IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 317/2020

BETWEEN:	
STATE
PROSECUTION

AND:		
SUBEDAR KHAN
ACCUSED

Counsel:		Sergeant 4897 Veni Vunaki for Police Prosecution
			Mr. M. Yunus with Ms. S. Ali for the Accused

Date of Hearing:	7 September & 17 October 2024
Date of Ruling:		17 January 2025
Date of Judgment:	10 February 2025

JUDGMENT

Introduction

1.	Mr. Subedar Khan (“the Accused”) was charged and produced in Court on 24 July 2020 for 1 count of Unlawful Possession of an Illicit Drug contrary to section 5(a) of the Illicit Drug Control Act 2004. The particulars of the offence are: 

Statement of Offence

Unlawful Possession of Illicit Drugs: Contrary to Section 5(a) of the Illicit Drugs Act 2004.

Particulars of Offence

Subedar Khan on the 22nd day of July 2020 at Naloto St, Yalalevu, Ba in the Western Division, was found in possession of 0.0202g of Illicit Drugs namely methamphetamine. 

2.	On 2 September 2020, in the presence of his counsel from Legal Aid Commission, the Accused pleaded Guilty to the above charge. The matter was then adjourned for Summary of Facts.

3.	On 16 September 2020, the Legal Aid Commission withdrew as counsel for the Accused and the Accused’s current solicitors then entered appearance for the Accused. On 7 October 2020, a Notice of Motion and Affidavit was then filed to vacate the Accused’s Guilty plea.

4.	On 23 October 2020, Prosecution raised no objections to the application, thus, this Court’s first predecessor vacated the Accused’s Guilty plea and the Accused thereafter pleaded Not Guilty.

5.	Various adjournments were then given to the counsel for the Accused to file Grounds of Voir Dire which was done on 18 April 2023. This Court’s second predecessor then fixed the matter for Voir Dire Hearing on 2-3 July 2024. 

6.	On 2 July 2024, Prosecution appeared and informed this Court that they would not rely on the Accused’s Caution Interview and Charge Statement as the consequences of not remaining silent was not explained to the Accused. The matter was then fixed for Trial on 7 September 2024.

7.	On 7 September 2024, Trial proceeded and Prosecution called 3 witnesses and thereafter closed its case. Counsel for the Accused then made an application pursuant to section 178 of the Criminal Procedure Act stating that a case was not sufficiently made out against the Accused to require him to make a defence. 

8.	It is important to highlight at the time of Prosecution’s case on 7 September 2024 when Prosecution’s second witness, Ms. Venti Chandra, the Senior Scientific Officer based at the Forensic Chemistry Lab gave evidence, Prosecution failed to provide her with gloves to allow her to open the Evidence Bag which was tendered as ‘PEX2’ during her evidence. Instead of seeking for the matter to be stood down to allow them to obtain the same, Prosecution stopped questioning Ms. Chandra.

9.	After the Court adjourned the matter for the No Case to Answer submissions, after careful consideration, the Court then issued a Notice of Adjournment of Hearing on both Prosecution and the Accused counsel to avail themselves in Court on 13 September 2024.

10.	On 13 September 2024, the Court informed the parties that pursuant to section 116(1)(c) of the Criminal Procedure Act 2009, the Court was going to recall Ms. Venti Chandra to be re-examined as it appeared to the Court that her evidence regarding the contents in the Evidence Bag was essential to the just decision of the case. The Court also informed Prosecution and the counsel for the Accused that pursuant to section 116(2) of the Criminal Procedure Act 2009, they would be given the opportunity to cross-examine Ms. Chandra.

11.	Ms. Chandra was subsequently recalled on 17 October 2024 wherein she opened the Evidence Bag and through Prosecution gave evidence regarding the contents of the bag. Thereafter, Ms. Chandra was cross examined by the counsel for the Accused.

12.	After Ms. Chandra’s evidence, the counsel for the Accused informed the Court that he maintained his application for No Case to Answer. As such, time was given to counsel to file submissions. Submissions were filed on 4 November 2024 and on 5 November 2024, Prosecution informed that they would rely on Court records.

