ALLY RAMADHANI PAMPAM VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA CRIMINAL APPEAL No 22972 OF 2024 (Being an appeal from the decision of the District Court of Singida at Singida in Criminal Case No 61 of 2023 before Luvinga Esquire Senior Resident Magistrate) BETWEEN ALLY RAMADHANI PAMPAM.……………………….APPELLANT VERSUS THE REPUBLIC……………………………………....RESPONDENT JUDGMENT MRUMA, J. The appeal arises from the proceedings in Criminal Case No.61 of 2023 in District Magistrate’s Court of Singida District at Singida where the Appellant was charged with and convicted of the offence of Trafficking in Narcotic Drugs Contrary to Section 5A (1) and (2) (c) of the Drugs Control 1 and Enforcement Act [Cap 95 R.E. 2019] read together with section 19 of the Written Laws (Miscellaneous Amendment (No 5) Act of 2021. The particulars of the offence was that on 30th day of December 2022 at Misuna area in Misuna Ward Mungumaji Division within District and Singida region, the Appellant was found in unlawful possession of Narcotic Drugs to wit Cannabis Sativa commonly known as bhang weighing 1.08 kilograms. The Appellant denied the charge but after a full trial he was found guilty, convicted and sentenced to serve thirty (30) years imprisonment. The Appellant was dissatisfied with the conviction and sentence meted and has lodged this appeal based on the following grounds:- 1. That the learned trial magistrate erred in both law and fact in convicting the Appellant to rely on the evidence which was seized in absence of the ten-cell leader of the area; 2. That the learned trial Magistrate erred in law and in fact by convicting the Appellant in a case that the prosecution did not prove its case beyond reasonable doubt; 3. That the learned trial magistrate erred in matters of law and fact by convicting and sentencing the Appellant without giving him an opportunity to defend himself;# 2 4. That the learned trial magistrate erred in law by convicting the Appellant based on unreliable evidence adduced by an independent witness (i.e. PW3); 5. That the learned trial magistrate erred in law and in fact in convicting the Appellant relying on evidence which was adduced by police officers only; 6. That the learned trial magistrate erred in law and in fact in convicting and passing excessive sentence against the Appellant without considering the weight of alleged drugs which was 1.08kilograms; 7. That the learned trial Magistrate erred in law and in fact in convicting the Appellant on evidence of police officers who concluded that the substance found in his house was narcotic drug without necessary expertise on issues f drugs; 8. That the learned trial magistrate erred in law and in fact in convicting the Appellant without inquiring into family squabbles which resulted into framing a case against the Appellant; He prays that the appeal be allowed, the sentence be set aside and he be set at liberty. The Respondent/Republic opposed the appeal and prayed that it be dismissed. 3 The appeal was canvased viva voce. The Appellant being an unrepresented layman had nothing much to offer. He simply repeated his grounds of appeal. His submissions can be summarized as follows; that the prosecution evidence was marred with contradictions and inconsistencies and did not prove the case beyond reasonable doubt. This is a first appellate court and the duties of this court have been settled in various decisions of this court and the Court of Appeal. However, one of the leading authorities on the duties of the first appellate court, which I find convicing is the case of Okeno-v- Republic (1972) E.A 32 where it was stated that the first appellate court has a duty to analyse the evidence, re-evaluate it and come up with its own independent findings. The court is supposed to leave room for the fact that it did not have an opportunity to see the witnesses when they testified and leave room for that. An Appellant in a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The appellate court must itself weight conflicting evidence and draw its own conclusion. It is not the function of the first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings 4 and conclusions but it must make its own findings and draw its own conclusions only then can it decide whether the trial magistrate’s finding should be supported. In so doing, it should make allowance for the fact that the trial court had advantage of seeing and hearing the witnesses. The first appellate court has jurisdiction to consider facts and the law. Section 359 (1) of the Criminal Procedure Act [Cap 20 R.E. 2019], provides as follows:- “Save as hereinafter provided, any person aggrieved by any finding, sentence or order made or passed by a subordinate court exercising its extended powers by virtue of an order made under section 173 of this Act may appeal to the High Court …. “(2) Any appeal to the High Court may be on a matter of fact as well as on a matter of law”. In view of the above quoted law the first appellate court like all courts have to administer Justice by applying facts to the law and Justice includes the punishment of the guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of substantial technicalities. In this appeal, as pointed out the Appellant contends that the way search and seizure of his house was conducted and the seized substance was 5 chemically examined and its admission in evidence was prejudicial to his trial. He said that the fact that police officers who have no expertise in drugs stated in the Certificate of Seizure (Exhibit P2) which was allegedly found in his house was prejudicial to the subsequent chemical and biological analysis done by PW2. The prosecution called a total of five witnesses. PW1 was an Inspector of Police Jumanne Mtatuu Mahatu who was stationed at Singida Police Station and testified that on 30th December 2022 at around 18:00hours while in a police patrol at Misuna with her colleagues including Sgt Elimsaada CPL Ponela, DC Surat and DC Robert he was informed by Sgt Elimsaada that the Appellant was selling narcotic drugs namely cannabis Sativa or bhang at his house. They went to the 10/10 leader of the area one