MENSAH v. COMMISSIONER OF POLICE

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 p