ADAMU RASHID JAMBI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 8564 OF 2024 (Arising from Criminal Case No. 68 of2022, in the District Court of Singida) ADAM RASHID JAMBI.................................................................. APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT JUDGMENT 13h September & l&h October, 2024 MUSOKWA, J. This is an appeal from the conviction and sentence that was entered on 27th July, 2023 against the appellant herein, by the District Court of Singida (trial court). Before the trial court, the appellant stood charged for the offence of unlawful trafficking in narcotic drugs, contrary to section 15A (1) & (2)(C) of the Drug Control and Enforcement Act, Cap. 95, R.E. 2019 (DCEA). It is alleged that on 19th March, 2022 at Maroro Village, Mtinko Ward within the District and Region of Singida, the appellant was found in unlawful possession of 637 rolls of cannabis sativa commonly known as bhangi' weighing 3.47 kilograms. The appellant, being aggrieved by both conviction and sentence of a term of 30 years imprisonment, preferred to challenge the i decision of the trial court. The present appeal contains the following grounds reproduced hereinafter verbatim: - 1. That the handling of the item alleged to be 'bhangi' was done in the way that rises doubt, when it was handled to Exhibit as conducted by F.1715 Sgt Godfrey (PW3) and Sergeant Charles; they did not say how they marked it to differentiate it with other Exhibits as tendered before the honorable court. 2. That when the alleged item was found in the possession of the accused person's house and they identified that it was bhangi' but wonderful among those police officers no body with the capacity to do chemical analysis. 3. That the prosecution failed to prove the case beyond reasonable doubt. 4. That the court erred in law and facts when the accused person stated that admitted to have committed an offence after being beaten. 5. That the trial court erred in law and facts by not considering the defence of the accused that on the alleged date he was selling fish. 6. That the trial court convicted me not because of the evidence of the prosecution side but because I failed to challenge by asking questions to the witnesses hence weakened my defence. 7. That the trial court erred in law and facts when it admitted this statement of one named Paulina Stephano (the witness) where it retied on S. 34 of the Evidence Act, but it had a duty to call that witness to come before the court and tender her evidence. 2 8. That the trial court erred in law and facts by ignoring the offence then position of the law is that failure to consider the case of defence is fatal. On the day scheduled for hearing of this matter, the parties duly entered appearance. The appellant appeared in person and fended for himself. The respondent was represented by Ms. Margareth Tiegray, learned state attorney. The appellant waived his right to begin, and the learned state attorney took the floor and submitted accordingly. Ms. Tiegray prayed and was allowed by this court to argue the 5th and 8th grounds of appeal jointly, and to argue the remaining grounds separately. On the 1st ground of appeal, the respondent's counsel admitted that when the 'bhangi'was seized, the said Exhibit was not marked. However, Ms. Tiegray stated that the appellant did not challenge the admission of the said Exhibit as it was being tendered in court by PW1. Thus, failure by the appellant to challenge the admission thereof, was by implication, admitting that it was the correct Exhibit. Proceeding to the 2nd ground of appeal, the respondent asserted that it is not the duty of a police officer to conduct chemical analysis. However, on the contrary, the duty of a police officer is to ensure the safety of civilians; and 3 the arresting of accused persons. The duty of conducting chemical analysis is the duty of the Government Laboratory Analyst. This is provided for under section 13(2) of the Government Chemist Laboratory Authority Act, Act No. 8 of 2016. In addressing the 3rd ground of appeal, Ms. Tiegray focused on the conditions required to prove the charged offence. The respondent's counsel submitted that during the trial, the prosecution was supposed to establish that the appellant was found in unlawful possession of narcotic drugs. Further, the prosecution was to establish proper chain of custody and for the government analyst to prove that the seized Exhibit was indeed narcotic drugs. According to Ms. Tiegray, the testimonies of PW1 and PW4 established that there was proper chain of custody of the Exhibit upon its seizure. Further, the testimony of PW3 at page 19 of the typed trial proceedings, confirmed of the arrest of the appellant upon being found in possession of 637 rolls of narcotic