Offences in relation to narcotic drugs are regulated by the Narcotic Drugs (Control, Enforcement and Sanctions) Act, 1990 (PNDCL 236). In addition, Ghana is a signatory to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, and is obliged to enact laws to implement the provisions of the Convention.
PNDCL 236 prohibits dealings in narcotics under various headings
About 97 substances – narcotic drugs – are prohibited under PNDCL 236. See sec 9 and the Schedule to the Act. The popular ones include: cannabis also known as Indian hemp also known as marijuana also known as ganja also known as wee also known as weed also known as pot also known as “abonsam tawa”; cocaine; heroin; morphine; opium and codeine.
Under sec 1 of PNDCL 236, it is an offence to import or export a narcotic drug without a license issued by the Minister of Health for that purpose. The penalty for the importation and exportation of narcotic drugs is a term of imprisonment of not less than 10 years
Sec 3 of PNDCL 236 prohibits the carrying on of business in relation to narcotics and the penalty for doing so is a term of imprisonment of not less than 10 years. Thus, it is an offence to manufacture, produce or distribute narcotic drugs without lawful authority. Then again, it is an offence to undertake an activity for the purpose of establishing or promoting an enterprise relating to narcotic drugs, without lawful authority.
The prosecution must establish not merely that the accused cultivated plants for narcotic purposes, but also that the accused had knowledge that the plant he cultivated can be used or consumed as a narcotic drug or that a narcotic drug can be extracted from it.
NYAMENEBA v THE STATE
Sec 5 of PNDCL 236 prohibits the use of narcotic drugs. Thus, it is an offence to smoke, sniff, consume, inject into one’s body or administer a narcotic drug on one’s body, without lawful authority or excuse. It is also an offence to inject another person with or administer narcotic drugs on another person without lawful authority. The punishment for using narcotic drugs is a term of imprisonment of not less than 5 years.
Sec 6 of PNDCL 236 prohibits the supply or purchase of narcotic drugs. Thus, it is an offence to supply narcotic drugs to another person, without lawful authority – this is known as drug peddling. It is also an offence to buy narcotic drugs without lawful authority. The penalty for supplying or purchasing narcotic drugs is a term of imprisonment of not less than 5 years.
It should be noted that PNDCL 236 does not only prohibit dealing in narcotic drugs, it also prohibits the possession of narcotic drugs. By sec 2, it is an offence to have in one’s possession or to have under one’s control, a narcotic drug without lawful authority. The punishment for this is a term of imprisonment of not less than 10 years.
NB: possession in law is different from the ordinary notions of possession. Ordinarily, you may possess a thing without knowing or comprehending its nature. However, in law, you do not possess the thing unless you know the nature and quality of the thing. So, in law, possession connotes not only physical possession but knowledge of the thing possessed.
Therefore, to succeed on a charge of possession of a narcotic drug, the prosecution must prove legal possession – that is – in addition to proving physical possession, the prosecution must go further to lead evidence to establish that the accused had the requisite knowledge. In other words, there must be an awareness of the nature and quality of what is possessed, namely, a narcotic drug, since physical possession, without that requisite knowledge amounts to no offence. AMARTEY v THE STATE, BONSU @BENJILLO v THE REPUBLIC.
There are two types of knowledge. There is what is termed “implied knowledge” – one aspect of constructive knowledge is where the evidence establishes that the accused ought to have known that the thing he possessed was a narcotic drug. Then there is what is termed “constructive knowledge” – a person will be held to be in constructive possession if he has control over a person who is in actual physical possession or control of the thing. Therefore, there is no requirement that the prosecution should prove manual possession or touch of the thing by the accused. It is sufficient if the prosecution proves that the thing is in the possession of a person over whom the accused has control so that the thing will be forthcoming at his request.
MUNKAILA v THE REPUBLIC
the appellant engaged a woman to take some substances from Nigeria to him in Ghana. The woman was intercepted by the police for which she led them to the appellant’s house. When he was given the parcel, he sniffed them and upon seeing the police, he dropped them. The substance upon test was proven to be a narcotic substance and he was convicted of possession of narcotics. He appealed and argued that he had no possession of the substance. HELD: A person was said to be in constructive possession or joint possession of an object if he had control over the other person in physical control of the article as to its disposal, control or otherwise. However, the actual manual possession or touch of the goods by the prisoner, was not necessary to the completion of the offence. It was sufficient if the prosecution could prove that the article was in the possession of a person over whom the accused had control so that the article would be forthcoming if he ordered it. Under section 148(1) of the Criminal Code, 1960 (Act 29) a person having possession of a narcotic drug was in the same position as the person having possession of stolen proper
It should be noted that sec 7 of PNDCL 236 makes provision for special mitigating factors whereby a lesser punishment may be imposed on the accused having regard to the unaggravated nature of the offence and any special circumstances relating to the offence or offender. However, by Section 8, a recidivist narcotic offender is liable to life imprisonment
Under sec 10, it is an offence to use property to promote or facilitate narcotic offences. Indeed, possessing property or the proceeds of property knowing that the property or the proceeds was or were obtained or derived from dealings in narcotics in Ghana or elsewhere, is also an offence
⦁ sec 11
Then again, laundering proceeds from a narcotic drug offence is prohibited
⦁ sec 12
Indeed, property which has been used for the commission of a narcotic offence is liable to be confiscated to the state
⦁ sec 13
And property acquired with the proceeds from an illegal dealing in narcotic drugs may also be confiscated to the state
– secs 15-22