SAID KESI MBASHA final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT DAR ES SALAAM ECONOMIC CASE NO. 20 OF 2023 THE REPUBLIC VERSUS 1. SAID KESI MBASHA 2. JOSEPH ABDALLAH DALIDALI @BLESSING 3. ALLU JOHN MURUGWA 4. FATUMA SHABANI SHOMARI JUDGMENT 12th September & 4th October 2024 KISANYA, J.: In this case, Said Kesi Mbasha (first accused), Joseph Abdallah Dalidali @ Blessing (second accused), Allu John Murugwa (third accused), and Fatuma Shabani Shomari (fourth accused) face a first count of trafficking in narcotic drugs. This count is brought forth under section 15(1)(a) and (3)(i) of the Drug Control and Enforcement Act [Cap. 95, R.E. 2019] (hereafter referred to as “the DCEA”), read together with paragraph 23 of the First Schedule to and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap. 200, R.E. 2019] [now R.E. 2022] (hereafter referred to as “the EOCCA”). It is alleged that on the 3rd day of March, 2021, the accused persons were found trafficking in 1 29.86 kilograms of narcotic drugs of heroin at Kijitonyama, within Kinondoni District in Dar es Salaam Region. There is a second count directed solely at the first and fourth accused, who are charged with violating sections 15A(1) and (2)(c) of the DCEA. It is asserted that on the 3rd day of March, 2021, at Kinondoni Kasaba Street within Kinondoni District in Dar es Salaam Region, the duo were found trafficking in 2.63 grams of narcotic drugs namely, cannabis sativa commonly known as “bhangi”. After the accused persons pleaded not guilty to the respective counts, the trial began. Representing the Republic were Mr. Mafuru Moses, Ms. Diana Nkonde, and Ms. Nitike Mwaisaka, learned Senior State Attorneys. On the defense side, Messrs. Josephat Mabula and Dominicus Nkwera, learned Advocates, appeared for the first and second accused; Messrs. Jeremiah Mtobesya and Constantine Kakula, learned Advocates, represented the third accused; while Mr. Benjamin Mageni, also learned Advocate, represented the fourth accused. The prosecution, aiming to establish its case against all four accused, brought forward a total of nine (9) witnesses, namely Mohamed Mohamed Said (PW1), ASP Hassan Masawika (PW2), Insp. Philemon Mbinda (PW3), Mashaka 2 Abdi Hamad (PW4), Saimon Hosea Kivambe (PW5), A/Insp. Richie Felician Ntimbika (PW6), Shiwere Tito Shiwere (PW7), ACP Neema Andrew Mwakagenda (PW8), and Matilda George Sayai (PW9). The prosecution also tendered twenty-two (22) exhibits as part of the evidence. The exhibits presented include, the Government Chemist Analyst Report DCEA 009 (Exhibit P1), Sample Submission Form DCEA 001 (Exhibit P2), a pink bag containing 22 packets of heroin (collectively Exhibit P3, with the pink bag as P3(a) and the 22 packets as P3(b)), a brown bag containing 9 packets of heroin (collectively Exhibit P4, with the brown bag marked as Exhibit P4(a) and the packets as P4(b)), an envelope containing three twists (misokoto) and three pieces of cannabis (Exhibit P5), and two Certificates of Seizure dated 3/3/2021 (Exhibits P6 and P7). Other exhibits include a mobile phone labeled 'Joseph Abdallah Dalidali' (Exhibit P8), Passport No. AB926996 in the name of Joseph Abdallah Dalidali (Exhibit P9), Tanzania Shillings (TZS) 90,000/= cash (Exhibit P10), Passport No. TAE375971 in the name of Allu John Murungwa (Exhibit P11), a Nokia mobile phone labeled 'Allu John Murungwa' (Exhibit P12), another mobile phone labeled 'Allu John Murungwa' (Exhibit P13), a motor vehicle with Registration No. T495 DGD, make Toyota Ractis, silver in color (Exhibit P14), a Record of Search Order by a Police Officer (Exhibit P15), a Certificate of Seizure dated 03/03/2021 3 (Exhibit P16), cash amounting to Tanzania Shillings (TZS) 12,261,000 (Exhibit P17) and USD 14,000 (Exhibit P18), two passports, one numbered TAE299966 for Fatuma Shomari and another numbered TAE6900 for Said Kesi Mbasha (collectively Exhibit P19), the first accused person’s cautioned statement (Exhibit P20), two Exhibit Registers-PF16 (Exhibit P21), and the witness statement of Hassan Ramadhan Tahir (Exhibit P22). The facts underlying the arraignment of the accused persons, as evidenced by the prosecution, are as follows: On 02/03/2021, officers from the Anti-Drugs Unit (ADU) received information that the second accused, Joseph Abdallah Dalidali, was involved in narcotic drug trafficking. Acting on this information, a team led by ASP Hassan Masawika (PW2) conducted surveillance and arrested him on 03/03/2021 in the morning while he was driving a Toyota Ractis to his residence. Subsequently, a search was conducted at the second accused person's house in the presence of the local government’s member (mjumbe) of Mbezi Beach A area, Saimon Hosea Kivambe (PW5), who was summoned to witness the search. The search yielded cash amounting to Tshs 90,000 (Exhibit 10), passport of the second accused (Exhibit P9), an iPhone 7 mobile phone (Exhibit P8), a Toyota Ractis vehicle (Exhibit P14) with registration number T495 DGD and other documents but no narcotic drugs were found. 4 These items were seized by a certificate of seizure (Exhibit P6) which was signed by PW2, PW5 and the second accused. The prosecution's case is that during the preliminary interview, the second accused admitted to PW2 that he was dealing in narcotic drugs stored with his partner (mshirika), Allu John Murugwa, the third accused. It is stated that he even led PW2 and his team to the third accused’s residence at Kijitonyama area. Upon their arrival, PW2 enlisted the presence of independent witnesses, Hassan Ramadhan Tahir and Matilda George Sayayi (PW9), to observe the search. The evidence further reveals that, during the search, two bags were discovered on top of a wardrobe inside the bedroom. The first pink bag (Exhibit P3(a)) contained 22 packets (Exhibit P3(b)) of suspected narcotic drugs, and the second brown bag (Exhibit P4(a)) held 9 packets (Exhibit P4(b)), also suspected to contain narcotic drugs. These bags and packets, along with two mobile phones (Exhibits P12 and P13), passports (Exhibit P11), ATM cards, and various documents, were seized through a certificate of seizure (Exhibit P7) duly signed by PW2, Hassan Ramadhan Tahir, and both the second and third accused. PW2 further testified that during the preliminary interview with the third accused person, she indicated that the drugs had been brought to her house by her lover, Said Kesi Mbasha (first accused), who was residing in Kinondoni. 5 It is stated that, PW2 directed Insp. Philemon Mbinda (PW3) to locate and arrest the first accused in Kinondoni Studio, Kasaba Street. At the same time, he reported the incident to Kijitonyama Police Post, where a case file numbered KJN/IR/866/2021 was opened. Following this, the second and third accused, along with the seized items, were transferred to the ADU’s office. Upon their arrival, PW2 handed over the exhibits to ACP Neema Andrew Mwakagenda (PW8), the exhibit keeper, as recorded in the Exhibit Register-PF 16 (Exhibit P21). Concerning the events at Kinondoni, PW3 testified that he was able to find a house at Kinondoni Studio area on Kasaba Street and enlisted the mjumbe of Kinondoni A, Shewere Tito Shewere (PW7), to serve as a witness during the search. Together, they went to the house in question and knocked on the door, which was opened by a woman who happened to be the fourth accused, Fatuma Shabani Omari. She was probed to call her lover, the first accused, Said Kesi Mbasha. In the presence of PW7, PW3 informed the first accused of the suspicion regarding his involvement in narcotic drug trafficking and stated that he wanted to search the house. During the search in the living room, PW3 discovered three twists and three pieces of twists (Exhibit P5), all containing leaves suspected to be cannabis sativa. He then proceeded to the suspect’s bedroom, where he found a bag 6 containing Tanzanian Shillings 12,261,000 in cash (Exhibit P17), an envelope with USD 14,000 in cash (Exhibit P18), two passports (Exhibit P19) belonging to the first and fourth accused, the first accused’s national identity card, Fatuma the fourth accused’s ID, Emirates baggage receipts for both, four ATM cards (two for the first accused and two for Abdula Karim Ngayama), a lease agreement between the fourth accused and Alex Msama, and three mobile phones. All these items were seized vide the certificate of seizure (Exhibit P16) duly signed by PW3, PW7 and the first and fourth accused, who also provided thumbprints. Following this process, they headed to the ADU’s office. Upon arrival, PW3 was assigned the task of writing down the cautioned statement of the first accused. His evidence indicates that, in his cautioned statement, the first accused person voluntarily confessed to committing the offense of trafficking in narcotic drugs and storing the narcotics at the residence of the third accused. This cautioned statement was admitted into evidence as Exhibit P20. After completing the recording of the first accused’s statement, PW3 handed the exhibits over to PW8, with both signing the exhibit register to confirm the transfer. Later that evening, around 21:00 hours on 03/03/2021, he, along with other officers, escorted all four accused persons to the Central Police Station. 