ECONOMIC CASE NO 12211 OF 2024 SANARE SIYANGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT ARUSHA SUB-REGISTRY ECONOMIC CASE NO. 12211 OF 2024 THE REPUBLIC VERSUS SANARE SIYANGA MOIVAN JUDGMENT 16th and 18th October, 2024 BANZI, J,: Sanare Siyanga Moivan, (the accused person) is indicted for trafficking in narcotic drugs contrary to section 15 (1) (a) and (3) (iii) of the Drug Control and Enforcement Act [Cap. 95 R.E. 2019] (The Drugs Act), as amended by section 18 of the Written Laws (Miscellaneous Amendments) (No.5) Act of 2021, read together with paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) the Economic and Organised Crime Control Act [Cap. 200 R.E. 2022] ("the EOCCA"). The particulars of offence reveal that, on the 1st day of June, 2023, at Losinoni Juu village, within Arumeru District in Arusha Region, the accused person was found trafficking in narcotic drugs namely, Cannabis sativa Page 1 of 18 commonly known as Bhangi weighing 414.00 kilograms. The accused person denied the allegation. Taking charge for the prosecution was Mr. Meshack Lyabonga and Ms. Amanda Lushakuzi, learned State Attorneys whose counterpart for the defence was Mr. Daudi Haraka, learned Counsel. The prosecution enlisted six (6) witnesses and tendered seven (7) Exhibits in support of their case, whereas the defence testimony was the accused person's own account of facts, narrated when he featured as DW1 and did not tender any exhibit. In the main, the prosecution evidence reveals that, on 27th May, 2023, ASP Hassan Msangi (PW1) acting under the instructions of his superior one ASP Mtewele went to Oldonyosambu area with the informant who upon arrival, he showed him the accused person by name of Sanare Siyanga Moivan and managed to arrest him. He then introduced to the accused person and informed him that, he was alleged to involve himself in the business of narcotic drugs. After introduction, PW1 searched the accused person but was found with nothing. He ordered the accused to take him to his house for search but he refused. After the resistance, PW1 conveyed the information to his superior who ordered him to take the accused person to Page 2 of 18 KIA Police Station in order to avoid leakage of information due to ongoing operation. On 1st June, 2023, ASP Lubambe Kanyumbu (PW2) was instructed by his superior to go to KIA Police Station to take the accused person by the name Sanare Siyanga Moivan for the purpose of going to conduct search to his house. PW2 procured a search warrant from Maji ya Chai Primary Court then together with Selemani Mbwambo (PW3) and A/INSP Innocent Masangula (PW4) went to KIA Police Station where they took the accused person who led them to his houses located at Losinoni Juu village. On arrival, they found two houses, one with green iron sheets and another was a circular house. Before searching the houses, PW2 looked for an independent witness in vain because, according to him, all villagers fled after they saw the police car as the area is known for cultivation of cannabis sativa. On that point, PW2 chose among the officers, PW3 to be a witness in the said search. Since the houses were locked, PW2 ordered the accused person to open the doors whereby, the latter took the keys behind his main house and opened the door to the main house. Led by the accused person, PW2 and PW3 entered inside the main house, searched but could not find anything suspicious. They then went to search the circular house where, upon Page 3 of 18 entering, they manage to retrieve 18 sulphate bags containing dry leaves suspected to be narcotic drugs namely cannabis sativa. They took them and labelled them with A1-A18 and reference number DCEA/AR/IR/10/2023. Then a certificate of seizure was prepared (Exhibit P2) and duly signed by the PW2, PW3 as a witness and the accused person. After seizure, PW2 communicated with his superior and informed him over the challenge of transmitting the exhibits to the office. After a short while, different stakeholders arrived at the scene including the government chemist, Joseph Jackson Ntiba (PW6), state attorney, Philbert Morrison Msuya (PW5), and a magistrate, Itikija Nguvava. After their arrival, PW2 filled in sample submission form (Exhibit P3) and handed over the form and 18 sulphate bags to PW6. After receiving, he registered the exhibit with Lab No. NZ023-00590, weighed each sulphate bag and got the total weight of 414.00 kilograms. Thereafter, he drew two samples from each sulphate bag and put in 36 envelopes which were labelled A1-A18. He then conducted a preliminary test on the samples and the leaves turned out to be narcotic drugs namely cannabis sativa. After that, he labelled the bags by writing the Lab number and signed on each exhibit to show that, he worked on them and then handed them over to PW2. Page 4 of 18 PW2 filled in an inventory form DCEA 006 (Exhibit P4) and gave it to PW5 to apply to the magistrate for disposal order of the remaining substance seized from the accused person. The disposal order was issued by the magistrate through Exhibit P4. Then the remaining exhibits were destroyed through fire in the presence all stakeholders and the accused person. After destruction, a certificate of destruction (Exhibit P6) was prepared and all who witnessed the destruction endorsed their signatures. Then PW2 handed over 18 empty sulphate bags (Exhibit P5) to the exhibit keeper, PW4. On 2nd June, 2023, PW6, proceeded with confirmatory test in all samples he drew by preparing samples Al to A18 and began to analyse them through machine called Sterio Microscope. The result was positive that, the leaves in all 18 sulphate bags were narcotic drugs known as cannabis sativa after finding the structure called Trichomes on the upper and lower surface of the leaves which are only found in cannabis