Economic Case 9 of 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIME DIVISION AT MTWARA SUB-REGISTRY ECONOMIC CASE NO. 9 OF 2022 THE REPUBLIC VERSUS 1. RAJABU YUSUPH MCHINGAMA 2. SALUM ABDALLAH MTIRI @ CHAM LIN DA 3. JERREMIA JOSEPH MU LENGA © JERRY 4. KELVIN MICHAEL MGOSI JUDGMENT August & 2Sh September, 2024 MPAZE, J.: Rajabu Yusuph Mchingama, Salum Abdallah Mtiri @Chamlinda, Jerremia Joseph Mulenga @ Jerry, and Kelvin Michael Mgosi, the first, second, third, and fourth accused respectively, were charged with trafficking in narcotic drugs, contrary to section 15 (l)(a) of the Drugs Control and Enforcement Act [CAP 95 R.E. 2019] (the DCEA), read i together with paragraph 23 of the first schedule to and section 60(3) of the Economic and Organized Crime Control Act [CAP 200 R.E. 2002] (the EOCCA) as amended by the Written Law (Miscellaneous Amendment) Act. No. 3 of 2016. The charge alleged that, on 10th June 2019, the accused persons were involved in trafficking heroin weighing 7,992.82 grams. They all pleaded not guilty, leading to a full trial. The prosecution was led by Ms. Tully Helela, Ms. Ellen Masululi, Ms. Ellzebeth Muhangwa, Mr. Ji la la Jagadi, Ms. Alice Nana, Mr. Wilbert Ndunguru, and Ms. Atuganile Nsajigwa all State Attorneys. The defence was represented by Mr. Datius Faustine, Mr. Kerry Ngoitiama, Mr. Stephen Lekey, Mr. Alex Msalenge, Mr. Emmanuel Ngongi, and Mr. Reinery Songea all advocates for the first to fourth accused respectively. The court expressed gratitude for their commitment throughout the trial. In order to prove the case against the accused persons, the prosecution presented 11 witnesses namely Elias Mlima (PWl), F1177 S/SGT Daimon (PW2), Emelsiana.Raphael Membe (PW3), PF 17957 ASP t Albert (PW4), Halid Salumu Kabelwa (PW5), Inspector Patrick Ndomba (PW6), G8348 D/CPL Paul (PW7), E6940 SGT Lugendo (PW8), G3744 2 D/CPL David Timothy Lyanga (PW9), F7115 SGT Abbas (PW10), and E5671 Forensic SGT Alfred (PW11). The prosecution also tendered several exhibits such as Submission Forms, Reports, Eight Packets of Heroin, Mobile Phones, Money, a Motorcycle, and Certificates of Seizure. According to the testimony of PW4, PW6, PW8, and PW9, on 10th June 2019, the police were patrolling near the Ruvuma River in Newala District when they encountered four motorcycles around 15:00 hours. One of the motorcycles, driven by Rajabu Mchingama (DW1), allegedly had a bag on its fuel tank. The officers searched the riders, allowing the other three to leave after finding nothing incriminating. However, upon searching DWl's bag, they claimed to have discovered narcotic drugs. According to them, DWl admitted he had received the drugs from a Mozambican driver named Issa and was supposed to deliver them to Salumu (DW2) in Newala. PW8, PW9, and D/CPL Fanuel, along with DWl, proceeded to locate DW2 near Butiama Primary School, where they apprehended him. During the interrogation, DW2 allegedly admitted ownership of the drugs and implicated Kelvin (DW4), claiming that DW4 had instructed 3 him to collect the narcotics. Both DW1 and DW2 were taken to Newala Police Station, where a case file was opened. Throughout their detention, they maintained contact with DW4, who purportedly offered TZS 10,000,000/= to the police as consideration for DW2 and drugs release. In an effort to ensnare DW4, the police purportedly accepted the bribe, which was allegedly transferred through an agent named Zainab Ungaunga to PW4, PW5, PW9, and DW2, totaling TZS 10,200,000/=. However, after deductions, the amount withdrawn was TZS. 10,168,000/= (Exhibit P10). Following this, DW4 was informed that the accused had been released. DW4 then instructed DW2 to take a motorcycle to Masasi, where he would meet someone who would provide him with funds for his travel to Dar es Salaam. Upon arrival in Masasi, DW2 contacted DW4, who instructed him to wait at a guest, DW2 was taken to Luna Lodge under police guard, while PW6 monitored from a distance. Shortly after, a motorcycle arrived with a rider and a passenger. The rider entered the lodge and called for DW2. PW9 apprehended the rider, who claimed to be a boda boda driver sent by someone waiting 4 outside. PW9 instructed the rider to leave without alerting his passenger. PW9 then followed the rider, and while they were on the move, PW6 apprehended the passenger, who identified himself as Jerremia Issa Mulenga (DW3). PW6 and PW9 testified that during questioning, DW3 revealed he was a relative of DW4 and had been sent to deliver money to DW2 for his trip to Dar es Salaam, where he was to transport the drugs. After apprehending DW3, the police team, guided by him, traveled to Dar es Salaam and successfully arrested DW4 at his home. PW9 claimed that DW4 admitted sending DW3 to collect the drugs but claimed the drugs were not his. The operation of arresting who were involved in this offence according to PW9 was concluded on 13th June, 2019 with all suspects being taken to Mtwara. Eight phones belonging to the accused persons were seized during the operation. PW9 also noted that another suspect, Haji, had passed away, resulting in his case being abated. On 14th Junez 2019 PW10 handed over the eight packets seized from DW1 to PW2 to take for analysis. Upon receiving the exhibit, PW2 repackaged the packets in nylon bags, sealed them with glue, and 5 marked each with the IR number NE/IR/609/2019, along with the agency, date of arrest, and other relevant details. The packets were then placed in a box, sealed, and signed by PW2, PW3, the OCD, and DWi. On 15th June, 2019 PW2, accompanied by PW4 and other officers, traveled to Dar es Salaam, arriving at the Government Chemist Laboratory Authority (GCLA) at around 10:00 hours. The Exhibit was registered under Laboratory Number 18/44/2019 for analysis. At the GCLA, Exhibit P3 was handed to PW1 by PW2, along with the Submission Form DCEA 001 (Exhibit Pl). PW1 weighed the Exhibit, which totaled 7,992.82 grams, and proceeded with the testing. PW1 conducted a preliminary test on samples from each of the eight packets using Mecke reagent, which produced a dark green color, indicating the presence of heroin. He then performed a confirmatory test using Liquid Chromatography Mass Spectrometry (LC-MS), which verified that the substance was indeed heroin. After completing the analysis, PW1 sealed and repackaged the Exhibit, prepared the Analysis Report (Exhibit P2), and returned the Exhibit to PW2, who then transported it back to Newala and handed it over to PW10. 6 In addition to handling Exhibit P3, PW2 was responsible for the custody of eight mobile phones. On 14th June, 2019 PW4 handed over two phones belonging to DW1 to PW2 and on 15th June, 2019 PW9 handed over six phones seized from DW2, DW3, DW4, and the late Haji, PW2 confirmed receiving the phones from PW4 and PW9 and kept them in custody until 10th July, 2019 when he was instructed by RCO SSP Makona to transport the phones to the Cyber Department Headquarters in Dar es Salaam. PW2 complied with the directive, delivering the phones along with a letter to PWil at the Forensic Bureau in Dar es Salaam. PW11 confirmed receiving the phones, registered them under number FB/Cyber/2019/l_AB/311, and used a Universal Forensic Extraction Device (UFED4PC) to extract data, followed by analysis using a physical analyzer. Data for SMS and Calls from 1st January to 20th June, 2019 was retrieved from seven phones, while one phone failed to provide data. A report was generated, saved on a DVD PDF Format for read only (Exhibit P14), and completed on 27th July ,2019. PW7 later collected the phones from PW11 and stored them in Mkuranga during 7 his duties. He then handed them over to the RCO, who passed them to PW2, and eventually to PW10. PW10 testified about receiving, storing, and handling various exhibits, including Exhibit P3, which was submitted to the Chief Chemist, and others such as Exhibits P5, PIO, and Pll. After hearing the prosecution's evidence, this court determined that a case had been made for the accused to present their defence. Each accused defended himself under oath, relying on Exhibits 01 and D2, which contained statements from PW5 and PW10. All the accused, through their respective defence, denied any involvement in the alleged drug trafficking