7 Both PW2 and PW3 testified that on 04/03/2021, they were assigned the task of packaging the exhibits seized from Kijitonyama and Kinondoni, respectively, for submission to the Government Chemist. This process was conducted in the presence of the first and fourth accused persons and the independent witness, Mashaka Abdi Hamad (PW4) and Hassan Ramadhan Tahir. Following that, PW2 and PW3 handed their respective sealed exhibits back to PW8, with the transfer being documented in the Exhibit Register (PF21). It is PW2’s testimony that, on the morning of 05/03/2021, he collected the sealed exhibits (comprising two bags and one envelope, all suspected to contain narcotic drugs) from PW8 for submission to the Government Chemist Laboratory Authority (GCLA). He filled out Form No. DCEA 001 (Exhibit P2), detailing the exhibits, signed it, and then proceeded to the GCLA. After arriving at the GCLA, PW2 met Said Mohamed Said (PW1), a chemist who works in that office. PW1 received the exhibits and Form No. DCEA 001, registered the exhibits as Lab No. 639/2021. The exhibits were then carried to the laboratory where PW1 weighed the exhibits and extracted samples for preliminary test. The analysis indicated that, 21 packets from the bag labeled A contained narcotic drugs with a total weight of 20.89 kg, noting that one packet number 22 had no narcotic drug. The analysis further confirmed that the 9 packets from the brown bag marked B were narcotic drugs of heroin weighed 8 8.97 kg. Afterward, PW1 weighed the dry leaves in the three twists and three pieces of twits sealed in the envelope, which totaled 2.63 grams. His preliminary test indicated that the contents therein were cannabis sativa. After the preliminary tests on all exhibits, PW1 signed each packet from both bags, sealed them with the GCLA seal and repacked them in the respective original bags. He signed the khaki paper, affixed the GCLA seal, and stamped each bag before sealing them. For the envelope containing bhangi, the chemist placed the twists inside it and affixed the GCLA stamp. He then signed Form No. DCEA 001 and handed over the exhibits to PW2 who returned them to ADU and handed them over to PW8 via Exhibit P21 for custody. Meanwhile, PW1 proceeded with the confirmatory test on the samples he extracted from the three sets of exhibits. This test was conducted by using a machine known as Liquid Chromatography-Mass Spectrometry (LC-MS). The analysis confirmed that 30 of the 31 packets contained heroin, weighing 29.86 kilograms, and the twits contained cannabis sativa, weighing 2.63 grams. This analysis was documented in the Government Chemist Analyst Report which was admitted into evidence Exhibit P1. In addition to the previously mentioned witnesses, the prosecution called A/Insp. Richie Felician Ntimbika (PW6), a police officer who took part in the 9 search of the third accused’s residence. PW6 testified that following the search on 03/03/2021, he recorded a witness statement from Hassan Ramadhan Tahir, who had witnessed the search. He further stated that after drafting the statement, Hassan reviewed it for accuracy and signed it. PW6 also testified that on the following day, 04/03/2021, he recorded an additional statement from Hassan regarding the packaging of the exhibits. It was his further evidence that learned that Hassan Ramadhan Tahir passed away in 2022, and he submitted Hassan's witness statement, which was admitted into evidence as Exhibit P21. After the prosecution closed its case, all four accused were found to have a case to answer and opted to testify under oath without bringing forth any additional witnesses. The first accused, Said Kesi Mbasha (DW1), provided a detailed account of his arrest. He testified that on 03/03/2021, while at the house of his lover, the fourth accused, a group of five men, along with PW7, forcibly entered and conducted a search. DW1 stated that he was ordered outside where he saw two handcuffed neighbors, Mudi and Ashraf, before being called back inside, where police claimed to have found bhangi (cannabis), USD 14,000, and TZS 12,000,000. He denied owning the cannabis and explained that the US cash was intended for his business trip to China, which was canceled due to COVID-19, while the Tanzanian currency was for the spare parts business. 10 DW1 went on to explain that he and the fourth accused were taken to the ADU, where he was subjected to interrogation and torture by PW3 and PW2, who coerced him into signing and thumb printing a cautioned statement in the presence of the second accused. Nevertheless, DW1 denied any link to the narcotic drugs and called upon the court to acquit him, asserting that the charges were a fabrication stemming from his refusal to provide PW3 with some money found in the fourth accused’s residence. He presented two business licenses (Exhibit D2), a TIN certificate (Exhibit D3, and EFD receipts (Exhibit D4) to substantiate his defence and depended on the witness statement of PW7 (Exhibit D1), which had been admitted into evidence earlier during the prosecution's case. Joseph Abdallah Dalidali (DW2), the second accused, testified that on 03/03/2021, police officers arrested him at Mbezi Beach and conducted a search before PW5 arrived at the scene. He stated that TZS 90,000, his phone, passport, and car were seized. DW2 further stated that he was taken to the ADU, where he witnessed the first accused interrogated and tortured to sign a statement. He also claimed that he was forced to sign a document without knowing its contents and later discovered it was related to the seizure of narcotic drugs. The second accused further claimed that his personal animosity with PW2, due to a relationship with PW2’s wife Mina, contributed to the charges against 11 him. He stated that he did not sign the bags (Exhibit P3(a) and P3(b)) at ADU and denied knowing the third accused and leading the officers to her. The third accused, Allu John Mulugwa (DW3), testified that the first accused had been her lover since late 2020. She testified that on 01/03/2021, the first accused arrived at her rented house with a pink bag and a sulphate bag, stating that they contained clothes and items he was delivering for his brother in Tanga. In her testimony, she testified that the first accused borrowed her brown bag to store his things and then placed the bags in her wardrobe, warning her not to touch them because they contained "dangerous items. She further stated that on 03/03/2021, the police, accompanied by PW9, arrived at her house. DW3 admitted that during the search, two bags containing packets of suspected narcotic drugs, along with her passports and mobile phone, were seized. The third accused insisted that she had no knowledge that the bags contained drugs and pleaded for acquittal, asserting that she trusted the first accused and had no reason to suspect any illegal activity. Under cross-examination, DW3 confirmed that two independent witnesses, Hassan Tahir and PW9, were present during the search, and she had signed the certificate of seizure. The fourth accused, Fatuma Shaban Shomari (DW4), affirmed that she was with her lover, the first accused when the police conducted a search at her residence in Kinondoni on 03/03/2021. She testified that the police, along PW7, 12 found several items, including money, identification documents, and cannabis twists. DW4 claimed that during the search, the first accused admitted to the officers that the cannabis was his and that he had used it the night before. The fourth accused also noted that the pink bag (Exhibit P3 (a)) containing drugs, which was found at the third accused’ house had been borrowed by the first accused a few days earlier to transport clothes to his brother in Tanga. She pleaded for acquittal, claiming that she had no involvement in the drug trafficking charges. As the defence case concluded, learned counsel for both parties were granted time to file their final written submissions, which they did within the allotted timeframe. These submissions will be taken into account as I consider the pertinent issues in this case. To start, I agree with Mr. Nkwera, counsel for the first and second accused, that a core principle of criminal law is that the prosecution bears the burden of proving its case beyond a reasonable doubt. Conversely, the accused is not required to prove the truth of their defence; they only need to raise a reasonable doubt. These basic legal principles were confirmed in the cases of Mwita and Others vs R [1971] HCD No. 54 and Johas Nkinze vs Republic [1992] TLR 213. 