Shomary Idd Mwechuwa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY)

AT MOROGORO

ORIGINAL JURISDICTION ECONOMIC CASE NO. 18 OF 2023

REPUBLIC

VERSUS

SHOMARY IDD MWECHUWA Date of Last Order: 28/10/2023 Date of Judgement: 29/11/2024

JUDGEMENT MAGOIGA,J. The accused person, SHOMARY IDD MWECHUWA stand charged with one offence of trafficking in narcotic drugs contrary to section 15(1) (a) and (3) of the Drugs Control and Enforcement Act, Cap 95 RE 2019. It is alleged that on 26^^ day of July 2023, at Ngomani area, at Lumbachini Village within Morogoro District in Morogoro Region, the accused did traffic in narcotic drugs, namely Cannabis Sativa commonly known as 'bhangr weighing 195.00 kilograms. The accused person pleaded not guilty to the charge. The Prosecution in quest to prove the charge against the accused person marshalled a total of seven (7) witnesses and tendered a total of 7 documentary and 1 Page 1 of 22 physical exhibits. The accused fended himseif and had no exhibit to tender. When this case was called on for hearing, the Repubiic was represented by Ms. Monica Matwe and Ms. Aiice Nana, iearned State Attorneys; whereas the accused person enjoyed legal services of Mr. Mkilya Daudi, and Ms. Catherine Mushi, iearned advocates with private and dock brief respectively. H2732 CPL JACKSON SHAMBWE (to be referred as PWl')-a police officer, under oath testified that on 25/07/2023, he received information from his informer that there is a person involved in trafficking in drugs at Ngomani Lumbachini area, within Morogoro rurai, in Morogoro region. Upon receipt of such information, PWl went to the scene of

the crime together with Selemani Mbwando, Zuwena Hatibu, Johari Msirikeie, and other people he could not remember. According to PWl, they meet the informant at Ngomani Lumbachini who directed them at specific place and arrived at Lumbachini Ngomani, around the morning of 26/07/2023 around 3:00 am. Upon arrivai, PWl told the court he saw torchlights and he arrested the person with the torch who vyas the 4^*^ in number standing in front of six sulphate bags. PWl testified that he arrested one person who was standing with six bags of suiphate tightened up. He introduced himseif Page 2 of 22 and the accused person told him that his names are Shomari Idd Mwechuwa. Together they opened the sulphates and noted that it had a bhangi. PWl searched the person of accused person but had nothing to connect him with criminality. PWl seized the six sulphate bags and one officer present Seiemani Mbwambo witnessed search and seizure. PWl marked the bags as A1-A6 and wrote the names of the accused person on each sulphate. PWl told the court that he issued a certificate of seizure which was signed by PWl, the accused person and Mr. Seiemani Mbwambo. The certificate of seizure/ form No DCEA003 was admitted in evidence as Exhibit PEl. PWl got a case number and labelled each sulphate as DCA/MOR/IR/08/2023. PWl went on testifying that on 26/07/2023 he prepared form No. DCEA/ 001 which was admitted as

Exhibit PE2 for taking the samples of exhibit to the Government Chemist for more examinations. After filling out the form, the Government Chemist arrived and the form was given to Government Chemists, who measured the weight of the bhangi and found f to be 195.00 kilograms. The Government chemists also prepared Form No. GCCA-01 which was admitted as Exhibit PE3 signed by both parties. Page 3 of 22 PWl told the court that due to transport difficulties, PWl was ordered to prepare a procedure for destroying the said bhangi. According to PWl, he prepared Form No. DCEA 006 which was admitted as Exhibit PE4,-he . filed all the information by filing form No. 1 destruction certificate which was admitted as Exhibit PE5. Further testimony of PWl was that, in that same evening, he witnessed the destruction of the bhangi, but he remained with the empty sulphate bags which were handed to exhibit manager. Handing over of exhibits form in DCEA/MORO/IR/08/2023 was admitted as evidence and marked as Exhibit PE6. Six empty bags of sulphate were admitted in evidence and marked as Exhibit PE7a-f. JOSEPH JACKSON NTIBA (to be referred as 'PW2') under oath testified that he is a Government Chemist working with the Government Chemist Laboratory Authority(GCLA). PW2 remembers that on 26/7/2023 in the morning he received information that he was supposed to travel to Morogoro, where there was an ongoing