offence. DW1 claimed that on 10th June, 2019 he was at the Ruvuma River border transporting passenger from Mozambique to Newala. Along the way, he was stopped by police officers who were conducting a search for the validity of immigration documents, which his passenger did not have. This led to both him and his passenger being arrested and taken to the immigration office. DW1 alleged that during his detention, the officers asked him to contact a person named Salumu (DW2). As instructed, he called 8 Salumu, which resulted in Salumu's arrest. DWi further claimed that he was later taken to various locations by the police, including a lodge and the Newala Police Station. At police he was given various documents to sign but stated he did riot understand their contents. DWI maintained his innocence, asserting that he had no connection to the alleged drug trafficking and that his phone, which had been seized by the police, was never returned to him until he saw it when tendered in court. DWI also challenged the prosecution's evidence, particularly the handling of his phone and the alleged confession, which was never tendered in court, DW2 claimed that on 10th June, 2019 he received a call from DWI, who requested a meeting. Upon meeting DWI, DW2 was apprehended by police officers who failed to inform him of the specific offence for which he was being arrested. He stated that he was taken to various locations, including a lodge and a police station, where he was questioned about drugs, which he denied any knowledge of. DW2 further alleged that he was tortured by the police in an attempt to force a confession regarding drug trafficking. 9 Additionally, DW2 claimed that his phone was seized on 10th June, 2019 and was used by the police to communicate with an unknown person. DW2 maintained that he had no involvement in drug trafficking activities and also denied knowing DW3 and DW4, further challenging the prosecution's evidence. DW3, in his testimony, stated that he arrived in Masasi on 8th June, 2019 for a grain business. On 11th June, 2019 while running errands, he was apprehended by police officers and questioned about his relationship with DW4, to which he explained that DW4 was his brother. DW3 testified that the officers then instructed him to take them to DW4's residence in Dar es Salaam, which he did. DW3 claimed that he had no knowledge of the other suspects and denied any involvement in the alleged drug trafficking. DW4 testified that on 12th June, 2019 police officers forcibly entered his home and conducted a search, which yielded no incriminating evidence. Despite this, DW4 was arrested and taken to Tazara Police Station, where he was accused of involvement in both vehicle theft and drug trafficking, charges he denied. io DW4 further stated that while he had communicated with DW3 in the past, he had no knowledge of any drug trafficking activities. He also maintained that he did not know PW1 or DW2 before meeting them in this case. DW4 said he remained in police custody until 15th June, 2019 when he was interrogated regarding the alleged offences, which he continued to deny. In summary, all four accused denied any involvement in drug trafficking and challenged the prosecution's evidence. They raised claims of mistreatment, unlawful detention, and the absence of concrete evidence linking them to the alleged crime. In brief, this outlines how the evidence from both parties was given. More details about the evidence and what each witness stated will be meticulously analyzed and evaluated by the court as it scrutinizes and assesses the testimonies from both sides in order to resolve the issues raised in this case. In determining whether the charge have been proven, the court will be guided by one main issue, which is whether the prosecution has proven the case against all the accused persons beyond a reasonable 11 doubt. Resolving this key issue will require addressing several sub­ issues that will guide the court toward a fair arid just conclusion. Before delving the main issue in this case, it is essentia! to highlight a fundamental legal principle governing criminal trials that; the prosecution is required to prove the charge against the accused persons beyond a reasonable doubt, except where a statute or other law stipulates otherwise. This principle is enshrined in section 3(2) of the Evidence Act [Cap 6 R.E 2022] (the TEA). In Hussein Ma lulu @ Elias Hussein & Others v, R (Criminal Appeal No. 263 of 2021) [2023] TZCA 17939 (13 December 2023), the Court of Appeal of Tanzania while interpreting the provision of section 3 (2) cited above had this to say; 'Satisfaction that a case has been proved beyond reasonable doubts cannot be held to exist where doubts linger in the head of a trial Magistrate or a Judge on the blameworthiness of an accused person he is set out to convict. If there is persistence of doubts or unsureness about the guilt of the accused person, the obvious conclusion is that the case has not been proved at the required standard and the accused person should benefit from the doubts/ 12 See also: Marki Said ©Mbeoa v, R (Criminal Appeal No. 2014 of 2018) [2022] TZCA 667 (4 November 2022) That being the case, section 28 of the DCEA is one of those exceptions to the general rule discussed above, requiring the accused person to prove that possession, dealing, trafficking, selling, cultivation, purchasing, using, or financing was conducted in accordance with a valid license or permit issued under the DCEA. However, in situations where the burden of proof shifts to the accused persons, the required standard is on the balance of probabilities, meaning the accused only needs to show that their version of events is more likely than not to be true. See the case of Hemed v. R_[1987] TLR 117. As explained earlier, the court's determination will focus on the primary issue of this case, supported by several sub-issues that need to be addressed to arrive at a fair and just conclusion. The sub-issues are as follows; One, whether the 8 packets (Exhibit P3) contain narcotic drugs commonly known as heroin; Two, if the 1st issue is answered in 13 affirmative, whether the accused persons trafficked narcotic drugs; and Third, whether the chain of custody was maintained. Starting with the first subdssue, which is whether the 8 packets (Exhibit P3) contain drugs commonly known as heroin, I will be guided by the testimony of PW1 and the requirements set out under section 48A of the DCEA. This section is crucial as it establishes the legal framework for the admissibility and evidentiary weight of the Government Analyst’s Report in such cases. Section 48A provides as follows; ' Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shai! be admissible as evidence of the facts stated therein without forma! proof and such evidence shall, uniess rebutted, be conclusive.' This provision underscores that the Government Analyst's Report, in the absence of any counter-evidence, is deemed sufficient to conclusively establish the nature of the substances in question. This legal principle has been further clarified in the case of Adam Abdallah Ramadhani v. R Criminal Appeal No. 372 of 2020 14 (unreported), Which cited the earlier case of Mwinvi Bin Zaid Mnvagatwa v, R [19601 EA 218 (HCZ). In that case, the Court held; 'The prosecution in offencesrelated to narcotic drugs has a duty to submit expert analysis, which is mandatory as its result is final, conclusive, andprovides the necessary checksand balances that warrant a conviction, '[Emphasis added]. This decision reinforces the importance of expert analysis in narcotic drug-related offences. The experts report, which is admissible without formal proof under section 48A of the DCEA, serves as the conclusive evidence needed to establish the nature of the alleged drugs. It is a critical element of the prosecution's case. Furthermore, in Aldo Kilasi v.R Criminal Appeal No;466 of 2019 (unreported), the Court emphasized the weight that must be accorded to such expert reports, reaffirming that without a credible challenge, the findings within the Government Analyst's Report are determinative. In light of these precedents, it is essential to consider whether the Government Analyst's Report (Exhibit P2) and the testimony of PW1 sufficiently establish that the 8 packets in question contained heroin. If this expert analysis stands unchallenged, it will satisfy this sub-issue and move the court toward a resolution of the broader matter. 