HANSON MENSAH AND ANOTHER v. COMMISSIONER OF POLICE [1963] 2 GLR 536

DIVISION: IN THE SUPREME COURT

DATE: 20TH DECEMBER, 1963

BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.

CASES REFERRED TO

(1) R. v. Metz (1915) 113 L.T. 464; 31 T.L.R. 401; 25 Cox C.C. 67; 11 Cr.App.R. 164, C.C.A.

(2) R. v. Val-Vannis (1949) 12 W.A.C.A. 414

(3) R. v. Bates [1911] 1 K.B. 964; 104 L.T. 688; 6 Cr.App.R. 153, C.C.A.

NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court affirming the conviction of the appellants of the offence of cultivating Indian hemp contrary to section 49 of the Pharmacy and Drugs Act, 1961, entered by the Circuit Court, Attebubu, Brong-Ahafo. The facts are set out in the judgment of the Supreme Court.

COUNSEL

Mensah for the first appellant.

Amissah-Aidoo for the second appellant.

D. F. Annan, Senior State Attorney, for the respondent.

[p.539] of [1963] 2 GLR 536

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The two appellants were convicted by the Circuit Court, Attebubu, Brong-Ahafo, of an alleged offence of cultivating Indian hemp contrary to section 49 of the Pharmacy and Drugs Act, 1961,1 particulars of the alleged offence were given as follows: [His lordship here read the particulars of the offence as set out in the headnote and continued:] The appellants were convicted and sentenced, each to ten years imprisonment with hard labour. They appealed against the sentence to the High Court which dismissed the same summarily saying: “I consider the offence against each appellant very serious and in view of the evidence on record, even though each appellant had no previous conviction, I consider the sentence imposed adequate and not excessive.” From that decision they each appealed to this court on a number of grounds, only three of which were argued. These are: “(1) The whole trial and conviction is bad in law because the written consent of the Attorney-General required by section 57 (5) of the Pharmacy and Drugs Act, 1961 (Act 64) was never obtained.

(2) The sentence of ten years was illegal because section 49 of Act 64 under which the accused were charged dealing with narcotics and the trial having been summary, the maximum sentence the court could have imposed was twelve months.

(3) Indeed on a proper construction of section 49 of Act 64 in relation to section 57 (2) (b) of the said Act the maximum sentence the court could have imposed was six months.”

At the time the appeal came on for hearing, the appellants had served nearly twelve months of the term of their imprisonment.

Having become convinced at the close of the arguments of the appeal that the sentence passed upon the appellants was illegal even if the proceedings were legal, and that the appellants had already served about twice the maximum term which could lawfully have been imposed upon them, we made an order for their release forthwith, reserving consideration on the issue whether or not the institution of the proceedings against them was legal, and we also reserved our reasons for holding that the sentence of ten years imprisonment with hard labour passed on them is ultra vires the court.

The three grounds argued were the first three of the additional grounds filed at the last moment, and were taken with the leave of the court. Arguing the first of those grounds, counsel referred the court to the mandatory provisions of section 57 (5) of the Pharmacy and Drugs Act, 1961, under which the appellants were charged, which states that: “No proceedings shall be instituted for an offence under this Act without the consent in writing of the Attorney-General.” He submitted that the proceedings were illegally instituted in contravention of the said subsection (5), because the consent in writing of the Attorney-General was not obtained. In reply to this submission the senior state attorney submitted that the point taken on behalf of the appellants was a mere technicality, and [p.540] of [1963] 2 GLR 536 that the mere fact that a written fiat of the Attorney-General was not incorporated in and made part of the proceedings was not a good ground for the contention that the proceedings were illegally instituted. In support of his argument, the senior state attorney cited R. v. Metz2 and R. v. Val-Vannis.3 In Val-Vannis’ case, the West African Court of Appeal cited the case of Metz with approval and said4: “A similar point was raised in the case of Johan Metz and was dealt with by the Court of Criminal Appeal as follows: ‘It is not suggested that the prosecution was in fact instituted without the necessary consent, but it is said that there was no evidence of it at the trial. The point was not taken at the trial. As we now know, the consent was in fact proved at the Police Court. The document was in Court at the trial, but it was not formally proved. If the point had been taken at the trial the defect would have been immediately cured, so the point is a pure technicality. We do not think it possible for the point now to succeed in this Court when there was an opportunity for counsel to take it in the Court below if he desired’.”