13.	On 17 January 2025, this Court found that there was a case made out against the Accused sufficiently requiring him to make a defence. The procedure under section 179 of the Criminal Procedure Act was explained to the Accused. It was also explained to the Accused that he had a right to remain silent. The Accused chose to remain silent, not call any witnesses and not to make an unsworn statement in Court.

14.	Thereafter, counsel for the Accused informed the Court that they would rely on the submissions filed at the no case to answer stage.

15.	Having considered the evidence of Prosecution and the submissions filed by Defence, I now pronounce my Judgment.

Burden of Proof

16.	It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.

17.	It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.

Summary of Evidence

18.	It is expected that to arrive at a proper conclusion, the matter ought to be considered in its logical progression with formulated reasons for the ultimate conclusion with the general rule being that a judgment should set out the relevant events and the material evidence in the correct sequence in narrative form with the identifying number of each pertinent witness being incorporated at the appropriate places – vide Pal v R [1974] 20 FLR 1 (17 January 1974) as referred to in Wang v State Criminal Petition No. CAV 0013 of 2021 (26 October 2023) and State v Wang Criminal Appeal No. HAA 30 of 2019 (19 February 2021).

19.	Prosecution’s third witness, PC Sekove testified that on 22 July 2020, they had conducted a drug raid at Yalalevu, Ba. He testified that he found 2 ziplock plastic containing crystal then he asked Subedar Khan regarding it and he – Subedar admitted that it belonged to him. PC Sekove then seized the 2 ziplock plastic, arrested Subedar and produced him to the Ba Police Station where he handed over the drugs to Cpl Leslie, who was the Investigation Officer. 

20.	 Cpl Leslie, Prosecution’s first witness, testified that he was the Unit Supervisor and Investigating Officer in this matter. He stated that on 22 July 2020, they had received a report of Unlawful Possession of Illicit Drugs and the task force team brought in the suspect with white crystal like substance which was handed over to him. Cpl Leslie conducted the Caution Interview of the Accused and thereafter he prepared the drugs to be taken for analysis and after analysis it was exhibited at Ba Police Station by the Crime Writer. 

21.	Ms. Venti Chandra (‘Ms. Chandra’) was Prosecution’s second witness and she testified that on 23 July 2020, the Lab received 1 sample of crystal contained in a press sealed bag further contained in another press sealed bag with 5 apparatus being received as well.

22.	The crystals and the apparatus were anaylsed by Ms. Chandra and from her analysis it was noted that the crystals were methamphetamine whereas all the apparatus submitted tested negative for illicit drugs. Ms. Chandra then testified that the weight of the crystal was 0.0202g. Ms. Chandra then stated that the samples were sealed and the lab reference job number was noted on the exhibit and the exhibit was stored away awaiting dispatch to Cpl Leslie.

Evaluation of Evidence

23.	For a proper analysis of the evidence for the offence of Unlawful Possession of Illicit Drug, it is imperative for the Court to turn its mind to the elements of the offending, which are:

i.	the accused
ii.	without lawful authority
iii.	possesses
iv.	an illicit drug

24.	It is important to note that once this Court found that there was a case made out against the Accused sufficiently requiring him to make a defence, the Accused chose to remain silent and not call any witnesses, this Court is mindful that no adverse inference can be made against the Accused in this regard.

25.	the Court will need to evaluate the evidence by Prosecution. The evidence presented will be evaluated to determine the testimonial trustworthiness of the evidence which will be done by evaluating the credibility – the correctness or veracity of the evidence and the reliability of evidence – the accuracy of the evidence - vide State v Prasad Criminal Case No. HAC 72 of 2021 (20 June 2024). In doing this, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).

26.	It is important to highlight that at the time of the Prosecution’s case, the counsel for the Accused attacked the chain of custody of the illicit drug seized, as such, the Court will discuss the same.

