ECONOMIC CASE NO

IN THE HIGH COURT OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT MTWARA SUB REGISTRY ECONOMIC CASE NO. 2 OF 2022 THE REPUBLIC VERSUS 1. HAWANA HAMDAN I KUPELA 2. JAMAL AHAMADI MKALALA JUDGMENT 29“ April & 9“ May, 2024 MPAZE, J.: On 30th December, 2021 at around night time, INSP James (PW2), while on patrol with his fellow Officers SGT Steven, SGT Kamese, CPL Jackson, CPL Kahima, CPL Salehe, WP Sijabu, and WP Ziada, received a call from an informant informing him that Jamali Ahmad Mkalala (the 2nd accused), who resides at Mnauja village, is involved in trafficking of cannabis sativa and stores it either at his own home or at his mother's home (the 1st accused). Upon receiving this information, PW2, being near the village, decided to head to Mnauja village with his team. They asked the informant to show them Jamali's house who showed them, and before departed with i him the informant took them to the chairman of the area. They explained their intention of being there while asking him to take them to Jamali's house (the 2nd accused). The chairman of Mnauja village, Abdallah Rashidi Bakari (PW3), had no objection. He led the police officers to: the 2nd accused's house. They arrived at around 00:00hrs. They knocked. The 2nd accused opened the door. They told him that they had arrived there to search as they heard information that he was involved in the trafficking of narcotic drugs namely cannabis sativa. The 2nd accused allowed the search to be conducted. A search was carried out in the 2nd accused’s house, but no contraband was found inside. PW2 added that since the informant had informed them that the cannabis sativa was stored either at Jamali's house or at his mother's (the 1st accused) house, they decided to go to the l?t accused’s house, accompanied by the 2nd accused, the 2nd accused wife, and PW3 (the chairman). They arrived at the 1st accused’s house, knocked on the door, and she opened it. They explained the purpose of being there and that they wanted to search her house, 1st accused agreed. They began searching. According to PW2 and PW3, during the search, they successfully recovered 11 sulphate bags containing dry leaves suspected to be 2 cannabis sativa in the room where the 1st accused slept. They removed them and a certificate of seizure was filled and signed by PW2, the chairman and the 1st accused. PW2 went further that after completing all the procedures for filling out the certificate of seizure, they took both the 1st and 2'ld accused, the 11 sulphate bags seized from 1st accused house and left with them to the police station. Upon arriving at the police station, a case was filed against both accused persons, it was given case No. NEW/IR/1070/2021, the number which was then labelled to each bag by PW2 and handed over the 11 sulphate bags to the Exhibit Keeper D/CPL Daud through the chain of custody. D/CPL Daud (PW4), the Exhibit Keeper, confirmed receiving the 11 sulphate bags from PW2 through the chain of custody. He said after receiving them, he entered them into the Register Book and assigned them Exhibit No. 250/2021 the number which was labelled to each bag and kept them in the Exhibit room. PW4 continued to explain that on 5th January, 2021 CPL Sindano (PW5) came and informed him that he had come to collect the Exhibit with case No. NEW/IR/1070/2021 to take it to the office of the Chief 3 Government Chemist. He took it from the Exhibit room and handed it oyer to PW5 through the chain of custody. It was stated by PW4 that, later in the evening, PW5 returned the Exhibit, but this time each sulphate bag was labelled: by its letter which are A, B, C, D, E, F, G, H, I, J, and K. He received the Exhibit again through the chain of custody and placed it back in the Exhibit Room, assigning it Exhibit No. 2/2022 the number which was also labelled to each bag. PW4 continued to keep this Exhibit until 19th April, 2024 when he brought it to the court. D/CPL Sindano (PW5) is the investigator of this case. He explained all that he had done as the investigating officer Of this case, including interrogating the 1st accused. According to PW5, the 1st accused confessed that the 11 sulphate bags found in her house were brought there by her son namely Jamali (the 2nd accused). He also described how he took the Exhibit from PW4 on 5tb January, 2022 through the chain of custody and delivered it to the office of the Chief Government Chemist Mtwara. This witness stated that when he arrived at the chemist's office, he was received by Elia min Mkenda (PW1), He handed over the Exhibit to PW1, and PW1 weighed the Exhibit and found it to weigh 133.4 kilograms. At the chemist's office, the Exhibit was assigned number SZL/02/2022. 