Criminal appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 15336 OF 2024 (Arising from the Judgement of the District Court of Kibaha (Hon. F. Kibona, RM) in Criminal Case No. 45 of 2023 dated 21st September 2023) ________________________ ABDALLAH HASSAN KITENGE………………………….. APPELLANT VERSUS REPUBLIC…………………………..…..………………...RESPONDENT JUDGEMENT Date of last order: 4th February 2025 Date of Judgement: 20th February 2025 MTEMBWA, J.: In the District Court of Kibaha, the Appellant was arraigned for the offense of trafficking in narcotic drugs contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act, Cap 95, R.E 2019. It was alleged that on 13th June 2023, at Mlandizi Kati within Kibaha District in Coast Region, the Appellant was found in possession of narcotic drugs known as cannabis sativa, commonly known as Bhangi, weighing 147.94 grams. 1 Briefly, on 13th June 2023 at around 03:00 pm, while at Mlandizi area, Inspector Tamimu Risasi (PW2) received information from a secret informant that one person was engaged in the business of selling Bhangi. At around 04:30 pm, PW2 and his fellow police officers arrived at the area of the scene and arrested the Appellant, who was, by then, in possession of a sulfate bag. Initially, Ally Bakari Nyambiro (PW3), a street chairman for Mlandizi, was called to witness the arrest. and search. Having arrested the Appellant, PW2 searched the Appellant in the presence of PW3, and as a result, narcotic drugs known as Bhangi weighing 147.94 grams were seized. Thereafter, a certificate of seizure (Exhibit P3) was prepared and signed by the PW2, PW3 and the Appellant. On 6th July 2023, F. 1940 DC Emmanuel (PW6) handled the seized Bhangi to Anastasia Wandi (PW1), the government chemist for examination, who later resolved that the exhibit labeled as 023 – 01- 380 was narcotic drugs known as cannabis sativa, commonly known as Bhangi, weighing 147.94 grams (Exhibit P1). The Appellant resisted the charge. Consequently, the prosecution paraded seven (7) witnesses and tendered six (6) exhibits. The Appellant relied on his affirmed testimony and tendered no exhibit. 2 Having evaluated the evidence adduced during hearing, the trial Court was satisfied that the Appellant committed the alleged crime and proceeded to convict him as charged. The trial Court then sentenced the Appellant to serve thirty (30) years imprisonment. Dissatisfied by both the conviction and sentence, the Appellant laid before this Court, the following grounds of appeal and I quote in verbatim; The original ground of appeal: 1. That, the learned trial magistrate grossly erred by failure to note that the case or the prosecution wasn't proved to the hilt. The additional grounds of appeal: 1. That, the learned trial court erred in law and fact by holding the appellant's conviction basis on the evidence of PW who said nothing about his qualification training and basis of his ability to certify. 2. That, the learned trial court erred in holding the appellant's conviction basis on the Exh PI (bhangi) which was obtained from illegal search. 3. That, the learned trial court erred in holding the appellant's conviction basis on the Exh PI while the chain of custody of the same was contradictory hence broken. 4. That, the learned trial court grossly erred in law by holding the appellant's conviction basis on the Exh P6 without conducting the trial within trial on the caution statement the process of ascertaining whether it was made voluntarily. 5. That, the learned trial court erred in law by relying on the cautioned statement (Exh P6) which was obtained illegally. When this matter came for orders on 18th November 2024, the Appellant appeared in person while Mr. Cathbert Mbilingi, the learned State Attorney, represented the Respondent. By consent, the 3 parties agreed to argue this Appeal through written submissions. However, due to reasons beyond his control, the Appellant could not transmit his submissions in chief to the Respondent on time. As a result, on 4th February 2025, I had to vacate my previous scheduling order to allow the Respondent to file the Reply Submissions out of time. Having reviewed the records, I am satisfied that the parties adhered to the original and amended filing schedule. Before embarking on the crux of the Appeal, I am constrained to look into the concerns the learned state attorney raised. In his reply submissions, the learned state attorney asserted that the Republic was not served with the trial Court proceedings and the additional grounds of appeal. He conceded that the reply submission had been prepared by looking at the Appellant’s submissions in chief, which also discussed the additional grounds