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State v Ramzan [2022] FJHC 67; HAC151.2019S (17 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 151 OF 2019S


STATE


vs


MOHAMMED RAMZAN


Counsels : Ms. S. Tivao and Mr. M. Rafiq for State
Ms. E. Radrole and Mr. A. Barinisavu for Accused
Hearings : 14, 15 and 16 February, 2022.
Judgment : 17 February, 2022.


JUDGMENT


  1. On 14 February 2022, in the presence of his counsels, the following information was read over and explained to the accused:

“Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUGS: Contrary to Section 5(a) of the Illicit Drugs Control Act 2004.


Particulars of Offence

MOHAMMED RAMZAN on the 27th day of November 2017 at Sigatoka in the Western Division, without lawful authority had in his possession 5.5 kg of Illicit Drugs known as Cannabis Sativa.”


  1. He said, he understood the charge, and he pleaded not guilty to the same. The prosecution briefly opened their case. They then called six witnesses:
  2. The prosecution tendered the following exhibits:
  3. The parties also submitted an “Admitted Facts”, dated 24 October 2019, containing 7 paragraphs of agreed facts, pursuant to section 135 of the Criminal Procedure Act 2009.
  4. At the end of the prosecution’s case, the defence submitted there was no case to answer, on the ground that it was not established by the prosecution that he knew the illicit drugs found in the two bags in his car, were cannabis sativa. The prosecution countered by submitting that the cannabis sativa was found in two bags in the rental car, which he had full control of at the material time. The prosecution relied on section 32 of the Illicit Drugs Control Act 2004 to say that accused had possession of the illicit drugs at the material time. The court agreed with the prosecution and ruled that there was a case to answer by the accused. The standard option was given to the accused. He chose to give sworn evidence and called two witnesses.
  5. The defence witnesses were as follows:

Thereafter, the parties presented their closing submissions.