operation and some exhibits had been seized, which required examination. PW2 drove to Morogoro to a place known as Ngomani Lumbachini area, where operations were ongoing. Upon his arrival at around 12 hours he met(PWl) who showed him exhibits that needed to be examined. According to PW2,PWl showed him six bags of sulphate marked A1-A6 full of dry drug leaves suspected Page 4 of 22 to be bhangi. PW2 registered the said sulphate by giving them the laboratory number HQS/023-01593, which number he marked on each bag and signed Form No. DCEAOOl to show he received the said exhibits. According to PW2, he measured the weight of the exhibits and found that the weight of the cannabis sativa was 195.00 kgs and took samples from each bag. PW2 went on teiiing the court that his preliminary examination was a color test using reagents in test tube and added three reagents, which are Declias Ravine hydroquinone acid and rethare. Ail samples showed a change from green to violet, which shows that the samples taken for Al- A6 are drugs under the name of bhangi When Shown exhibit PE3 and says this sample received notification note with laboratory number HQ023-01593 and has his details. PW2 returned the 6 bags to Jackson Shambwe for destruction which was later on done on the day. PW2 filled and signed certificate of destruction form. Upon shown exhibit PE5, PW2 says this is certificate of

destruction with laboratory registration No. HQ023-01593. The kilograms that were destroyed were 194.94 after deducting the samples taken for further examination. PW2 further testimony was that he went back to Dar es Salaam, where he did laboratory investigations of the samples which showed that Page 5 of 22 the sample contained tetrahydrocannabinol substance found only in bhangi. After that, PW2 prepared the investigation report, which was approved by Kagera MIshane. According to PW2, the chemical tetrahydrocannabinol substance in drugs has negative effects on the user. The report was later handed over to PWl. The report was admitted as Exhibit PE8 SELEMANl MBWAMBO (to be referred as 'PW3') under oath and stated that he is a poiice officer attached to DCEA in Dar es Salaam. PW3 testified that on 25/07/023 at night he was in Morogoro for a special operation for people engaged in dealing with drugs. According to PW3, on 26/07/2023 they managed to arrest people who are doing drug business. PW3 told the court that, he remembers PWl asked him to witness when he was searching the accused person, and he signed the certificate of seizure. PW3 identified Exhibit PEl, Exhibits PE7 a - f as documents he signed on that day. ALEX ROMAN (to be referred as ^PW4')-sworn and state that he is an Environment Officer within Morogoro Municipal. According to PW4, on 26/07/2023, whiie in his office

he was called by his boss, who told him that there was an ongoing operation, which was for drugs known as bhangi. His boss asked him to join them and upon that instruction, he Page 6 of 22 joined the team and they drove to the Ngomani Lumbachlnl area. When they arrived, found many peopie arrested, and there were many bags of suiphate fuli of bhangi. At the scene, PW4 met PWl and were waiting for the Magistrate. According to PW4, when the magistrate arrived, he asked the people who were arrested if the bags are theirs and are willing to be destroyed, and they ail agreed. Then, as the Environmental Officer, PW4 gave them directions on how best to destroy the bhangi. It was bhangi alone that was burnt, but the bags were not burnt at all, insisted PW4. According to PW4, one of the accused persons who was present and under arrest was Shomari Idd Mwechuwa. While destroying the bhangi, the accused person was also present. As to Shomari Idd had 6 bags of sulphate, which were marked as A1-A6. PW4 identified the destruction certificate (Exhibit PE5) which he signed on 26/07/2023 and the 6 empty sulphate bags which were full of bhangi -Exhibit PE 7. JESCA KOHERETH MAGESA (to be referred as 'PW5') under oath testified that on 10/08/2023, while in office was assigned to investigate a case file with No. DCEA/MOR/IR/08/2023. According to PW5, the accused person in that file was Shomari Idd