of appeal. Admittedly, on 19th August 2024, Mr. Daudi Basaya, the learned state attorney, represented the Respondent while the Appellant appeared in person. Both parties prayed to be supplied with the trial Court records. On 2nd September 2024, the Appellant prayed to file additional grounds of appeal, a prayer, having been not objected to, was accordingly granted. On 18th November 2024, Mr. Cathbert 4 Mbilingi, the learned state attorney, appeared for the Respondent and implored this Court to enter an order for the parties to argue the appeal by way of written submissions, a prayer that was accordingly grated. On 4th February 2025, the filing schedule was accordingly amended to enable the Respondent to file reply submissions out of time. Surprisingly, on 18th November 2024 and 4th February 2025, the learned state attorneys never complained about not being served with the additional grounds of appeal or trial Court proceedings. Had it been a case that the Respondent was not served with the requisite documents, the learned state attorneys would not have prayed for an order to file the written submissions. In the premises, it is my observation that the learned state attorneys were not keen enough to make a follow-up of the case and associated documents to prepare themselves against the appeal, knowing that the Appellant is in custody and has no means of services of the documents. In the premises, I find the concerns by the learned state attorney devoid of merit. Having said so, I will now look into the nitty gritty of the Appeal. When I was going through the Appellant’s submissions, I noted that in the third ground of appeal from the additional grounds of 5 appeal, the Appellant complained that the learned trial court erred by entering a conviction based on Exhibit P1 (cannabis sativa or Bhangi, weighing 147.94 grams) of which the chain of custody was contradictory and or broken. In other words, the Appellant complained that the chain of custody of Exhibit P1 was not properly established to warrant a conviction. The Appellant vigorously argued that the chain of custody of Exhibit P1 (cannabis sativa or Bhangi, weighing 147.94 grams) was contradictory because there were several discrepancies in the details. He referred to the testimony of PW1, who testified that having received the exhibit at the laboratory, she labeled it as 023-01-380, whereas PW5, the exhibit keeper, testified that, from the government chemist, the Exhibit was registered as 143/2023. He considered the two registration numbers different, thus a sign of tempering with the exhibit. The Appellant did not end there. He referred this Court to the material contradictions in the evidence of PW4, PW5 and PW7 regarding who kept the Exhibit for three days. He also submitted that according to PW4, the exhibit was received from PW2 and kept for three days because the exhibit keeper was not around. On 17th June 6 2023, he handled the exhibit to PW7, who then handled the same to PW5, the exhibit keeper. On the other hand, according to PW7, on 14th June 2023, he took the exhibit from PW4 and handled it to PW5. He referred this Court to pages 12, 23 and 17 of the typed procedures. Based on that, he considered the contradictions significant, thereby touching the root of the matter. On the same note, the Appellant pointed out the contradictions in evidence between PW2 and PW3 regarding the color of the parcel in which Exhibit P1 was enclosed. While PW2 testified that the parcel was orange in color, PW3 considered the color to be orange. He referred this Court to pages 11 and 13 of the typed script of the proceedings. Based on the foregoing arguments, the Appellant implored this Court to allow the third ground of appeal. In response to the third ground of appeal, the learned state attorney refuted the assertion that the chain of custody was broken. He added that the chain of custody was adequately maintained, as reflected in the trial Court records. He referred to the testimony of the Government Chemist Analyst (PW1), who confirmed to have received Exhibit P1 for examination and registered it with a Lab. No HQ023- 01380. He referred to the testimony of the exhibit keeper (PW5), who 7 testified to have received the exhibit and registered it in the exhibit register (PF16) by entry number 112/2023. Close to that, PW5 testified that after examination, the Exhibit was returned to him from PW1 and registered it again with entry number 143/2023 and kept until it was taken from him to the Court for tendering. He considered the way the exhibit was handled to be the correct procedure for handling the exhibits. On whether there were contradictions regarding the color of the