15 In proving that the 8 packets were nothing but narcotic drugs namely heroin, PW1 testified that he received 8 packets containing a flour-like substance from PW2 at the GCLA offices in Dar es Salaam. He weighed the contents of each packet, excluding the packaging material, and determined that the total weight of the substance was 7,992.82 grams. Following this, PW1 explained that he conducted a preliminary test by taking a small sample from each packet and placing it on a white tile. He then applied a mecke reagent, which resulted in a chemical reaction that turned dark green, indicating the presence of heroin. PW1 further explained that he proceeded with a confirmatory test, again taking samples from each packet. This test was carried out using a laboratory instrument known as Liquid Chromatography Mass Spectrometry (LC-MS). According to him, this analysis conclusively identified the samples from all 8 packets as narcotic drugs, namely heroin. After completing the confirmation process, PW1 prepared and signed the analyst report (Exhibit P2), which recorded that the flour-like substance in the 8 packets received from PW2 was heroin, with a total weight of 7,992.82 grams. 16 It is clear from PWl's testimony and the content of Exhibit P2 that his findings that the substance in the 8 packets was heroin remained unchallenged. Consequently, this court is satisfied that the prosecution has proven that the 8 packets containing the flour-like substance were narcotic drugs, identified as heroin, with a total weight of 7,992.82 grams. With the first sub-issue answered in the affirmative, I now turn to the most difficult part of this case; determining whether the accused persons trafficked narcotic drugs. This issue is complex due to the nature of the offence, the manner in which it was committed, and the way evidence has been provided from both sides. The prosecution alleges that the accused persons trafficked narcotic drugs, while the defence vehemently refutes these allegations. Before addressing this issue, I must state that, at this juncture, it is prudent to outline the undisputed facts based on the evidence presented by both parties. There is no dispute that on 10th June, 2019 DW1 was apprehended by police officers on patrol. It is also undisputed that after his arrest, he called DW2 and subsequently accompanied PW8 and PW9 to the location where DW2 was found and apprehended. 17 Furthermore, it is undisputed that DW1 and DW2 were taken to Lodge 100 at. different times and later DW2 was taken to Luna Lodge in Masasi. It is also clear that DW3 was arrested in Masasi and that he led the police to the home of DW4, resulting in DW4's arrest as well. Additionally, there is no dispute that the phones of DW1, DW2, DW3, and DW4 were confiscated by the police after their arrests and completion of arrest processes. The point of contention lies in the fact that all the accused deny any involvement in the commission of this offence. DW1 asserts that, although he called DW2, it was the police who provided him with the number to call; he did not initiate the call independently. DW3 and DW4 also deny knowing DW1 and DW2 prior to this case, and similarly, DW1 and DW2 deny any prior acquaintance with DW3 and DW4. Having stated this, I will now continue to analyze this sub-issue. For the prosecution to prove that the accused trafficked narcotic drugs, they must establish that there was an act of trafficking as defined under section 2 of the DCEA, which provides; Trafficking means the importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any 18 person of a narcotic drug or psychotropic substance or any substance represented or held out by that person to be a narcotic drug or psychotropic substance or making of any offer but shall not include...' It is crystal clear that the above provision outlines the definition and circumstances under which the crime of trafficking is deemed to have been committed. In the case of Remina Omary Abdul v. R (Criminal Appeal No. 189 of 2020) [2022] TZCA 118 (15 March 2022), observed that one of the acts or any type of handling mentioned in that provision amounts to the offence of trafficking. The Court stated; 'It goes without saying that whether the finding ofexhibit P3(a) under the circumstances explained by witnesses amounted to storing, as the learned judge concluded, or possession is inconsequential. This is because any such acts or types of handling drugs constitute an offence termed trafficking in narcotic drugs as defined under sections 2 and 15(2) of the DCEA! [Emphasis added]. Therefore, considering what constitutes trafficking in accordance with section 2 of the DCEA and the findings in Remina Omary's case it can be said that for the prosecution to establish that the accused persons trafficked narcotic drugs, they must specify the particular manner in which the accused were involved in committing the offence. 19 In assessing the evidence presented regarding in connection with the first accused in committing the offence, I carefully considered the testimonies of PW4, PW6, PW8, and PW9. They testified that on 10th June, 2019 around 15:00 hours, while on patrol, they stopped DW1, who was riding his motorcycle with a bag placed on the fuel tank. He was traveling from the Chihanga Port Area to Newala. Upon stopping him, the officers questioned the contents of the bag, to which DW1 replied, 'Madawd (drugs), without specifying the type. PW4 inspected the bag in the presence of DW1, PW6, PW8, PW9, D/CPL Jane, arid D/CPL Fanuel, uncovering eight packets of heroin (Exhibit P3). The testimony also established that the certificate of seizure (Exhibit P6) was filled by PW4 and signed at the scene by PW4, PW6, PW8 and DW1, confirming the seizure of the heroin and the red SANLG motorcycle (Exhibit Pll) from him. In his defence, DW1 acknowledged being stopped by the police but denied being alone with the bag. He claimed he was carrying a passenger from Mozambique who had two bags. After being stopped and searched, the passenger, lacked the necessary entry permits, was detained alongside with DW1, his motorcycle, and the two bags. 20 After being arrested, according to DW1, they were taken to the immigration office. While there, he claimed to have overheard the police mentioning they were searching for some youth, specifically naming 'SafumuJ When questioned about whether he knew 'Saluntu' he admitted knowing him and was given a phone number to call Salumu', which ultimately led to DW2's arrest. During the tendering of Exhibit P6, an objection was raised concerning the absence of an independent witness during the seizure, which was overruled by the court. However, despite this objection, DW1 did not contest that the signature on Exhibit P6 was his. Instead, in his defence, he claimed that while at the police station, he was made to sign numerous documents without knowing their contents. This defence implies that while DW1 acknowledges signing several documents, he asserts that this occurred only at the police station. By making this claim, he seems to suggest that no documents, including Exhibit P6, were filled out immediately after his arrest, and thus, he did not sign anything related to the seizure at the scene. This defence appears to be an attempt to discredit the timing and legitimacy 21 of Exhibit P6, but it fails to outright deny the presence of his signature on crucial evidence. I acknowledge that, as per legal principles, when a police officer conducts a search and finds a person in possession of illegal items, they are required to immediately fill out a certificate of seizure. This document must be signed by the officer who conducted the search, the person found with the illegal items, and the witnesses present. This procedure ensures that all parties involved acknowledge the discovery, and the certificate serves as an official record to promote transparency and accountability. In evaluating DWl's defence where he claims that he did not sign Exhibit P6 at the time of his arrest, but rather at the police station compared with the testimonies of PW4, PW6, PW8, and PW9, all of whom confirm that the certificate of seizure was filled out immediately after the search and was signed by all parties, including DWI, at the scene of the arrest, I find myself questioning the validity of DWl's defence. 