13 Given the established principle that a charge or information serves as the foundation of any criminal case, the initial issue at hand is Mr. Nkwera's argument that the information is incurably defective due to its failure to specify any particular instance of trafficking in narcotic drugs listed in section 2 of the DCEA. The learned counsel asserted that this omission rendered the information fundamentally flawed, in violation of sections 132 and 135 of the Criminal Procedure Act [Cap. 20, R.E. 2022] (the CPA). He further contended that the only remedy is to release the first and second accused from custody, with no further action necessary. To bolster his position, he cited the cases of Amir Juma Shabani and Others vs Republic, Criminal Appeal No. 290 of 2015, Ezekiel Kwihuja vs Republic, Criminal Appeal No. 559 of 2016, and Hamis Mohamed Mtou vs Republic, Criminal Appeal No. 229 of 2019. In these cases, the Court of Appeal pointed out that a charge determined to be incurably defective lacks legal existence. I have examined the provisions of sections 132 and 135 of the CPA, which underpin the arguments made by the learned counsel. Section 132 specifies that every charge or information must contain sufficient particulars to provide reasonable information about the nature of the offence charged. In contrast, section 135(c)(ii) dictates that the statement of offence should be conveyed in ordinary language, avoiding technical jargon wherever possible, and it does not 14 need to encompass all essential elements of the offence. Furthermore, the statement of offence should contain a reference to the specific section of the legislation that creates the offence. Was there a violation of the aforementioned provisions? I am confident, and I agree with Mr. Mafuru, learned Senior State Attorney that the answer is no for the following reasons. Firstly, the statement of offence clearly indicates that the accused persons are charged with trafficking in narcotic drugs, with all relevant legislations cited correctly for both counts. Secondly, the particulars of the offence clearly outline that the accused persons were found in trafficking narcotic drugs, whereby the specific type and weight of the drugs for each count, along with the date and location of the alleged crimes were mentioned. Thus, the information provided reasonable insight into the nature of the offence, as required by section 132 of the CPA. It is correct that section 2 of the DCEA includes various forms of trafficking activities namely, importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, delivery and distribution. However, in the case of Remina Omary Abdul vs. Republic, Criminal Appeal No. 189 of 2020 [2022] TZCA 118 (15 March 2022), the Court of Appeal considered sections 2 and 15(2) of the DCEA, which categorize the stated forms of trafficking in narcotic drugs. It determined that it is unnecessary to specify the exact type of trafficking in the charge, as all types 15 defined within these provisions constitute a single offence of drug trafficking. For this reason, the argument about the defectiveness of the information is unpersuasive and is accordingly dismissed. With the issue of the charge's defectiveness set aside, my task now is to evaluate whether the prosecution has established both counts beyond any reasonable doubt. I will begin by addressing the second count, where the first and fourth accused are charged with contravening section 15A(1) and (2)(c) of the DCEA, for trafficking in narcotic drugs, namely 2.63 grams of cannabis sativa. Pursuant to the testimonies of PW3 and PW7 supported by the certificate of seizure (Exhibit P16), three twists and three pieces of twists containing suspected narcotic substances were seized from the first and fourth accused on 03/03/2021. According to the chemist (PW1), his analysis as documented in the report (Exhibit P1) confirmed that the three twists and three pieces contained cannabis sativa weighing 2.63 grams. Taking into account the established weight of the cannabis sativa at hand, the decisive question is whether the offence of trafficking in narcotic drugs has been established. As per section 15A(2)(c) of the DCEA, in force at the time the offence was committed, trafficking in narcotic drugs under this provision applies 16 when the weight of cannabis sativa does not exceed fifty kilograms. However, this does not imply the absence of a minimum weight threshold. I state this because sections 17(1) and (3) of the DCEA prohibit the possession or use of small quantities of narcotics outlined in the Regulations under that Act. In accordance with regulation 3(1)(a) of the Drugs Control and Enforcement (General) Regulations, 2016, GN No. 173 published on 13/05/2026, cannabis not exceeding 50 grams is classified as a small quantity and is punishable under section 17(1) of the DCEA. Therefore, if trafficking under sections 15A(1) and (2)(c) of the DCEA pertains to the possession of cannabis sativa, as in this case, the weight must not fall below the 50 grams stipulated by law. It is my considered opinion that the lawmakers did not intend for person in possession of less than 50 grams of cannabis sativa to be prosecuted under the offence of trafficking in narcotic drugs Now that the second count involves only 2.63 grams of cannabis sativa as per the testimony of PW1 and the analyst report (Exhibit P1), I am inclined to conclude that the offence of trafficking in narcotic drugs envisaged under section 15A(1) and (2)(c) of the DCEA, when read together with section 17(1) of the same Act, has not been proved against the first and fourth accused. Turning my attention to the first count, predicated on section 15(1)(a) and (3)(i) of the DCEA, the key to determining whether the prosecution has met the 17 required standard of proof beyond a reasonable doubt lies in examining the following issues: 1. Whether Exhibits P3(b) and P4(b) contain heroin weighing 29.86 kilograms. 2. If the first answer is in the affirmative, whether all the accused trafficked in narcotic drugs (Exhibits P3(b) and P4(b)). 3. Whether the search and seizure were properly conducted. 4. Whether the chain of custody of Exhibits P3(b) and P4(b) was properly maintained. 