4 PW5 says PW1 conducted an analysis on the Exhibit, and the results showed that it was a narcotic drug known as cannabis sativa. After this, PW1 returned the Exhibit to PW5 via the chain of custody who returned it to the Newala police station, handing it over to PW4 via the; chain of custody. PW5 said having found that the 11 sulphate bags were narcotic drugs, namely cannabis sativa, he prepared a file and forwarded it to the OCCID for further action. PW1 Eliamin Mkenda, the Government Chemist, testified that on 5th January, 2022 he received PW5 from the OCCID Newala office. He says this officer arrived with 11 sulphate bags containing dry leaves, along with other documents such as letters and submission Form No. DCEA 001, which required him to conduct an analysis of the Exhibit he had received and answer questions in Form DCEA 001. PW1 said, that after he had received the Exhibits, he assigned them the number LAB SZL/02/2022 which he labelled to each bag and then weighed them separately, finding a total weight of 113.04 kilograms. He then took samples from each bag and conducted his analysis using preliminary and confirmatory tests. PW1 explained in the preliminary tests, he used Duquenois-Levine reagent, concentrated hydrochloric acid, and dichloromethane, which 5 showed the Exhibit taken to-him for analysis was cannabis sativa. PWl further stated in the confirmatory test, that he used a microscope, which also confirmed that the dried leaves contained in the 11 sulphate bags were indeed cannabis sativa. After analysis, PWl filled out DCEA 001, which required him to answer questions about the weight of the Exhibit, the type of drugs, and their effects on humans. After completing filling, the form, he handed it over to PW5 through the chain of custody. Later on, he continued to prepare an analysis report using Form No. DCEA 009 and sent it to the office of OCCID Newala. This report was admitted to this court which was marked as Exhibit Pl, while DCEA 001 was admitted and marked as Exhibit P2. The 11 sulphate bags suspected to contain cannabis sativa were admitted and marked as Exhibit P3, while the certificate of seizure DCE 003 was admitted and marked as Exhibit P4, and the Chain of Custody as Exhibit P5. This evidence led to information of trafficking in narcotic drugs against the accused persons Contrary to section 15(1) (a) and section 3(iii) of the Drugs Control and Enforcement Act, [Cap. 95 R.E 2019] read together with paragraph 23 of the first schedule to sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap. 200 R.E 2019] as amended by the Written Laws ( Miscellaneous Amendments) .6. (No.5) Act, 2021. The particulars of the offence in the information allege that; 1 Ha wana Hamdani Kupela and Jama/iAhmadi Mka/a/a on 3'1# December, 2021 at Mnauja village within Newaia District in Mtwara Region, did traffick in narcotic drugs to wit; one hundred thirty-three point zero four (133.04) kilograms of cannabis sativa commonly known as bhangi' The information was read over and explained to the accused persons, and they both denied it. In. their defence, without having any other witnesses or Exhibit, the 1st accused, who is the Mother of the 2nd accused, despite having a lengthy explanation, stated that on the day of the incident, while sleeping in one of her houses, she was awakened by a knock on the door. She found people who identified themselves as police from Newaia, accompanied by her son Jamal! (the 2nd accused), who said they wanted to search her house. She allowed them to search, but they found nothing. DW1 said, that besides her main house, she has another unfinished house where the little children usually sleep therein. However, on the day of the incident, these children slept with other youths from Masasi who had come to help her with farm work. DW1 claimed that when the police failed to find anything in the house where she was sleeping, they decided to search the unfinished 7 house. The young men initially didn't open the door promptly when the police knocked, but eventually, they opened and came out and sat on the veranda. DW1 says the police asked who these young men were, she replied they were helping her with farm work. When the young men heard the police talking about cannabis sativa, according to DW1 they fled. DW1 added that during the search, the police found sulphate bags in one of the rooms where the young men were sleeping. She said when asked by the police how the bags got there, she replied that she didn't know as she had been away from home for a long time. DW1 contended that she also told the police that she didn't understand why the young men had fled. She said, that after that, both she and the 2nd accused were taken into the car and brought to the