  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty. The prosecution must prove the accused’s guilt beyond reasonable doubt. If there is a reasonable doubt, so that the court was not sure of the accused’s guilt, he must be found not guilty as charged and acquitted accordingly.
  2. For the accused to be found guilty of “unlawful possession of illicit drugs”, contrary to section 5 (a) of the Illicit Drugs Control Act 2004, the prosecution must prove beyond reasonable doubt, the following elements:
  3. “Cannabis sativa plants” are “illicit drugs” within the terms of the Illicit Drugs Control Act 2004. Pursuant to section 2 of the Act, all the drugs listed in schedule 1 of the Act are “illicit drugs”. Cannabis sativa plants are listed in schedule 1 (part 8).
  4. Key to the above offence is the verb “possesses”. The above 2004 Act does not define the word “possesses”. In the Oxford Advance Learner’s Dictionary, Oxford University Press, 6th edition, 2002, the word “possesses” is taken to be a verb meaning “to have or own something”. In other words, it means to have or have physical control of something. This appears to be the physical element of the offence. In addition to this physical element, the prosecution must also prove beyond reasonable doubt, the mental element of the offence, that is, when the person had physical control of something, he also had the intention or knowledge to have physical control over that something. The above are the physical and mental element of the offence.
  5. The prosecution must also make the court sure that the accused had no lawful authority to possess the illicit drug.
  6. The prosecution must also, in addition to the above, make the court sure that the chain of custody of the illicit drug from the accused to its production in court, are not broken.
  7. The court will now examine the prosecution’s case. By virtue of the parties’ “Admitted Facts”, dated 24 October 2019, the parties had admitted that the accused in this case was Mr. Mohammed Ramzan. They admitted that, the accused, on 27 November 2017, was driving a rental vehicle registration number LR 4304 (black Honda vehicle), from Suva to Nadi. They admitted that, while driving the said vehicle, the accused was stopped by PC Rusiate (PW1) at Korolevu Community Post. They admitted that PC Rusiate (PW1) then checked the said vehicle, and he found a potato bag and another bag, which contained dried leaves. They admitted that, as a result, the accused was arrested and taken to Sigatoka Police Station (SPS). They admitted that the accused was caution interviewed by police the next day, that is, 28 November 2017. On the same day, 28 November 2017, the dried leaves were analysed by the government’s Principal Scientific Officer, and the same were confirmed to be cannabis sativa, weighing 5.5 kg. On 29 November 2017, when the caution interview recommenced, the accused admitted to police that he was in physical possession of the above illicit drugs in his rental car on 27 November 2017, when he was stopped by PC Rusiate (PW1) [see Questions and Answers 50, 51, 52 and 53 of Prosecution Exhibit No. 5]. So, on the basis of the “Admitted Facts” and caution interview statements [Prosecution Exhibit No. 5], the accused had admitted that he was in physical control and had in his physical possession, in his rental car, the alleged illicit drugs, at the material time.
  8. The evidence of PC Rusiate (PW1) basically confirmed what’s contained in the “Admitted Facts”. PW1 said, at about 11.30 pm on 27 November 2017, he stopped the accused’s car at Korolevu Community Police Post. PW1 said he searched his vehicle and found two bags containing dried leaves. PW1 said, with the assistance of PC Pauliasi (PW2), they later escorted the accused and the alleged drugs to Sigatoka Police Station. At the station, PW1 said, he handed over the alleged drugs to then Sergeant 2771 Aminand Prasad (PW3). PW3 said, he later handed the alleged drugs to then Corporal 2118 Satendra Kumar (PW4). PW4 said, he later handed the alleged drugs to Crime Writer WPC Sylvia. PW4 said, in his presence, WPC Sylvia registered the alleged drug in the Register of Court Exhibit (Prosecution Exhibit No. 1). PW4 said, he and WPC Sylvia later put the alleged drugs in the exhibit bag, and they sealed the same. PW4 said, he later took the sealed exhibit bag to the Forensic Chemistry laboratory and handed the same to Ms. Miliana Werebauinona (PW5). PW5’s credentials is recorded in Prosecution Exhibit No. 2. She is a Principal Scientific Officer. PW5 said, she analysed the dried leaves and confirmed the same to be cannabis sativa, weighing 5.5.kg. She submitted her Certificate of Analysis as Prosecution Exhibit No. 3. PW4 said he later obtained the illicit drugs from PW5 in the sealed bag and returned the same to Sigatoka Police Station. PW4 said, he handed the sealed bag to WPC Sylvia for safe keeping. The sealed bag was tendered in court by PW5. WPC Sylvia had left the police. She is now in New Zealand. In my view, the chain of custody of the analysed drug from the police to the court had not been broken.
  9. The above was a summary of the prosecution’s case. The defence’s case was simple. They did not deny that the accused had the illicit drugs in the two bags in his car, when he was stopped by police at Korolevu Community Police Post, on 27 November 2017. The accused, in his sworn evidence, confirmed the above. However, he said he did not know it was cannabis sativa. According to him, a friend of his called “Junior”, asked him to pick up the bags from Flagstaff, Suva, to take to Nawaka, Nadi. He said, he did so. He called a witness, Mr. Shalendra Sen (DW2) to confirm the above. DW2 said, he saw “Junior” put the two bags into the accused’s car at Flagstaff, Suva on 27 November 2017 at about 9 pm.
  10. So, the question for the court now was, given the totality of the evidence, from the six prosecution’s witnesses and the three defence’s witnesses, has the prosecution proven the accused’s guilt beyond reasonable doubt? In this case, the court had carefully listened to all the witnesses during the three days trial. The court had carefully considered all the witnesses’ demeanour. Although the burden to prove the offence beyond reasonable doubt lies with the prosecution throughout the trial, I find the explanation given by the accused to the police when he was discovered carrying the illicit drugs in his car, quiet puzzling. An innocent man in his shoes, would call “Junior” immediately, when he was discovered by police. He had his mobile phone number. In Question and Answer 30 of his caution interview [Prosecution Exhibit No. 5], “Junior” directed him to the pick up point via his mobile phone. So, Junior’s mobile phone number was in his mobile phone. Why didn’t he, in the presence of PC Rusiate (PW1) and PC Pauliasi (PW2), at the Korolevu Community Police Post road block, call Junior and make a protest to him of what he allegedly put in his rental car? In my view, an innocent man would do the above.
  11. An innocent man would not tell PC Rusiate, when he was questioned three times at the road block, that he was returning from a business trip from Suva and the matter was personal. If he did not know what was in the two bags, he would have been upfront with the police. The court observed when he was under cross examination, he was very evasive in his answers. Looking at the evidence in their totality, I find the prosecution’s witnesses’ evidence credible and I accept their evidence. I find the defence’s witnesses’ evidence not credible. I therefore reject the accused’s view that he did not know that he had cannabis sativa in the two bags. In my view, he knew he had cannabis sativa in those two bags.
  12. Given the above, I find the prosecution had proven the accused’s guilt beyond reasonable doubt, and I find him guilty as charged. I convict him of the charge accordingly.

Salesi Temo
JUDGE


Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Legal Aid Commission, Suva.

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