The court observed that the point taken by the appellants was more fundamental than that taken in either of the two cases cited by senior state attorney; it pointed out that it appears from the judgment in each of those cases, that the written consent of the Attorney-General was obtained and filed with the registrar of the court, and that the point taken however was that the said consent was not formally proved and incorporated in the transcript of the proceedings, while in the present case the point taken is that no consent at all was given as required by law. The question therefore is: was written consent given or was it not given?

As the additional grounds on which this point was raised was only served on the senior state attorney on the very morning that he had to argue the point, the court in fairness to the senior state attorney adjourned the hearing for a week to enable him to make enquiries to ascertain the true position. Upon resumption of the hearing after the adjournment, learned senior state attorney informed the court that he had obtained and examined the docket in the case, he then stated the discovery he had made as follows: “I found that this case was sent up by the Sunyani police to the Attorney-General’s Office, Sunyani, where it was considered by the state attorney in charge of that office, who eventually wrote back to the police forwarding to them a signed bill of indictment in accordance with sections 182 and 183 of the Criminal

Procedure Code, 1960 (Act 30). Thereafter, the state attorney decided to take the case summarily and he therefore signed the charge sheet at the circuit court before which the appellants were charged and he himself prosecuted the case. There is authority under the Law Officers Ordinance for law officers to exercise the powers and authorities of the Attorney-General.”

Upon these facts the senior state attorney invited the court to hold that the provisions of section 57 (5) of the Pharmacy and Drugs Act, 1961,

[p.541] of [1963] 2 GLR 536 were complied with. He based his submission on the following reasons: (1) The section does not provide that the required consent in writing should be given in any particular form; therefore any note, instrument or writing from which it can be inferred that the Attorney-General consented to the proceedings being taken is sufficient to satisfy the requirements of the said section 57 (5). (2) By virtue of sections 2 and 4 of the Law Officers Ordinance,5 any note, instrument or writing signed by a law officer above the rank of an assistant state attorney which can be interpreted as consent, is consent given by the Attorney-General. Therefore the charge sheet signed by the state attorney stationed in the Region, coupled with the fact that the case was prosecuted by a state attorney is sufficient consent of the Attorney-General given in writing, which satisfies the requirements of section 57 (5) of the Act. (3) It is only in cases where proceedings may be taken either summarily or on indictment that the proviso for written consent of Attorney-General as condition precedent to instituting criminal proceedings is necessary, and then only in the case of summary proceedings, because a bill of indictment being a note, writing or instrument signed by the Attorney-General himself or by any law officer, upon which proceedings in criminal cases may be commenced, is sufficient compliance with section 57 (5) of the Act, and (4) Criminal proceedings need not be commenced in court, they may commence with a complaint made to a police officer; therefore the senior state attorney stated that the signing of the charge sheet by a state attorney, and delivery thereof to a police officer, is sufficient compliance with the provisions under section 57 (5), and consequently the written consent of the Attorney-General need not be lodged with the court.

Before proceeding to deal with these points we would observe in passing, that the information which the senior state attorney gathered from the docket of the case, played him false; the charge sheet upon which the appellants were prosecuted was not signed by a state attorney. But that in our opinion does not affect the point of law in issue.

While it is true that the Act does not specify that the written consent of the Attorney-General should be in or of a particular form, we are of opinion that for any writing to constitute notice, such a notice must be unequivocal, and be incapable of any other meaning than the specific meaning that the Attorney-General has consented that the proceedings should be instituted. On the face of it, the only positive inference which can be drawn from a charge sheet or a bill of indictment signed by a state attorney is, that criminal proceedings are being initiated, but not necessarily with the consent of the Attorney-General. There is nothing to show that if the matter was brought to the personal notice of the Attorney-General, he did not exercise his discretion and decline to give his consent.

