Ingredients of prohibited business relating to narcotics
The ingredients of this offence which the prosecution must establish if it wants to sustain the conviction of a person charged under such an offence are: 1. That someone has undertaken an activity. 2. That the reason for undertaking the said activity was to establish or promote an enterprise relating to narcotic drugs to wit; cocaine. 3. That, the said activity was unlawful since it was done without authority. 4. That the said activity was undertaken by the person charged; i.e. the accused. In proving the above ingredients, there must be evidence that the said activity that was intended to establish or promote an enterprise relating to cocaine did in fact take place; i.e. that there was a physical or actual engagement in an identified and described activity. Again, there must be evidence as to the place or location where the said activity took place to make it a crime triable in Ghana. Also the time or period within which the alleged criminal activity was undertaken is crucial in determining whether the alleged offence was committed after the promulgation of the current law; i.e. P.N.D.C. Law 236 that was passed in 1990 or before. It must also be established that the said activity was undertaken by the persons charged and that they did so without authority.
Possession of Indian hemp not prepared for smoking
The most essential words in that section were, “which is prepared for smoking or any residue from the smoking of.” It means that no offence was committed by the possession of Indian hemp unless that Indian hemp is in a form prepared for smoking, or is a residue from the smoking of Indian hemp. Therefore if the prosecution failed to prove any of these two essentials, the court should acquit unless it could be shown that an alternative offence of which the person charged could be convicted was disclosed by the evidence.
Possession with knowledge of the nature of the article
What is the possession, proof of which, without more, makes a person guilty of an offence under the said section 47 (1), unless he proved that his possession is lawful. Upon a proper construction of the section, the possession must be possession with knowledge of the nature and quality of the article; awareness that what is possessed is “opium or Indian hemp” or “residue from the smoking of opium or Indian hemp.” Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must rove legal possession; that is, in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew, or ought to have known, that the article he possessed was “opium or Indian hemp” or was “residue from smoking of opium or Indian hemp.”
