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February 9, 1976
HIGH COURT
GHANA
CORAM
JUDGMENT OF QUASHIE-SAM J.
This appeal is by the appellant against a sentence of two years’ imprisonment with hard labour passed on him on 28 October 1975, on his conviction on his own plea of guilty to a charge of possessing Indian hemp purported to have been brought under a section 47 (7) of the Pharmacy and Drugs Act, 1961 (Act 64), a subsection which is non existent in the Act.
Though the appeal is only against sentence, counsel for the appellant has in this court sought to have the conviction set aside on the ground of nullity, the appellant having pleaded guilty to a non-existent subsection of the Act.
On that submission this court on 11 February 1976, gave a reasoned ruling that the trial did not amount to a nullity since the error in laying the charge under a non-existent subsection (7) of Act 64 was an irregularity or error not amounting to a miscarriage of justice by virtue of section 406 of the Criminal Procedure Code, 1960 (Act 30), since the particulars of offence to which the appellant pleaded guilty amply supported a charge under section 47 of Act 64 under which the appellant was charged.
As regards sentence with which this appeal is more concerned it has been submitted by learned counsel for the appellant that the trail magistrate of the district court grade II had no jurisdiction to impose a sentence to two years as his jurisdiction is limited to one year under the Courts Act, 1971 (Act 372).
By section 39 (2) (b) of that Act, the criminal jurisdiction of a district court grade II with regard to sentence is limited to a term of imprisonment not exceeding one year or a fine not exceeding ¢500.00 or both. Section 57 (2) of the Pharmacy and Drugs Act, 1961 (Act 64), as amended by the Pharmacy and Drugs (Amendment) Act, 1963 (Act 222), provides that:
“57. (2) A person guilty of an offence under this Act—
(a) where the offence relates to a narcotic drug, shall be liable—
(i) on conviction on indictment, to a fine not exceeding one thousand pounds, or imprisonment for a term not exceeding ten years, or both;
[p.3]
(ii) on summary conviction, to a fine not exceeding two hundred and fifty pounds, or imprisonment for a term not exceeding twelve months, or both;
(b) where the offence is that of supplying of opium or Indian hemp or of cultivating Indian hemp contrary to section 28 (2) or section 49 of this Act, as the case may be, and in each case the person has been convicted of that offence on two previous occasions, shall be liable to
AI Generated Summary
Quashie-Sam J. delivered an appellate judgment arising from a District Court Grade II conviction for possession of Indian hemp under the Pharmacy and Drugs Act, 1961 (Act 64). The appellant had pleaded guilty, but the charge cited a non-existent subsection, section 47(7). Counsel asked to set aside the conviction as a nullity. The court had already ruled on 11 February 1976 that this irregular citation did not vitiate the trial, relying on section 406 of the Criminal Procedure Code, 1960 (Act 30), because the particulars supported an offence under section 47. Turning to sentence, the judge considered whether section 57(2)(d) or the specific section 57(3) and section 57(3A) governed Indian hemp. Agreeing with the respondent, the court held section 57(3) applied and, as the magistrate declined committal to the Circuit Court, he was constrained by section 39(2)(b) of the Courts Act, 1971 (Act 372). The two-year term exceeded jurisdiction. Given the appellant’s circumstances and the quantity involved, the court reduced the sentence to nine months’ imprisonment with hard labour or a fine of ¢150.00 and allowed the appeal.