22 Despite the fact that PW4, PW6, PW8, and PW9 are police officers, I have no reason to doubt the credibility of their testimony, as it is consistent and aligns with the established legal procedure. Therefore, based on the evidence provided by these witnesses, I am convinced that Exhibit P6 was filled out at the scene and signed by DW1 at that time, contradicting his claims that it was signed later at the police station. DWl's defence appears to lack credibility In light of the corroborated testimonies of the prosecution witnesses. Regarding the complaint that there was no independent witness to observe and sign the seizure, which was raised during the admission of Exhibit P3,1 would like to point out that, in general, various legal precedents establish the necessity of having an independent witness, as illustrated in Haji Rashidl Matundu & Another v. R (Criminal Appeal No. 314 of 2021) [2024] TZCA 210 (20 March 2024). However, exceptions exist in situations where securing an independent witness proves challenging, as noted in Waziri Shabani Mizigo v. R (Criminal Appeal No 476 of 2019) [2023] TZCA 17344 (16 June 2023). In this case, PW4, PW8, and PW9 thoroughly explained how DWl's arrest was conducted, as well as the circumstances of the 23 location where he was apprehended. They stated that they stopped and searched four boda boda riders, inspecting each one. The first three riders, along with their passengers, were searched and found with no contraband, after which they were allowed to leave, leaving DW1 behind. It was during DWl's inspection that they found Exhibit P3 in his possession. They stated that the area where DW1 was arrested was in the bush, with no nearby houses or passersby. In his defence, DW1 claimed that he and the other boda boda riders were together, and that he and his passenger were the first to be searched. After they were searched, they were set aside, as he alleged that his passenger did not have the necessary permits to enter the country. DW1 alleged that after which the officers continued to search the others before they were allowed to leave. Even if I were to consider his defence as truthful, DW1 did not claim that there were any passersby or that an independent witness could have been found after the others had left. When analyzing DWl's defence, he largely agrees with the account given by PW4, PW6, PW8, and PW9 that several boda boda 24 riders were stopped and searched. His only point of contention is the order in which the search occurred, as he claims he was the first to be searched, while the prosecution witnesses state he was the last. I asked myself, if DWl's defence is truthful, would the police really search him, find contraband, and then allow the other boda boda riders who could have served as independent witnesses to leave without ensuring they witnessed the discovery? This does not seem plausible to me. It appears that DWl's version is an attempt to shift the narrative in his favour, but the logic of his defence is not convincing. Ultimately, the testimonies of PW4, PW6, PW8, and PW9, which describe DW1 as the last to be searched, align more with the flow of events and the absence of independent witnesses, given the location. DWl's defence seems more like a strategy to escape responsibility rather than a truthful account. In the case of Director of Public Prosecutions v. Mussa Hatibu Sembe (Criminal Appeal 130 of 2021) [2022] TZCA 238 (6 May 2022), the Court of Appeal quoting the case Jibril Okash Mohamed v, R (Criminal Appeal No. 331 of 2017) [2021] TZCA 13 (11 February 2021), indicated that in certain exceptional circumstances where it may 25 be difficult to secure an independent witness, police officers may qualify to serve as witnesses. They stated; 'This does not mean, however, that under exceptional circumstances, such as when an independent witness cannot be procured, a policeman cannot qualify as a witness. The rationale in Jibril Okash Ahmed supports this view, emphasizing that the requirement for an independent witness is not absolute and indispensable. It is acknowledged that while an independent witness is crucial for providing unbiased evidence, the law does not necessitate their presence in every circumstance.' Based on the discussion above, I am satisfied with the evidence provided by PW4, PW6, PW8, PW9 and even parts of DWl's own testimony, which confirm that the location of the arrest was isolated, away from residential areas, making it difficult to secure an independent witness. Given these circumstances, I find Exhibit P6 to be valid and free from any flaws. To conclude, based on the analysis of the credible evidence of PW4, PW6, PW8 and PW9 provided in relation to DWl, I am satisfied beyond reasonable doubt that DWl was found in actual possession of Exhibit P3, based on the following grounds; 26 First, the act of signing Exhibit P6 legally signifies DWl's acknowledgment of possessing the heroin (Exhibit P3) found on his motorcycle. It is a well-established legal principle that signing a seizure certificate is tantamount to acknowledging possession of the items listed within it. See the case of Waziri Shabani Miziqo {supra}. Second, DW1 claims the passenger was involved in dealing narcotic drugs, yet a crucial question remains unanswered; if the passenger was indeed complicit, why was he not apprehended while DWI was arrested? Third, there is no evidence indicating that DWi had any conflict with PW4, PW6, PW8, or PW9 that would suggest a motive to fabricate such serious charges against him. Fourth, in his defence, DWI claimed that the police were the first to ask him about DW2, and he admitted to knowing him. However, one must question why, upon hearing the name DW2 he immediately assumed it was Salama' (DW2) and not any other Salumu', considering that there are many persons with that name. His act of acknowledging'SaZw?wzshows that they were familiar with each other, 27 which supports the testimonies of PW4, PW8, and PW9, who stated that it was DWI who named DW2 as the owner of Exhibit P3. Not only that but also, during cross-examination, PW4, PW6, PW8 and PW9 were never asked a question that suggested it was the police, and not DWI, who named DW2. Fifth, after examining Exhibit P14 and the report extracted from the Tecno T 401 phone belonging to DWI, I observed that this phone received a message on 10th June, 2019 from DW2's phone using the number 0715349805. The communication is as follows; • ' Ujuku kaniambia umekamatwa kwer' . 'Ok nakuja na ka umekamatwa usiogope' . 'Njoo shule ya butiama' • 'Oyaa nishafika '■ . 'We usiogope njoo nao' These five messages were sent on 10th June, 2019 between 1:36:34 PM (UTC+0) and 2:07:29 PM (UTC+0). This exchange mirrors the accounts given by PW4, PW8, and PW9 in their testimonies, which detailed these conversations and indicated that there is no contention 28 that DW2 was apprehended at Butiama school as evidenced by both prosecution witnesses, DW1 and DW2. In addition to the messages from DWl's phone to DW2, I also observed from the extraction report of the Techno 5s phone, owned by DW2, that on 8th June, 2019, there was one incoming call from DW1 using the number 0625092684. Furthermore, on 9th June, 2019, there were a total of seven missed calls and outgoing calls from DW1. This clearly indicates the existence of communication between the two persons, contradicting DWl's defence that he had never had DW2's phone number. Given these circumstances, I have nadoubt that DW2 was named by DW1 as the person who instructed him to collect the drugs from the port. DWl's denial of involvement in this offence is not surprising, as it was expected that he would defend himself in an attempt to evade the charge against him. However, his defence has failed to convince this court that he was not the one found in actual possession of Exhibit P3. Having established that DW1 was found in actual possession of the narcotic drugs, one might question how the remaining accused 29 persons are implicated in this offence when