police station, where they spent the night. The next day, she found herself forced to sign documents she didn't understand its content as she did not know how to read and Write. DW2 was brief in his defence, stating that on the fateful day, the police searched his house but found no contraband. They then took him to his mother’s house (the 1st accused), where she lived. He didn't understand why the police wanted him to go there. After that, he didn't know what happened next, but he was surprised to see cannabis sativa outside the house of the 1st accused, and later both he and the 1st 8 accused were implicated in that cannabis sativa. The offence according to him he has never committed. After scrutinizing this evidence closely, it became imperative to examine what transpired during the preliminary hearing. Following the narration of facts during the preliminary hearing and the responses of the accused persons, the accused persons stated the following; 1st accused person:11 admit my name and the fact that I am the mother of the second accused. I also admit that on 31st December,. 2021 the police searched my house and that 11 sacks ofbang! were found and seized therein. However, I know nothing about the said bhangi.' 2nd accused person : 1I admit my name and the 1st accused person is my mother. I admit that on 31/12/2022, the police officer conducted a search at my house and that nothing was found therein. I admit that, on thatday, I led the police officers to the house of the 1st accused person. I don't know whether bhangi was found in my mother's house.' Having thoroughly examining what transpired during the preliminary hearing and the entire evidence presented by both sides, while keeping in mind the charge the accused persons are facing, which is trafficking in narcotic drugs contrary to section 15(l)(a) and 3(iii) of the DCEA, in reaching a decision on whether the prosecution has proven this 9 offence beyond a reasonable doubt I will be guided by the following issues; One is whether the 11 sulphate bags (Exhibit P3) containing dry leaves are narcotic drugs commonly known as 'bhangi'. Two, if the 1st issue is answered in the affirmative the next question is whether the accused persons trafficked narcotic drugs and; Third, whether the chain of custody was maintained. Commencing with the first issue, to ascertain whether Exhibit P3 constitutes a narcotic drug commonly known as 'bhang' or not, my guidance will derive from the testimony of PW1, an expert from the Government Chemist Laboratory Authority (GCLA), who conducted the weighing and analysis of Exhibit P3 and issued a report Exhibit Pl. It is also a legal requirement that narcotic drugs or psychotropic substances undergo weighing and analysis by the Government Chemist Laboratory before being tendered as evidence in court. This requirement is underscored in the case of Charo Said Kimilu v. Republic, Criminal Appeal no 1 of 2015. The obligation to submit seized substances suspected to be narcotic drugs to the Government Analyst for analysis is stipulated under section 48A of the DCEA, which reads as follows; io '(1) The Government Analyst to whom a sample of any narcotic drugs, psychotropic substance, precursor chemicals, controlled or any other substances suspected to have drug-related effect has been submitted for test and analysis shall deliver to the person submitting it, a signed report in quadruplicate in the prescribed form and forward one copy thereof to such authority as may be prescribed. (2) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a GovernmentAnalyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive. In light of the legal position, I revert to the testimony of PW1, who in his account outlined his actions after receiving the 11 sulphate bags from PW5. He detailed conducting both preliminary and confirmatory tests, noting that each test produced congruent outcomes, concluding that the Exhibit under analysis was a narcotic drug commonly known as 'bhang!. These findings were recorded in Exhibit Pl. Upon examining this evidence, it was not contested. Even when considering the response of the 1st accused during the preliminary hearing, she admitted that the 11 sacks seized from her house contained bhangi. Additionally, even in the 2nd accused defence, he was able to acknowledge finding 'Zzfia/jp/outside the 1st accused’s house. With this li evidence, it is evident that even the accused persons accept that Exhibit P3 is a narcotic drug, known as cannabis sativa. Since the report from the chemist is considered conclusive unless rebutted, and I have indicated that Exhibit Pl was not objected to or rebutted, I am satisfied beyond any doubt that Exhibit P3 is indeed a narcotic drug, namely 'Zto^/'weighed 