5. Whether the defence has raised doubts on the prosecution case. In relation to the first issue of whether Exhibits P3(b) and P4(b) comprise heroin weighing 29.86 kilograms, section 48A of the DCEA provides definitive guidance. It requires the Government Analyst conducting tests and analysis of substances suspected of being narcotic drugs to produce a signed report. This report is admissible in evidence as proof of the facts it contains without requiring further verification, and its content is deemed conclusive unless rebutted. The Court of Appeal has consistently upheld in various cases, including Marceline Koivogui vs. Republic, Criminal Appeal No. 469 of 2017, Omary Said @Athumani vs R, Criminal Appeal No. 58 of 2022, and Charo Said Kimillu vs. R, Criminal Appeal No. 111 of 2015 (all unreported) that that the duty for the 18 weighing and analysis of suspected narcotic drugs lies exclusively with the Chief Government Chemist In our case, PW1 is a chemist working for the GCLA. He testified that he received Exhibits P3 (a) and (b) and P4 (a) and (b) from PW2 and conducted both preliminary and confirmatory tests on the contents. His testimony, supported by Exhibit P1, indicates that he was an accredited analyst authorized to handle both the weighing and analysis of the suspected substances. However, as an expert, PW1 was obligated to present the scientific method necessary to verify the accuracy of his findings. To discharge this duty, PW1 accounted that he first weighed each packet from both bags and then extracted two samples, one for a preliminary test and another for a confirmatory test. PW1 stated that, during the preliminary testing, he applied a Mecke reagent to the samples, which resulted in a colour change from off-white in 30 out of 31 samples, indicating the presence of heroin. As regards the confirmatory test, PW1 accounted that he used a Liquid Chromatography-Mass Spectrometry (LC-MS) machine. He explained that he mixed 1 milligram of the sample from each packet with 1 milliliter of methanol and placed the mixture into an Eppendorf tube for analysis. He further prepared a mobile phase by mixing 50 microliters of acetonitrile with 950 microliters of distilled water. The samples were then placed in the LC-MS 19 machine for analysis. The results revealed that the samples from 30 out of 31 packets had a molecular weight of 370, which is consistent with heroin hydrochloride. As for the sample from packet number 22, he stated that it did not show any molecular weight, indicating that it did not contain heroin. In the light of the above, it is evident that PW1 has provided the court with the scientific criteria or methodology used to conclude that Exhibits P3(b) and P4 (b) contained heroin. The findings were documented in a Government Analyst report, which was signed in compliance with section 48A(1) of the DCEA. Being guided by section 48A(2) of the DCEA, the evidence of facts in Exhibit P1 are conclusive unless successfully rebutted. It is worth noting that during cross- examination, the defence did not challenge the scientific methods employed by PW1. Mr. Nkwera contended that the report did not comply with the legally prescribed format. However, I find no substantial contradiction. The only change was the inclusion of the report's preparation date, which, in my view, does not affect the report's validity. Since no issues were raised regarding the accuracy of the tests, I find no reason to doubt the findings. Consequently, I hold that the prosecution has proven that Exhibits P3(b) and P4(b) contain heroin, a narcotic drug, with a total weight of 29.86 kilograms. 20 Upon resolving the first issue affirmatively, the next issue is whether the accused persons were involved in trafficking the heroin (Exhibit P3(b) and P4(b)) in question. As indicated earlier, section 2 of the DCEA defines "trafficking" broadly to include activities such as importation, exportation, buying, selling, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery, or distribution of narcotic drugs. The definition also extends to situations where a person represents or holds out any substance as narcotic drugs. In this context, the prosecution must prove that the accused engaged in any of the activities involving the heroin (Exhibits P3(b) and P4 (b)) in question. The prosecution case shows that the second accused was the first to be apprehended following a tip-off to the ADU, which indicated his involvement in narcotic drug trafficking. According to PW2, PW3 and PW5, a search of the second accused's residence and vehicle yielded no drugs. However, all three witnesses testified that, during a preliminary interview, the second accused revealed to PW2 that the drugs were stored in Kijitonyama. PW2 and PW3 further testified that the second accused named the third accused as his partner and guided them to her residence. The testimonies of PW2 and PW9 further revealed that, upon searching 21 the third accused's residence, 31 packets (Exhibit P3(b) and P4(b) of suspected narcotic drugs were discovered. They accounted that 22 packets (Exhibit P3(b)) were found in a pink bag (Exhibit P3(a)), while 9 packets (Exhibit P4(b)) were recovered from a brown bag (Exhibit P4(a)). According to them, these substances suspected to be drugs were seized and duly documented in the Certificate of Seizure (Exhibit P7), which was signed by both the second and third accused together with PW2 and the independent witness namely, Hassan Ramadhani Tahir. Notably, in her evidence under oath, the third accused (DW3) admitted that the two bags (Exhibits P3(a) and P4(a) containing the packets (Exhibits P3(b) and P4(b)) with substances suspected to be narcotic drugs were indeed recovered from her house and named the first accused as the one who brought them to her. From this uncontroverted evidence, it is clear that the prosecution has proved that the 31 packets, 30 of which were subsequently confirmed by PW1 to contain heroin, were retrieved from the third accused’s residence The critical question now is whether all accused persons are connected to the narcotic drugs at hand. Drug-related activities are rarely conducted in plain sight. Consequently, an accused may not always be caught with the drugs in 22 their physical possession. In such cases, it is incumbent upon the prosecution to prove that the accused had knowledge of and exercised control over the narcotic drugs. This principle is commonly referred to as ‘constructive possession’. In the case of Yanga Omari Yanga vs. Republic, Criminal Appeal No. 102 of 2019) [2021] TZCA 220 (1 June 2021), the Court of Appeal reiterated this principle by citing with approval an article titled "That Aint Mine: Taking Possession of Your Constructive Possession Case," written by H. Lee Harrel, Deputy Commonwealth's Attorney for Wythe County, Virginia, and published in Volume 6, Number 1 (July 2011). In this article, the author discusses the legal concept of constructive possession and the necessary criteria to establish it beyond a reasonable doubt and observed that: "In criminal prosecution for unlawful possession (or even distribution and manufacturing) of contraband, the Commonwealth may prove the case by showing either actual or constructive possession. If the Commonwealth's case is one of constructive - rather than actual - possession the following must be proved beyond reasonable doubt: 1. That defendant was aware of the presence and character of the contraband. 2. That the contraband was subject to defendant's dominion and control. 23 Citing further the case of Moses Charles Deo vs Republic [1987] TLR 134, which was also referred to this court by Mr. Mtobesya, learned counsel for the third accused, the Court of Appeal went on to affirm that: In our jurisdiction, the principle which recognizes that drugs are commodities of significant value has been embraced by the Court in determining as to whether the accused had actual or constructive knowledge. In a criminal trial, the manner of establishing knowledge on the part of the accused or not has been discussed in a number of cases including the case of MOSES CHARLES DEO VS REPUBLIC, (supra) where the Court categorically stated that: "for a person to be found to have had possession, actual or constructive, of goods it must be proved either that he was aware of their presence and that he exercised control over them, or that the goods came albeit in his presence, at his invitation and arrangement”.” A similar stance was articulated in the cases of Michael Charles Kijangwa vs Republic, Criminal Appeal No. 280 of 2017, Athuman Mohamed Nyamvi @ Ismail Adam and 2 Others vs Republic Waziri Shaban Mzogi vs Republic, Criminal Appeal No. 478 of 2018, Nabibarkish Pribaksh Bilbarde vs Republic, Criminal Appeal No. 663 of 2020, Seng Lei vs The DPP, Criminal Appeal No. 16A of 2016 and No. 17 of 2017 (all 24 unreported) and Nurdin Akasha Habab vs Republic [1995] TLR 227 as cited by Mr. Mafuru, learned Senior State Attorney. Reverting to present case, the evidence implicating the first accused in the heroin found at the third accused is his cautioned statement and the evidence of co-accused, the third and fourth accused. Regarding the cautioned statement, it is well-established in law that the most reliable witness in a criminal case