bag, the learned state attorney submitted that men are always not familiar with colors. He considered, however, the contradiction pointed out minor and did not affect the prosecution evidence. He cited the case of Gitabeka Giyaya vs. Republic (Criminal Appeal No. 44 of 2020) [2022] TZCA 830 (28th December 2022), where it was observed that if the discrepancies complained of are on details, the Court may overlook them. He insisted that the contradictions and inconsistencies pointed out by the Appellant are not fatal and cannot be acted upon to vitiate the conviction entered by the trial court. He implored this Court to dismiss the third ground of appeal. Having considered the rival arguments by the parties, the question would be whether the chain of custody on Exhibit P1 8 (cannabis sativa or Bhangi, weighing 147.94 grams) was properly established. In doing so, I shall also be guided by the decision of Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), where the Court observed that in a criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This is in consonant with section 3(2) (a) of the Evidence Act, Cap 6 RE 2022. It follows, therefore, that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. Indeed, the chain of custody entails that, there should be an assurance that the exhibit seized from the suspect is the same, which 9 the Chief Government Chemist has analyzed, and it is the same that has been tendered in Court. The movement of the exhibit from one person to another should be handled carefully to eliminate any possibility of tampering with it. It is now acceptable in law to establish a chain of custody orally or by writing. In Paul Maduka and 4 Others vs. Republic, Criminal Appeal No. 110 of 2007, Court of Appeal of Tanzania at Dodoma, the court noted that; The chain of custody requires that from the moment the evidence is collected, it very transfer from one person to another must be documented and that it be provable that nobody else could have accessed it. In Chacha Jeremiah Murimi & Others vs. Republic (Criminal Appeal 551 of 2015) [2019] TZCA 52 (4th April 2019), the Court observed that; In order to have a solid chain of custody it is important to follow carefully the handling of what is seized from the suspect up to the time of laboratory analysis, until finally the exhibit seized is received in court as evidence. There should be assurance that the exhibit seized from the suspect is the same which has been analyzed by the Chief Government Chemist. The movement of the exhibit from one person to another should be handled with great care to eliminate any possibility that there may have been tampering of that exhibit. The chances of 10 tampering in the Government Laboratory analysis should also be eliminated. Generally, there should be no vital missing link in handling the exhibit from the time it was seized in the hands of the suspect to the time of chemical analysis, until finally received as evidence in court after being satisfied that there was no meddling or tampering done in the whole process. (emphasis mine) The Appellant complained that the chain of custody of Exhibit P1 (cannabis sativa or Bhangi, weighing 147.94 grams) was full of contradictions or broken. To appreciate this, I will briefly look into the movement of the exhibit to ascertain whether there was any broken chain of custody or whether the contradictions pointed out may affect its authenticity. According to the records, on 13th June 2023, Exhibit P1 was seized by Inspector Tamimu (PW2) at Mlandizi in the presence of Ally Bakari Nyambiro (PW3). Having seized it and filled in the certificate of seizure (Exhibit P3) on the same date, the Exhibit was handled to a CRO officer on duty, F.3747 Surgent Japhet (PW4). It could appear that PW4 kept the Exhibit for three days before handing it to F.3960 DC Surgent Juma (PW7) on 17th June 2023. It is on record that, on 14th June 2023, PW7 took the Exhibit from PW4 to E.8491 Surgent 11 Chumu (PW5), the exhibit keeper who registered it as 112/2023. On 6th July 2023, F.1940 DC Emmanuel (PW6) took the Exhibit to PW1 (government chemist) and returned it to PW5 on the same day. On 28th August 2023, the Exhibit was taken from PW5 to the Court. On 28th August 2028, the Exhibit was tendered by Anastasia Wandi (PW1) and was admitted as Exhibit P1. As alluded to by the Appellant, it is not established who initially kept the exhibit between PW4, PW5 and PW7. In his testimony, PW4 claims to have kept it from 13th June 2023 to 17th June 2023, when he handled it to PW7. The reason for keeping the exhibit for three days was the absence of the exhibit keeper, PW5. However, PW5 confirmed that he received