they were not found with anything in their possession. It is important to note that in drug-related offences like this one, which involves more than one person, the commission of the crime is often concealed. Therefore, not everyone involved is necessarily to be found in actual possession of the drugs. In such circumstances, the prosecution must establish that the accused persons were aware of the narcotic drugs and exercised control over them, a concept commonly referred to as" constructive possession" The Court of Appeal in the case of Yanga Omari Yanga v. R (Criminal Appeal No. 102 of 2019) [2021] TZCA 220 (1 June 2021) discussed the principle of constructive possession in detail while taking inspiration from the Article titled: THAT AINT MINE: TAKING POSSESSION OF YOUR CONSTRUCTIVE POSSESSION CASE authored by H. Lee Harrel, Deputy Commonwealth’s Attorney Wythe Count Virginia in Volume 6, number 1/July 2011 where among other things it was observed as follows; 'In criminal prosecution for unlawful possession (or even distribution and manufacturing) of contraband, the Commonwealth may prove the case by showing either actual or 30 constructive possession. If the Commonwealth's case is one of constructive - rather than actual - possession the following must be proved beyond reasonable doubt: L That the defendant was aware ofthe presence and character of the contraband. 2. That the contraband was subject to the defendant's dominion and control by its very nature constructive possession case is likely to be circumstantial, and although circumstantial evidence can be just as competent as direct evidence, it rarely packs the same punch.... The first prong of constructive possession is usually the most difficult to prove. Having toprove the requisite level of what the defendant knew about an item not in his actual possession is challenging. Constructive possession may be established by evidence of acts, statements or conduct of the accused or other facts or circumstances which tend to show that the defendant was aw are of both the presence and character ofthe substance and that it was subject to his dominion and control Another oft relied upon axion in the world of constructive possession is that folks don tjust abandon their drugs. Virginia ’s appellate courts have recognized this time again when a defendant who tries to argue that may be somebody dropped those drugs or may be the fast person who rented this car left that cocaine in the console. "Our cases recognize that 31 drugs are a commodity of significant value, unlikely to be abandoned or carelessly left in an area. The Court proceeded to quote with approval the case of MOSES CHARLES DEO VS REPUBLIC, and state that; 'In our jurisdiction, the principle which recognizes that drugs are commodities ofsignificant 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 ofthe accused or not has been discussed in a number of cases including the case of MOSES CHARLES DEO VS REPUBLIC, t (supra) where the Court categorically stated that: "for a person to be found to have had possession, actual or constructive, ofgoods 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"[Emphasis Added]. Having said that, returning to the present case, the arrest DW2 in connection with the commission of this offence, as explained by the prosecution witnesses, occurred after being named by DW1. Similarly, DW4 was named by DW2. Aside from this chain of accusations, other evidence linking the accused to the commission of 32 the crime includes their phone communications and the actions that followed those communications, such as the transfer of TZS 10,200,000/=. While the prosecution witnesses PW4, PW6, PW8, and PW9 testified that DW2 was named by DWI, DWI, in his defence, denied naming DW2. This issue I have thoroughly addressed in my analysis regarding DWI involvement in this offence, suffices to conclude that DW2 was named by DWI, indicating that Exhibit P3, which was found in the possession of DWI, was intended for delivery to him. Apart from that evidence another evidence linking DW2 with the offence is the communication between DWI and DW2, the prosecution evidence shows that under the direction of the police, DWI called DW2 and arranged a meeting to hand over Exhibit P3. This prearranged meeting led to the arrest of DW2. The fact that DW2 showed up to collect the drugs further confirms his involvement in the operation. I have discussed the communications between DWI and DW2 via phone in detail under the fifth ground, where I addressed the 33 involvement of DW1 in this offence, and therefore, I will not repeat it here. In addition to that, PW4, PW6, PW8, and PW9 stated that upon his arrest, DW2 named DW4 as the person who instructed him to receive Exhibit P3. While DW2 denied I view his denial as a mere attempt to exonerate himself, as there are no grounds to suggest that these witnesses were fabricating their testimony. Therefore, his admission positions him as a middleman in the drug trafficking chain, acting under the direction of DW4 to facilitate the movement of Exhibit P3. Through the testimony of PW4, a credible witness, it was stated that in order to locate DW4, the police instructed DW2 to call him. During this call, DW4 became aware that DW2 was under arrest and attempted to bribe the police to secure his release. This interaction underscores the close relationship between DW2 and DW4 within the drug trafficking scheme, with DW2 being entrusted to manage crucial aspects of the operation, such as drug collection and communication with higher-ranking members of the syndicate. 34 Furthermore, it was evidenced by PW4, PW6, PW8, and PW9 that after DW4 sent TZS 10,200,000/= shillings to bribe the police (although DW4 denies sending this amount, a matter I will address in more detail when discussing DW4's involvement in the offence), DW2 was instructed to inform DW4 of his release. Following this, the prosecution witnesses testified that DW4 directed DW2 to travel to Masasi, where he would be provided with funds for his journey to Dar es Salaam. Even in his defence, DW2 admitted to traveling to Masasi, though he claimed he did not know the reason for the trip. Based on the evidence provided by PW6, PW4, and PW9, I am convinced that the trip to Masasi was part of an ongoing operation aimed at reaching the final target. Without the communication between DW2 and DW4, it would be difficult to ascertain how the police and DW2 managed to coordinate their journey to Masasi together. This communication between DW2 and DW4 Is clearly illustrated *1- in Exhibit P14, where the report extracted from DW2's Techno 5S phone shows that on 8th June, 2019 there were a total of five incoming and outgoing calls from DW4's number 0713838041. On 9th June, 2019 there were also five outgoing calls, but on 10th June, 2019, a total Of 14 35 interactions were -found, including missed calls, outgoing calls, and incoming calls. On 11th June, 2019, there were 35 interactions in total, consisting of missed, outgoing, and incoming calls. In addition to these calls, on 11th June, 2019 DW2's phone received two messages from DW4's phone number 0713838041 that stated; Wewe paki begi then niambie', and another message said; 'number -9'. I will later connect this -number 9' message to other communications that took place between DW3 and DW4 concerning this 'number 9-. The prosecution also explained that DW2's phone received a portion of the TZS 10,000,000/=, Which DW4 had sent to bribe the police for the release of DW2 and the drugs. From Extraction report of DW2 phone's Tecno 5S, I have observed that on 11th June, 2019, DW2’s phone received a sum of TZS 3,000,000/= from Aziza Ungaunga. A minor discrepancy I noted from the testimonies of PW4, PW5, and PW9 is that they mentioned the agent’s name as Zainab Ungaunga. I have taken this as a normal human error, considering the passage of time, 36 and I do not see it affecting anything substantial. The fact remains that DW2's phone received this amount. On that same day, as PW4 testified, a total of TZS 2,992,000/= was withdrawn through the Tupe General Suppliers agent. Although the prosecution mentioned ’Tupe General Enterprises,' this difference does not distort the truth in any way, as the fact remains that the money was withdrawn as described In their defence, both DW2 and DW4 denied knowing each other. If they truly did not know each other, how would such communication be possible between people who claim to be strangers? This seems highly improbable. Therefore, based on this evidence, it is clear that DW2 and DW4 knew each other and were in contact. In reviewing DW2's defence regarding his phone, he has given inconsistent statements. At one point, he claims that upon his arrest, he did not have the phone as it was in a charging booth. At another point, he asserts that when he was arrested on 10th June, 2019 his phone was immediately confiscated by the police and never returned to him. However, in the exhibits tendered to the court, he states that his phone was never tendered as exhibit. 