is an accused person who voluntarily confesses to the crime. This position is echoed in plethora of authorities, including Jacob Asegelile Kakune v. Republic, Criminal Appeal No. 178 of 2017, and Emmanuel Stephano v. Republic, Criminal Appeal No. 413 of 2018 (both unreported). For instance, in Emmanuel Stephano (supra), the Court of Appeal elaborated on this principle and held: “We may as well say it right here, that we have no problem with that principle because in a deserving situation, no witness can better tell the perpetrator of a crime than the perpetrator himself who decides to confess.” As noted in the excerpt above, a freely given confession is frequently considered the most potent form of evidence in criminal trials. In his cautioned statement (Exhibit P20), the first accused admitted to delivering the narcotic drugs to the third accused's residence. He further explained how he regularly visited the third accused’s house to collect the packets 25 for sale, which indicates his clear knowledge and control over the narcotics. His claims of being tortured and beaten into making the confession were addressed during the trial within a trial, where the Court concluded that the statement was given voluntarily. It is vital to stress that when a cautioned statement is retracted or repudiated, as seen in this case, established legal principles dictate that the trial court to be cautious about relying on such statements without corroborating evidence on key details. Nevertheless, the court may proceed to accept the confession if it is thoroughly satisfied, considering the specifics of the case, that the confession is indeed truthful. This was underscored in Tuwamoi vs Uganda (1967) EA 84, which was upheld in Nuru Venaras and Others vs Republic, Criminal Appeal No. 431 of 2021, relied upon by Counsel Kwera for the first and second accused. The current evidence, as presented by PW2 and PW9 along with Exhibit P7, indicates that the packets of suspected narcotics were indeed found in the third accused's residence. This supports the first accused’s statement that he brought them to that location. In addition, according to the testimonies of PW2, PW9, and the contents of Exhibit P7, 22 packets were retrieved from a pink bag, with the tag connecting it to the fourth accused. This further corroborates the first accused’s statement in Exhibit P20 that he took the fourth accused's bag to the 26 third accused's house, where he proceeded to pack the suspected drugs. In this context, I respectfully disagree with Mr. Nkwera's claim that Exhibit P1 is uncorroborated. Furthermore, the statement of the first accused finds support in the evidence provided by the third accused, which will be addressed in further deliberation. Moreover, the statement is detailed and recounts facts that only the maker, the first accused, could have known. This specificity adds to its credibility, as it reflects an intimate knowledge of the events and circumstances surrounding the case that would be unlikely for anyone else to possess. Such detail supports the assertion that the first accused was indeed involved in the events described, reinforcing the reliability of the confession as a key piece of evidence in this matter. Therefore, I find no reason for not acting upon it. I have also taken into account Mr. Nkwera's argument that the cautioned statement was recorded outside the timeframe established by law. However, this issue was not raised when Exhibit P20 was submitted for admission into evidence. Notwithstanding this, given that this is a drug-related case where the cautioned statement was recorded under the DCEA, the appropriate time frame for recording such a statement is within 24 hours, as stipulated in section 48(2)(v) of the DCEA. The testimony of PW3, PW7, and even the first and fourth accused indicates that the arrest of the first accused occurred in the morning of 03/03/2021. It is PW3’s evidence and reflected in Exhibit P20 that the cuationed 27 statement was recorded on the same date from 11:30 hours to 15:00 hours, thus falling within the prescribed timeframe. Furthermore, section 48(2)(v) of the DCEA, when read together with section 51(1) of the CPA, allows for further interviews to be held provided the accused has not yet been charged and there is a reasonable basis for conducting such an interview. It is evident that the further interview took place after the first accused witnessed the sealing of the suspected narcotic drug. Thus, there was a reasonable cause for conducting the further interview which was titled additional statement. Even if the additional statement were to be set aside, the statement recorded on 03/03/2021 remains intact and sufficient to implicate the first accused. Consequently, I find Mr. Nkwera’s argument regarding the timing of the statement to be without merit and dismiss it accordingly. As for the second accused, he is implicated in this case based on his oral confession reportedly made during a preliminary interview with PW2. It is further evident he is the one who led PW2 and PW3 to the third accused’s residence, where the substances were later confirmed to be narcotic drugs and subsequently discovered. Guided by the principle established in the case of Yanga Omari Yanga (supra), I concur with Mr. Mafuru that both his statement before PW2 and action of taking them to the third accused indicate constructive possession of the narcotic drug found in the third accused’s house. 28 Citing the case of Boniface Mathew Malyango @Shetani Hana Huruma and Another vs Republic, Criminal Appeal No. 358 of 2018, Mr. Nkwera argued that the oral confession should not be considered because it was obtained without cautioning the second accused and was not voluntarily given. Indeed, PW2 did not mention in his testimony that the second accused had been cautioned. However, after reviewing the legal principles laid out in Chamuriho Kirenge @ Chamriho Juias vs R, Criminal Appeal No. 57 of 2017 and John Peter Shayo & 2 Others [1988] TLR 198, it is clear that under section 31 of the Evidence Act [Cap. 6, R.E. 2022] confessions that would otherwise be inadmissible may be allowed if they lead to the discovery of material evidence related to the crime. Since the second accused’s oral confession and his guidance led PW2 to the discovery of the narcotic drugs, I find it admissible. I have then taken into account the second accused's assertion that he was taken directly to the police station following his arrest. However, this claim was not raised with PW2 and PW3, both of whom testified that he led them to the third accused’s residence. Furthermore, the third accused confirmed that the second accused arrived with PW2, who conducted the search at her house, and this statement was not challenged by the second accused during cross- examination. It is a well-established principle in this jurisdiction that failing to cross-examine a witness on a significant fact constitutes an admission. 29 Furthermore, the Certificate of Seizure (Exhibit P7) bears the second accused's signature, which, according to established law, implies that he acknowledged the seizure of the items listed in his presence. Therefore, I find no merit in his claim. In the light of the above analysis, I am convinced that the second accused is sufficiently implicated in the possession of the narcotic drugs subject to this case. Moving to the third accused, whose rented house was where the narcotic drugs were discovered, Mr. Mtobesya argued that she did not have constructive possession of the drugs. His argument focused on the claim that the prosecution had failed to prove that the third accused knew the substances brought into her house by the first accused were narcotics. While I acknowledge the learned counsel’s argument, it is clear that the third accused was found in actual possession rather than constructive possession of the substances, which were confirmed to be narcotic drugs. Even if I were to consider the issue of constructive possession, the case of Nurdin Akasha Habab (supra) provides valuable guidance. In that case, narcotic drugs were found in the appellant’s store, and the evidence showed that one, Mohamed Abdarahaman, a Kenyan from Mombasa, had never lived in the room where the drugs were discovered. He had last been seen in Dar es Salaam two days before