the exhibit from PW7 on 14th June 2023. PW7 also corroborated this story. It is for this reason the Appellant considers the contradiction not minor. The question would be if PW4 kept the exhibit from 13th June 2023 to 17th June 2023, how then the same exhibit was handled to PW5 on 14th June 2023 by PW7? Was it the same Exhibit handled to F.1940 DC Emmanuel (PW6) on 6th July 2023? that was later handled to PW1 (government chemist) for examination?. On this aspect, I agree with the Appellant that there are contradictions on how 12 the Exhibit moved from PW4 to PW5 through PW7. It can not be said that the chain of custody was properly established. According to the records, the Exhibit was taken from PW5 by PW7 on 28th August 2023 for tendering in Court. However, PW7 is not the one who tendered it. It is on records that the same was tendered by PW1 (the government chemist). PW7 did not testify to have handled it to PW1 for tendering in Court. Even PW1 herself did not testify to have received the said exhibit for tendering from either PW5 or PW7. In such circumstances, I wonder where PW1 got the Exhibit for tendering. Such an explanation was supposed to be brought into the records by PW1, PW5, or PW7. Since the records reveal that, after examination by PW1, the exhibit was handled back to PW6, who then handled the same to PW5, there was a need to have an explanation on records on how the same got its way back to PW1 for the second time. To my surprise, the records are silent. In the circumstances, I cannot speculate that it was the same exhibit seized from the Appellant by PW2 and handled to PW4, the CRO officer on duty. In Maulid Shabani Sundi vs. Republic (Criminal Appeal No. 188 of 2023) [2024] TZHC 1456 (9 April 2024), I said and I repeat; 13 In the absence of such explanation, I cannot speculate that, what was tendered as PW – Exhibit P2 is the same exhibit (320 pallets of Bhangi) taken from PW7 by PW4. And if it was, I don’t see the reason why PW1 remained silent on how the same moved to his hands for tendering. Such an explanation also could have served the day if so adduced by PW4. I therefore disagree with the learned State Attorney that, the chain of custody was fully established. However, I am mindful that not every time the chain of custody is broken, the exhibit is not received as evidence in Court. It depends on the kind or nature of the exhibit sought to be used as evidence. A line of difference must be drawn between properties or exhibits that can change hands easily and those that cannot or those can quickly be tempered with and those which cannot. In Joseph Leonard Manyota vs. Republic, Criminal Appeal No. 485 of 2015 (unreported), the appellant challenged the chain of custody of a motorcycle. In differentiating the chain of custody in respect of exhibits that can change hands easily and those that cannot, the Court stated; it is not every time that when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidence, regardless of its nature. We are certain that this cannot be the case say, where the potential evidence is not in the danger of being destroyed, or polluted, and/or in any way tampered with. Where the circumstances 14 may reasonably show the absence of such dangers, the court can safely receive such evidence despite the fact that the chain of custody may have been broken. Of course, this will depend on the prevailing circumstances in every particular case. The Cannabis Sativa (Bhangi) is one of the plant leaves that can be easily tampered with. It is even difficult to differentiate them from other plant leaves. In such circumstances, there was a need to record the chronological movement of the exhibit either by writing or oral account to eliminate all possibilities of tempering with them. In that stance, I hold the view that the chain of custody in respect to Exhibit P1 was not fully established by written document or oral account. It follows, therefore, that the said exhibit is hereby caught in a web of illegalities. I thus proceed to expunge it from the records. Having so observed, the question would be whether, having expunged Exhibit P1, the remaining evidence on records suffice to convict. Since the said exhibit was the heart and blood of the Charge, I see nothing warranting the conviction. Having so observed, I see no reason to discuss the other grounds of appeal. To that end, the third ground of appeal is allowed. The conviction and the sentence meted against the Appellant is hereby set 15 aside. I order that the Appellant be released from the prison forthwith unless otherwise lawfully held. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 20th February 2025. H.S. MTEMBWA JUDGE 16