133.Q4 kilograms. With the first issue answered in the affirmative, I will now address the second issue, which is whether the accused persons trafficked narcotic drugs. The word trafficking has been defined under section 2 of the DCEA to mean; ' The importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any person of a narcotic drug or psychotropic substance any substance represented or held out.by that person to be a narcotic drug or psychotropic substance or making of any offer When examining the definition of trafficking as cited above and comparing it with the evidence presented in court, particularly that of PW2, PW3, DW1, and DW2, it is evident that the testimony indicates the recovery of the cannabis sativa at the residence of the 1st accused. 12 Upon looking at the defence presented by DW1 and even her responses during the preliminary hearing, it is plain that she does not dispute the cannabis sativa being found at her house; rather, she claims unawareness of how it got there. Therefore, based on DWl's accounts, it can be inferred that the cannabis sativa was stored in her house and that she possessed it, as evidenced by her signature on the certificate of seizure. The act of DW1 signing the certificate of seizure signifies acknowledgement, of being found with the contraband in question. It was stated in the case of Song Lei v. The Director of Public Prosecution and Others (Consolidated Criminal Appeals: No. 16 of 2016)[2019]TZCA 265 published on www.tanzlii.orq.tz that; '..Moreover, having signed the certificate of seizure which is in our view valid, he acknowledged that the horns were actually found in his motor vehicle' Despite the objection raised during the tendering of the certificate of seizure (Exhibit P4) regarding the authenticity of the appended thumbprint, which appeared dark, this objection was dismissed. The prosecution clarified that the thumbprint was signed using black ink. Therefore, this did not negate the fact that DW1 signed the certificate of seizure confirming the contraband was found in her house. 13 As previously stated, DW1 does not deny the finding of the cannabis sativa in his house, but what she claims is, that she had no knowledge or control over its presence. She further stated that the young men he had hired to work on the farm were the ones sleeping in the room where the cannabis was found and that upon hearing the police discussing cannabis sativa, the young men fled. Examining DW.l's defence, it appears to be an afterthought. This is because the issue of the young men fleeing, who according to her account were found sleeping in the house and were the ones who opened the door for the police, did not emerge during cross-examination. I expected that if DWl’s assertions were true and not fabricated, PW2 and PW3 would have been questioned regarding the presence of these young men on that day and whether they were the ones who opened the door and later fled. It is a well-established legal principle that failure to cross-examine on a vital point typically implies acceptance of the truth of the witness’s evidence. Any attempt to contradict this afterwards is often considered an afterthought. This principle was articulated in the case of Martin Masara v. Republic, Criminal Appeal No. 428 of 2016, CAT (unreported). indeed, PW2 and PW5 provided unambiguous testimony regarding the search of the house, which they identified as the residence where DW.1 was found sleeping. Also, the room where the cannabis sativa was 14 retrieved was identified as the room where DW1 had been sleeping. Therefore, since PW2 and PW5 were not cross-examined on this matter, it implies acceptance of the truth of their evidence, which contradicts the claims made by DW1. This makes DWl's testimony be viewed as an afterthought, especially when considering the failure to challenge PW2 and PW3 versions in respect of that vital point in cross-examination. Based on the testimony provided by PW2 and PW3, whom I find to be reliable and credible witnesses, I am satisfied that the 1st accused was indeed found in possession of 11 sulphate bags of narcotic drugs, namely '^/w/T^/'and that she was aware of its existence. Her denial was just an attempt to exonerate herself from the charges she was facing. The court arrived at this conclusion after considering that the 1st accused was the one in charge and control of her house, indicating that she could: be aware of what enters and exits the premises. In this situation, she cannot say she does not know how the 11 sulphate bags entered the house that she owns and has control over. For these reasons, I have no doubt the 1st accused was not only found in possession of the narcotic drugs but also, knew of its existence. Having