this circumstance, he posited, the convict shall be put on bail in the sum of D200,000 or two Gambian sureties in the like sum. He said that the sureties will swear to an affidavit of means and also deposit their ID cards with the court. He ordered that 25% of the fine be paid to the State and 75% to the DLEAG. This followed the convict’s plea of guilt.
Inspector K. Jawla, who represented DLEAG, read the facts to the court. He said that the convict was arrested by operatives of the DLEAG who were on a divisional patrol. “We had information that the convict was dealing in suspected cannabis sativa. At his residence, we met him in his room while the door was closed. We knocked at the door and he opened it. After a search in his house, 12 bundles of suspected cannabis sativa contained in three different containers (black suitcase, chair box and a white carton) were recovered. He was taken for weighment and a weighment certificate revealing the substance’s gross weight to be 12kg 450g,” he stated.
The presiding magistrate told the court in his judgment that the weighment certificate was admitted into evidence and marked as Exhibit C. He further posited that an analytical report confirming the said substance to be cannabis sativa was also admitted into evidence and marked as Exhibit B. He noted that the 12 bundles of suspected cannabis together with their container were admitted into evidence and marked as Exhibit A series.
He went on to say that he had taken note of the plea of guilt by the convict and his further acceptance of the facts. He said that the law is very clear that notwithstanding the plea of guilt by the convict and his further acceptance of the facts, the facts so admitted must prove beyond all reasonable doubts the ingredients of the offences charged. “So even where the convict pleaded guilty and accepted the facts, if the facts so admitted do not prove the ingredients or any of the ingredients of the offence charged, he or she shall be acquitted and discharged of that particular offence,” the presiding magistrate stated.
He referred to Section 43( 4 ) ( e ) of the Drug Control Act 2003 to support his judgement. He noted further that so for an accused person to be convicted on the charge, it must be proven that he was found in possession of 2kg or more of cannabis sativa for the purpose of drug trafficking. He said that to determine the quantity of any prohibited substance caught with an accused person, reference must be made to the weighment certificate.
“The weighment certificate revealed the quantity of the cannabis in gross weight of 12kg 450g. It is clear that the substance recovered is more than 2kg. The weighment certificate had column for both gross weight and net weight. Therefore, it must be appreciated to know what a gross weight and net weight are for the purpose of clarity,” he declared. At this juncture, he referred to the Black’s Law Dictionary (Revised 4th Edition) to differentiate between gross weight and net weight. He adduced that a proper construction of Section 43( 4 ) ( e ) of the Drug Control Act 2003 will reveal that it is the cannabis which should be weighed and nothing else. “It cannot be weighed together with its content. This is because it is the cannabis which is the subject of the charge and not its container,” he said.
He further posited that the net weight would determine the exact quantity of cannabis found in the possession of the convict. He asserted that since this was not known from the evidence furnished by the prosecution, the court could not speculate on it. “It is not within the province of any reasonable tribunal to fish for evidence not before it. I therefore hold as a fact that the ingredient of the quantity of the cannabis alleged to have been found with the accused is not proved. There is a reasonable doubt which should be resolved in favour of the accused. The accused is hereby acquitted and discharged on count one. Since the accused is not in denial of being in possession of the cannabis, I find him guilty and convict him on Section 33( 1 ) ( d ) of the Drug Control Act,” he announced.