Now the submission that it is only in cases where proceedings may be instituted either summarily or on indictment that a written consent of the Attorney-General is made a condition precedent to instituting proceedings is not correct. For example, the offence of sedition under section 344 of the [p.542] of [1963] 2 GLR 536

Criminal Code,6 now repealed, was not triable summarily; yet it provided that proceedings should not be instituted in respect thereof without the consent of the Attorney-General in writing. The same offence is re-enacted under our present Criminal Code, 1960,7 and is section 183, an indictable offence; subsection

(14) of the said section also provides that, “No proceedings shall be instituted under this section without the written consent of the Attorney-General.” We find the same provision to section 192, now repealed, of Act 29, a first degree felony which by virtue of section 2 of the Criminal Procedure Code, 1960,8 could only be tried upon indictment.

Under section 60 of the Criminal Procedure Code,9 now repealed, it was only the Attorney-General who could institute criminal proceedings upon indictment, i.e., by information. Therefore the only way in which the case of Val-Vannis (supra) could have come to the court was upon information filed by the Attorney-General. Similarly section 58 of the present Criminal Procedure Code, 1960, provides that, “Proceedings shall not be instituted for the trial of an accused upon indictment save by or on behalf of the Attorney-General.” The proper interpretation of subsection (14) of section 183, and of subsection (3) of section 192 of the Criminal Code, now repealed, is that before instituting proceedings for the trial of a person on indictment, i.e., before filing a bill of indictment, for sedition, the Attorney-General first gives a written consent to the filing of the bill of indictment. It follows that upon proper interpretation, an information or bill of indictment filed by the Attorney-General is an instrument or document which is quite distinct and materially different in nature from a consent in writing by or on behalf of the Attorney-General.

Again in making the submission that criminal proceedings may be instituted by complaint to the police, learned senior state attorney overlooked section 60 of the Criminal Procedure Code, 1960, which is as follows:

“60. (1) Criminal proceedings may be instituted before a District Court in either of the following ways —

(a) by making a complaint and applying for the issue of either a warrant or a summons in the manner hereinafter mentioned; or

(b) by bringing a person arrested without a warrant before the Court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him, and the time when and the place where the offence is alleged to have been committed. The charge sheet shall be signed by the police officer or public prosecutor in charge of the case.”

It follows that written consent of the Attorney-General as provided in subsection (5) of section 57 of Act 64 as a condition precedent to institution of criminal proceedings has to be filed in the place where the proceedings are to be initiated, i.e., in the court, lodged with the clerk of [p.543] of [1963] 2 GLR 536 the court; it is not enough to lodge it with the police. On this point see R. v. Val-Vannis.10 It has therefore been proved conclusively that no consent was obtained prior to the institution of the proceedings in this case, and none was filed in the court, and that the proceedings were therefore taken in contravention of subsection (5) of section 57 of Act 64. In this respect, this case is on all fours with R. v. Bates.11 The appellant in that case was convicted under section 2 of the Explosive Substances Act, 188312; section 7 of the said Act required that no proceedings shall be instituted without a written consent of the Attorney-General. The appellant appealed against his conviction on a point of law, and against refusal to grant him leave to appeal against sentence and to grant him legal aid. He was therefore not represented at the hearing of the appeal in the Court of Criminal Appeal.

The court itself took the point that it did not appear from the shorthand notes that the consent of the Attorney-General was given. Counsel for the Crown after investigations, made the following statement to the court 13: “Neither I nor counsel for the prisoner were supplied with any information on the point, but I have to-day ascertained that the consent of the Attorney-General was, in fact, not obtained.” Delivering the judgment of the court the Chief Justice said, inter alia,14 “This consent had to be given under s. 7, sub-s. 1 of the Explosive Substances Act, 1883, before any further proceeding beyond securing his safe custody could be taken against the appellant … It is true that the appellant has not taken this point, but if we did not give effect to it to-day we should simply adjourn the case, inform the prisoner of the objection, and allow him to raise the point when next the case came on for hearing. It is desirable, therefore, to consider this objection now, and we are of opinion that the absence of the consent of the Attorney-General takes away the jurisdiction of the Court. There is nothing here analogous to the case of Waller: in that case it was not proved or suggested that the consent of the Director of Public Prosecutions had not been given. The old practice was that the Attorney-General’s clerk went down to the Assizes to prove his signature to the fiat. The consent of the Attorney-General was never taken for granted, but I do not say that it is now necessary on every occasion to give formal proof of the Attorney-General’s signature.” The trial of the appellants having been shown to be illegal the whole of the proceedings up to conviction and sentence are illegal, null and void, and therefore cannot stand.

