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Kumar v State [2000] FJCA 36; AAU0006U.1998S (1 December 2000)

IN THE COURT OF APPEAL FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI ISLANDS

CRIMINAL APPEAL NO. AAU0006/98S
(High Court Criminal Appeal No. HMB0011.96L)

BETWEEN:

RAJ KUMAR f/n Manbodh
Appellant

AND:

THE STATE
Respondent

Coram : The Rt Hon Sir Maurice Casey, Presiding Judge
The Hon Justice Gordon Ward, Justice of Appeal
The Hon Justice John E. Byrne, Judge of Appeal

Hearing: 28 November 2000

Counsel: Mr. G.P. Lala for the Appellant
Mr. J. Naigulevu for the Respondent

Date of Judgment: 1 December 2000

JUDGMENT OF THE COURT

On 15th July 1994 the Appellant was convicted in the Magistrate's Court at Rakiraki on a charge of being found in possession of 531 grams of Indian Hemp contrary to Section 8(b) of the Dangerous Drugs Act (Cap. 114) and Section 3 of the Dangerous Drugs Act as amended by Decree No. 4 of the Fiji Republic Gazette No. 10 of 1990. He was sentenced to five years imprisonment, the minimum sentence for anyone found in possession of more than 500 grams of Indian Hemp.

He appealed against this conviction and sentence to the High Court and on the 20th of March 1998 the Court dismissed his appeal. He now appeals to this Court.

The brief facts are that about 1.30 a.m. on 8th July 1994 a Police Officer found the Appellant in the driver's seat of a motor vehicle belonging to one Tej Ram of Nadi. A Fijian man and lady were inside this vehicle.

A bag containing Indian Hemp was found in the vehicle and more Indian Hemp was found in the tray of the vehicle. The High Court found that the Appellant was in possession of the Indian Hemp and upheld the finding of the lower court.

Before this Court there were two grounds of appeal, first that there was no evidence that the Appellant had possession or control of the prohibited drug or knowledge that it was prohibited and secondly that failure of the Respondent to comply with Section 191 of the Criminal Procedure Code resulted in a miscarriage of justice to the Appellant. In this regard the evidence was that there was short service on the Appellant of the Government Analyst's Report. Section 191 requires notice of at least ten clear days. The Appellant had three days' notice.

Section 22(1) of the Court of Appeal Act (as amended) reads thus:

"Any party to an appeal from a magistrate's court to the High Court may appeal, under this Part, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only.

Provided that no appeal shall lie against the confirmation by the High Court of a verdict of acquittal by a magistrate's court."

In this Court's view there was sufficient evidence before the lower court for it to find that the Appellant was in possession of the Indian Hemp.

The proviso to Section 191 of the Criminal Procedure Code was enacted for the protection of an accused. In this case as the Appellant was unrepresented and in custody it was unfortunate that the Magistrate did not ensure the proper procedures were followed. However on the totality of the evidence we are satisfied that although there may have been a breach of the proviso, this did not give rise to a substantial miscarriage of justice.

In the result the appeal is dismissed.

Sir Maurice Casey
Presiding Judge

Justice Gordon Ward
Justice of Appeal

Justice John E. Byrne
Judge of Appeal

Solicitors
G.P. Lala on instructions of G.P. Shankar & Co., Ba for the Appellant
Office of the Director of Public Prosecutions, Suva for the Respondent