37 This confusion clearly indicates that DW2 is aware of the circumstances surrounding the drug-related activities, which is why he has resorted to such a contradictory defence regarding these phone communications to conceal the truth. If his phone was taken immediately upon his arrest, where did the claim of leaving it at the charging booth originate? Furthermore, if his phone was never tendered as an exhibit, why did he fail to cross­ examine PW6 on this issue when the phones were tendered, particularly when PW6 indicated which phone belonged to DW2? He did not even raise an objection regarding the phone being tendered as his, despite claiming it was not. This raises significant doubts about the credibility of his defence and suggests a deliberate attempt to evade accountability. From all that I have discussed regarding DW2 in connection with this offence, I am of the considered view that DW2's denial of communication with DW4 lacks credibility when weighed against the prosecution's evidence. The phone call initiated under police direction, the transfer of money to the DW2's phone, and the testimonies of witnesses all indicate active communication between the two accused. 38 Consequently, DW2's denial of communication with DW4 is contradicted by substantial evidence, leading to the conclusion that both were collaborating in the narcotics and bribery scheme. While DW2 was not found in actual possession of Exhibit P3, the evidence demonstrates that he had knowledge and control over Exhibit P3, thereby placing him under constructive possession. As I continue analyzing DW4's involvement, despite DW2 denying that he named DW4, based on the evidence provided and my detailed discussion regarding DW2’s participation in the commission of this offence, I have no doubt that DW2 is the one who named DW4.1 have already elaborated on their relationship in detail above. Therefore, despite DW4's denial of his involvement In the offence, his connection to it is crucial. He is portrayed as a high-level coordinator or mastermind in the drug trafficking operation. His involvement is established through several key actions and evidence given by the prosecution. Here's a clearer breakdown of how DW4 is linked to the offence; Identification by DW2: After his arrest, DW2 directly implicated DW4 as the person to whom Exhibit P3 was being delivered after 39 receiving it from DW1. This testimony places DW4 in a supervisory role over the movement of Exhibit P3, using DW2 as an intermediary to ensure that the drugs were delivered and transported according to his instructions. Bribery Attempt to Secure DW2 Release: After DW2 was arrested, the police, under strategic guidance, directed DW2 to contact DW4. During this call according to PW4, DW4 realized that DW2 was under arrest and immediately offered a bribe to secure his release. It was alleged that DW4 offered TZS 10,000,000/=, showing a clear understanding of the situation and his desire to protect his associate. This willingness to bribe the police reveals DW4 involvement in the drug trafficking operation and his close relationship with DW2. I Denial of Sending the Money: DW4 denies sending the 10 million shillings, but the prosecution's evidence clearly establishes a connection between the money transfers and DW4. The prosecution demonstrated that DW4 used an agent to send the money, which complicates his claim of innocence. While it doesn't appear that DW4 sent the money directly from his phone, the fact that the funds were 40 transferred using an agent, under his instructions, does not absolve him of responsibility. Use of an Agent for Money Transfer: DW4's use of an agent to send the money, and the fact that the money was sent in portions to different phone numbers (including that of DW2), demonstrates an attempt to distance himself from the transaction. This method of transfer might be seen as an attempt to conceal his involvement, but it instead reinforces the idea that DW4 was orchestrating the bribe in a calculated manner. In addition to that PW4, PW5 and PW9 who received part of the bribe corroborated the sequence of events, providing further evidence that DW4 was behind the transaction. This is significant because it directly links DW4 to the attempted bribe, despite his denial. Directing DW2 to Meet DW3: After the police falsely informed DW4 that DW2 had been released, DW4 directed DW2 to travel to Masasi, where he would meet with an associate (DW3) who would give him money for his travel to Dar es Salaam. This demonstrates DW4 continuing control over the logistics of the drug operation and his ability 41 to coordinate between different people (DW2 and DW3) to ensure that the operation continued despite the police's interference. Admission by DW3: Upon the arrest of DW3 in Masasi, PW6 and PW9 testified that he admitted knowing DW4 and confirmed that they are brothers. This familial connection, combined with DW3 delivering money on behalf of DW4, further establishes DW4's involvement and leadership in the operation. Despite DW3“s denial of being sent by DW4 or of his presence at the lodge, it seems evident that these statements are attempts at self-defence. PW6 and PW9 clearly provided evidence regarding the events leading to DW3’s arrest, contradicting his claims. The communication records, as detailed in the extracted report from the LG-M700 phone of DW3, show interactions between DW4 and DW3 via text messages from 10th June, 2019 to 11th June, 2019. DW4 used the number 0713833841, while DW3 served it as Mgosi. On 10th June, 2019 DW3 sent a message to DW4 stating, Nipo Masasi nishafikak The recipient (DW4) responded with 'poapoa' Following these messages on 10th June, 2019 DW4 and DW3 continued to communicate via text on 11th June, 2019 DW4 sent DW3 42 a message saying, jina Francis Chamulinda weka siti tofauti Hi jamaa asikujue halafu mimi nitakutumia picha yake WhatsApjj. DW3 replied,' tayari nimeisha muwekea nafac' DW4 then responded with ok,’ and DW3 sent another message to DW4 stating, 'Seatyake namba 9 affipid. DW4 replied, poapod. Let me pause here briefly before continuing with the other messages. Earlier, when discussing the phone communicationsbetween DW2 and DW4, I mentioned that on DW2's Techno 5S phone, a message was received from DW4 on 10th June, 2019, stating 'number 9.f I indicated that I would explain about number 9 later, and now it is time to elaborate. In examining these messages, it can be noted that DW3 sent DW4 the message regarding this seat number 9 at 09:36:49 AM (UTC+0). Four minutes later, at 09:40:16 AM (UTC+0), DW4 sent that same message about number 9 to DW2. These messages clearly were not coincidental and further illustrate the connections between DW2, DW4, and DW3. This exchange supports the prosecution's testimony, which stated that during their 43 conversations, DW4 informed DW2 that someone would arrive in Masasi to give him money for traveling to Dar es Salaam. As they continued their communication via text messages on 11th June, 2019 DW3 sent a message to DW4 stating, akikaa mbele namba 9 nitakuwa namuona kHakittf. DW4 replied, angalia bag atakapo Uweka'. DW3 then sent two consecutive messages to DW4; tiketi yangu niliandika MULENGA JOSEPH and another stating, 'sikuandikajerry', DW4 responded, poapoa yupo karibu atakuja kulipia ticket utamuond. After this exchange, DW4 and DW3 continued to discuss the trip, with DW3 insisting that DW4 should wait for that person and hurry so that they wouldn't miss the bus. After considering all these points, I find that DW4's defence asserting that he neither sent the money nor communicated with DW2 or DW3 regarding the arrangements for DW2 to travel to Dar es Salaam lacks credibility in light of the evidence presented by the prosecution witnesses. The phone communication, the use of an agent to transfer the bribe, and the involvement of prosecution witnesses in receiving the money all point to DW4's active participation in the narcotics operation and the bribery attempt. 