the search, and during the police investigation following the appellant’s arrest, Abdarahaman could not be 30 located. In determining whether the appellant was in possession of the contraband, the Court of Appeal held: “Our view is that if the drugs were introduced into the store by the said Mohamed Abdarahaman, this must have been with the knowledge and approval of the appellant. It is highly unlikely that Mohamed Abdarahaman would have risked leaving such a valuable commodity in the store at a time when he had no control over it as he spent his nights elsewhere and stayed away for some days. Whether the drugs were hidden in the store by the appellant himself or by the said Mohamed Abdarahaman with the appellant's knowledge and approval, the appellant was in possession of those drugs and the learned High Court judge rightly so found” This principle applies equally to the third accused, as the evidence demonstrates that she had control over the rented house where the drugs were discovered. She also admitted that the consignment was brought into the house in her presence, and she even allowed the first accused to pack some of the packets into her own bag. Additionally, the third accused retained control over both bags containing the narcotic drugs from 01/03/2021, as the first accused did not reside there. It is highly unlikely that such a large number of packets would be packed in her presence without questioning whether they were truly clothes, as she had been told. Her later claim that the first accused informed her that the 31 items were dangerous, after initially stating they were clothes, casts doubt on her alleged ignorance of the nature of the consignment. Furthermore, Exhibit P20, which the third accused asked the court to consider, reveals that the first accused packed 40 packets and sold a total of 8 packets in two different transactions. Thus, 32 packets were expected to be found. In addition, it is evident that when asked about the drugs by PW2, the second accused named the third accused as her partner (mshirika) and led the police to the third accused's residence, as mentioned earlier. At the same time, Exhibit P20 indicates that the second and third accused persons were more familiar with each other than the first and second accused. Given this analysis, I find that the evidence is sufficient to prove that the third accused was either in actual or constructive possession of the narcotic drugs in this case. Lastly, regarding the involvement of the fourth accused, while it is undisputed that the pink bag containing 22 packets of suspected narcotic drugs belongs to her, there is no concrete evidence showing that she had knowledge and control over the contents of the bag. It was not proven that the packets were packed in her bag with her involvement, nor that she made any arrangements or gave permission for the drugs to be placed there. In fact, Exhibit P20 indicates 32 that the bag was taken by the first accused without informing her that it would be used to carry narcotic drugs. Considering the fact that the two were living together as a couple, it is entirely possible that the pink bag was taken without her knowledge of its intended use. Since this is a criminal case that relies on circumstantial evidence against the fourth accused, any doubt or alternative explanation should be resolved in her favor. Following the preceding analysis, the second issue, determining whether the accused were trafficking the narcotic drugs (Exhibits P3(b) and P4(b)), is answered positively for the first, second, and third accused, but negatively for the fourth accused. This brings me to the third issue, whether the search and seizure of the narcotic drugs contained in Exhibits P3 and P4 were properly executed. In line with judicial precedents, such as Samwel Kibundali Mgaya vs Republic, Criminal Appeal No. 180 of 2020, CAT at Musoma (unreported), a search is invalid if it does not comply with the requirements under section 38(1) and (3) of the Criminal Procedure Act [Cap. 20, R.E. 2022] (CPA). These include having a valid search warrant, ensuring that the owner, occupier, or a close relative of the premises is present during the search, having an independent witness to observe and verify the process by signing the necessary documents, and providing a receipt for any items seized during the search. 33 As for the first requirement, it is undisputed that a search warrant in respect of search leading to the seizure of the narcotic drugs (Exhibit P3(b) and P4(b)) was not produced in evidence. However, as rightly argued by the learned State Attorney, a search warrant is unnecessary in urgent or emergency situations, as provided under sections 41 and 42 of the CPA. The cases of Wallenstein Alvares Santillan vs Republic, Criminal Appeal No. 68 of 2019, [2022] TZCA 516 (22 August 2022), Shaban Said Kidanmba vs Republic, Criminal Appeal No. 390 of 2019 and Maluqus Chiboni @ Silvester Chiboni and Simon vs Republic, Criminal Appeal No. 8 of 2021 strongly prop up this stance. In the case at hand, PW2 testified that, during the arrest of the second accused, the latter orally confessed that the drugs were at the house of the third accused in Kijitonyama. Consequently, PW2 and his team rushed to Kijitonyama to apprehend the accused and seize the narcotics before it was too late. PW2 and his team were unaware that the second accused would implicate the third accused's house, indicating an emergent situation that required an immediate search. It follows that, the urgency of the situation justifies the absence of a search warrant, as established in Livinus Uzo Chime Ajana vs. Republic, Criminal Appeal No. 13 of 2018, [2020] TZCA 383 (7 August 2020). Thus, the 34 emergent nature of the search at the third accused’s house justifies the lack of strict adherence to section 38 of the CPA. As for the second requirement concerning the presence of the premises' owner or occupier during the search, it is evident that the third accused was residing in the house where the narcotic drugs (Exhibits P3(b) and P4(b)) were seized. In the same vein, the third accused admits her presence alongside the second accused during the search conducted at her residence. Therefore, the second requirement was fulfilled. Regarding the fourth requirement on the issuance of a receipt for the seizure, there is no dispute that a receipt was not issued after the seizure of all items, including Exhibits P3(a) and (b) and P4(a) and (b). However, the law is settled that a certificate of seizure, duly signed by the person being searched, serves as an acknowledgment that the listed items were seized from them. In this case, the prosecution presented Exhibit P7, which was signed by the second and third accused following the search that led to the seizure of Exhibits P3(a) and (b) and P4(a) and (b). Likewise, the second accused signed the certificate of seizure related to the search at his Mbezi Beach home, while the first and second accused signed a certificate of seizure concerning the items seized at the Kinondoni Studio. Based on this established legal principle, the absence of a receipt for the seizure 35 of Exhibits P3(a) and (b) and P4(a) and (b) and other items does not invalidate the seizure. Turning to the third requirement for an independent witness, it is not contested that PW4 and PW7 were present during the searches at Mbezi Beach and Kinondoni Studio. As for the search conducted at the third accused's residence, PW9 testified that she witnessed the search together with Hassan Mohamed Tahir, whose statement was admitted into evidence under section 34A(2) of the Evidence Act (supra). I acknowledge that PW2 did not mention PW9’s presence at the seizure and that PW9 did not sign the certificate of seizure. Nevertheless, the third accused admitted that PW9 and Hassan Ramadhan Tahir were present during the search at her house. It is important to emphasize that the presence of an independent witness serves to offer impartial evidence concerning the search and seizure process, which ensures transparency and protects against claims of planted evidence. Considering the facts of this case, where the third accused concedes that the search took place and that Exhibits P3(a)(b) and P4(a)(b) were indeed recovered from her premises, I am of the firm that even if PW9's testimony and Exhibit P22 were excluded, it would not undermine the legality of the search and seizure. 