Mwechuwa and was accused with the offence of trafficking narcotic drugs contrary to law. Page 7 of 22 According to PW5, after reading the file, she learnt that the accused was from Morogoro In a place known as NgomanI Lumbachlnl and discovered that the accused person was arrested with six bags of sulphate full of bhangi which were destroyed at site, but empty bags were still available. Having that In mind, she went on reading the witness statements of Insp. Joharl, SelemanI Mbwambo, Joseph Jackson Ntlba, Hon. Theresia Kanlkl, Alex RomanI, and Joseph Maugo. PW5 went on telling the court that, she made a follow-up of all documentary exhibits, which are certificate of seizure, sample notification receipt, report of scientific examination, and handing over of exhibits. PW5 also Interrogated PWl, the arresting officer In this case. After complying with the Investigations, PW5 forwarded the file to NPS for further action. Insp JOHARI MSIRIKARE (to be referred as 'PW6') sworn and stated that she Is a police officer attached to the DCEA based In Dar es Salaam. PW6 remembers that, on 26/7/2023 around 20:30 at night she was at NgomanI Lumbachlnl area where she received exhibits from PWl seized In the operation which were In respect of file No. DCEA/MOR/IR/08/2023. The exhibits were empty bags of sulphate, which were labelled as A1-A6. Other marks were with the name of the accused person,

Shomarl Idd Mwechuwa, laboratory NO. HQ023-01593 and the Page 8 of 22 number of the case, DCEA/MOR/IR/08/2023. The exhibits were handled to her using handing over exhibit receipts. After that she signed the exhibit handing over receipt. After handing over she went back to her office at Dar es Salaam and kept the said exhibits in a special room where exhibits are kept. THERESIA ANTHONY KANIKI (to be referred as 'PW7'). Under oath told the court that she is a Senior Resident Magistrate at Morogoro District court in Morogoro region. PW7 further stated that on 26/07/2023 in the morning while in her duty station at Morogoro District Court received an oral application from State Attorney, one, Joseph Maugo to go and make an order for the destruction of the exhibit at Ngomani Lumbachini. According to PW7, the exhibits were drugs or bhangi. After receiving the request/application, PW7 joined the learned State Attorney and drove to Ngomani Lumbahcini where the accused person and the exhibits were. Upon arrival, she met the officer of DCEA and the learned State Attorney introduced her to the accused person. According to PW7, the accused introduced to me as Shomari Idd Mwechuwa, insisted PW7. PW7 went on telling the court that the exhibits were in six sulphate bags. The bags had the names of the accused and were labelled Al- A6. PW7's further testimony was that, after the learned State

Attorney, one, Joseph Maugo, made a written application to destroy the exhibit in Page 9 of 22 an inventoiy form. PW7 told the court upon given the form, ordered and directed that the contents of exhibits A1-A6 be destroyed. According to PW7, the order was given in the presence of the accused person but who did not object to the destruction. That was aii about the case for the prosecution and this court guided by the provisions of section 293(2) of the Criminal Procedure Act, [Cap 20 R.E.2022] found the evidence on record was sufficient to call the accused person to enter defence. Consequently, therefore, the court addressed the accused persons of their rights, and guided by their respective advocates, the accused persons opted to defend himself with no witnesses SHOMARYIDD MWECHUWA (to be referred as'DWl'), under oath testified that on 25/07/2023 in the evening was arrested by soldiers while coming from his farm at Kisaki and who held him till the morning of 26/07/2023. According to DWl, the people he later knew were soldiers asked if him if he knew John. DWl denied knowing John and was instantly arrested and when they moved like 5 to 6 meters he saw motor vehicle packing. DWl can't remember the model, but he guess it was a Landcruiser. According to DWl, they forced him to board the motor vehicle and drove him to a place he didn't know where they found many people. Further