Now to the point that the sentence of ten years imposed upon each of them is illegal. In support of that, learned counsel for the appellants drew the court’s attention to section 57 subsections (1) and (2) of the Pharmacy and Drugs Act, 1961, which provide as follows: [His lordship here read the provisions of the Act as set out in the headnote and continued:] Counsel [p.544] of [1963] 2 GLR 536 for each appellant stressed the point that as the appellants were charged under section 49, which relates not to the narcotic drug itself, but to the plant out of which a narcotic drug can be extracted, and as the trial was summary, the maximum penalty the circuit judge was lawfully authorised to impose upon them is six months as laid down under subsection (2) of section 57 of the Act.

Senior state attorney arguing against that submission, directed the court’s attention to subsection (3) of the said section 57 which provides as follows:

“(3) A person guilty of an offence under this Act relating to Indian hemp shall be sentenced to imprisonment for at least five years:

Provided that this subsection shall not apply if the court finds either that the offence was trivial or that there are special circumstances relating to the offence or the offender which would render its application unjust.”

He also referred us to the definition of “narcotic drug” as defined in section 62, and further itemised in Part II of the Schedule to the Act, which includes Indian hemp.

Obviously both the learned trial circuit judge and the learned senior state attorney were misled by the wording of the charge which we described at the beginning of this judgment as an alleged offence. Section 49 of Act 64 does not make it an offence for a person to cultivate a narcotic drug, a substance extracted or cured from a living organism, because a drug cannot be cultivated; the only offence it creates is the cultivation of “any plant from which a narcotic drug can be extracted.” The difference between the two is like that between tobacco plant and cured tobacco. Other sections of the Act create offences in relation to specific narcotic drugs, i.e., the manufactured product, e.g., opium or Indian hemp. For example, section 45 creates an offence specifically with relation to “narcotic drug” of any kind; and sections 47 and 48 create specific offences in relation to opium and Indian hemp which in species are defined as classes of “narcotic drugs.”

Section 57 with its various subsections provides punishment for the several offences created by the Act, namely, punishment for offences relating to narcotic in the form of drug, punishment for offences relating to opium and Indian hemp as particular species of “narcotic drug” and offences not relating to “narcotic drug” qua drug, but to organism, i.e., plants from which narcotic drug can be extracted or manufactured. Thus subsection (2) (a) of section 57 provides a penalty for offences which relate to a general “narcotic drug,” subsection (2) (b) provides a penalty for offences not relating to a “narcotic drug” but to any other offence created by the Act; these include offences under section 49. And finally subsection (3) of section 57 provides the penalty for offences relating to opium or Indian hemp as defined in section 62 of the Act, namely, as a drug.

Now instead of framing the charge in terms of the language of section 49 and saying “did unlawfully cultivate a plant from which narcotic drug, i.e., Indian hemp, can be extracted,” by design or accident, the person who was responsible for drawing up the charge worded it as follows: “did [p.545] of [1963] 2 GLR 536 unlawfully cultivate Indian hemp.” Of course there is no such offence created by the Act, and the charge should therefore have been dismissed and the appellants discharged. This wrong wording had the most unfortunate result of misleading the circuit judge into believing that the appellants committed an offence of cultivating a drug, to wit, Indian hemp, an offence not known to our law.

An offence of growing a plant under section 49 of the Act is not an offence relating to opium or Indian hemp, though when the cultivated plant is harvested one species or other of narcotic drug may be extracted or manufactured from it. That being so, the only lawful maximum punishment which may be imposed in respect of an offence under section 49 is the sentence provided in section 57 subsection (2) (b), namely, “a fine not exceeding one hundred pounds, or imprisonment for a term not exceeding six months, or both.” It is for this reason that we held that the sentence of ten years imprisonment was illegal. The proceedings being illegal, the conviction and sentence must be quashed. The appeal is allowed, the conviction of each of the appellants and the sentence passed upon each are quashed as being illegal. The appellants are acquitted and discharged.

DECISION

Appeal allowed.

Appellants acquitted and discharged.

K.T.