Moshi Ramadhani Ndudi (PW3) and introduced themselves to him and requested him to accompany them to the house of the Appellant. Upon reaching there PW1, the 10/10 leader and one Cpl Ponela entered and inside that house they recovered 1.08 kilograms of dried cannabis Sativa or bhang. He filled a Certificate of Seizure (Exhibit P2), which shows that the police recovered “Bhangi amabayo haijasokotwa ikiwa ndani ya Chungu cha Kupikia” 6 The Appellant was arrested and was escorted to Singida Police Post Station. The seized ‘bhang’ was sent to the Government Chemist for chemical analysis. The Government Analyst Fedilis B Chrizant (PW2) confirmed that the substance was Cannabis Sativa. She produced Government Chemist report as exhibit PE3. The case was investigated by Sgt Abeid PW4 of Singida police station. It was his evidence that he sent the suspected dry leaves to the Government Chemist for chemical testing and they were confirmed to be cannabis (i.e. bhang). It was further evidence of Sgt Abeid that he interrogated the Appellant and recorded his cautioned statement in which he confessed to have been found in possession of cannabis sativa or bhang. Sgt Abeid produced as exhibit cautioned statement of the Appellant which was admitted as Exhibit P5. In this case, proceedings show that the Appellant was arrested on 30th December 2022 and he was arraigned in court on 17. 5. 2023, about six months after his arrest. No explanation was offered regarding this delay. The alleged cautioned statement was recorded on 30th December 2022, the day he was arrested. It was the evidence of Fidelis Chrizant PW2, a government analyst, that on 5. 1. 2023, he received from Sgt Abeid a special envelope, Evidence Bag and DCEA Form 001 which contained dry leaves. He was requested 7 to ascertain whether the dry leaves contained narcotic drugs. He carried out physical and chemical tests on the dry leaves material and found it to be cannabis. He signed the report. He produced the report in court as exhibit P4. The Appellant submitted that case against him was framed by the police in collusion with some members of his family who were all out to sale his deceased parents’ house. He argued this court to find that police officers who seized the alleged cannabis sativa were not credible witnesses on the ground that despite the fact that there was no evidence to show that they possess expertise in drugs they were conclusive that what they seized from his house was drugs namely Cannabis Sativa or bhang. Learned State Attorney submits that the contention by the Appellant that the evidence relied on was given by Police Officers only is false, misleading and wrongly anchored on facts and the law. He submits that there was evidence to the effect that search and seizure of the alleged drugs was witnessed by the Appellant’s ten- cell leader Moshi Ramadhani Ndudi who testified as PW3. He submits that the evidence adduced showed that the Appellant was caught in possession of cannabis sativa. The learned State Attorney further submits that evidence of the police officers was further corroborated by the evidence of Fidelis Chrizant 8 (PW2) a Government Chemist who analysed the substance seized from the Appellant’s house. According to PW2 the chemical and biological analysis of the substance confirmed that it contained cannabis sativa. He said that evidence that would be fatal to the prosecution’s case must rebate to material facts and must be substantial. He said that the fact that police officers mentioned the suspected substance as being cannabis sativa or bhang without having expertise in that area was minor or trivial contradictions that do not affect the credibility of a witness and cannot vitiate a trial. He said that the prosecution gave a clear account of what occurred in connection with the case. The issues for determination in this appeal are whether the Appellant was found in possession or trafficking cannabis sativa or bhang, and whether the prosecution proved the case against the appellant beyond reasonable doubt and finally I will say something on whether the sentence imposed on the appellant was harsh and inappropriate. The Appellant is protesting the way his house was searched and the alleged cannabis sativa seized. He argued that the substance seized from his house was not cannabis sativa but green vegetable. He contended that police officers searched his house in absence of his ten cell leader and that actually the substance was found in his mother’s room. 9 Search and Seizure by Police Officers are governed by the Criminal Procedure Act and Police General Orders No 226. Section 42 (1) (b) of the Criminal Procedure Act [Cap 20 R.E. 2019] provides that:- “A Police Officer enter upon any land or into any premises……on or in which he believes on reasonable grounds that anything connected with an offence is situated and may seize any such thing that he finds in the course of that search or upon the land or in the premises….as the case may be-” A Procedure upon seizure of anything whether narcotic drugs or other things is prescribed under the provisions of Section 38 (3) of the Criminal Procedure Act, that:- “When anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing being the signature of the owner or occupier of the premises or his near relative or other person for the time being in possession or control of the premises and the signature of witnesses to the search if any” The provisions of this section mean that the procedure set out therein is mandatory due to the use of phrase shall. Apparently the substance which 10 was seized was medically examined by police officers who stated in the Certificate of Seizure that:- “Mimi Jumanne Mtatuu Maatu A/INSP…..nathibitisha kuwa nimefanya upekuzi siku ya 30. 12. 