testimony of DWl was that, they ordered him to lie down Page 10 of 22 and started beating him. DWl told the court that the people he found there were lying facing down. On the morning of 26/07/2023, the people he remembered areTheonest Meris, Stephen Meris, Daudi Mkosa, Simon Bungi. We were 11 of us. DWl went on telling the court that, he spent a day in that motor vehicle till 4 pm when they left for Morogoro and was put on remand at Central Police Morogoro. DWl denied being arrested with bhangi and branded all the prosecution witnesses as liars. DWl distanced himself with the six bags of sulphate with a bhangi. DWl told the court that during the destruction of the said bhangi, he was not at all involved at all. According to DWl, he was not near where they destroyed the bhangi. DWl admitted he did sign a paper relating to this case. DWl prayed this court to do justice and set me free and go to meet my family. This marked the end of hearing of this criminal case. The learned trained minds for parties prayed to file written final submissions. I granted their prayer. I commend them for their input and will consider them when answering the issues in this case but will not be able to reproduce each and every argument raised. The noble duty of this court now is, to determine whether the prosecution have proved their case to the standard required in criminal cases; that is, beyond

reasonable doubt. However, before going into that. Page 11 of 22 having heard the stories by both sides, I have noted that there are some facts not in dispute in this suit. These in a way will help me in the determination of this criminal wrangle between the Republic and-the-- accused person. These are: one, there is no dispute that the accused person was arrested and was subsequentiy charged for one offence of trafficking in narcotic drugs weighing 195 kilograms subject of this suit. However, what is in serious dispute is whether the accused person was the possessor or owner of the disputed Cannabis Sativa or Bhangi weighing 195 kiiograms as such trafficking the same as alleged in the charge sheet and consequently proved to the standard require in criminal cases. This being the main contention between parties, I find it prudent to resolve the contents of exhibit PEl first because it carries the contention of the day which is akin for prosecution case to stand or to fail. In this case, having considered the prosecution testimonies and the defence testimony, and in particular, the contents of exhibit PEl, which is the genesis of the dispute in this case, I am, with due respect to the Repubiic and the testimony of PWl, unable to believe that the contents of exhibit PEl, if any, was under the possession of and was trafficked by the accused person. I will explain. One, PWl (Jackson

Shambwe) and PW3(Seleman Mbwambo) are two police officers who told this court that Page 12 of 22 they were in the same operations/mission to arrest the people who were doing business of narcotic drugs as such no doubt are witnesses with interest to serve in this case. And it is very dangerous that one turn to be - arresting officer and the other on the same vein be a witness in the circumstances of this case to be believed. Prudence, as Mr. Daudi correctly referred this court to string of cases on the issue, in particular, the case of Director of Public Prosecution Vs. Mussa Hatibu Sembe, Criminal Appeal No.l30 of 2021 at Tanzlii in which it was held that, as a matter of prudence such vyitness as a general rule should not be independent and a police officer cannot qualify to be as independent witness. This is what happened in this case. Two, in this case, PWl told the court that in the place where they were doing their operations, there were scattered houses but no attempt was made at least to two or three houses to get an independent witness. What PWl told the court is a general sweeping statement that he looked for independent witness in vain without telling exactly where he looked for. This was not enough, at least, PWl was to be specific and much as houses were around, no reasons were given for not using villagers or village leadership. Three, in this case, the so-called