36 In light of the discussions above, the third issue is determined in the affirmative. Thus, the searches and seizures were conducted in accordance with the law, and any omissions, if present, did not affect their validity. Next in line for evaluation is whether the chain of custody for the narcotics (Exhibits P3(b) and P4 (b)), along with the other exhibits, was preserved properly. According to established law, the integrity of the chain of custody is crucial in ensuring that the evidence presented in court is the same as what was initially seized during the operation. The importance of establishing a proper chain of custody has been emphasized in numerous cases, including DPP vs. Stephen Gerald Sipuka, Criminal Appeal No. 373 of 2019, and Paulo Maduka and Four Others vs. Republic, Criminal Appeal No. 110 of 2007 (unreported), both referenced by Mr. Nkwera. Other relevant cases include Jason Pascal and Another vs. Republic, Criminal Appeal No. 615 of 2020, Juma Idd @ Dube vs. Republic, Criminal Appeal No. 558 of 2020, Jibril Okash Ahmed vs. Republic, Criminal Appeal No. 331 of 2017, and Wallenstein Alvales Santillan vs. Republic, Criminal Appeal No. 68 of 2019 (all unreported), cited by the learned State Attorney. In these cases, the Court of Appeal underscored the prosecution's responsibility to prove that the exhibits were handled properly from the time of seizure until their presentation in court, ensuring there was no tampering or loss of evidence. It was also noted that this could be established 37 either through a paper trail, oral testimony from witnesses, or a combination of both methods. Bearing this in mind, I have observed that the chain of custody for Exhibits P3(a)(b) and P4(a)(b) was maintained through both documentation and oral testimony. Starting with the seizure, the oral testimonies of PW2, PW9, and the third accused (DW3), supported by the certificate of seizure (Exhibit P7), confirm that two bags containing a total of 31 packets were seized from the third accused's residence. From PW2's testimony, it is clear that Exhibits P3(a),(b) and P4(a),(b) remained in his custody until they were handed over to the exhibit keeper, PW8, who acknowledged receipt. PW8 further testified that he documented the receipt of Exhibits P3(a),(b) and P4(a),(b) in the Exhibit Register (Exhibit P21). Both PW8 and PW2 confirmed that, the following day, PW2 collected Exhibits P3(a),(b) and P4(a),(b) for sealing to prepare them for dispatch to the GCLA for examination. PW2 testified that he sealed the exhibits in the presence of PW4, the accused persons, and Hassan Mohamed Tahir. Following the sealing process, PW2 returned the sealed Exhibits P3(a) and (b) and P4(a) and (b) to PW8, who stored them in the exhibit room. The handover between PW2 and PW8 on 04/03/2021 was documented and is reflected in Exhibit 21. Further, PW8 stated under oath that on 05/03/2021, he handed Exhibits P3(a) and (b) and P4(a)and (b) to PW2 for submission to the GCLA for analysis. 38 PW2 confirmed this and testified that, at the GCLA, he gave Exhibits P3(a) and (b) and P4(a) and (b) to PW1, who, after conducting a preliminary test, returned them to PW2. Both DCEA 001 (Exhibit P2) and the Government Chemist Report (Exhibit P1) indicate the movement of Exhibits P3(a) and (b) and P4(a) and (b) between PW1 and PW2. Finally, PW2 testified that he returned the exhibits to PW8, who confirmed that he kept them in the exhibit room until they were submitted to the Court. This analysis suggests that the chain of custody for Exhibits P3(b) and P4(b) was properly maintained. Mr. Nkwera, however, argued that the chain of custody for Exhibits P3(a) and (b) and P4(a)and (b) was not properly maintained. His submission was based on the claim that P3(a) and (b) and P4(a)and (b) were not marked at the crime scene as required by paragraphs 8 and 15 of P.G.O No. 229, supported by the cases DPP vs. Shiraz Mohamed Sharif [2008] TLR 427, and DPP vs. Sharif Mohamed Athuman and 6 Others, Criminal Appeal No. 74 of 2016 (unreported). He further contended that these exhibits were not sealed in the presence of the accused and independent witnesses before being submitted to the Government Chemist. Regarding the last argument, the evidence provided by PW2, PW4, and DW3 shows that the sealing process was conducted in the presence of the accused persons and independent witnesses, including PW4. Therefore, this 39 argument lacks merit. As for the claim that Exhibits P3(a) and (b) and P4(a) and (b) were not marked at the crime scene, it is undisputed. However, the provisions of P.G.O No. 228 cited by the defence counsel apply to the investigator. In this case, PW2 stated that he was appointed to investigate the matter the day after the seizure. As such, he could not have labeled the exhibits at the time of seizure. I am guided by the case of Livinus Uzo Chime Ajana (supra), where it was held that: “…it was not correct to argue that the narcotic drugs in the instant appeal, were not labelled. According to PW3, they were labeled after they had been taken to the ADU office and marked JNIA/IR/52/2011. So the complaint by Mr. Mtobesya should be limited to the period after their seizure at the airport. In that period, the reason for not labeling them was given that, the Police Officers who arrested and seized the pellets from the appellant were not the investigators of the case and therefore, they lacked the requisite mandate to label them in terms of paragraph 8 of the PGO quoted above. To us, the said answer sufficiently put to rest the complaint by Mr. Mtobesya with nothing more. We thus dismiss the second and fifth grounds of appeal.” Applying the above reasoning from the apex court, I find no merit in the first argument advanced by Mr. Nkwera. In conclusion, the fourth issue is 40 answered in the affirmative; the chain of custody for narcotic drugs (Exhibits P3(b) and P4(b)) was properly maintained. The last issue to be resolved is whether the accused have raised reasonable doubt about the prosecution's case. I have already addressed several issues raised by the first, second, and third accused while dealing with the preceding matters. Here, I will focus on some of the issues that have yet to be fully discussed. Starting with the first accused, his defence primarily focused on questioning the cautioned statement and the credibility of the prosecution's evidence. As earlier analyzed, the Court was satisfied that the cautioned statement was voluntarily procured. The first accused further claimed that he was implicated in this case after refusing to give PW3 some money when the latter found cash in his house. Unfortunately, this issue was not raised with PW3 during cross- examination, nor was it brought to the attention of PW3 and PW7 or even DW4, who were present during the search and seizure in question. Consequently, I find this claim to be an afterthought and unworthy of consideration. Lastly, the first accused challenged the credibility of Exhibit P20, alleging that two packets were missing. However, Exhibit P20 is based on what the first accused himself stated. The fact that one packet was found by PW1 to contain no narcotic drugs and one packet was not recovered at all does not imply that the remaining 30 packets, 41 which were proven to contain narcotic drugs, were not found in the same house. This argument is, therefore, without merit. The second accused, on his part, challenged the certificate of seizure, stating that he was forced to sign it after PW2 and PW3 obtained the cautioned statement from the first accused. Strangely, this important claim was not specifically put to PW2 and PW3 during their testimonies. Furthermore, the third accused admitted that the second accused was present during the seizure of Exhibits P3(a) and (b) and P4(a) and (b) and that he signed the seizure certificate. Additionally, the second accused claimed that he was charged due to personal animosity, asserting that PW2 had warned him about his relationship with PW2's wife. Once again, this claim appears to be an afterthought, as it was not raised during cross-examination of PW2. Therefore, the second accused's arguments do not raise any substantial doubt regarding the integrity of the