sativa plant. He prepared a report which was approved by the zonal manager, Eliamini Mkenga. The report was admitted as Exhibit P7. In his defence, the accused person featured as DW1 who told the Court that, he was arrested on 27th May, 2023 by persons in civilian clothes at Oldonyosambu market in the course of buying and selling goats. He was put Page 5 of 18 into a motor vehicle. After getting in, he was handcuffed, beaten and told that, he would know his allegation later. He was then taken to a place unknown to him, where they parked the car and stayed there up 7:00 PM. Thereafter, he was taken to Bomang'ombe Police Station where he was informed the allegation of trafficking in narcotic drugs. The following morning, he was taken to another police station where he stayed for almost a week while being tortured. He recalled that among those days, he was taken to an unknown storey building near Arusha Central Police Station where he was forced to sign some documents and then he was returned back to Central Police where he stayed until he was arraigned to court. He denied to have led PW2 and his colleague to his house where the alleged search was conducted. According to him, PW2 took him to a place unknown to him where he found many people as there was a big operation. They searched the house but he remained in the car. At night, he was photographed with exhibits. He further denied to sign any document while they were there. He claimed to live at Oldonyosambu village with his family. Finally, he urged the Court to set him free so that he can go and reunite with his children. In a nutshell, that was the evidence of the prosecution and defence. In his final submission, Mr. Haraka raised various complaints including; one, Page 6 of 18 the information was defective for failure to specify mode of trafficking; two, the seized exhibits were illegally disposed as the accused person was denied with the right to be heard and three, the house in question was not proved to be owned by the accused person. On their side, Mr. Lyabonga insisted that; one, the information was not defective; two, the case was proved beyond reasonable doubt as through PW2 and PW3, the searched house was proved to be owned by the accused; three, the accused person was duly heard before disposal order was issued and four, the chain of custody was properly maintained. Having considered the evidence on record, the main issue before the Court for determination is; whether the prosecution side has managed to prove the case against the accused person beyond reasonable doubt. It was stance of prosecution witnesses that, the accused person was the one who led them to his houses located at Losinoni Juu village, where the search was conducted and in his circular house, they retrieved a total of 18 sulphate bags of dry leaves. On the other hand, the accused person denied to have led PW2 with his colleagues to his house. He also denied to be searched and found with the alleged sulphate bags within his house. According to him, he was taken to unknown place where he found many Page 7 of 18 people as there was big operation. They searched the house while he was in the car and later in the night, he was photographed with some exhibits. He claimed to live at Oldonyosambu village. In that regard, and basing on the submissions by both sides, it is pertinent that, for prosecution side to prove beyond reasonable doubt that, the house in question belongs to the accused person and he had control over events transpiring at his residence when he was under the custody after being arrested on 27/05/2023. Since the charge or information is the backbone of criminal proceedings, before delving into the main issue before the Court, I find it prudent to start with the complaint raised by Mr. Haraka that, the information is defective for failure to disclose the mode of trafficking. The information facing the accused person is predicated under section 15 (1) (a) of the Drugs Act which provides that: "75. -(1) Any person who- (a) traffics in narcotic drug or psychotropic substance; commits an offence and upon conviction shall be sentenced to life imprisonment." The provision above creates an offence of trafficking in drugs. Similarly, sections 2 of the Drugs Act provide for the definition or examples Page 8 of 18 under which the crime of trafficking is committed. The section provides as follows: "trafficking" means the importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any person of 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 but shall not include..." It is apparent from the provisions above that, trafficking in drugs as an offence includes various manners of handling of narcotic drugs or psychotropic substances. However, all types of trafficking defined under the provisions above constitutes one offence of trafficking in narcotic drugs. That is to say, the manner of handling drugs as stated in the extract above, does not create species of crimes but rather, constitutes one offence of trafficking in narcotic drugs. In that regard, and as it was stated in the cases of Haji Rashidi Matundu & Another v. Republic (Criminal Appeal No. 314 of 2021) [2024] TZCA 210 and Remina Omary Abdul v. Republic (Criminal Appeal No 189 of 2020) 2022 TZCA 118 both reported at TanzLII, there is no need to mention the specific type of trafficking in the charge or information because all types of trafficking defined under section 2 of the Page 9 of 18 Drugs Act constitutes one offence of trafficking in narcotic drugs. Therefore, the information in our case is not defective for failure to disclose the manner of trafficking considering that, both the type of narcotic drugs involved and its weight were disclosed which are the essential ingredients of the offence under section 15(l)(a) and (3)(iii) of the