19830829 TZHC Mbeya2

'I IN TH3. HIGH COIT OP TZNIA AT Li3HYA •PL!I'E JIJ1USDICTION (Mi;eya Reistry) CRIIViIL L2P±1JJ NO 92 Of 1982 OiIGILL CRflflJ C,ASL NO. 46F 1982 OF T}I DISTBICt COURT OFMBYk DISTRIcT T M.YA Before R. Ni. .3 )Kas3'91 J!sq., Ieaid.ent La.Iistrate PPifLLAI'T . . . . . . . . •• . . . . . . . . . . , .. . . . RESPONDENT jdjaGE Ist s ImportingrrestIicted. g&ods c/es. 146 (d) 155 and (1) of iast iifrica Otiston L anernet ct w read together with Government Notice i'o.22 of 1st October, 1974. 2nd C. Being in possession of ncstotaed 'ood.s c/Cs 146 (d) (iii) (155(a and 15) (1) of the ast 4frlca Qistoms I aennt ct as read to'ether with Government Ntie.e 1o.242 of 1st October, 1974. • ____ MYa, • Th? appellant was char'ect with two coLr).t: importinLestriked ax4a and being in posessioa of tncustomed goode. Tl- elVidence revealed that Sgt. MaJor Gordon (r 1) had itiformaton that in tow there were goods illegally brought into the country Tilc 1nfQr1er drected hin to the appellant's house and a erh was rnontd4 Th.irt nine (39) pairs of khangaa, and fout T Shirts we. .found 41 thee ëre marke .d 1 1;11ad6 in •1 kenya. 1 The appellant fai1e1 to ..satief the Police how he cafae by the seie and as chrj.d In his defence he riedTtht he had bought the c1otes from two :i a oha a aJ ioi• lIe tenderhL tc customs receipts, on.e dated 8/7/81 and in the n3me of G. th • cnd dated 22/7/81 and in the

naLle of 1,1. ti,-ayai Bv bhra.eipts wee as issued at Taaken. In all a total of Sho.220/ were cali citoms dties oi certain iem of c1othing The ape11änt arg thai; ahea he bcaht the clothes thdse 1a6hagga el1ers .rarrandered ce racL. to ha i. I'le contended the goods were lawfully brought, into. a-izania and h oc:itted no offence known to law. The trial xagitrote eisi.issed the defene and rejctedthe two receipts as false. He aonvjetd the •appulllizrb of both counts and Qaiteaeed hue to two years inpriso unent each count to r concurrently lie appea1e.d and on 11/5/ 8 3 he w's released on bi1 pndii peal lir. Dheoar represented hip. during the hein L. o tli aj. The ' ion ei 1 n of 1 (2) established that the goods were lawfully imported Into the country., And the goods would have been held to be lawfully iripote& if thq. customs duties thereof were paid. So the issue turned arouirJL the geuinness or otherwise. of the two receipts. If they. are hell gehuine.then it end,s the niatterin the appellant's.favour. Section 167 of the.E. Custom.ct provides: In any proceedin,s under this "(a) • . ........... ...• • •....o . ......,....,.......o...a...;. : .,.e.,.......... (b) the onus of provng. the place ; Of thrigin of.:any OOd;S, or payrient of the proper duti:es-cr.lfu1 LI iL1p)rtation .•. . •............ •• ••• ..." •.••• 'shall he on the pirson prosecuteci,..........,...•....." It is ,

.nh1? that where astatute 6asts thehurden on the accusedhe must adduce evidce t, o the of 1 robeoliies hofo'o 'ic can discharge the bu:cden. In this ease the appellant pro.d.uce two receipts which. w.epe not in his name. One could not rcsist the feelings that the cippe1int merely borrowed them in order to defeat the prs.ocution. That is why he14d them till the p ros ecu t1oii ? c? osi -u cse feared Police Nould have proved the receips f i.:Liie if he darol hcn 'them. 1 nerefore then appellant did not dischere 'i,s biir1.1i oI' k rco a u iC bl .riCO Of robbilitaes a required by S.167 of thi .ct. Thro ere some mur2u.rrins tht.the charge was defetivc- 9 in th.t it co;ttainod ron, setiona or subsectins. I'wov.ld say that the Act cakes lU an,offcncu fat ceiyOne illeally , i'ipq.pin.gqpds from other countries or fai.ing to .ay cmties. L e-ryhody . 1alO\7s. this• id the appellant is no exception. He knew what.the charde : 'teain.st , hi m. .•was and- directed his defence accordingly. . i7l ere msquotLo i of the sOtions or subsections was a har7,1ess c rror curable under S. ", .-o of the Criminal -~ Prebeduro Code. In all the appeal a0-ainst corWiction is di snissd. \ith regard to the sentences the trial .aaistrate had imposed, two years each count to run concurrently. I an of the *ii .' tht thiy wee eoe.sIy compared to t}.'ie offences. The appellant as inc'rcorated on 29/10/82. re'eased on bail onll/5/83 having served aboit [ nonths. This.'willet the justice of the case. I. •se aside the senteaeec imposed.by ; the, tris.l mag'istrate and substitute thereof an order of 1itd dischrge oacount. Ah other orders to ,renaln naisturce The, appeal against sentenee suceds. At 1ibeya, .. 29th jm6U st, 1983 JU. /