abasi ismail athumani ndossi vs republic 1998 tzhc 2023 30 march 1998

h i g h „uua':: o f tan/..a ■„t M R .SS SALAAM uiCOriOMIG APPEAL NO.5 OF ,199o ABASI ISMAIL ACHUrUNI NDOSSI ................... . . . . . . ^Vi^uvT versus ■'^.VPONDENl THE REPUBLIC 0*00000 9-0009490 0 0 0 0 0 0 * ^ 0 = o o o o o . J U D G M CHIFJ3TA. J.: The appellant, Abasi Ismail Athumani Mdosi @ Chapuchapu, who waa the second accused at the trial, was jointly charged with another with the offence of unlawful possession of a drug called Ativan contrary to sections 9(1) and 23(3) of the Dangerous Drugs O rd in a n c e as readj togetnox witn.,'i+u P^flfrranh .t a r a 0xapxi 8of the first Schedule to, and section 59 of, the Economic Organized Crime Control Act No.13 of 1984. After a full trial, the appellant’s co-accused was acquitted but the appellant was convicted as c.uurgea ana sentenced to five years imprisonment. He now appeals against both the conviction and sentence* The prosecution's evidence was that on 18th November, 199*, No. C M O D/Sgt Danford (P.W.1) went to a place called Sunset Villa Bar at Morogoro. P.W.1 went there after receiving information that suspected criminals were at that place. it was ^.=n at 12.30 p.m. On arrival there, he found the appellant snd his co-accused. On seeing him, the appellant and his colleague tri-i co run away, but P.W.1, who was accompanied by other Police Officers, nictnaged to arrest ..the appellant and his colleague. the time ox his arrest, the appellant was found in possession of, among other things, four tins of .sod-- - two of mirinda and two of fanta. P.W.1 observed that the two .irinda tins had some small holes which were covered with glue. This made P.VJ.1 suspect that somethin-? aa?. ’.-aen injected into those Mirinda tins. The two tins were then sent -,o tue GoVernment Chemist, In his Report, the Government Chemist state! that the two tins had their contents mixed with a dangerous drug called iorazepam or Ativan,which drug is said to cause heavy drowsenoss or sleep and can even cause death. The -Report, which was tendered as Exhibit P. 2 further stated that the drug is a Fart I poison and so cannot be used without a doctor's prescription The appellant was then charged with this offence, In his defence, the appellant admitted that he was found in possession of the drug. He added, however, that the drug was prescribed for him by a doctor at Kinondoni Hospital, and he produced a prescri­ ption which was tendered as Exhibit D.l. An examination of .Tbchibit D,1 shows that the prescription was given to the appellant on 27th March, 199^, and was a dose for three days. There is no prescription for another doeeo there after, That being the position, and as correctly submitted by Miss Otaru, learned state attorney, the possession of the drug by the appellant some nine months later without the relevant prescription amounted to illegal possession of the drug. The appellant's guilt, therefore, was established beyond reasonable douTJt. With regard to the sentence, the learned trial senior resident magistrate gave good reasons foi* passing the sentence and, if anything, the sentence erred on the side Of leniency. For the foregoing reasons, fcHia appeal fails a:,! so is hereby dismissed in its entirety. a, j C c h i p , ' jTa Jfrpaij Judgment delivered in Court this J()th day of March, 1998 in the absence of the parties. / B. D. ClftPETA JUi)G$ 39/V&8