Drugs Act. Reverting to the fundamental issue of the case, it was the evidence of PW1 that, on 27/05/2023, he arrested the accused person at Oldonyosambu market after being showed by the informant following the information that, he involves himself in illegal business of narcotic drugs. It was also on record that, after the arrest and despite being ordered by PW1, the accused person refused to take him to his house for search and he ended up being locked at KIA Police station. The testimony of PW2 reveals that, on 01/06/2023, the accused person led the search team to his houses situated at Losinoni Juu village and on arrival, all villagers escaped. According to PW2, the accused person showed them his two houses which were locked. Before searching the houses, PW2 looked for an independent witness in vain because, all villagers took their heels after seeing the police car. Consequently, he selected his co-officer, PW3 to be a witness in the said search. As the houses were both locked, under the order of PW2, the accused person took the keys at the back of the main house and opened the main house which had nothing Page 10 of 18 suspicious. However, after opening the circular house, they managed to retrieve 18 sulphate bags full of dry leaves suspected to be narcotic drugs. The evidence of PW2 concerning the accused person to lead them to his houses was supported by PW3 and PW4. Notably, from the evidence of PW2, PW3 and PW4, the search team could not have reached the crime scene without being led by the accused person. However, in his defence, the accused person categorically denied to have led the search team to his house. He further denied to know the house in question claiming that, he lives at Oldonyosambu village, a different place from Losinoni Juu village. The evidence presented by the prosecution reveals that, the accused person was not arrested within the two houses alleged to be owned by him on the date of the alleged search because according to PW1, he arrested him on 27/05/2023 at Oldonyosambu market. In that regard, the fact about the accused person owning the house in question is based on the mere words of PW2, PW3 and PW4 who claimed to be led there by the accused person. There is no evidence scintilla of evidence apart from those mere words of three witnesses to prove that, the house in question is owned by the accused person. Although PW4 claimed to record confessional statements of accused person before and after the search, such confessional statements were not tendered by the prosecution to cement the oral Page 11 of 18 testimony of three witnesses concerning the accused person's readiness to take them to his houses and actually, it was him who led them to the alleged houses. Furthermore, the mere fact that, all villagers took their heels after PW2 and his team arrived, did not automatically barred the prosecution from gathering evidence concerning the ownership of the house alleged to be found with narcotic drugs in question. Besides, the evidence of ownership could be gathered subsequent after the seizure by thorough investigation either from local leaders, neighbours or other village members. Unfortunately, there is no evidence to indicate that, efforts were made to collect such evidence. Apart from that, the evidence of PW2 cannot be supported by the alleged independent witness to the search, PW3, who in the eyes of law, is a witness with interest to serve in the said search. All witnesses admitted that, PW4 was part of the team who took the accused person from KIA Police Station for purpose of searching his houses. In that regard, PW2, PW3 and PW4 were officers with the same mission of searching the houses of the accused person and thus, they had common interest. The law is settled on the presence of witness during search and seizure of substance under the Drugs Act. In the case of The Director of Public Prosecutions v. Mussa Page 12 of 18 Hatibu Sembe (Criminal Appeal 130 of 2021) [2022] TZCA 238 TanzLII, it was stated that: "Therefore, because there is a requirement for a witness to sign Form No DCEA 003, which is part of the DCEA, it is imperative that in the case of search and seizure of an article from a suspect, witnesses should attend and sign the Form." I am very much aware that, the law provides for presence of a witness and not independent witness but in the cited case of The Director of Public Prosecutions v. Mussa Hatibu Sembe {supra) it was emphasised that, as a matter of prudence, such witness as a general rule should be independent and a policeman cannot qualify as independent witness unless under exceptional circumstances as for instance where independent witness cannot be procured. The court went on and amplified exception circumstances for police officer to witness the search such as where the arrest and seizure were made in a place where there were no residential houses hence there was no other person. In our case, the search was conducted in a village where there were other villagers. PW3 came upon with an excuse that, all villagers escaped after they arrived at the crime scene that is why, his efforts to procure independent witness proved futile. Page 13 of 18 However, PW2 did not inform this Court if at all, he made any effort to look for the village or hamlet leaders be it the chairman or executive officer. It raises strong suspicion that, the village executive officer being the government official responsible for the peace and security of the relevant village, also fled after seeing officers of DCEA. It is common knowledge that, every village has its own leaders but PW2 wanted us to believe that, Losinoni village has no local leaders and thus, it is a lawless village. As alluded above, the local leaders of Losinoni Juu village could not only confirmed about ownership of the house