44 The prosecution has established, beyond a reasonable doubt, that DW4 was not only aware of the drug operation but also acted as an importer and played a pivotal role in coordinating the activities of DW2. Moreover, he attempted to obstruct justice by offering a bribe to secure DW2's release. Regarding DW3, according to the prosecution witnesses, the evidence shows that he was sent by DW4 to deliver money to DW2, who was in Masasi after being instructed to wait there by DW4. The testimonies of PW4, PW6, and PW9 clearly demonstrate how they went to Masasi to ensure their trap would be successful and eventually reach DW4. In his defence, DW3 strongly denied being sent to deliver money to DW2, explaining that when he was arrested, he was on a boda boda, but he claimed he did not go to the lodge, as the boda boda left him at the bus stand and only returned to pick him and when they started moving shortly he was arrested. However, if this defence is to be taken as true, several questions arise. Is it merely a coincidence that DW3 was with the boda boda driver, got arrested, and then was found to have a connection with 45 DW4? The testimony of PW6 shows how they saw DW3 outside the lodge, and after the boda boda left, they followed and shortly arrested him. Alongside his defence of denying being sent by DW4 to Masasi, I have elaborated extensively above on DW4's involvement in this case while correlating his phone communications with DW3. Therefore, I do not need to reiterate those points here. It suffices to say that DW3‘s trip to Masasi was not to collect grains as he stated, but rather to ensure that DW2 left Masasi heading to Dar es Salaam, as evidenced by Extraction Report of his phone in Exhibit P14. This is further corroborated by a message found on DW3's LG- M100 phone, which he sent to a contact saved as11 Partner in Life!' In the message, he stated, 'Yah, nimepewa maagizo na kevi, naondoka na yule jamaa mwenye mzigo Ha hatujuani japo mimi nimetumiwa picha zake na nimkatie ticket siti mbiii tofautr Upon examining this message, it aligns with the messages DW4 sent to DW3, instructing him to ensure that the person did not recognize 46 him; instead, he would send a picture via WhatsApp. Indeed, a picture of DW2 was found on DW3's LG M100 phone. From this communication, it becomes evident that DW2 and DW3 did not know each other, as DW4 insisted that DW3 ensure that person does not recognize him. When PW11 provided testimony regarding the picture of ,DW2 found in DW3's gallery, he mentioned that it was difficult to determine where it originated, since the report extracted only indicated it was found in the gallery, and it should be noted that this report does not include any communication via WhatsApp. According to PW11, WhatsApp communications are not easily accessible. This chain of communication demonstrates how DW3 was involved in ensuring the control of Exhibit P3 until it reached Dar es Salaam, as instructed by DW4. The act of DW3 remaining outside the lodge and sending the boda boda driver inside, as described by PW6 and PW9, was not coincidental. DW4 had emphasized to DW3 through their phone communications to ensure that DW2 did not recognize him. Thus, DW3’s remaining outside was in fulfillment of DW4’s instructions, indicating that he was aware of 47 what was happening and attempted to distance himself from the event. By staying outside and allowing the boda boda driver to enter, he sought to avoid being directly linked to the delivery. Therefore, DW3!s actions in complying with the police trap provide sufficient evidence that he was the one sent by DW4 to deliver the money to DW2, Thus, the evidence given by the prosecution witnesses, along with electronic evidence, shows a direct connection between DW3 and DW4, with DW3 being aware of the process of delivering the money to DW2. This proves that DW3 was actively involved in the scheme to send money from DW4 to DW2, and therefore, he is guilty of the offence on the ground that he had knowledge of the existence of Exhibit P3. Apart from discussing each accused and their involvement in the commission of the crime, I also reviewed Exhibit DI, which is PW5's statement made at police. The defence prayed that this statement be admitted as they are exhibit while showing that there is contradiction in this statement and the evidence given by the witness in court, the contradiction referred to by the defence is that; In PW5's statement to the police, he mentioned that after receiving the trap money amounting to TZS 3,000,000/=, he sent it to 48 PW4. However, in his testimony in court, he stated that he sent the money to the agent, Tupe General Enterprises. I have examined this contradiction, and I do not find it sufficient to undermine the truth that PW5 received the money. The fact remains that the final recipient of the money was PW4. Therefore, Exhibit Di still confirms the occurrence of the bribery as narrated by PW4, PW8, and PW9. Before concluding this issue, I will address PW9's testimony regarding the identification of DWl, DW2, DW3, and DW4. While PW9, guided by the. State Attorney to identify the accused persons in the dock, accurately identified DW3 and DW4, he mistakenly identified DWl as DW2 and DW2 as DWl. Although this confusion is noted, it is not a significant challenge, particularly considering the limitations of human memory over time. Despite the mix-up, PW9 clarified that these individuals were involved In the arrests. Another important point is the seizure of the phones belonging to DW2, DW3, and DW4. According to PW9's testimony, all phones belonging to DW2, DW3 and DW4 were seized 15th June, 2019 after completing the arrest operation. However, DW2.ahd DW3 claimed their 49 phones were seized immediately after their arrests DW2 on 10th June, 2019, and DW3 on 11th June, 2019. I noted hbw DW2 contradicted himself regarding his phone seizure, so I will not elaborate further here. Based on PW9's evidence, I concur that the phones were seized on 15th June, 2019 at police Tazara Dar es salaam. This is clear because, although DW2 was arrested on 10th June, 2019 he continued to communicate with DW4, and prosecution witnesses indicated that these communications were intentional to ensure their contact was not interrupted, which also applies to DW3. Additionally, none of them disputed their signatures on the seizure certificates dated 15th June, 2019 reinforcing that their phones were seized on that date. See the case of Waziri Shabani Mizigo {supra} Regarding the requirement for an independent witness, this principle is well-established in legal precedent; generally, an independent witness should be present when a person's property is seized. However, upon reviewing the circumstances surrounding the seizure of these phones, it is evident that exceptional conditions apply. PW9 testified that he seized the phones at the police station after completing the arrest operation. Given this context, it seems unlikely 50 that ah independent witness would have been available. If the phones of DW2 and DW3 had been seized immediately upon their arrests, the absence of an independent witness would raise significant concerns. However, since the phones were not seized at that time, the issue of an independent witness does not arise here. Thus, based on PW9's account, the absence of an independent witness appears justified, and I conclude that the seizure was valid. Having discussed all of this and outlined each accused person involvement in this offence, I conclude by that DWI, DW2, DW3, and DW4 trafficked narcotic drugs, namely heroin, as I have detailed for each one. After concluding the discussion on the second sub-issue, I now turn to the final sub-issue concerning whether the chain of custody