drugs, which were found under his bed. The case of Jibril Okash Ahmed vs Republic, Cr. Appeal No. 331 of 2017 (unreported) was referred to. Ms. Tiegray submitted that the Exhibit was taken to the government analyst for investigation. The results of the government analyst confirmed that it was 4 indeed narcotic drugs. The testimony of PW2 at page 13 of the typed trial court proceedings is the proof thereto. Thereafter, this witness prayed to tender the analysis report, which was admitted as Exhibit P2A. In the circumstances, the respondent contended that the prosecution proved the alleged offence beyond reasonable doubt. The respondent's counsel firmly opposed the 4th ground of appeal. The appellant alleged that the confession contained in the cautioned statement was a result of duress, because prior to the confession he was beaten brutally. In response thereof, Ms. Tiegray submitted that this ground of appeal is baseless as the appellant did not object to the admission of the cautioned statement at the trial court. This is indicated at page 27 of the typed trial proceedings during the testimony of PW5. The learned state attorney reiterated that this ground of appeal was merely an afterthought and prayed the same to be dismissed for want of merit. Concerning the 5th and 8th grounds of appeal, Ms. Tiegray referred to page 3 of the impugned judgment, whereby it is recorded that the trial court duly considered the defense case before reaching to the final decision. Thus, the respondent prayed that the allegations by the appellant that the defense 5 case was not considered by the trial court in reaching its decision to be disregarded. In rebuttal of the 6th ground of appeal, Ms. Tiegray relied upon the position of the law, that failure to cross examine a witness is an implied consent as to truthfulness of the testimony of the said witness. The case of Issa Hassan Uki vs Republic, Cr. Appeal No. 26 of 2016(unreported), was preferred to cement this point. Addressing the 7th ground of appeal, the respondent averred that, the law permits the admission of a witness statement where the witness is unable to enter appearance in court to give their testimony. However, a foundation must be laid that the witness is unavailable. This is provided for under section 34 of the Evidence Act, Cap. 6 R.E. 2022 (Evidence Act). According to Ms. Tiegray, the legal procedure was duly complied with, as recoded at pages 31 and 32 of the typed proceedings. The foundation was laid in accordance with the requirements of the law, before praying for the admission of the witness statement. The learned state attorney prayed for dismissal of this ground, including the entire appeal for want of merit; and that the decision of the trial court be upheld. 6 The appellant on the other hand, merely prayed for his grounds of appeal to be adopted; and that the court should determine the matter in his favour for the interests of justice. After careful scrutiny of the submissions by the parties and the evidence on record, the main issue for determination before this court is whether the prosecution proved its case beyond reasonable doubt to warrant the conviction and sentence of the appellant herein. The offence of unlawful trafficking in narcotic drugs, is provided for under section 15A (1) & (2)(C) of DCEA as follows: - 15A (1) Any person who traffics in narcotic drugs, psychotropic substances or illegally deals or diverts precursor chemicals or substances with drug related effects or substances used in the process of manufacturing drugs of the quantity specified under this section, commits an offence and upon conviction shall be liable to imprisonment for a term of thirty years. (2) For purposes of this section, a person commits an offence under subsection (1) if such person traffics in- (c) cannabis or khat weighing not more than fifty kilogram. [emphasis added] Section 2 of the DCEA defines the word trafficking as follows: - "trafficking" means the importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any person of narcotic drug or psychotropic substance any i substance represented or held out by that person to be a narcotic drug or psychotropic substance..." [emphasis added] In light of the above provision, the prosecution was required to prove unlawful possession of the narcotic drugs by the appellant herein. The standard of proof being beyond reasonable doubt. The grounds of appeal relied upon by the appellant, challenge the evidence adduced by the prosecution at the trial. On the 1st ground of appeal, the appellant challenges the mode of handling the Exhibit. Essentially, the appellant intends to raise doubt regarding the chain of custody of the Exhibit. To begin with, the testimony of PW3 is that, he conducted the search and seizure exercise together with his