informer of PWl, did not mentioned the names of the people who were involved in the trafficking drugs, as such in the absence of names, the possibility of bringing in anyone and considering Page 13 of 22 the defence of the accused cannot be eliminated in the circumstances are not eliminated. Four, section of 48 of the Drugs Control and Enforcement Act,[Cap 95 R.E. 2019] specifically explain how to deal with the arrest of the accused person by interrogating him and if this was done, it could have salvage the case for prosecution if fully complied with but no explanation was offered why the accused was not interrogated, hence, we remain with oral account of the prosecution witnesses alone which in my respective opinion was not enough. Five, Section 36 of the Drugs Control and Enforcement Act read together with Regulation 14(7) to the Act, was not compiled with for want of photographs and certification of destruction as required that during destruction process photographs must be taken and certification of destruction be part of the evidence to be produced in court that actually destruction was done. It is not only a matter filling forms but there must be other supporting evidence to support destruction in accordance with the law. It was not for the investigation and prosecution to choose what to do or not and the wording of the said provision shows that the drugs should be

completely destroyed if done according to law. This was not done in this case. Six, of interest in this case, was that the accused was selling the said drugs but to unknown buyer and one would expect the buyer to come and testify but this was not done. Seven, the search and arrest which was not an Page 14 of 22 emergency was done at night without any other independent witness cannot be basis of conviction uniess ali possibiiity of pianting and fixing the accused person are removed, which is not the case here. In the case of Shabani Said Kindamba Vs. Republic, Criminal Appeal No. 390 of 2019 CAT (Mtwara) at Tanzlii it was held that "search done at night and not being an emergence, is illegal unless permitted by the court. In this case no such evidence that it was emergence and without proof that it was emergency,and same having been witnessed by a leader of a hamlet other than the one relevant to the case, raise doubt whether the drugs were indeed found with the appellant house." On the same vein and parity, it leaves a lot to desire, if truly the accused went at night to sell the drugs in scene of crime without a known buyer. Eight, one of the reasons, the contents of exhibit PE7 were destroyed was challenge in transportation of the said drugs but none of the prosecution witness explained how the accused managed to transport the same to the scene of crime without any transport.

This leave a lot to be desired on the part of the prosecution. On the foregoing reasons, I find that exhibit PEl and exhibit PE4 did not eliminate possibiiity of fixing the accused person with the contents of exhibit PEl and as such the prosecution did not prove their case to the Page 15 of 22 standard required in criminai cases. Much as the prosecution failed to prove that the contents of exhibit PEl were trafficked by the accused person, I find other issues of chain of custody remain redundant and I would not engage into their discussion. That said and done, I would have ended here and dismiss this case for want of evidence to mount conviction. However, in the course of trial another important legal issue emerged on the involvement of the Judge/Magistrate in destruction of the drugs. The parliament in enacting the provisions of the Drugs Control and Enforcement Act, [Cap 95 R.E.2019], in particular, under section 36 enumerates the procedure for the destruction of the drugs and under Regulation 14 to the Act. For easy of reference section 36 of the Act provides as follows: - ''Section 36(1) The Authority may, having regard to the hazardous nature of any narcotic drugs or psychotropic substance or precursor chemicals or substance used in the process of manufacturing of drugs or other substances proved to have drugs related effects, vulnerability to theft, substitution,

constraint of proper storage, space, or other consideration, dispose of such drugs or substance in accordance with the procedures specified under subsections (2)and (3). Page 16 of 22 (2)- where any narcotic drug or psychotropic substance has been seized the officer seizing such drug or psychotropic substance used in the process of manufacturing of drugs or other substances proved to have drug related effect shall prepare an inventory of such narcotic drugs or psychotropic substance containing such details relating to- (a) their description, quantity, mode of packaging, marks, numbers; (b) such other identifying particulars of the narcotic drugs or psychotropic substance, or precursor chemicals, or substance used in the process of manufacturing of drugs or other substances proved to be drugs related effects; (c)packing in which they are packed; (d)country of origin; and (e) other particulars as the officer may consider relevant to the identify of narcotic drugs or psychotropic substance in the proceedings under this Act; (3) Any officer seizing such narcotic drug, psychotropic substance, precursor chemical or other substances proved to have drug related effect shall make an application to any magistrate having jurisdiction under this Act,for purpose of- Page 17 of 22 (a)certifying the correctness of the inventory so prepared; (b) taking in the presence of such magistrate,