27.	In the case of Prasad v State; Criminal Appeal Case No. HAA 02 of 2023 (28 July 2023) His Lordship Justice Aluthge discussed the meaning of chain of custody and what it entails. The following was stated:

38. The chain of custody is a legal term that refers to the chronological sequence of the movement of a substance, or a documentation of certain evidence. Such a chronological sequence of the events or movements is important to establish that the alleged substance has not been contaminated or interfered with any other foreign objects, or that the integrity of the original version of the substance had not been interfered or contaminated until it was tested and documented. [State v Kumar [2018] FJHC 1217; HAC347.2017 (12 December 2018)].

39. The phrase "chain of custody" in a drug case refers to a list of all people who have had contact with the drugs from seizure to trial. It must be established as to the officer who takes or seizes the drug, the officer (s) stores the drugs, the drugs evaluated by an expert for their weight and identity and after evaluation, the drug must return for safe keeping until it is exhibited in court. Each person handling the drug should be called as a witness to explain their role in the investigation to the court. If there is a gap in the chain of custody then that can create a doubt as to one or more aspects of the prosecution case that the drug may have been tampered, since there is no notion as to what happened with that drug when it was in the custody of the missing witness. A proper chain of custody is detailing who was involved, when the transaction occurred, where the drugs are located, and the reason for the transaction. The chain may also include photographs or videos of the transaction.

28.	Thus, the Court will need to ensure that there are no gaps from seizure to the time of trial.

29.	It is Prosecution’s case that on 22 July 2020, Cpl Leslie had received a report of unlawful possession of illicit drug. PC Sekove stated that he, PC Taka, PC Vunaki and PC Iosefo had conducted a drug raid at Yalalevu, Ba. PC Sekove further stated that he executed the search warrant after explaining it to the Accused and cautioning the Accused. Then they conducted the search.

30.	PC Sekove then went on to state that he found 2 ziplock plastic containing crystal and when he asked the Accused about it, the Accused admitted that it belonged to him. PC Sekove then seized the 2 zip lock plastic, arrested the Accused, proceeded to Ba Police Station where he handed over the drugs to Cpl Leslie. Cpl Leslie stated that the Task Force brought in the suspect with white crystal-like substance which was handed over to him.

31.	Ms. Venti Chandra (‘Ms. Chandra’) was Prosecution’s second witness and she testified that on 23 July 2020, she was rostered for analysis and that samples were brought in by Cpl Leslie and handed over to Susana Lawedrau, who was the person rostered for receiving cases on that day. Ms. Chandra testified that the samples were received in her presence and the Analyst Form that was handed over by Cpl Leslie was cross checked with the number of samples being handed over for analysis.

32.	Ms. Chandra stated for this particular case, the samples received by the Lab was 1 sample of crystal contained in a press sealed bag further contained another press sealed bag with there being 5 apparatus being received as well. Ms. Chandra stated that these consisted of 2 straws and 3 glass apparatus which were all contained in a pouch marked as ‘Melbourne’. All these samples were then collectively packed in a brown envelope which was the form the sample was received at the Lab.

33.	The crystals and the apparatus were anaylsed by Ms. Chandra and her findings were recorded by her with the relevant reports being prepared by her as well. The reports were signed by her and the samples were sealed by her after analysis with this case being allocated a specific lab reference which was 2201377. 

34.	The report was shown to Ms. Chandra and she confirmed that it was the report that she prepared as it had her signature. She explained that the first page was a statement describing how the samples were received and from whom, with the second page being the table of results and the third page being the Analyst Form. The Statement was then tendered as ‘PEX1A’, the table of results as ‘PEX1B’ and the Analyst Form as ‘PEX1C’.

35.	Ms. Chandra then went on to testify that from her analysis it was noted that the crystals were methamphetamine whereas all the apparatus submitted tested negative for illicit drugs. Ms. Chandra then testified that the weight of the crystal was 0.0202g. Ms. Chandra then stated that the samples were sealed and the lab reference job number was noted on the exhibit and the exhibit was stored away awaiting dispatch to Cpl Leslie.

