19980529 TZHC Mwanza

•. . (MWANZA REGISTRY) .. CRIMINAL REVISION N0.13 OF 1998 · ORIGINAL CRIMINAL CASE N0.813 OF 1998. bF ·.~ DISTRICT/ COURT OF TARIME DISTRICT . . AT·.·TARDIE Before N.B. Kurt.tijila ... District Magi.strat~ THE REPUBLIC . Vrs BONIFACE s/o CHACHA RULING NCHAllAi J. ' . •. - . . ' T4is. reTis_ion, is a result of an inspec/tion of Crimjna1 1 cases r e t ~ from Tarime_District court which the Judge In-charge, , honourable Judge Lugakingira, (now Justice of Appeal) carried out on 25/11/97, whereby his lordship discovered several cases in which the accused persons had.been charged with the offence of being in unlaw~ fu1 possession of·bhang. That offence was cited as being an offence c/s 2(b) of the Cultivation of Noxious Plants (Prohibition) Ordinance, Cap. 134. The sentence that was imposed on the accused persons for that offence was 2 years imprisonment. The Judge wrote a minute to the District Registrar as follows: ·- "DR: There is so_mething wrong with all the· "bhMgf' cases beoause the law eited was repealed a long · time ago. But call for Criminal Case No.813/97 only which we can use as an example• .. K.S.K.Lugakingira 1 J • . 22/11/9711 .. /4 . J l "'< ·,./ 2 - The Distri~ Re-gis-t:x-ar cal.led :fM" the l:'eeord in crim:inal • case No.~1.3/97 from Tarime District Court. When that record arrived · at this Registr;r, the same was submitted to me along with the above quoted minute of judge Lugakingira who had ~hen been e1evated to the Court 0£ Appeal, and, for that ~a.son he directed that I deal; with the matter. ;c therefore directed a revision be opened to consider the propriety, legality and correctness or otherwise of the act o:f the· District Court at Tarime :i,n citing Cap.134 as the la~ or statute which creates . . the offence.· of be.ihg in possession : 0£ .bhang . under which the accused person in crimina1 . case No.813/97 . anq. in other . c~es of that co1.ll't 1 were charged. In my d=v-ection .to the DR-~ respect 0£ the revision, I indicated • the lega1 . question .for Idecision, namely ''Whether being in unlawful possession of ?hang c/s. 2(b) of the Cultivation of Noxiows Plants (Pro~ibition) Ordinan?e, Cap.134 read with Act No.4/1989, is an offence known to our_ laws in_view of the current Drug& and Prevent~on o:f lll.icit Traffic and Drugs Act_ ft No.9/1995'1" I directed that the DPP be served with the necessar7 docu- .: ments in the revision, and that he should be noti:fied to attend at the . hearing of the revision, and be he.ard on the lega1 issue which I raised as above. I fixed the reviai~n for ·hearing on 18/5/1998. On ; . 4' this date, Mr. Mwambegele, learned State Attorney, appeared :for the · DPP, and made a submission on the legal. question in this revision. I must express rrry- thanks to Mr. Mwambegele for his assistance t,., me both in his submission and, above all, for. his indulgence in procuring a photocop1 of.-the whole text of Act No.9/1995 which is not available at the Hi&,i Court library and which is quite involving, / but Mr. Mwambeg~le did a;I-1 this gratis. ~ generosity has touched - me so, and I would have wished some one some~here in the right posi- tion should take.note of this and d~ the ~eedful. Nevertheless, on • my pa.rt gain content to say that the words "thank you" mean a lot in this world and in another world elsewhere. In his submission Mr. Mwambegele had no qualms in stating emphatically that it was wr('ng for the Police and the Public Prose~ cuter at Tarime to have cited section 2(b) Cap.134 as the law creating the offence of be:ing in unlawful possession of bhang. Equally, the trial.district court proceeded.per incuriam in admi- tting the charge, and als~ in convicting the accused person under a wrong provision of_.law which was nonexistent in 1997 when the -~~c~~d person was prosecuted and fina1ly convicted and sentenced. Mr. Mwambegel.e submitted that·Cap.134 along with the Dangerous Drugs Ordinance, Cap.95, were repealed by sec~ion 63(1) of the Drugs and Prevention of Illicit-Traffic-in Drugs Act_No.9/1995 which was assented to by the President on 31st J1:UY, 1995, and cormnenced to operate en 1/8/1996 vide G.N.No.150 ·which was published on 10/7/1996.