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Appeal Court. 19 March, 1937. Appeal from Supreme Court exercising Appellate Jurisdiction.

Charge against licensed druggist for failure to keep record of supplies and sales of dangerous drugs-Appellant discharged by Magistrate at close of case for prosecution-Appeal by way of petition by Attorney-General to Supreme Court-Direction by Supreme Court to convict-Appeal therefrom-Meaning of" a person who supplies" discussed.

Held: Direction of Supreme Court set aside, but prosecution had made out a prima facie case, and the Magistrate erred in not calling upon the respondent to reply thereto. Case remitted to Magistrate to hear defence.

The facts of the case are sufficiently set out in the judgment. S. J. Barlatt for Appellant.

The Solicitor-General for Respondent.

The following joint judgment was delivered :-

KINGDON, c.J., NIGERIA, PETRIDES, c.J., GOLD COAST, AND WEBBER, C.J., SIERRA LEONE.

In this case the appellant was charged on the 11th September, 1936, in the Court of the Police Magistrate, Freetown, as follows:-

.• For that you the said J. A. Short of 61a Kissy Street. being a person duly registered and licensed to dispense drugs and poisons at your shop situated at No. 61a Kissy Street in Freetown. in the Police District of Free· town in the colony of Sierra Leone, sometime during the month of August. 1936. did fail to make entries in the register or a book (kept for the record of all supplies and sale of dangerous drugs obtained and sold by you) contrary to sec. 10 sub-see.' (c) of the Dangerous Drugs Rules, 1929 made under Ordinance No. 10 of 1926."

He pleaded" not guilty," and at the close of the case for the prosecution his Counsel submitted that no case had been made out for him to answer. The Police Magistrate in a considered judgment upheld this contention and discharged the appellant.

The Attorney-General petitioned the Supreme Court against the order of discharge, and upon the petition coming before Mac­quarrie, J., he recorded the opinion that the appellant had committed the offence charged and ordered that the case be remitted to the Magistrate to deal with it in accordance with that 0J?inion, after hearing the appellant on one other submission.

It may be recorded at once that this order cannot possibly be upheld, because the appellant's defence to the charge has not yet been heard. The most that can be said is that the prosecution has

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made out a prima facie case for appellant to answer and an order made for the case to be remitted to the Police Magistrate to proceed accordingly. The real question for determination by this Court, then, is whether or not the evidence for the prosecution discloses a prima facie case.

Shortly, the facts adduced by the prosecution are that the appellant is a licensed druggist under the Dangerous Drugs Ordi­nance, 1926. From the beginning of 1936 up to the date of the charge he had purchased 6 ounces of tincture of opium and 34 ounces of morphia (both dangerous drugs within the meaning of the Ordinance) from the West African Drug Company. These were obtained on orders "for dispensing purpose" signed by appellant as "Drug­gist." On the appellant's shop being visited by an Assistant Com­missioner of Police in August 1936, the appellant was unable to produce, on demand, any Dangerous Drugs Register and he explained its absence by saying that it had been stolen. He produced 3i ounces of tincture of opium and stated that he had no other dan­gerous drugs, stating that he had used the remaining quantity (i.e. 2i ounces of tincture of opium and 34 ounces of morphia) for his personal use. Thereupon he was charged as above recorded with contravening rule 10 (c) of the Dangerous Drugs Rules, 1929, which reads as follows :-

" 10. Every person who supplies any dangerous drug shall comply with the following provisions:

" (e) he shall make the entry with respect to any dangerous drug pur­chased or otherwise obtained by him on the day on which it is re­ceived, and with respect to any sale or supply by him of any danger­ous drug on the day on which the drug is despatched or delivered; or where that is not reasonably convenient on the day following the day on which the dangerous drug is received, or despatched or de­livered."

It is clear that the first essential to secure a conviction under this rule is to show that the person charged is a "person who supplies any dangerous drug" within the meaning of the rule. In the present case, since there was no evidence that the appellant supplied any dangerous drug to any other person, could it be said that the .prosecution had shown him to be "a person who sup­plies"? The learned Police Magistrate held that it could not. The learned Judge in the Court below, on the other hand, held that the " words • every person who supplies ' are no more than a short expression to mean and include every person who carries on or holds himself out as carrying on the business of supplying." We agree with this view. The question then arises: Was there prima facie evidence that the appellant was such a person? We think that the following facts taken together do constitute such prima facie evi­dence, viz. :-

1. The fact that appellant was· registered as a licensed druggist.

159

The Attorney­General of Sierra Leone

v.

Josiah Short.

Kingdon, Petrides & Webber, C.JJ.

100

The Attomey­General of Sierra Leone

v. ] osiah Short.

Kingdon, Petrides & Webber, C·I] .

The Attorney-General of Sierra Leone v. Josiah Short.

2. The fact that he admitted having kept a Dangerous Drugs Register.

3. The fact that in his capacity as a druggist, he obtained a large quantity of dangerous drugs "for dispensing purpose," i.e. for supplying to customers in prescriptions to be dispensed by him.

4. The fact that he could not produce, and therefore had presumably used for dispensing (i.e. supplying to customers), almost all the dangerous drugs purchased by him for dispensing purposes.

Once it was shown that appellant Was prima facie a person within the meaning of the words" every person who supplies any dangerous drug," the provisions of the rule requiring him to make an " entry with respect to any dangerous drug purchased," etc., become opera­tive, and the prosecution led evidence to show that the appellant did not comply with this requirement.

We therefore hold that the prosecution made out before the Police Magistrate a prima facie case for the appellant to answer, and accordingly order that the order of the Supreme Court be varied by directing, in lieu of the directions given in that order, that the case be remitted to the Police Magistrate to hear the defence of the appellant to the charge and, after so doing, to decide the case in the light of the opinions hereinbefore expressed.