colleagues. The said testimony is recorded at pages 18 to 21 of the typed proceedings of the trial court. Further, PW3 states that the Exhibit was transferred to the OC-OCID in Singida. On his part, PW4 at pages 22 to 23 of the typed trial court proceedings testified that he received the Exhibit of 637 rolls of 'bhangi'cxx 21/03/2022. Further that on the same date, he entered the Exhibit in the register as P.F. 16. Reg. 28/2022. PW4 further states that on 23/03/2022 he prepared the 8 Exhibit and handed it to Inspector Annarisha (PW1) who took the Exhibit to the government chemist for analysis. On 25/10/2022, PW1 returned the said Exhibit marked as MTK/IR/75/2022, and handed it over to PW4, who stored the Exhibit in the store room. The testimony of PW1 is recorded at pages 9 to 10 of the typed trial proceedings. This witness testifies that on 23/3/2022, she was tasked to take the Exhibit marked MTK/IR/75/2022, having 637 rolls of 'bhangi'. The Exhibit was contained in a blue plastic bag and she submitted it to the government chemist for analysis. PW1 handed the Exhibit to the government chemist namely Fidelis Crisant, together with Form No. 01. Proceeding with her testimony, PW1 further testifies that she went to the laboratory where the examination was conducted and the Exhibit was marked as Lab No. 168/2022. Thereafter, the chemist returned the Exhibit in a plastic bag, sealed it and labeled it as GLC. PW1 then returned the Exhibit to Singida and handed it over to Exhibit keeper (PW4). PW1 further testifies that on 30/03/2022; she travelled to Dodoma to collect the report which indicated that the Exhibit was narcotic drugs. PW1 prayed to tender the said Exhibit of narcotic drugs, as recorded at page 10 of the typed trial proceedings. Notably, the appellant had no objection thereto and the said 9 Exhibit was admitted and marked as Exhibit PW1 "A". The principle of chain custody was addressed in the case of Jibril Okash (supra). In this case, the Court of Appeal of Tanzania (CAT) held as follows: - 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 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." Looking at the testimonies of PW1, PW3 and PW4; I am of the view that the allegations by the appellant on improper handling of the Exhibit are unmeritorious. This ground lacks merit and therefore fails. The 2nd ground of appeal challenges the identification of the Exhibit by the police officers, as narcotic drugs, while they do not have the required expertise. In addressing this ground of appeal, I will refer to the testimony of the government chemist (PW2), as recorded at pages 12 to 13 of the typed proceedings of the trial court. PW2 testifies that he conducted the test on the sample that was handed over to him by PW1. The test results io confirmed that the Exhibit was narcotic drugs and he duly prepared the respective report. On the basis of the testimony of PW2, this ground of appeal fails too. The 3rd and 6th grounds of appeal, alleges failure by the prosecution to prove the case beyond reasonable doubt. In light of the evidence adduced in the trial court by the prosecution, as thoroughly narrated in the above paragraphs, these grounds are baseless and consequently, are dismissed for want of merit. The appellant challenges the cautioned statement in the 4th ground of appeal, alleging that the admission to the commission of the offence recorded therein was the result of duress. In addressing this ground of appeal, the respondent's counsel submitted that, the appellant did not object to the admission of the cautioned statement at the trial. This is recorded at pages 26 to 27 of the typed trial proceedings during the testimony of PW5. For ease of reference, the records provide as follows: - "PW5:...we took the accused to Mtinko Police Station. I took him to the interrogation room. Before interrogation I informed him of his rights such as he was free to give a statement and to call a relative or lawyer. The accused agreed to give a statement while alone. I started recording and when I finished, I read the statement to him. He said li the statement was correct. He signed by a thumb I certified and signed. If I see the statement, I will identify it through my name my handwriting, the name of the accused and my signature. S/A: I pray to show him a statement. Court: Prayer granted. Ex- continues The statement at hand is the one it bears my name my signature and the name of the accused. I pray to produce the caution statement as Exhibit. Accused: The statement is not mine. Court: The objection has no merit. Caution statement admitted as Exhibit PI. SGD: U.S. Swa/o-PRM 30/05/2023"[emphasis added] It is true that the records indicate that the appellant did not directly object to the admission of the cautioned statement as an Exhibit. However, the