· Mr~ Mwambegele re•minded this court· that the accused in criminal. case No.813/97 was convicted and sentenced to 3 years imprisonment on 17/10/97, so he will. have served about h~f of his sentence by end ... e:r May, 1998, of course having regard to the usual remission of imprisonment sentences which is accorded to prisoners under the law~ Under those circumstances, Mr. Mwambegele asked this court merely· to quash the conviction, which proceeded under a wrong provision 0£ the law. Mr.Mwambegele noted that the accused had pleaded guilty . to the charge. before the trial court. For this reason Mr. Mwambegele was reluctant to advise this court to mt:uce an order for retrial of the accused fer th~ s.ame offence, however, under t1!e right and proper ' ' 4 ~ which ~ culrently in. operation, and wh:wh still creates the effence of being in unl.awfu1 pos~ession of some stuffakin to bhang 1\-•. MwM,Ibegele was conscious of the provisions of section 63(2) -of Act No.9/1995 whl.ch saves an act or anything that was done µnder Cap.134 and .Cap.95. By interpretation of this sub- section, I am of the CC'lnsidered·view that the subsection saves only such acts or action ~hich were done or· taken before the .. ., repeal of Cap.134 and Cap.95, ·such a,s cases whi'eh, were instituted for offenees tinder those stlttutes, but which qases were comp1eted af'ter the repea1 of those statutes~ ordinances 41 The subsection does not cover such situations and cases:'.U.ke the. instant one whose effence wa.e ccmmitted in 1997 1ong after .cap. 134 and llnp.95 were repeated in 1995 by Act No.9/1995 which became opel._"ative on 1/8/9G. So, I agree with Mr... Mwambegel.e that subsectien 2 of section ,3 ~ Act No.9/1995 does not cover this case • . Nev~he1ess,• ~ order to give better . :i,pstruction and gui- f/· • i dance to the 1ewer courts on the application of Act No.9/1995 which it,ow creates the of:t;e14ce.fo:r;- which ~h~. accused in the instal!.t case was oharged and convicted, I find it necessary for this court • to examine and identify the apprepria:te section or secti•ns of Act Noe9/1995 which would be Qit~d.in a charge for the offence of . : ·• . . . . . :being in unl.awful. possession of narcotic drugs 1ike bhang. .. . First •f . all I must deol.are very·quickly that Act No.9/1995 is far fr•m being easy to -.omprehend, let alone that the same"is quite technical and involving and t~ a large extent. unhappily drafted. That Act contains two sections both of,-¥h;i.ch create the •£fence •f unl.awful pesseea.ion of drugs. The Act as far as I have• ...c:; \. 5 scanned it:, does no_t def in~. t~ ternt.-•r word Jlbhang. 11 The Act defines the term dru5s as meaning th.e narcotic drugs and psychotropic i'• substances spe,oified in the Schedule to this Act~ The Sbhedule to the Act whieh contains a list of n~cotic drugs .does not have a ·narcotic drug by the nam~ o~l:hang. The.two sections.which create offences under Act No.9/1995 are se~tions 16 and 19. In both of these sections there is no mention of bhane;. I will endeavour tQ repr.educe these two ~ections not becaus.e they are easily comprehe- - ' .· ilsible 1 but merely to s~•w how the legislature in its oblivi•us or inadvertent desu;e. t·o confuse the implementors of this piece of legislation, decided to enact two distinct sections creating the . same offence: ·.. ) . . "16. Any person who contrary to a:n.y provision of thiJ Act or any rule or order ma.de.under this Act or any condition of 1icence granted under this Aot - • (a) P19oduces, possesses, transpQrts, imports into the Unite<!, Republic, sells, purchases,. uses or does any act or omits t• do anything in respect of peppy straw, coca plants, coca leaves, pr.e:pared opium, opium poppy, cannabis, manufactured drug or any preparat.i•n cont.sjning any manufactured ~g, psychot:fopic substance, narcetic · drug, such act •r .,-mission amounting _:t• contravention of the provisions of this Act or rule or order made under . ·• (b) this Act; er ·~~ . Cultivates a:ny coca plant or gathere any portion .•f a c•ca plant,. •pium ,P<'PPYt cannabis plant; ~ . (c) Manufactures prepared opium, opium poppy, cannabis, . . manufactures drug or any preparation containing any manufactured drug or psychotropic substance; or · ·$, • (d} imports into the United Republic or exports from the United Republic-~r tranship any narcotic drug or ·'.. p a ~ ~ substance_; or .. . ,. . 6 {e) ip the uni·ted Republic engages in or controls any trade . . whereby a· narcotic drug or a peychotropic substance I ta obtained outside t~e United Republic and supplied to . any person outside the United Republie without previous •• authorization of the ·Commission or otherwise than in, ~ w i t h the. -condit.ions (if any) of such. .autho- rization granted un~er section 14; ~r (f) being the owner or occupier or having the control or use of any house, room, encloPure, space,,place, a,ri.mal or conveyance, knowingly permi~s it to be used . ,. .my other persori. :~i aJi offence for the cormnission by under this Act, , Conmits an offence and upon conviction is liable to ~ fine of. ten million shill.ings or to an;- imprisonment for life or to both such fine and imprisonment and the court may, for reasons to be recorded in the judgment, · impose a fine execeeding ten m:i.1:"lion sMJJings." .. rule •_•19.