AISHA COLONEL AND ANOTHER VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA CRIMINAL APPEAL NO. 8534 OF 2024 (Arising from the District Court of Nzega in Criminal Case No. 46 of2023) 1. AISHA COLONEL ................................................. 1st APPELLANT 2. FATUMA COLONEL............... .............................. 2ND APPELLANT VERSUS THE REPUBLIC.................. ................ .................. RESPONDENT JUDGMENT Date of Last Order: 4.11.2024 Date ofJudgment: 5.02.2025 KADILU, J. In the District Court of Nzega, the appellants were convicted of trafficking in narcotic drugs contrary to Section 15A (1) (2) (c) of the Drugs Control and Enforcement Act [Cap. 95 R.E. 2019] as amended by the Written Laws (Miscellaneous Amendment) (No. 5) Act, 2021. It was alleged that on the 6th day of October 2023, at Itilo area within Nzega District in Tabora Region, the appellants were found trafficking narcotic drugs to wit; 23.5 kilograms of cannabis sativa commonly known as Bhangi. They were sentenced to 30 years imprisonment each. Being aggrieved with the conviction and sentence, the appellants preferred the instant appeal armed with the following grounds: 1. That the trial court erred in law to convict the appellants while the narcotic drugs allegedly found in possession of the appellants and examined by the Government Chemist to be narcotic drugs were never established. 2. The trial Court's Magistrate erred in law to convict the appellants with an offence of trafficking narcotic drugs while the chain of custody was i not fully established as exhibits P2, P3, and P4 were mishandled by the prosecution. The appellants prayed this court to allow the appeal, quash the conviction, and set aside the sentence. At the hearing, the appellants were represented by Advocate Saleh Makunga, and Pls. Suzan Barnabas, the learned State Attorney, represented the respondent. Submitting on the first ground, Mr. Saleh submitted that the entire prosecution evidence did not establish that the bags allegedly found with the appellants contained narcotic drugs. He added that the evidence did not prove the type or category of narcotic drugs which the appellants were alleged to be trafficking. Mr. Saleh explained that PW1 stated that he arrested the appellants while on a commuter bus as passengers but he did not present the tickets or registration card of the said commuter bus. The learned Advocate argued further that PW3 did not show his driving license although he told the court that he was driving the alleged bus during the arrest, search, and seizure of the purported narcotic drugs. Concerning the second ground of appeal, Mr. Saleh submitted that the chain of custody was not fully established. He expounded that PW1 stated that the appellants were found with 3 bags of narcotic drugs but his testimony contradicted with Pw3’s evidence. According to Mr. Saleh, PW1 did not specify a person to whom he handed over the exhibits. The exhibits were not also labeled for identity, and no witness described how the exhibits were received, kept, or taken out of the exhibits' store. The Counsel concluded that there was no chronological documentation of the exhibits' analysis, transfer, and disposition. He cited the case of Joseph Leonard Manyota v. R.f Criminal Appeal No. 485 of 2 2015 to support his contention. He prayed for the appeal to be allowed, quash the conviction, and set aside the sentence against the appellants Ms. Suzan opposed the appeal and submitted that the appellants were found trafficking Bhangi measuring 23kgs. Suzan stated that PW5 told the court that after having examined the samples sent to him, he established that it was Bhangi. He prepared the report which was admitted as exhibit P5. The learned State Attorney cited the case of Marceline Koivogui v. R,r Criminal Appeal No. 469 of 2017, Court of Appeal at Dar es Salaam, in which it was held that the examination and weighing of narcotic drugs is the domain of the Government Chemists. She added that whether the driver had a license, the bus was registered, or the appellants had tickets, is irrelevant in proving the charged offence. Concerning the paper trail on the second ground, Ms. Suzan conceded that there was no paper documentation about how the drugs were handled, but the evidence proved that the exhibits were narcotic drugs. The exhibits storekeeper did not testify but the appellants did not object to the admission of the exhibits. She cited the case of Nabibakhsh Bibarde & Another v. R.f Criminal Appeal No. 663 of 2020, Court of Appeal at Dares Salaam where it was held that not always whenever the chain of custody is broken it causes injustice. The learned State Attorney added that the appellants signed a certificate of seizure, something which indicated their concession that they were found with the alleged narcotic drugs. They did not as well dispute that the bags were theirs. She referred to the case of Vuyo Jacky v. DPP, Criminal Appeal No. 334 of 2Q16, the Court of Appeal at Mbeya in which it 3 was held that when a search was conducted and the suspect signed a seizure certificate, it is a concession that the seized items belong to him or her. Ms. Suzan proceeded to submit that on their cautioned statement, the appellants admitted that they were caught with narcotic drugs. They also admitted the same in their defense and elaborated that they were pushed by life hardship to engage in drug dealing. She cited Nuru Mtangi v. R.r Criminal Appeal No. 132 of 2016 where it was held that the confession made in court is the best evidence. Ms. Suzan prayed for the appeal to be dismissed for lack of merit, She invited me to read the case of Abas Kedo Gede v. R,, Criminal Appeal No. 492 of 2017, the Court of Appeal at Dar es Salaam in which it was held that even if the chain of custody is broken the accused may still be found guilty. In rejoinder, Mr. Saleh urged the court to disregard the cases cited by the learned State Attorney because they are distinguishable from the circumstances of this case. Having considered the records, grounds of appeal, and the parties' submissions, the issue for determination is whether the appeal at hand has merit. The