19770131 TZHC Arusha

IN THE AT ARU LA T.TZANIA son hPPELITE. JIJRISDICTION HIGH C OURT CRflIITAL APPEAL NO. 8 OF 1976 . ORIGINAL CRIMINAL CASE ITO 233 OP 1975 OF THE DISTRICT COURT OF SANE DISTRICT AT PJ BEFORE: C. P. UR±O, Escj., District Maistrate ALLYiSHIGiL a j •.o .. . APPELLATIT . . •... . . . . .. (Original Accused) versus THE REPUBLIC •............ ............RESPOT]DENT (Original prosecutor) JUDGEMENT NYAII,J. The apoellant was charged and convicted in the district court of Par€ district at Same with the offbnce of Trnsp:orting 1:ricultura1 product without permit c/re 3 and 8 of the National iricultura1 Products Board (Transport Control) Order, 1969 (Govoi'nment Notice iTb. 247 of 26/9/69) and. was senterce.d.. to 1ay a fine of 0.200/= or 1 month jail in default of fiac, and the 34 bags of paddy and one tin of the same were ordered to be forfeited to the Rcpubliö. The facts of the case which are not in dispute on the evidence of both sides is tht on the 18/9/75 the appellant wa transporting 34 bags and one tin of paddy in a motor lorry from Gonja tc ITdungu within Pare district when he and the lorry wo'e otonl)ed by P.1-7.1 (a policaman) a -G.a road-block. He had no.psrmit isruod by the Board or its agents under rule 3 of the National Lgricultral Products Board (Transport Control) Order, 1969, authorizing him to transport the paddy. He was arrstod end the paddy vi.s seized and ho was subsequently charged and. the paddy was prQduced at the trial as exhibit "A". The defence case is tha the appei1antcoaiitted no offence since ho was not transporting the iaddy, to any point outside Pare District nor was ho going to sell it to anybody. •. Moreoverappellant was aifthorized by his ton cell loader, to - move the paddy. 0 The, proscut.i-on case is that the offence charged is comuiitted even within the same district so long as there is no proper permit or authority to' transport 'the controlled.. agricultural products, and a ten cell leader ha no authority to issue a permit or authorize transportation of such products. The first point for consideration and dociEjion in thi case is whether the 'transportation of paddy is oubjoct to legal control. The anawcr.........../2 Al -2- The answer is found in the definition of. the tern 'aribultural productr conainoil in rule 2 of the 1969 Order as amended by the National ricu1tura1 ducts Board. (Transport Coii.tro1) (!iendnent) Or.del 1970 in G-ovérimnt Ii Notice No. 287f. ...13/11/7O when TOad toethor with rule .3 of the 1969 Order and Government Notioe Nos. •250 end. 23 (Cap 486 Supp. 63). .. . . . . Rule 3 of thô 1969 Order which is cited in the charge states:- . . . "No person other than the Board or its agents shall transport or cause to be transported any agricultural product cxc ood.in. thirty. kilograms in woight at any one tine, except after obtaining a icrait from the Board or any agent and in accordance with the trins and conditions specified in the permit: i'ovided that nothing 'in this paragraph shall apply. to - : ... . tno tr 1'ortat1¼a of aily ar.LoulLura1 pi'ouct by o o. hc.ha]i ¼ Y v roducor from th place bf its production to the place of storage, or from the place Of its proauctien or storage to the noarorjt buying co-operative society or Board's main store by the shortest or normal route; and thO transportation of any agrlcultural products i.ot exceeding three hundred and. jy ki1ors in wOit by a person for hi own consumption or th coinsumption of hi 73 non shold or persn ud.or his care". 1, The torm 'agricultural oroduct 'is defined imder Government Notice No. 287 of 13/11/70 (which amends the original definition) as "any agricultural prcciuct in respect of which an. Order mad. und0r octien 7 of th J:r±c1tur. Th'oducts (Cont±ol and Narkotiwg) Act 1962, in, for the time being in force and.' includes the processed derivatives of such agricuittiral product". . . . . According to G.Ns. Non. 250 and 323, Cap. 486, 'Supp. 63, Paddy throughout Tamganyika is sub j oct to an Order made tinder S. 7 of the above mentioned Act. This Order appears., to be still in force • It followo therefore that the transportation of paddy cxc eodin; 30 kilos oven within Paro district is' ubjoct to control and is therefore prohibited "without a Permit from the Board or its agents. The 'next point for consideration and decision is whether the appellant wan authorized by his 'ten cell loador to transport the 1Jadoy as he claims amd wncuncr ouch authority is valid. The appellant ......... /3 -3- The appellant callod D.W.,III (apparontly the tOn coil loader in quoeticn) and this witncaa donicd over pormitting appollant to tranaport the paddy althowh appellant informed him about hirj intention to traneport the paddy from Gonja to Ndirngu. I It coonac to ma that avon if D.W.III had actually authorized äploliant to 4o so, the authority would only be valid if D.W.III waD' appointed by the Board as its agent as dofinod under Rule 2 of the 1969 Ordor. A ton ccii loader docs not bccome an ar;exib of the Board by virtue only of his or her bcinr a ton cOil leader. . . Thcñxt point for conoidoration and decicion Ic whether the 34 ba, and one.':tin of paddy exceeded 30 kiloc. This ic a point Wh±ph th; procecution hac to prove cince it Ic an cecential eicaent of the offence. No direct evidence on the weight of the 34 bago ann one in wac adduced at the trial and no ovidenco to eugcat the nature and cizo of the bago and tin. It Ic not known for instanoe whether they wéro gunny bago or not and not known whether the tin wac the oaao thing as what io comnaonly known in Swahili no a dobo. •Mr Mahatano, Learned Ldvocato for ap011ant hao argued that i would be dar - eroue to gnccc the oizorJ of theco containcre and thL; weight of