(1) Any person -who in· contravention of any provision of this A.ct, or any . or order made or permit issued under this Act, possesses •, •, in· a small quantity, any narcotic drug or psyoh9tropic substance, which is proyed to have been intended for his persona1 consumption apd not for sale or distribution, or ··•·onsumes any narcotic drug or sychotropic substance, shall, notwithstanding anything contai- ned in this par.t, be liable - (a) if the narcotic drug or psy8botropic . . sub~tance possessed or consumed _is cocaine, morphine, diacetly - morphine or any other narcot~c drug or any psychotropic substance as ~ by notice· published in the Gazette ·be specified by ·.· ... the Commission to a fine of three hundred thousand shillings, or to iJnpi-isonment for a· term aft ten years; (b) if the narcotic drug or psychotropic substance'1>0ssessed or consumed is other than those specified in or under paragraph (a), to a fine of two hundr~d thousand shillings or .to imprisonment for·a term of seven years or to both fine and impri~ment. .. 7 · (2) · Subj-act to subsectio.n {1), 11 s.mall. quantity" f~r purpose •f this section means such quantity as may by r~gu].ation published in the Gazette specified by the Oommission. ':-' t <~) ,-···. Where a person possesses a small qtiantity of a narcotic •r · psyohotropic scbstanee ,· ·-1:1,,e ourden '••f proving that it was intended for the personal ~ t i o t t o f suchpersen and not for sale or distribution shall lie to that person. ( 4) No person ·shall - (a} ~dminister a narcotic drug or psychotropic substance - er cause or permit tn be administered, except where an authorized .person or a medical practitioner acting m·• his professional capacity and.in accordance with the PI'~V-0.• i1ing norms and standards of professional practice authorize. '(b) add a narcotic drug or psychotropic substance to food or drink without the know1edge of the consumer. (c) Sell, supply or acquire a ~cotic drug or psych-etropic substance on presentation ~f.a prescription if the person knows or has reason t·• -believe that the pres.ri- ption is forged, unlawfully altered, c.ancelled. or issued '. ... more thanaix months before prese~tatio~.n It cannot be gainsaid that the two above quoted sections can hardly be c•mprehended by the law enforcers, particular1y the Public Proseeutors fl'OD'l the Police Force who are laymen. It is unfortunate, that I have not . in•. the past come across a similar prr-bl.em concerning the application of Act No.9/1995, nor have I had the opportunity of reading any dec;i.sion either of this c.-urt of or the Court ,of Appeal of Tanzania to know the sentiments about this Act which other judges harbour. On my part I prefer to dub this Act as a Ci.ndorella Eiece of legislation, that is, a_ piece oJ;legisl.ation with very good intentions but poorly presented - 8 - or cast. It is my c-ons~-vie,w. .tba:t aomething -eat\ OQ- done to imprc,ve this Act, and I take the opportunity.to suggest ·t• the . . law makers and framers to ~ k l y. re'!i:sit . this Aot and do_ soma-thing ~ to it in order.· t~ save it from the intrioa:te ·situat~n in which it ·:1e at present Which ret'ldeNl it <iiffimu.t-~ implement. \ To recapitulate what I have observed tmd :.found above· is that Cap.134 wider which the accused was charged in:,this case, was · ·, repea1ed in 1995, long before the accused co1mn:!:':tted the offence in this case. Moreover, under Act No.9/1995 which\repea1ed Cap.1_34, there is no offence known as ''being in unlawful possession of bhang, ..- . . . as Act No.9/1995 dee8 not define the ward- bhang. ·_ It ·therefore fellows that the charge fer which the accused was prosecuted and convicted.on his ewn p1ea ~f gui1ty was a nul1ity. The entire pro- ceedings which C'Ulminated into the conviction of· the accus.ed are qua,.. shed, and the sentence is set as.i.de. The accused ~- ordered to be re1eased from prison forthwith 'lmleas further detained thereat for another lawfu1 cause. In future, any charge for unlapfu1 possession. \. cf some stuff which is a kin te .bhan~ . shoul.d be brought under either section 16 or 19 of_ :the. Drugs ~d Prevention or': ;a.J.icit Traffic in Drugs, Act No.9/1995. However, as I have already observed, it is not so ea.13y for those who are charged with the duty ef framing charges tG deeide under which of these two s~ctions of . . ~ . the Act the of fender should be eharged. That is a cha1l.~nge tt1 the law enforcers. ,. " I \. '· 'Sgd: M.D. NCHALLA 27/5/98 ' . - 9 I I i~/5/m8 ··Coram··: l4.D. Nchalla:, J • For Republio/Reapon4ent: ·Mrs. Ally State A~torney Absent . c.c •. . . Charles ~ ; : . Ruling deliirere.d· in eh,ambera at 1-fwanza, in the presence_ of Mrs. A~ ].earned State Attorney and in •the.. absence· of the accu~?~t this the 29th day o:f May, 1998. Right of appeal. is accerding .$0 law. . ... ;._·· .. Sgd: M.D. NCHALIA >-:!l!!N! . } '!~ .·".'{~,:~~--- ·(l.,{ ~. 2-9/.5/1998 . ,~• . ···-:-· -~I h~reby eertify that this isr a (;ue copy of the origµuu.. ' ~ ~. ~fa~V=- DISTRICT REGISTRAR MWANZA · . ·,' ...