20170609 TZHC Dodoma

"ORIGINAL" IN THE HIGH COURT OF TANZANIA DODOMA DISTRICT REGISTRY AT DODOMA CRIMINAL APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 1 OF 2017 (Originating from the District Court of KONDOA Criminal Case No. 186 of 201, Hon. JANG'ANDU L, RM) ~ ~ASHIRA:FU---a-OHA:RI@ R1\'7ABU ... . ;-;.; •...--•.-..--.-•.--..-1 sTA-~~ELLANT~ ~ ~ ~ MOHAMED ELIASA ...................................... 2No APPELLANT VERSUS THE REPUBLIC~ .... ~ ....-... ~-: ... ~ ... ~-......... -. . -. . . . . . . . . . -RESPO NDEN-T , -- JUDGEMENT 0 9 TH JUNE 201 7 Mansoor, J: This appeal arise out of the judgment dated 24TH November, 2016, passed by the District Court ofKondoa in Criminal Case N'd. 186 of 2016, by which, the Appellants were convicted of the offence charged of being in unlawful possession of Narcotic 1 ''ORIGINAL'' drugs c/s 11 (1) (d) of the Drug Control and Enforcement Act. The Appellants were convicted and sentenced to serve a jail sentence of Thirty Years. Aggrieved by the judgment, the appellant filed this appeal raising eleven grounds of appeal. The State Attorney who appeared for the Respondent, Ms. Mwakyusa supported the appeal on thereasons tfiat-tl1e pro-c--e-dures-for-ee:F-t-ifiGat-ion-that______ what was found with the Appellants was drugs were violated, and also the procedure on seizing the drugs were violated as - ~--- ~ - ----n-ocertificate of-'S-eizure-was--issued-,-and--presente_dj:__g_Q_ourt. --------..,.._ __ - As per the prosecution case and the evidence on record, the appellants were apprehended at maji ya shamba street in Kondoa District, in a public coffee shop (kibanda) and recovery of Mirungi was made at the spot by the police. This was stated by A/Inspector Bagenyi. He said he recovered 400 gms of mirungi from the Appellants pockets, and that he measured himself. 2 ''ORIGINAL'' Section 32(2) of the Drugs Control and Enforcement Act, 2015 provides as follows: S.32- (2) the prov1s1on of any law in _force in the United Republic in relation to general powers and duties of investigation , arrest, search and seizure by the officers of the police, customs officers or any other Act. This leads us to applicability and scope of Section 38 of .. Criminal Procedure Act in the drug cases. Section 38 or the Criminal Procedure Act would come into play. Section 38(3) of the Criminal Procedure Act provides as follows: Section 38 (3) Where anything is seized in pursuance of the powers conferred by subsection ( 1) the officer se1z1ng 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 3 "ORIGINAL" for the time being in possession or control of the premises, and the signature of witnesses to the search, if any. -- - - - - - - - - - - - - - - - - - - - - · - - ~ - - - - - - This section requires the police officer se1z1ng any article or substance to issue an official receipt evidencing such seizure and on which the value of the property as ascertained and of the premises searched and that of at least one independept person who witnessed the search. Also as held in the case of 28 of 2010, in which the Court insisted that where the property is seized during search under section 38 (3) of the CPA the police officer must issue a receipt and that police officer seizing the property during searching must comply with the provisions of Section 38 (3) of the Criminal Procedure Act by which investigators are required to issue receipt for anything seized as a result of a search. The appellants submit that the Trial Magistrate erred in law in accepting the evidence_ "ORIGINAL" tendered by the prosecution for which the procedure for its search and seizure were not complied with. -- - - - -- -- -ir is -on -record--that -the- pr-osecution_ __ yjolgt~d__ pr_~~e~ure for arrest and seizure. There was no certificate of seizure presented in court, thus the evidence did not support the ingredients of the offence charged. The evidence presented in __ court was tainted with irregularities and-viulati-on-of-4-a-w------. ___·__ Again, the prosecution did not tender any report of the··, chemical examiner to certify that what was found was actually mirungi and whether or not the mirungi was seized since no seizure certificate was produced at trial, and if the mirungi was seized from the accused, there was no proof establishing that the leaves seized were mirungi or was a mixture containing a Narcotic Drug. No Test has been conducted in order to ascertain the exact quantity of Narcotic Drug contained in the leaves. I agree with the Learned State Attorney and in my considered opinion too, such Test by - chemical examiner is required in the case of the leaves to ascertain the type of drug and the quantity. In the absence of "ORIGINAL"- the Chemical Examiner Report, the Trial Magistrate was wrong in convicting the Appellant with the offence charged. --------In-tli.e-circumstances,-the----1>enefiL-0f_do_ub_t_is_"given to the _ '--·~----------------~- -- appellants/accused persons and they are therefore acquitted of the charges. The appeal is allowed, and the appellants be released from imprisonment, unless their continued confinement is related to any other cause. It is ordered accordingly JUDGE 09TH JUNE 2017 Judgement delivered in Court today in the presence of the/ Appellant, Ms. Luwongo, State Attorney for the Respondent Republic and Mr C.A. Chali the Court Clerk. JUDGE 09 th JUNE 201 7 6