their contento. Mr. Kinabo, Learned Statc• kttorncy hen cuhmittod in effect that the circumctaiacca of the caco point to no other rbaoonabio conclucion except that th contont; of the 34 bago and one tin muot have weighod more than 30 kiloc, ainco it ± highly improbable that the apoollant would have uced a lorry to tranaport thc paddy if it weighed ieee than 30 kiloo and aloo highly improbable that each bag and the in 1hould have contained paddy weighing, lose than one kilo oince there wore 34 bago and one tin of paddy. Mr. Mahataiic in 11±0 rely hac eub.nited quito convincingly in my vio that in th. abeoncc of evidence to chow that the lorry wac carrying nothing alec boeaaoe 34 bage. and one tin of paddy, it would be iinrcaoonablo to infer, from the more uco of the lorry that the paddy in quection muct have been oo licavy that it required a lorry .to Granepor it. That conclucion would be Inovitabio if the lorry viac tranoporting practically nothing doe apart from the paddy. Howovor, there in the other limb of Mr. Kinabo 'c cubmiccion. Since thro tere 34 bago and one tin of paddy, then if the combined weight of the paddy vac not abovo the proocribod limit of 30 kilon, each bag and the tin niuct have been cc tiny that it conaIncd icon than one kilo of paddy. I think it Ic ridiculoun abourd and highly improbable that a farmer of good oe.nc,.and the appollczb in IrrJunod to be one, woulo. put hin prtdcy in minute bage and a minute tin and then uco a lorrytc tranoort thorn. I find it ac a fact the 34 bago and on. tin wore not minute but culficicntly large to contain thorc than one kilo of paddy. It follows therefore that appo±Jnnt wan tranoporting more than 30 kiloc of paddy at the material time without a permit icuod by the Board or ito authorized agonto. The noxt.60660000069/4 -4- Tho next point for cennici tion and. decision in this case is whether tIi.. paddy was f or apcllant o ovn domostic' consumption or the doLLrnic ccii iption of apjc1lant'o family or of thso uncior aj:ge?lant a c are and Gnerioro oxonajt fran the reciuircndnt for permi. To answer thie gu.stion one must first IDe clear on the party upon whom the bunion of provinL the point in issue lies. Mr. Xinabo, Learned Stace Attorney has ouIDntcod that the exceptions to the applicability of'he 1969 Order contained in the proviso to rule 3 of that Order create possible defences for an accused person; and the prosecution is not requircd.. in law to disprove possible d.efenoor3, but is only recuirod to prove the ingredients of the offence. Learned State Attorney further cubmits that it is for the accused to show that he is covered by any of the axceptions contained in the provisos to rule 3. I respectfully concur with the submissions macic by Learned Stao Attorney. In lvi, the procecuilon is required to prove only the ingrodin -bs of the offence charged and. not to disprove the ponoibIc defences available to an accused person. iLiay such defences or exceptions have to be raised and proved by to accused. The position is spelled out under S. 114 of the Law of EvidcncO Jct 1967. 114 - (1) Them a person is accucod of any offonce, the burden of proving the existence of circumstances bringing the case within any • exception or exemptiOn from, or cjualificatLon to, the oporatiog of the law creating thO of i once with which he is caai'god and the burden 01 proving any fact especially within the knowledge of eucia person is upon him: ovidod that such burden shall be deemed. to be diocharged if the court is satisfied by evicionoc given by.the prosecution, whether in cross—exauiination or otherwise, tht such circumstances or facts exist: Thovidod further that the person accuced I shall be entitled to be acquitted of the offence with which ho is charged if the court is satisfied that the evidence given by the prosecution or ih,: defence creates a reasonable doubt an to the. guilt of the accused pron in r-pci of that offcnco. r (2) Nothing n thie ' cct ion eh. 11 - (a) prejudice or ciimiaih in any rpct the obligation to cetablish by evidence according to law any acts, othinsiono or intentions which are legally nec es nary to constitute the oilenca with which the person accused in charged; or : (ID) impoec on ........ /5 V. • - 5 - b) impose on the procecution the burden of proviiig that the circwnstanceo or facts described in sub-section (1) do not exist; or (c) affect the burden ilaced upon an accused person to prove a defence of mt oxic at ion or jflsanit3r" Mr. Inabo Learned State Attorney has pointed out various contradictions and discrepancies in the evidence adduced for the defence that in his opinion make the explanations given by the appellant highly improbable When appellant was interrogated by P.7.2, he. claimed that he was transporting the paddy to hic, son and one lady by the name of Mwajuma Rar,hidi who lived at Ndungu. But in his evidence in court, appellant testified that he was transporting the paddy to his wife who lived at Ndunu. Purtherniore D.W.II ça lady called Mwa3uma Saidi) who is appellaiit'c daughter testified that 18 of the bags plus the tin belonged to her. I think the evidence adduced on the defence side is so inconsistent, that it cannot be relied upon, and raises no reasonable probability that the appellant could be covered by the exceptions to rule 3. Since the evidence adduced by the prosecution establishes the offence charged beyond ressonable doubt, I am bound to up-hold the conviction of the lower court. The appeal is now dismissed in its entirety. (F, L. "dYLLLJI) JUDGE. Delivered in opoi court at Arunha this lot day of January 1977 in the presence of Mr • Mwale, State Attorney and Mr. Mahataiae, Advocate for appellant. 'I 7-) L7L4,L_ (p. L. ILI) FLN/MTPMO JUDGE.