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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION (MOROGORO SUB REGISTRY) AT MOROGORO ORIGINAL JURISDICTION ECONOMIC CASE NO. 16 OF 2023 REPUBLIC VERSUS RAJABU SALUM SELEMANI Date of Last Order: 15.10.2024 Date of Judgement: 21.10.2024 JUDGEMENT MAGOIGA,J. RAJABU SALUM SELEMANI is indicted in this court with one offence of trafficking in narcotic drugs contrary to section 15(1)(a) and (3) (iii) of the Drugs Control and Enforcement Act,[Cap 95 R.E.2019] as amended (to be referred herein as "ACT") 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. 2022] (to be referred herein as "EOCA"). It is alleged in the information that, on 21^*^ day of May, 2023 at Mangae village within Mvomero district in Morogoro region, the accused person trafficked in narcotic drugs, namely ^cannabis sativa' commonly known as ^bhangi' weighing 154.39 kilograms by using a motor vehicle make Noah with registration numbers 1.797 CEK. The accused person pieaded not guilty to the charge and proclaimed his innocence when called on to defend himself. The prosecution lead by Ms. Veronica Chacha, learned Senior State Attorney and assisted by Mr. Shabani Kabelwa and Ms. Daipa Londo, learned State Attorneys in their effort to prove the charge against the accused person called six witnesses and tendered 5 exhibits. On the other hand, the accused person enjoyed the legal services of Mr. Alinanuswe Asifiwe, learned advocate testified himself and called one witness in his defence. Basically, the evidence by prosecution was that on the night on day of May, 2023 at around 3:45, an Officer Commanding Station of Doma police post, namely ASP Alex Gidion Mkama(PW3)was tipped off by his informer that, there was car made of Noah with registration numbers 1797 CEK silver in colour at Mangae village where there is placard to junction to Sola, there are people with bhangi loading to the said motor vehicle. Upon such information, immediately PW3 called G2086 D/Cpl Mashaka (PW6)to police post. The two prepared themselves, armed with guns and using a motor cycle drive to the scene of crime. It was the evidence of PW3 and PW6 that, on the way, with the help of light of the motor cycle they were able to see a motor vehicle parked and when were about to approach the said motor vehicle, saw two people varnishing In the bush. It was further testimony of PW3 and PW6 that. In the motor vehicle were able to arrest the accused person who as well tried to escape but In vain. PW3 went on telling the court, he Instructed PW6 to guard the accused person who upon his arrest was Immediately handcuffed. According to PW3, he went to the main road to look for an Independent witness before they could search the accused person and the motor vehicle. PW3 Informed the court that, he managed to get one SIMON IBRAHIM (PW4) who witnessed search of the motor vehicle and corroborated the story of PW3. And In the motor vehicle were able to find 8 bags of sulphate suspected to be Cannabis satlva commonly known as bhangi. Leading the operation, PW3, PW4, PW6 and DWl all signed the certificate of seizure which was admitted In evidence as exhibit PE5 In which the 8 bags, motor vehicle with registration number T797 CEK and a car key were seized. It was further testimony of PW3 that after the process of search, he labelled the eight bags as BH1-BH8. Then, PW3 drove the motor vehicle with the accused to the police post for further Investigations process. Prosecution case went on that, upon arrival at the police post, PW3 handed over the seized exhibits to Assistant Inspector Merick Juma Kanyuguzo(PW5)-an Exhibit Manager of the Doma police post for safe custody which had a mark of BH1-BH8 and were with case No. DMA/IR/160/2023. PW5 upon receipt of the seized exhibits registered them In Exhibit Register Book as evidenced In exhibit PE3- entry No.14 of 2023. The rest of PW5 testimony Is on the chain of custody of the seized exhibits from Doma to Morogoro before Government Chemist and then to Dakawa Police Station on 13/06/2023. PW5 went on telling the court that on 06/06/2023 he handed over the said seized exhibits to PW6 to be taken to the Government Chemist at Morogoro Central Police station for examination and samples taking and returned them on the same day In the evening for safe custody. According to PW5, when they returned, the seized exhibits had been marked by Government Chemist as 2023-00343 on every sulphate. Further testimony of PW5 was that on 13/06/2023 