Section 5 of the Provincial Court (AP) of Murcia confirmed the sentences of 1 and 2 years in prison for two convicted of cultivating 100 marijuana plants imposed by a Criminal Court of Cartagena, although it reduced the amount of the fine when considering that the same price cannot be applied to the leaves as to the seized marijuana buds, due to their low TCH (psychoactive component) content.
In this way, the Court affirms that the cultivation of 100 marijuana plants is a “powerful indication” of their destination for drug trafficking and rules out that the plantation was intended for self-consumption, as the two convicted men intended.
In October 2022, the Criminal Court 3 of Cartagena sentenced the two defendants as perpetrators of a crime against public health to sentences of 1 and 2 years in prison and a fine of 7,000 euros for the cultivation and storage of marijuana in a Cabezo Beaza ship, according to sources from the Superior Court of Justice of the Region of Murcia (TSJMU) in a statement.
Against the sentence, the convicted persons presented separate appeals in which, admitting having grown the seized marijuana, they maintain that its destination was for self-consumption, and allege the presumption of innocence and error in the evaluation of the evidence.
In its appeal, the Court assumes the arguments of the lower court ruling to conclude that the destination of the drugs was trafficking or distribution to third parties, and to this end they highlight the importance of two pieces of information that allow us to deduce “without a reasonable doubt” that the purpose of the cultivation was not self-consumption: the number of marijuana plants seized (100 in a state of flowering, 36 in the drying process, with more than 30 kilos of product) and that it has not been proven that one of the accused was a cannabis consumer in the moment of the events.
To emphasize that the amount of marijuana seized “is notably higher than what could reasonably be thought of in a crop [para] self-consumption” the magistrates resort to the guiding guidelines established by the jurisprudence of the Supreme Court “taking into account the average daily consumption of each type of drug” and the “minimum number of supply days usually covered by the consumer, based on criteria of experience and the data provided by the National Institute of Toxicology.
Thus, in relation to hashish, the jurisprudential doctrine considered amounts exceeding 25 grams intended for transmission to consumers, they explain in the ruling. Clarifying, then, that these are quantities from which “it can be presumed that the collection is pre-ordered for traffic”, but they are “merely indicative”, since it is necessary to verify the concurrent circumstances in each specific case.
Therefore, the Court recognizes that it is necessary to justify why in the specific case it is considered that the amount possessed is intended for trafficking, “assessing all the concurrent circumstances and avoiding mere automatisms”, otherwise it would be enough to verify that the amount held exceeded the established scale, as proof of the intention to allocate it to trafficking, that is, of the subjective element of the crime.
At this point, the Court insists that “the cultivation of more than 100 marijuana plants, with a weight much higher than that assigned as a general criterion by the presumption of self-consumption, and in a number of plants much greater than that permitted in the legislation that expressly authorizes cultivation for own consumption, implies a powerful indication in favor of destination for trafficking, which is reinforced by the reasons set forth in the appealed ruling.
Thus, remember that five plants in Holland, or six plants and 480 grams of material collected in Uruguay, is the maximum production for personal consumption, respectively.
Furthermore, as the magistrate pointed out in the lower court ruling, it was not proven that one of the accused was a cannabis user at the time of the events, to which the Court added in its resolution that he attended the forensic consultation with his hair completely shaved, after being required for the second time for an extraction for a toxicological analysis, preventing the analysis that could have verified it.
The ruling partially upholds the appeal and reduces the fines imposed to 6,000 euros considering that the value of the leaves of 100 semi-fresh cannabis sativa plants with a total weight of 28,079 grams is not recorded, since their THC content was only 1.2 % compared to 13.8% of the 14,119 grams of fresh plant buds and 14.7% of the 6,781 grams of the box of wet buds.
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