evidence. Lastly, the third accused’s defence was primarily based on denying constructive possession of the narcotic drugs. As discussed at length earlier, she was found in actual possession of the narcotic drugs, which were brought to her house in her presence. She maintained control over them, as the first accused was not residing in the same house. In light of the above, the third accused's defense does not raise any reasonable doubt on the prosecution's case. 42 I have considered Mr. Nkwera’s argument that the third accused’s evidence regarding her being the first accused’ lover is not reliable. His argument was based on the reason she disputed that fact during the preliminary hearing. With due respect to the learned counsel, preliminary hearing is aimed at accelerated the trial by sorting out what facts which are not disputed. Nothing to suggest that an accused person cannot agree to the fact which was not agreed to earlier. Moreover, the third accused’s cautioned statement confirms that third accused was her lover. Another issue fronted by Mr. Nkwera pertains to inconsistencies and contradiction in the prosecution case. The well-established legal principle is that minor discrepancies in witness testimonies are expected due to natural errors of observation or lapses in memory over time. This stance was articulated in Maramo Slaa Hofu & 3 Others vs. Republic, Criminal Appeal No. 246 of 2011 (unreported). Furthermore, in cases like Athumani James vs. Republic, Criminal Appeal No. 69 of 2017 (unreported), it has been consistently stated that only contradictions that affect the core issues of the case are material. Minor inconsistencies do not undermine the prosecution’s case. Therefore, the court must assess the contradictions within the appropriate context and determine their significance. For such discrepancies to undermine a witness’s credibility, they must be serious and relate directly to key questions at issue. 43 In his submission, Mr. Nkwera argued that PW2 and PW3 contradicted each other about PW3's presence during the seizure of Exhibits P3 and P4; PW2 and PW9 were not at one on the presence of PW9 at the third accused's house, and PW1 claimed not to have seen a dera cloth in Exhibit P3, while PW2 mentioned it was inside Exhibit P4. Upon reviewing the record, I find no significant contradiction between PW2 and PW3 regarding PW3's presence at the third accused’s house. Both witnesses consistently stated that only PW2 entered the third accused’s house, and after PW2 discovered that narcotic drugs were brought to the third accused by the first accused, he called PW3, who was outside to locate him. On the issue of PW9’s presence during the search and seizure, PW2 indicated during cross-examination that he could not recall whether PW9 was there. However, the third accused herself admitted that PW9 was present, rendering this argument baseless. As for the issue of the dera cloth, although PW1 stated that he did not see it, the dera cloth was indeed found inside Exhibit P3(a) and was shown to the court, though it was not admitted as part of the evidence. In any case, given that PW1's duty was on analyzing the suspected narcotic drugs, I am of the view that his failure to notice the dera cloth does not affect the root of the case. Therefore, the alleged discrepancies are either non-existent or do not impact the prosecution’s case in a meaningful way. 44 In conclusion, the accused persons have not raised any substantial issues that cast doubt on the prosecution's case. On the contrary, I find the prosecution's witnesses to be consistent and credible. Moreover, the chain of custody was properly maintained, and the essential elements of the first count have been proven beyond reasonable doubt against the first, second, and third accused. With all factors taken into account, I find the first and fourth accused not guilty of the second count of trafficking in narcotic drugs, and they are hereby acquitted of that charge. As for the first count, I find the first, second, and third accused guilty of trafficking in narcotic drugs and convict them as charged under section 15(1)(a) and (3)(i) of the DCEA, read together with paragraph 23 of the First Schedule to and sections 57(1) and 60(2) of the EOCCA. In relation to the fourth accused, she is acquitted of the first count as well, and I direct her immediate release from custody unless there are any other legal grounds for her detention. DATED at DAR ES SALAAM this 4th day of October, 2024. S.E. KISANYA JUDGE 04/10/2024 45 Court: The judgment is delivered in the presence of Ms, Nitike Mwaisaka, Senior State Attorney and Ms. Jesca Masae, learned State Attorney for the Republic; all accused persons; and Mr. Dominicus Nkwera, Advocate representing the first and second accused, Mr. Jeremia Motobesya and Mr. Constantine Kakula, Advocates representing the third accused, and Mr. Benjamin Mageni, Advocate representing the fourth accused, on this 4th day of October, 2024. Court Clerk, Ms. Angel and JLA, Hon. Kazuvi (SRM), are also in attendance. S.E. KISANYA JUDGE 04/10/2024 SENTENCE I have weighed the mitigating arguments made by the convict's learned counsel, who sought a more lenient sentence, against the aggravating factors presented by the prosecution. It is essential to emphasize that, according to section 15(1)(a) of the Drug Control and Enforcement Act [Cap. 95, R.E. 2019] (the DCEA) and the proviso to section 60(2) of the Economic and Organized Crime Control Act [Cap. 200, R.E. 2022] (the EOCCA), trafficking in narcotic drugs, an offence for which Said Kesi Mbasha, Joseph Abdallah Dalidali @ Blessing, and Allu John Murugwa have been convicted, carries a mandatory 46 penalty of life imprisonment. This interpretation aligns with the Court of Appeal's decision in the case of Islem Shebe Islem vs. Republic, Criminal Appeal No. 187 of 2020 (unreported), where the sentence originally set by this Court at twenty (20) years of imprisonment was increased to life imprisonment by the Court of Appeal. Taking into account these statutory obligations and the substantial amount of 29.86 kilograms of heroin involved, I am compelled to impose the mandated sentence, notwithstanding the mitigating factors offered by the defence, such as the accused's age, their dependants, health conditions, time already spent in custody, and their status as first-time offenders. As a result, the convicts, Said Kesi Mbasha, Joseph Abdallah Dalidali @ Blessing and Allu John Murugwa, are hereby sentenced to life imprisonment as per section 15(1)(a) of the DCEA and the proviso to section 60(2) of the EOCCA. S.E. KISANYA JUDGE 04/10/2024 Court: Sentence pronounced in open court this 4th day of October, 2024 in the presence of the parties as stated earlier. 47 S.E. KISANYA JUDGE 04/10/2024 ORDER In light of prayers made by the learned State Attorney, I hereby issue the following orders regarding the some exhibits admitted into evidence: 1. The narcotic substances identified in Exhibits P3, P4, and P5 are to be destroyed following the guidelines set forth in the Drug Control and Enforcement Act [Cap. 95, R.E. 2019] and its associated Regulations. For the time being, Exhibits P3, P4, and P5 will be held by the Anti-Drugs Unit until the execution of this order. 2. The mobile phones labeled 'Joseph Abdallah Dalidali' (Exhibit P8) and 'Allu John Murungwa' (Exhibits P12 and P13), along with the passports belonging to Joseph Abdallah Dalidali (Exhibit P9), Allu John Murungwa (Exhibit P11), Fatuma Shabani Shomari, and Said Kesi Mbasha (Exhibit P19), are hereby returned to their rightful owners. 3. As for the cash totaling TZS 90,000 (Exhibit P10), TZS 12,261,000 (Exhibit P17), USD 14,000 (Exhibit P18), and the motor vehicle with Registration No. T495 DGD (Exhibit P14), the prosecution is directed to address these 48 exhibits according to the provisions of the Drugs Control and Enforcement Act (supra) and the Proceeds of Crime Act [Cap. 256, R.E. 2022]. If the required recourse is not taken within the legally stipulated time, Exhibits P10, 14, 17 and 18 should be returned to the accused persons from whom they were seized. It is so ordered. S.E. KISANYA JUDGE 04/10/2024 Court: The parties have been adequately informed of their right to appeal against the judgment, sentence, and/or orders. S.E. KISANYA JUDGE 04/10/2024 49