36.	When shown the sealed brown Evidence Bag ‘PEX2’, Ms. Chandra testified that it was the same one she had sealed and that it had the same job reference number. She testified that she had sealed the bag on 23 July 2020 and that it had her initials on the seal.

37.	When Ms. Chandra opened ‘PEX2’ on 17 October 2024, she then testified that the contents of the bag which the Lab received was 1 sample of crystals contained in a press sealed bag  being ‘PEX2C’ which was packed in another pressed sealed bag being ‘PEX2B’ and the smoking apparatus being ‘PEX2E’ which was provided to the Lab was contained in the Melbourne pouch being ‘PEX2D’. She testified that all of these items were collectively contained in the brown paper bag being ‘PEX2A’. After analysis, all the analysed samples were packed in the brown Evidence Bag being ‘PEX2’ with the lab reference job number 2201377. Ms. Chandra further testified that this exhibit was received on 23 July 2020 and after analysis, the bag was sealed by her on the same date it was received.

38.	During cross examination, Ms. Chandra stated that only 1 sample of crystal had been brought over to the lab by Cpl Leslie, however, the general sample form brought by Cpl Leslie had 2 written on it as such they had asked Cpl Leslie to cross off the 2 and amend it to 1 as the lab was receiving only 1 sample of crystal. Ms. Chandra further stated that Cpl Leslie was also advised to place his initials to indicate the amendment done by him.

39.	The Court finds that the search list tendered by Prosecution states the following:

i.	1x small zip lock plastic (small) which contain methamphetamine – found inside the bedroom; and
ii.	2x small zip lock plastic (small) which contains methamphetamine – found inside the right pocket of pants.

40.	PC Sekove’s evidence was that he found 2 zip lock plastic containing crystal. Prosecution never clarified with PC Sekove as to where these 2 zip lock plastic were found. Prosecution even failed to clarify with PC Sekove as to why the search list highlighted that 3 zip lock plastics of methamphetamine were found. 

41.	Further, considering Cpl Leslie’s evidence, Prosecution failed to adduce evidence from him as to how many zip locks/samples of methamphetamine he had been received from PC Sekove on 22 July 2020 and what he had done with zip locks/samples of methamphetamine when he received them from PC Sekove.

42.	Additionally, the Court notes that the raid was conducted on 22 July 2020 and Cpl Leslie took the zip lock/samples of methamphetamine for analysis on 23 July 2020. Prosecution never adduced evidence as to where these had been kept from the time it was seized and handed over to Cpl Leslie at the Station to when it was taken by Cpl Leslie to Suva for analysis.

43.	Moreover, it was only during cross examination that Ms. Chandra explained that the general sample form received from Cpl Leslie reflected 2 samples being brought to the lab but that they then had him correct the same to reflect that they had only received 1 sample. The Court notes that Cpl Leslie’s evidence never touched on this.

44.	Considering Prasad [supra] the Court finds that the integrity of the chain of custody of the methamphetamine allegedly found in the Accused’s possession on 22 July 2020 has been so tarnished or tampered with to even allow the Court to consider the same beyond a reasonable doubt.

45.	Further, given that the integrity of the chain of custody has been so tarnished or tampered with, the Court is unable to rely on the alleged confession of the Accused to PC Sekove when the methamphetamine was allegedly found in the Accused’s possession on 22 July 2020.

46.	Thus, considering the circumstances, the Court finds that Prosecution failed to satisfy beyond a reasonable doubt that the Accused had been in possession of 0.0202g of Illicit Drugs namely methamphetamine.

Determination

47.	I find that Prosecution has not discharged its burden in proving all the elements for Unlawful Possession of Illicit Drugs beyond reasonable doubt.

48.	I, therefore, find the Accused, Subedra Khan, not guilty as charged for Unlawful Possession of Illicit Drugs and hereby acquit him forthwith.

49.	Any party aggrieved with the Court’s decision has 28 days to appeal to the High Court.

N. Mishra
Resident Magistrate