he handed over the seized exhibit to PW6 who took them to Dakawa Police Station for safe custody at district level. More evidence by prosecution was by ASTON BINIGWA NATHAN (PW2)who toid the court that on 06/06/2023 whiie at Morogoro Central Poiice Station, he received 8 bags of suiphate with dry ieaves suspected to be Cannabis Sativa or Bhangi from G2086 (PW6) with case No. DMA/IR/160/2023 and Form No DCEAOOl for receiving exhibits which are suspected to be bhangi. PW2 went on teiiing the court that when he weighed the exhibits and found that they were 154.39 kiiograms and marked them CZO/23/00-343 and took sampies using systematic sampiing and started examination which revealed that the said exhibits are Cannabis Sativa or Bhangi because as they contained tetrahydrocannabinoi chemical substance only found in bhangi. PW2 went on teiiing the court that he travelled back to Dodoma with sampies taken for examination using biological research microscope which confirmed that the exhibits in dispute are Cannabis Sativa or Bhangi and prepared a report which was admitted as exhibit PE4a-c. Another testimony by prosecution witnesses was by G3051 D/Cpl Advance (PWl) who toid the court that he is an Exhibit Manager at Wami-Dakawa Poiice Station who on 13/06/2023 received the seized exhibits from PW6 and had all marks as put and testified by other prosecution witnesses. PWl tendered in evidence 8 bags of suiphate with leaves suspected to be Cannabis Sativa or Bhangi as exhibit PEla-h. PWl as well tendered in evidence motor vehicle with registration No. T797 CEK and a car key as exhibit PE2a-b. PWl further tendered entry in the Exhibit Register Book dated 13/06/2023 as exhibit PE3. That was all about prosecution evidence without establishing who owns the motor vehicle in dispute. After closure of the prosecution case, this court found that the prosecution has established a prima facie case against the accused person and invited the accused person to enter defence. Having explained of his rights, the accused person opted to defend himself under affirmation DWl and called one witness in his defence (DW2). In his defence, RAJABU SALUM SELEMAN (DWl)testified under affirmation admitted to be arrested at the same day and place on board to exhibit PE2 but categorically denied to be the possessor nor owner of the disputed Cannabis Sativa because he was given a lift in that car on the morning of 21/05/2023. According to DWl, he was called by DW2 for the job at Melela on 20/05/2023. But since he had no bus fare as such contacted his brother-law, one, Navis MIelwa and asked him to assist him for lift and was able to get lift exhibit PE2 which was going Melela. DWl went on telling the court when given a lift he sat on the left front seat and slept because he was feeling tired and sleepy. According to DWl, the motor vehicle left at around 6:00 am for a while but at 7 am in the morning when he woke up found the car parked along Iringa-Morogoro Road. According to DWl, PW3 and PW6 arrested him and handcuffed him. DWl toid the court that the poiice who arrested him told him that two peopie escaped arrest and varnished in the bush. DWl admitted that when exhibit PE2 was searched, the 8 bags of suiphate fuil of exhibit PEl were found in the boot. In essence, DWl distanced himself from the allegations facing him and prayed that he be acquitted of the charges facing him. Next was RAJABU HUSSEIN (DW2)who testified under affirmation that he knows the accused person as his feiiow masonry they work together. DW2 corroborated the story of the accused person that on 20/05/2023 he calied him and asked him to join him at Meieia for the job they did not finish. According to DW2, the accused never showed up on 21/05/2023 and he iooked for another masonry who assisted him to finish the work. This marked the end of the prosecution and defence case. The noble duty of this court now is, to determine whether the prosecution have proved their case to the standard required in criminal cases, that is, beyond reasonable doubt. However, before going into that, having heard the stories of both sides, I have noted that there are some facts not in dispute in this suit. These in a way wiil help me in the determination of this criminal wrangle between the Republic and the accused person. These are: one, there is no dispute that on 21^*^ day of May, 2023 the accused was arrested on board to exhibit PE2 and exhibit PEl was found therein. Two, there is no dispute that the accused person