abubakari hussein vs the republic 2023 tzhc 22875 23 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 100 OF 2023 (Arising from the decision of the District Court of Simanjiro at Orkesumet in Criminal Case No. 16 of 2022) ABUBAKARI HUSSEIN...................................................... APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT JUDGMENT 23fd & 23rd November, 2023 Kahyoza, J.: Abubakari Hussein (the appellant) was charged with the offence of unlawfully possession of narcotic drugs contrary to section 11 (1) (d) of the Drugs Control and Enforcement Act, Cap 95 R.E 2019 (the DCEA) - before the District Court of Simanjiro. In the aftermath, the trial court convicted and imposed a sentence of thirty (30) years imprisonment. Aggrieved on sentence, the appellant marshalled two grounds of complaint, of which I fuse them into one, namely: - i "That the trial magistrate erred in law and fact to convict and sentence the appellant to thirty (30) years imprisonment." During the hearing of the appeal the appellant was unrepresented, and Ms. Blandina Msawa, learned state attorney, appeared for the Republic, the respondent. Arguing in support of the appeal, Ms. Blandina submitted on the following limbs; One, that the charge sheet at the trial was defective, for the appellant was charged with non-existing law. Instead of charging him under section ll(l)(d) of the DCEA, the proper section was 15A (1) and (2)(c) of the DCEA. The former provides for possession of prohibited plants, while the latter covers the possession of rolls in which the appellant was found with. Two, that the chain of custody was broken, as PW1, the arresting officer, did not identify the 103 rolls. PW2, a witness who took the exhibit to the government chemist, neither explained as to whether the tendered exhibit was the same as that which was seized by PW1, nor did he establish that the exhibit tendered was the same to that was found with the accused person. The chain of custody neither showed that the exhibit was moving, citing the rule in Khamis Said Bakari vrs. R Criminal, Criminal Appeal 2 No. 359 of 2017 (CAT - unreported) that is doubtful as to whether the exhibit tendered was the one that was found with the appellant. Three, that an independent witness was not summoned, in fine, she supported the appeal. The appellant, being a lay person, he had nothing to add. Is this appeal meritorious? As the record bears testimony, the appellant was charged with a wrong section of the law. As correctly articulated by Ms. Blandina, section ll(l)(d) of the DCEA (Cap 95 R.E 2022, the then R.E 2029 at the charging), the statute creates offences that relates to Prohibition of cultivation of certain plants and substances. Unlike, section 15A (1) and (2)(a) of the DCEA which establishes offences related to Prohibition of trafficking of narcotic drugs, in the likes of "bhangi" of which the appellant was alleged to have been found in possession of 103 rolls of cannabis sativa. And, the two offences are not minor and cognate. In the circumstances the appellant could not have been found guilty in the offence preferred against him during trial. 3 In the circumstances, the evidence availed at trial did not support the charge. Consequently, the appellant was wrongly convicted and the sentenced. I quash the conviction and set aside the sentence. I order Abubakari Hussein to be immediately released from prison unless otherwise lawfully held. It is ordered accordingly. JUDGE Court: Judgment delivered in the presence of Ms. Blandina Msawa, State Attorney for the Republic and the respondent. B/C Mrs/Ms. Fatina Haymale (RMA) present. J. R. Kahyoza, Judge 23/11/2023 4