Nov 29, 2012, 8:40 AM
The Defence Counsel for the first accused person in the ongoing $4000, D3000 drug case recently made a no-case-submission, on behalf of his client, Demba Ceesay.
Demba Ceesay is standing trial along with one Ali Khan at the Kanifing Magistrates' Court.
Lawyer Kebba Sanyang submitted that the prosecution had woefully failed to prove its case beyond reasonable doubt and urged the court to acquit and discharge his client. He also enjoined the court to hold that the monies found with his client were unlawfully taken away from him by the first and second prosecution witnesses (Bakary Jibba and Musa Jarjue, both narcotic officers attached to Serrekunda Police station). He maintained that by doing so, they had abused their powers as narcotic officers.
In his submission, the Defence Counsel told the court that the accused person was charged with an attempt to commit an offence, contrary to Section 365 of the Criminal Code.
According to him, the particulars of offence states that on 8th August 2009, the accused persons attempted to commit a felony by selling a bottle of Mercury at a price of $4000, which transaction was false and fraudulent.
He submitted that "the evidence of the prosecution witnesses did not disclose or establish the elements of the offence charged or even where the evidence of the prosecution witnesses established the elements of the offence charged, the effect of cross-examination of those witnesses has rendered the evidence of such witnesses as manifested unreliable that a reasonable tribunal cannot act on it".
He further stated that looking at the charge sheet, there were so many defects. As he put it, the statements indicated "attempt to commit an offence", but if one looks at the particulars, it says "attempted to commit a felony by selling a bottle of Mercury at $4000."
He submitted that the court itself was in doubt as to what alleged offence was committed, whether it was an attempt or substantive offence.
"The definition of attempt in law is clear. It involves all preparations leading to the commission of an offence. It does not involve itself because that would not be an attempt," he submitted.
He argued that another defect arises on the face of the charge sheet, relating to the particulars of the offence. He challenged that no mention was made of the person to whom the bottle of Mercury was sold to in the particulars of offence charged.
"Looking at the evidence of the first and second prosecution witnesses, one could see that there is nothing in their evidences to establish the ingredients of the offence.
There was nothing in these evidences to suggest that the transactions entered into between the first accused, Demba Ceesay and Mustapha Hussein, the Lebanese, have been false and fraudulent as stated in the particulars," he further stated.
He argued that the Mercury had not been tested by the prosecution as to whether it was false or fraudulent.
Magistrate Abdoulie Mbacke adjourned the case to 31st October 2009 for the prosecution to reply.