was subsequently charged for one offence of trafficking in narcotic drugs. However, what is in serious dispute is whether the accused person was the possessor or owner of the disputed Cannabis Sativa or Bhangi found in exhibit PE2. In this case, the prosecution, in my considered opinion, were able to prove beyond reasonable doubt that exhibit PEl is Cannabis Sativa or Bhangi with the oral testimony of PW3, PW6, PW3 and the contents of exhibit PE4a-c. The report by PW3 confirmed that in the said disputed exhibit PEl, there was tetrahydrocannabinol chemical which is only found In Cannabis Sativa or Bhangi and the said Bhangi fall within the drugs prohibited under the Drugs and Control Act. Equally important, the prosecution was able to prove that the chain of custody was never broken and every movement was documented from the arrest to the tendering of the exhibit in this court. With the noted fact above that the accused was arrested on board in exhibit P2, and having considered his defence that he was given a lift, but with due respect to the accused person, I find his defence did not shake the strong evidence by prosecution that he was found trafficking in narcotic drugs. I will explain. One,the accused told the court that he was given lift In the said motor vehicle and that the lift was assisted through his brother-in-law, one; Navis MIelwa but never called that Navis MIelwa to testify of the real owners who afforded the accused the said lift. This makes the defence by the accused person to be devoid of creating doubts to the prosecution case. The defence case considered, It Is at most a general denial. In the case of Leonard Joseph @Nyanda Vs.Republic, Criminal Appeal No. 186 of 2017[2020] TZCA 51 It was held that general denial Is fundamentally a weak defence; negative and self-serving which cannot Impress the court. Looking at the defence case, the explanation that the accused person found himself sleeping In a car with 8 bags and the testimony of PW3 and PW6 that he wanted to escape as well Is nothing but an afterthought on his part. Two,In the absence of Ill- motive behind PW3 and PW6,1 see no reason to doubt their testimonies that It was the accused person and with other two who are at larged who were with the contents of exhibit PEl, hence properly charged for the offence of trafficking In narcotic drugs. Three, DW2 calling DWl on 20/05/2023 do not by Itself exonerate the possibility of DWl trafficking In narcotic drugs on the morning of 21/05/2023. From the reasons stated above, I find this suit proved against the accused person to the required standard of beyond reasonable doubt that it was th6 accusad pGrson who was found with Gxhibit PEl and was without lawful course as required under section 28(1) of the Act. That said and done, I hereby find Rajabu Salum Selemani guilty as charged and convict him with the offence of trafficking in narcotic drugs contrary to section 15 (1)(a) of the Drugs Control and Enforcement Act, [Cap 95 R.E.2019] 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. It is so ordered. Dated at Morogorp^iKi^24^day of ID 2024 bp I P El A SM, MA__ IGA JUDGE 21/10/2024 COURT: Judgement delivered today in open Court at Morogoro High Court in the presence of Ms. Monica Matwe, learned State Attorney and Mr. Alinanuswe Asifiwe, learned advocate for the accused person who was present as NT S.M. MAGOIGA JUDGE 21/10/2024 10 Aaaravatina factors: By Monica Matwe,SA- My lord we have no previous criminal record of the accused person but we pray for severe sentence to the accused person which will be a deterrent to the would-be offenders who engaged in drugs trafficking. That is all. s.m: m GOIGA JUDGE 21/10/2024 Mitigating factors bv defence counsel: Mr. Alinanuswe Asifiwe, Adv- My Lord, we pray for lenience sentence to the accused person because as rightly admitted by the learned State Attorney is forst offender. He is, also, younger person and has his relatives who depends on him including his old ijioth^. More so he has been in jail for one year i/ld/ I S.M lAGOlGA JUDGE 21/10/2024 SENTENCE Having considered both aggravating factors and mitigating factors, this court hereby sentence the accused person 20 years minus one year which he has been in prison. The accused person, therefore, is 11 S6nt6nc6d to sorvo a torm of 19 yoars from today and this to act as deterrent to the would-be offenders. Order accordingly. X S.M. MAGOIGA JUDGE 21/10/2024 COURT: Right of appeal fully explained c: S G IGA / /judge 21/10/2024 12