established that the 1st accused was found in possession of narcotic drugs, the case of the 2nd accused is distinct. According to the 15 evidence adduced, .there is no dispute that the 2nd accused was not found in physical possession of any illegal substance. However, the evidence linking the 2nd accused to the trafficking of narcotic drugs relies solely on the testimony of PW2. In his testimony, PW2 recounted receiving information while on patrol from an informant alleging that the 2nd accused was involved in trafficking narcotics and might store them either at his own home or at his mother's (1st accused) residence. Based on this information, PW2 decided to go to the 2nd accused's home and conducted a search, but found nothing incriminating. Therefore, accompanied by the 2nd accused, they proceeded to the residence of the 1st accused, where the narcotics were retrieved. The reason PW2 opted to go to the 1st accused's home was because he had already received intelligence suggesting that the 2nd accused might store the narcotics either at his own home or at his mother's. Consequently, without this information, PW2 and his team would not have ventured to the 1st accused's residence. Looking at the definition of trafficking above, it can be noted that storing is one of the categories of trafficking. The word store has been defined in the Cambridge Dictionary to mean; ' To put or keep things in a special place for use in future' 16 By examining this definition of 'store,’ can be realized that it refers to keeping something in a place for future use. Therefore, storing can occur either at one's own home or at a location other than one's residence. In such circumstances, if the storing has not been done at one's residence, finding a person in physical possession of the stored item elsewhere is impossible. Nevertheless, the absence of physical possession of the narcotic drugs by the 2nd accused does not imply that he did not store the 11 sulphate bags containing cannabis sativa at the 1st accused’s residence. Despite the 2nd accused denying any involvement with the cannabis sativa, I find his defence not sound. As pointed out earlier, PW2 is a reliable and credible witness. If PW2 did not have information that the 2nd accused was storing cannabis sativa at his mother's residence, there would have been no need to accompany the 2nd accused to the 1st accused's home after finding no contraband at the 2nd accused's residence. The act of leaving with the 2nd accused and ultimately recovering the cannabis sativa at the 1st accused's house confirms that the 2rtd accused was indeed storing the cannabis sativa at the 1st accused's residence. 17 Besides, the 2nd accused's claim of finding the cannabis sativa already outside the 1st accused's house indicates he was aware of the said cannabis sativa, which is why he made such an assertion. PW2, PW3, and DW1 all testified that the search was conducted while the 2nd accused was present. Therefore, his testimonial that the said cannabis sativa was found: outside was an attempt to conceal the truth that he knew about the storage of the said cannabis sativa in 1st accused residence. With these considerations, I have no doubt regarding the testimony of PW2, and I believe what he has told the court is nothing but the truth. In the case of Goodluck Kvando v. Republic [2006] T.L.R 363 the Court of Appeal stated; 'Every witness is entitled to credence and must be believed and her testimony accepted unless there are good and cogent reasons not believing a witness! In light of the above, since I have no reason to doubt the testimony of PW2, and considering that there is no required number of witnesses to prove a certain fact, I find that the 2nd accused was also involved in trafficking narcotic drugs weighing 133.04 kilograms. The second issue is also answered in the affirmative for both accused. 18 Given the significance of maintaining the chain of custody in cases involving narcotic drugs, I will now proceed to examine whether the chain of custody of Exhibit P3 was maintained. To determine whether the chain of custody was maintained, it needs to be examined from the moment that the Exhibit (the 1:1 sulphate bags) was seized up to the tendering in court. This position was stated in the case of Allan Duller v. Republic, Criminal Appeal No. 367 of 2019 (unreported) Looking at the testimony of PW2, it indicates that immediately after seizing the 11 sulphate bags suspected to contain cannabis sativa from the 1st accused, they were taken directly to the Newala Police Station along with the 1st and 2nd accused. Upon arrival at the station, a case was opened and assigned the number NEW/IR/1070/2021, which was then labelled on each sulphate bag. Subsequently, they were handed over to PW4, the Exhibit Keeper, who assigned them the number 250/2021. PW4 testified that he kept these Exhibits in the Exhibit room until 5th January, 2022 when he handed them to PW5 to be taken to the Government chemist. PW1 confirmed receiving Exhibit P3 from PW5, who after completing the analysis handed it back to PW5 while labelling with GCLA seal, and assigned No. SZL/02/2022 and marks A, B, C, D, E, F, G, H, I, J and K . 