appellant repudiated the cautioned statement. The trial court however disregarded the said repudiation and proceeded to admit the said Exhibit. In the case of Nyerere Nyague vs. Republic; Criminal Appeal No. 67 of 2010 (unreported), it was held as follows: - "As we understand it, the law regarding admission of accused's confession under this head is this: - First, a confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, either that it was not voluntarily made or not made at all (See also Selemani Hasuani v R Cr. 12 Appeal No. 364/2008 (unreported); Secondly, if an accused intends to object to the admissibility of a statement or confession, he must do so before it is admitted, and not during cross examination or during defence See: Shihoze Seni v. R, (1992) TLR 330); Juma Kauiuie v R, Cr. Appeal No. 281/2006 (unreported). Thirdly, In the absence of any objection into the admission of the statement when the prosecution sought it to have admitted, the trial court cannot hold a trial within a trial or inquiry suo motu to test its voluntariness. (See also Stephen Jason & Another v. R, Cr. Appeal No. 79/1999. Fourthly, if objection is made at a right time, the trial court must stop everything and proceed to conduct a trial within a trial (in a Trial with assessors) or inquiry, into the voluntariness or otherwise of the alleged confession before the confession is admitted in evidence. See also Twaha Ally & 5 Others v R Cr. Appeal No. 78/2004 (unreported). Fifthly, even if a confession is found to be voluntary and admitted, the trial court is still saddled with the duty of evaluating the weight to be attached to such evidence given the circumstances of each case (See Tuwamoi v Uganda (1967) E.A 91, Stephen Jason & Others v R (supra). And lastly, everything being equal, the best evidence in a criminal trial is a voluntary confession from the accused himself (See Paulo Maduka and 4 Others v R Criminal Appeal No. 110 of 2007 (unreported) " [emphasis added] I am of the view that, the trial court being a subordinate court, the correct approach was to conduct an inquiry, which is commonly known as trial within 13 trial before this court. In the circumstances thereof, the cautioned statement is hereby expunged from the records for the aforementioned reason. The appellant on the 5th and 8th grounds of appeal, contends the decision of the trial court, based on the fact that it was reached without consideration of the defence case. However, at page 3 of the judgment of the trial court reads as follows: - "In his defence, the accused stated that on the alleged date at 19:00hrs, he was at his house selling fish. The police officers arrested him and took him to the police station. At 20:30hrs, they called him to sign that the narcotic drugs were his. The accused signed after he was beaten." [emphasis added] Further at page 4 of the disputed judgment it is recorded that "In his defence, the accused person denied to have been found in possession of the cannabis sativa..." Evidently, as indicated in the records, the trial court duly considered the defence case before reaching the final decision. Thus, this ground of appeal is unfounded. The 7th ground of appeal challenges the witness statement of one Paulina Stephano on the basis that it was necessary for the witness to enter appearance in court to give her testimony. In rebuttal of this ground of appeal, the respondent's counsel submitted that the law permits the 14 admission of a witness statement where the witness is unable to enter appearance in court to give their testimony. However, a foundation must be laid that the witness is unavailable, as provided for under section 34 of the Evidence Act. According to Ms. Tiegray, the legal procedure was duly complied with. Looking at page 30 of the typed trial proceedings, it is clear that the prosecution laid a foundation before producing the witness statement. It was stated that the whereabouts of the witness were unknown. The affidavit of the process server and the original summons were produced as proof that the witness could not be found. The reason provided by the prosecution is in line with section 34B (2) (a) of the Evidence Act. Therefore, the trial court was justified to admit the statement of the witness who could not be called as a witness. In view of the foregoing, and notwithstanding the expunged cautioned statement; this court finds that the prosecution proved the offence to which the appellant was charged, beyond a shadow of a doubt. In the premises, this appeal is dismissed in its entirety for want of merit. It is so ordered. 15 Right of appeal fully explained. Judgment delivered in the presence of the appellant and in the presence of Ms. Margareth Tiegray, learned state attorney representing the respondent. LD. MUSOKWA JUDGE 16