photographs of such drugs or substance and certifying such photographs as true; or' (c) allow to draw representative samples of such drugs or substance, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. Provided that, where it is not practicable to secure the presence of the magistrate, the requirement of subsections 3(b) and (c) shall be dispensed with. (4) where an application is made under subsection (3), the Magistrate shall as soon as practicable allow the application. (5) Notwithstanding anything contained in the Evidence Act,the Criminal Procedure Act, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any lists of the samples drawn under subsection (3) and certified by a magistrate court as primary evidence in respect of such offence." Literal wording of the above provisions which pose no ambiguity Is loud and clear that, one, under subsection (1) of section 36 the Authority Is given power to dispose of certain drugs or substances during Page 18 of 22 investigations subject to comply with subsection (2) and (3); two, under subsection (2)the officer seizing the drugs or substance mandatorily must prepare an inventory with particulars and details as enumerated under sub paragraph (a) to (e)of subsection 2; three, the officer seizing

such drugs or substance must mandatorily make an application to Magistrate having jurisdiction under the Act to make the sought orders for purposes of: one, (i) certifying the correctness of the inventory, two,(ii) taking, in the presence of the Magistrate photographs of the drugs or substance in issue when being destroyed; three,(iii)allow sample to be taken before the Magistrate who shali certify the correctness of the sample any list of samples so drawn; four, the only exception is when is impracticable to procure the Magistrate in a given circumstances; five, under sub section (4) an application must be made to the Magistrate who shall deal with it promptiy, and six, the court trying the offence shall treat the inventory, photographs of the drugs or psychotropic substance and any list of samples drawn under subsection (3) and certified by a Magistrate court as primary evidence in respect of such offence. With the above noted legal steps and back to this case, no doubt that, one, no formal application nor oral application was applied for and written order was given to the effect. In my respective opinion, as a general rule and the practice of courts, must give written orders. Even Page 19 of 22 when an oral application is made, same has to be reduced into writing otherwise we may create chaos. The best practice is to have formal application and orders be given in writing in

the file and oral application can only be entertained in exceptional circumstances and this was not one of such exceptions; two, where oral application, if any, is entertained, as was in this case made, was made by the learned State Attorney but who never come to testify and it was contrary to law which mention the seizing officer and the parliament never intended third party to make an application; three, no certification of the correctness of the contents of the drugs was done at all as. mandatorily required under section 36 and Regulation 14 (7) to the Act; four, no photographs were taken, and, if taken, none was brought to court as primary evidence of destruction; With the noted cumulative defects for non-compliance with the law, without employing the technical provisions of the Law of Evidence, and Criminal Procedure Act, there is no way this court can close its eyes and bless this clear abrogation of the law. The investigators are mandatorily required to comply with the law to make drugs destroyed during investigations be treated as primary evidence without which same will not be spared. This was no done in this case. Page 20 of 22 From the reasons stated above, I find this suit not proved against the accused person to the required standard of beyond reasonable doubt that it was the accused person who was found with exhibit PEl and was without lawful course as required under section 28 (1) of the Act. That said and done, I hereby find Shomari Idd Mwechua not guilty as charged. Consequently, I hereby discharge the accused person and set him free unless held for another lawful cause. It is so ordered. Dated at Morogoro this 29^^ day of November, 2024 -y > . MAGOIGA

JUDGE 29/11/2024 COURT: Judgement delivered today in open Court at Morogoro High Court in the presence of Ms. Monica Matwe, learned State Attorney and Mr. Mkiiya Daudi and Ms. Catherine Mushi, learned advocates for the accused person who was as well preserit. L I i I ^ ^ o -5: S.M. MAGOIGA

JUDGE 29/11/2024 Page 21 of 22 COURT: Right of appeal fully explained // o § MAGOIGA

UDGE :c U/2024. :I 2^^ Page 22 of 22