of Exhibit P3 was adequately maintained. When referring to the chain of custody, means the entire process of handling an exhibit from its initial seizure or collection, its storage, transport between locations, and how it is transferred from one person to another. This process must establish that the exhibit was properly 51 managed to ensure its integrity. The chain of custody can be proven through a paper trail, ora! testimony, or a combination of both. In the Court of Appeal in the case of Abas Kondo Gede vs Republic (Criminal Appeal No. 472 of 2017) [2020] TZCA 391 (12 August 2020), where it was inter-alia stated that; 'However, as the Court stated in Joseph Leonard Manyota vs, The Republic, Criminal Appeal No.485 of 2015; Kadiria Said Kimaro (supra) and Chacha Jeremiah Murimiand Three Others vs. The Republic, Criminal Appeal No.551 of 2015 (unreported), documentation will not always be the only requirement in dealing with exhibits. Thus, the authenticity of the exhibit and its handling will not fail the test merely because there was no documentation. It follows that, depending on the circumstances of every particular case, especially where the tempering of exhibits is hot-easy, ora! evidence will be taken to be credible in establishing the chain of custody concerning the handling of exhibits.’ Based on what has been stated in this case it can be observed that the chain of custody does not necessarily require a documented trail in every case. Depending on the circumstances, oral testimony can also suffice to prove the handling of the exhibit, as long as its integrity has been maintained throughout the process. .5.2 This principle confirms that, even in the absence of documentation, the authenticity of the exhibit can be upheld as long as the evidence shows that it has not been tampered with during its custody. In the case at hand, PW4 testified that on 10th June 2019, he seized Exhibit P3 through Exhibit P6, which he kept under his control until he delivered it to the Newala police station. He opened a case file registered as NEW/IR/609/2019 and handed over Exhibit P3 to the exhibit keeper, PW10, using a handover document (Exhibit P7). PW10 acknowledged receiving Exhibit P3 and stated that he entered it into the register as No. 83/2019 before placing it in the exhibit room. He later retrieved it on 14th June, 2019 when PW2 requested it for analysis. PW2 confirmed receiving the exhibit from PW10 and took it to GCLA for analysis, where he handed it over to PW1 using the Submission Form (Exhibit Pl). PW1 also acknowledged receiving the exhibit from PW2 via the same Submission Form and stated he conducted the analysis, assigning it Lab No. 18/44/2019. After analysis, 53 he sealed the box with GCLA tape, signed it, and returned it to PW2 the same day. PW2 received the exhibit from PW1 and returned it to PW10, who acknowledged its receipt on 16th June, 2019. He noted that when PW2 handed him the box, it was sealed with khaki tape and displayed the government chemist's number, logo, various signatures, and the IR number he had recorded earlier. Following standard procedures, he stored it appropriately. Based on the evidence provided, all witnesses confirmed that Exhibit P3 remained intact throughout its handling. Additionally, when the exhibit was submitted in court, no objections were raised. The procedures for the collection, custody, and return of Exhibit P3 are further detailed by PW10 in Exhibit D2. However, I have noted that the evidence is silent regarding how Exhibit P3 was brought to court and reached PW1 for presentation as an exhibit on 3rd March, 2023. I asked myself whether this situation should lead me to conclude that there was a break in the chain of custody. My response is no, because if there had been an issue, there would have been an objection at the time it was presented. I have also 54 examined the cross-examination questions posed to PW1, and none of them addressed how Exhibit P3 came into his possession. Therefore, this leads me to still conclude that the chain of custody has been maintained. In light of the comprehensive analysis and the discussion of the sub-issues, it is now justified to address the main issue; whether the prosecution has proven the case beyond reasonable doubt. Since all the sub-issues have been resolved in the affirmative, the conclusion is clear. The prosecution has successfully proven its case beyond reasonable doubt. Consequently, I find all four accused namely Rajabu Yusuph Mchangama, Salumu Abdallah Mtili, Jerremia Joseph Mlenga and Kelvin Michael Mgosi guilty of trafficking in narcotic drugs and hereby convict them in accordance with Section 15(l)(a) and (3X0 of the Drug Control and Enforcement Act, No. 7 of 2015 as amended by the Drug Control and Enforcement (Amendment) Act, No 15 of 2017 read together with paragraph 23 of the First schedule to and section 57(1) and section 60(2) of the Economic and Organized Crime Control Act [Cap 200 R.E 55 2002] as amended by Written Laws (Miscellaneous Amendments) Act, No. 3 of 2016. It is so ordered. Dated at Mtwara this 25th September, 2024. M.B Mpaze Judge SENTENCE In thi^ case, the accused are convicted of trafficking narcotic drugs, namely heroin, a highly dangerous substance under both domestic and international drug control frameworks. Ordinarily, such an offence attracts a mandatory sentence of thirty (30) years' imprisonment in line with section 60 (2) of the Economic and Organized Crime Control Act [Cap 200 R.E 2002]. However, several factors, including time already served in custody and the gravity of the offence, can influence the determination of the appropriate sentence. The accused has been in custody since 2019, amounting to nearly five years. This period has undeniably affected the accused's physical, psychological, and social well-being. It is important to acknowledge that 56 time spent in custody before sentencing is not without consequence. In applying the principle of proportionality, which ensures the sentence is appropriate to the crime, the time already served must be taken into account. Heroin trafficking, however, remains a serious and harmful offence with far-reaching consequences. The drug's addictive nature poses significant dangers to both persons and society. Heroin abuse leads to severe and often irreversible health issues, including liver damage, respiratory failure, and a compromised immune system. Beyond the physical toll, heroin use is closely associated with social decay, contributing to family breakdowns, heightened criminal activity, and a heavy burden on public health systems. Trafficking heroin fuels a cycle of addiction and crime, disproportionately affecting vulnerable populations. This offence goes beyond individual harm, as it threatens the fabric of society and demands a strong response to deter future offenders. While the punishment must reflect the severity of the crime, it is also essential to consider the accused's circumstances, including the time already spent in custody. 57 The five years already served weigh significantly in this case, representing a substantial portion of the mandatory sentence. Furthermore, any indication of remorse or efforts towards rehabilitation during this period must be taken into account. These factors justify a reduction in the overall sentence, ensuring that it is fair and proportionate. In light of these considerations, I therefore a sentence each accused to serve twenty (20) years imprisonment, reduced from the maximum of thirty (30) years. This reduction acknowledges the five years already served while ensuring that the sentence remains sufficiently punitive and deterrent. It strikes a balance between the need to address the societal harm caused by heroin trafficking and the principle of fairness in sentencing, thus reflecting a judicious approach to justice and rehabilitation. , M.B Mpaze Judge 25/9/2024 58 ORDER 1. Eight packets of powder containing 7,992.82 grams of heroin (Exhibit P3) to be destroyed in accordance with the law. 2. The motorcycle (Exhibit PH), TZS 10,168,000/= (Exhibit PIO) and eight mobile phones make three Tecno phones, three Samsung phones, one Huawei phone, one LG phone (Exhibit P5 collectively), since they were instrumental in the crime, I order them to be 59