appellants alleged that they were wrongly convicted and sentenced because the prosecution did hot establish the offence to the standard required by the law in criminal cases. The basis for the complaint is that the narcotic drugs that they were allegedly found with were not proved to be Bhangito justify their conviction for trafficking in narcotic drugs. The record reveals that PW5 tested the exhibits and found that it was narcotic drugs namely, BhangL He tendered the examination report, Exhibit P5. The trial Magistrate asked each appellant if she wished to object to its 4 admission and they replied in negative. They were also allowed to cross- examine PW5 whereby each replied that she had no questions to himTln that situation, the appellants should not be permitted to complain at this stage that the offence was not proved. Therefore, the 1st ground of appeal is dismissed for lack of merit. Concerning the chain of custody, it is clear from the records that the prosecution did not show how the exhibits were handled from when they were seized, how they reached Nzega Police Station, how they were taken to the Government Chemist at Mwanza, and how they found their way to the court as exhibits. PW1 informed the trial court that he seized three bags consisting of Bhangi from the accused persons and took them to Nzega Police Station together with the accused persons. On the other hand, PW4 testified that he handed over three bags of Bhangi to the Criminal Records Office (CRO) in Nzega Police Station whereas the Government Chemist (PW5) stated that he received the bags from a Police Officer, PW6. PW6 testified that he got the bags from the exhibits' keeper of Nzega Police Station, WP Tumaini. After the examination, PW5 gave the exhibits and the report to PW6 who returned them to Nzega Police Station and handed them to the leaders. From the above description, it is evident that a chain of custody form was not filled to indicate the paper trail of the alleged Bhangias required by the law. In the case of Zainabu Nassoro @ Zena v. R., Criminal Appeal No. 348 of 2015 Court of Appeal at Arusha, it was held that: "... as custody of the evidence of exhibits moves from one chain of custody to the next, the exhibits concerned must not only be properly 5 handled, but each such stage of custody through which the exhibits pass, must be documented till they are tendered in courts. " In Paulo Maduka & Another v, R.f Criminal Appeal No. 110 of 2007, the Court of Appeal discussed the meaning and essence of chain of custody as follows: "By "chain of custody," we have in mind the chronological documentation and/or paper trail showing the seizure, custody, control, transfer, analysis, and disposition of evidence, be it physical or electronic. The idea behind recording the chain of custody is to establish that the alleged evidence is in fact related to the alleged crime rather than, for instance, having been planted fraudulently to make someone appear guilty." Therefore, the chain of custody must be shown from the moment the evidence is collected, its transfer from one person to another, and it should be shown that nobody else had accessed it. In the instant appeal, no such movement was established in the trial court. Nevertheless, there was no likelihood of implanting the drugs fraudulently to the appellants for the reasons I shall state. First, the appellants were charged with transporting Bhang! weighing 23.5 kgs. It was retrieved from them after they were searched. They signed a search and seizure form to confirm that the exhibits belonged to them. Second, the 1st appellant admitted in her cautioned statement that she was found with 23.5 kgs of Bhangl and that she was dealing with drugs due to life hardship. Third, the Government Chemist (PW5) testified that he weighed three bags consisting of Bhangi. According to Exhibit P5, the contents of the first bag measured 11.00 kgs, the second weighed 8,2 kgs, 6 and the third had 4.3 kgs. This piece of evidence was corroborated by PW6's testimony. He informed the trial court that he witnessed PW5 measuring the narcotic drugs and found 23.5 kgs. It was PW5's testimony that after conducting a scientific test, he established that the samples from each bag were cannabis sativa commonly known as Bhangi. In the circumstances, it is unlikely that the exhibits were implanted to the appellants. In the case of Allan Dullerv, R., Criminal Appeal No. 367 of 2019, the Court of Appeal at Dar es Salaam held that not every time the chain of custody is broken an exhibit will not be admitted in evidence. This does not, however, relieve the court from discharging its duty to satisfy itself that the item seized is the one produced in court as exhibit. I am satisfied in this case that the drugs seized from the appellants were the ones presented in court as exhibits. More so because the appellants were categorical in their defence that they were found with the exhibits presented by the prosecution witnesses. They went further and explained that they were dealing with drugs due to life hardship and prayed for the court's mercy. In Isaya Athanas v. R., Criminal Appeal No. 435 of 2021, the Court of Appeal at Tabora while considering the weight of a confession made in court observed as follows: "If there was a cherry on the cake, it was that confession in court, A confession made in court is ofgreater effect than any other proof. With that piece of evidence, nothing more could have proved the prosecution's case beyond reasonable doubt, if not the confession before the court..." From the foregoing analysis, I have no hesitation in finding out like the trial court that the prosecution proved the case against the appellants 7 beyond reasonable doubt. I, thus, dismiss the entire appeal for lack of merit. The right of further appeal is fully explained to any aggrieved party. Order accordingly. adilU; m. j. JUDGE 5/02/2025 Judgment delivered in chamber on the 5th day of February, 2025 in the presence of Mr. Akram Magoti, holding brief for Mr. Saleh Makunga, Advocate for the appellants who are also present under custody, and Ms. Suzan Barnabas, State Attorney for the respondent. KADILU, M. J. JUDGE 5/02/2025 8