19 PW5 then returned it to the police and handed it to PW4 who assigned it the new number 02/2022 and kept it in the Exhibit room. PW4 continued to maintain the Exhibit until 18th April, 2024, when he brought it to the court. Exhibit P4 illustrates the entire chain of custody of how the Exhibit was transferred between PW2, PW4, PW5 and PW1. Furthermore, all witnesses were able to identify Exhibit P3 as the same which passed through their hands; Based on this evidence, I am firmly of the opinion that the chain of custody remained intact from the moment Exhibit P3 was seized, throughout its time in police custody, until it was taken to the Government chemist, and ultimately tendered as an Exhibit in this court. In conclusion, based on the foregoing findings, this Court concludes that the prosecution has successfully proven its case beyond a reasonable doubt against both accused persons. Therefore, I find Hawana Hamdani Kupela the 1st accused, and Jamal Ahmadi Mkalala the 2nd accused, guilty of the offence charged, and I hereby convict them of trafficking in narcotic drugs as per section 15(1) (a) (3) (iii) of the Drug Control and Enforcement Act [Cap.95 R.E. 2019], read together with paragraph 23 of the First Schedule and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act [Cap.200 RE 2019]. 20 Dated at Mtwara this 08th May 2024. M.B. Mpaze Judge Court: Judgment delivered in open court this 8th day of May, 2024 in the presence of Ms. Elizabeth Muhangwa and Ms. Alice Nanna learned State Attorneys for the Republic, the 1st and 2nd accused persons, Mr. Stephen Lekey learned advocate for the 1st accused person and Mr. Emmanuel Ngongi learned advocate for the 2nd accused person. M.B. Mpaze Judge 8/5/2024 SENTENCE In considering the appropriate punishment for this offence, I have taken into account both the aggravating factors presented by the state attorney for the republic and the mitigating factors for both accused persons as submitted by the two defence counsel. However, I have also considered the sentencing guidelines which guide what the Court should consider to impose an appropriate sentence. 21 In this case, both accused persons stand charged with the offence of trafficking Narcotic drugs contrary to section 15(1) (a) (3) (iii) of the Drug Control and Enforcement Act [Cap.95 R.E. 2019], read together with paragraph 23 of the First Schedule and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act [Cap.200 RE 2019]. The penalty prescribed in section 15(l)(a) of the Drug Control and Enforcement Act [Cap.95 R.E. 2019]is Life imprisonment, but under section 60 (2) of the Economic and Organised Crime Control Act [Cap.200 RE 2019] the penalty imposed through these sections has a maximum of 30 years and a minimum Of 20 years. It should be noted that the purpose of giving punishment includes deterrence and rehabilitation of the offenders. As the prosecution has rightly pointed out, narcotic drugs have serious consequences for human beings, especially those who use these drugs, as their physical and mental health deteriorates over time, they become unable to work diligently and end up being dependent. Sometimes, the government incurs additional costs in caring for users of these drugs, leading to a decrease in the country's economy. I recognize that the accused persons through their advocate have also requested a reduction in their sentences because they have already 22 spent some time in remand custody, they have families depending on them, and I have also been asked to consider their age. Taking all of these factors into consideration, while bearing in mind the purpose of the enactment of the Drug Control and Enforcement Act Cap 95 R.E 2019, and to serve as a deterrent not only to these accused persons but also to the society at large, I sentence Hawana Hamdani Kupela the 1st accused, and Jamal Ahmadi Mkalala the 2nd accused each to serve a sentence of 20 years imprisonment. M.B. Mpaze Judge 8/5/2024 ORDER The 11 sulphate bags (Exhibit P3) be disposed of and destroyed per the Drug Control and Enforcement Act Cap 95 R.E 2019 and The Drugs Control and Enforncement (General) GN No. 173 of 2016. M.B. Mpaze Judge 8/5/2024 23 Court: The right of appeal has been explained to the parties. M.B. Mpaze Judge 8/5/2024 24