2022 Saa 18:20 eneo la Misuna ambapo vitu vifuatavyo vilikamatwa:- 1. BANGI AMBAYO HAIJASOKOTWA IKIWA NDANI YA CHUNGU CHA KUPIKIA” The Appellant signed the Seizure Certificate which was produced in court as exhibit P2. The fact that the Seizure Certificate stated that what was seized was cannabis sativa suggests that drug was medically and biologically tested or analysed by the police or any other expert analyst at the scene. The officer (if any) who analysed the substance at the scene was not called to testify during and this raised the Appellant’s eyebrows and questioned whether police officers possessed necessary expertise to know that the substance seized was cannabis sativa. I find this complaint to be genuine. How did PW1 and his co- police officers knew conclusively that the substance was cannabis sativa before they were tested by a qualified expert like Fidelis Chrizant PW2?. In my view the fact that the Police stated in the Certificate of Seizure (Exhibit P2) that what they had 11 seized from the Appellant’s house was cannabis sativa was prejudice to subsequent test and chemical analysis done by Fedilis Chrizant (PW2). The trial magistrate in his judgment stated that there was evidence that the search was properly conducted and that in the said search the Appellant was found in possession of narcotic drugs namely bhangi. That there was sufficient evidence that the Appellant was in control of the room where the bhang was found. Therefore, that possession of the bhang was proved against the Appellant. That the government analyst PW2 examined the dry leaves and found it to be cannabis. The first question before the trial court was whether the Appellant was found in possession of the 1.08 kilograms of cannabis. This question was answered in the affirmative by the trial court. I have already ruled that search and seizure of exhibit P2 was problematic on the ground that the police who seized the substance and identified it as being cannabis sativa lacked necessary expertise in that area. I have also held that the chemical analysis conducted by was prejudiced by the police statement in the Seizure Certificate (Exhibit P2) that the seized substance was bhang. The Black`s Law Dictionary 10th Edition defines the term “possession” to mean:- 12 “The fact of having or holding property in one’s power, the exercise of dominion over property. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of the claim to the exclusive use of a material object. Something that a person owns or controls.” The prosecution was therefore required to prove that the seized substance which police says it was bhang was under the physical control of the Appellant and that he had the knowledge of the existence of the bhang in the trailer. It was the evidence of the arresting officer PW1 and PW3 that they entered into the Appellant’s house and searched. It was their evidence that they recovered cannabis sativa which was hidden inside a cooking pot. It was the evidence of Sgt Abed that he recorded a cautioned statement of the Appellant (Exhibit P5) in which he confessed to have been found in possession of cannabis sativa or bhang. I have considered the evidence that was adduced against the Appellant regarding possession. The evidence of the police officers as stated above was challenged. The Appellant stated that the substance seized was seized from his mother’s room. He, however signed the Seizure Certificate (Exhibit P2) which essentially signifies that the substance was found inside his house. Signing of a Seizure Certificate by a person who is legally not 13 represented during search and seizure does not necessarily mean that he conceded to have been found in possession of the thing seized. Issuance of receipt is mandatory under Section 38 (3) of the Criminal Procedure Act. Apparently the law was not complied with and in my view failure to issue the receipt is fatal. I find that there was no overwhelming evidence that the Appellant was found in possession of the cannabis. On the confession, I have carefully read Exhibit P5 (i.e. cautioned statement of the Appellant) and I note that he was not properly cautioned of the charge he was facing. He was not informed the charge and the section of the law he was accused of contravening let alone the punishment he was likely to get in the event he is found guilty. A person cannot be said to have confessed to the offence if he does not know the law contravened and the punishment for offending that law. Thus in totality of the evidence adduced regarding possession I find that the evidence is wanting. On the sentence the Appellant argued that the sentence imposed on him was harsh. The trial magistrate sentenced the appellant to thirty (30) years imprisonment. It is now settled law, following several authorities by this Court and by the Court of Appeal, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the 14 facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. Section 15 A (1) (the Act does not have Section 5A (1) & (2) (c) under which the charge was laid), of the Drug Control and Enforcement Act [Cap 95 R.E. 2019] provides as follows:- “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 quantity specified under this section commits an offence and upon conviction shall be liable to imprisonment for a term of thirty years “ The trial court in this case did impose thirty years imprisonment. Even if the conviction were to be confirmed by this court I find that the sentence 15 passed by the trial court to have been improper and inappropriate in the circumstances of the case. Therefore there could a reason to interfere with it. It would appear that the learned trial magistrate misinterpreted the phrase “Shall be liable” to import that the sentence mentioned is mandatory. In old case of Opoya Versus Uganda (1967) EA 752 the then Eastern Africa Court of Appeal (Sir Clement De Lestang V.P) held that:- “It seems to us beyond argument that the words “Shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the Court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it” Thus, from the above quoted authority, it goes without saying that even if the conviction was to stand, yet the sentence passed was prone to interference by this court as harsh and excessive. The upshot is therefore that this court finds merits in the appeal. The appeal is allowed the conviction is quashed and sentence set aside. The appellant is set at liberty unless he is lawful held. 16 A. R. MRUMA, JUDGE, 27.4.2025 Delivered at Dodoma this 27th Day of March 2025. 17