in question but also, they could have explained their participation as independent witnesses to the alleged search and seizure. Furthermore, while PW2 and PW3 were attempting to make this Court believes that, on the date of search, there was no any villager in the said village, PW4 controverted them with another version of the truth because during cross-examination, he admitted by stating that: "...I was guarding to preventpeople with interference of the area of search as there was unrest situation. I did not see what was going on in the search." The extract above speak for itself. The fact that PW4 was busy with preventing people from interfering with the crime scene, indicates clearly that, there were other villagers who did not escape contrary to what have Page 14 of 18 been alleged by PW2 and PW3. The controversy did not there, because during cross-examination, PW5 also admitted that, at the crime scene, there were many people more than 100. The evidence of PW4 and PW5 alone proves that, not all villagers escaped from the village to the extent of failing to procure independent witness. Under the prevailing circumstances, where there was possibility of procuring independent witness, PW3 cannot be qualified to be witness to the alleged search because he is not neutral witness in the search and seizure exercise as he had common mission and interest with PW2 and PW4. In that regard, it cannot be concluded that, the evidence by prosecution establishes beyond reasonable doubt that, the house in question is owned by the accused person. Be it as it may, assuming that, the house in question is owned by the accused person, yet still, there is another controversy on whether the accused person had control over the said house during the whole period when he was under police custody. From the evidence on record, it is disputed that, the accused person was apprehended on 27/05/2023 and was under the custody of police until 01/06/2023 when he was taken for search. The question here is, who was in control of the house in question before it was searched four days after the arrest of the accused person? Did anyone had access to that house during all four days when the accused person was Page 15 of 18 under the police custody considering the fact that, the accused had no keys to the house? The fact that the keys were taken at the back of the main house cannot rule out the possibility of any villager other than the accused person to have access to the said house and do whatever he desires to make the accused person appears guilty. Therefore, it is the considered view of this court that, the prosecution has failed to prove that, the accused person had control over the events transpiring at his alleged house during the whole period when he was under the custody. Turning to the complaint raised by learned defence Counsel concerning the exhibits to be illegally destroyed as the accused person was denied with right to be heard, it is settled position that, accused person must be present and be heard before the court issues an order to dispose of perishable exhibit. This was stated by the Court of Appeal of Tanzania in the case of Mohamed Juma @ Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 TanzLII. In our case, there was contradiction between PW2 and PW5 concerning the question directed to the accused person by the magistrate before the disposal order was issued. While PW2 said, the accused person was asked if the exhibits belongs to him and the latter replied it was his properties, PW5 claimed that, the accused person was asked what he has to say about disposal of exhibits and the accused Page 16 of 18 replied that, he has no problem for the said exhibits to be destroyed. The two were before the same magistrate who according to each one, the same person stated two different things before he issued the disposal order. This controversy could have been cleared by the magistrate but it is very unfortunate that, for the reasons known to the prosecution, the magistrate was not called to testify. Under such situation, no one can prevent this Court to presume that, if the magistrate was called, he would have produced unfavourable evidence against the prosecution. Since Exhibit P4 being a prescribed form with no part of explaining the whether the accused person was given the right to be heard before the disposal order was issued, oral testimony of the magistrate becomes imperative. Thus, it cannot be concluded with certainty that, the accused person was afforded with opportunity to object disposal of physical exhibit which was required to be produced during the trial. Basing on the shortcomings explained above, it is obvious that, the prosecution has failed to prove beyond reasonable doubt that, the house in question belongs to the accused person and he had control over events transpiring at his residence when he was under the custody after being arrested on 27/05/2023. In the absence of such proof, it cannot be said that, the prosecution has proved beyond reasonable doubt that, the accused Page 17 of 18 person trafficked 414.00 kilograms of narcotic drugs namely, cannabis sativa. In other words, the prosecution side has failed to prove the case against the accused person beyond reasonable doubt. That being said, I find the accused person not guilty and I hereby acquit him on the charge of trafficking in narcotic drugs. As a result, the accused person is hereby set free. It is so ordered. I. K. BANZI JUDGE 18/10/2024 Delivered in open Court this 18th day of October, 2024 in the presence of Ms. Amanda Lushakuzi, learned State Attorney for the Republic, Mr. Daudi Haraka, learned defence Counsel, accused person, Hon. Sophia Minja, Judge's Law Assistant and Ms. Mariam Gallawa, RMA. Right of appeal duly explained. I. K. BANZI JUDGE 18/10/2024 Page 18 of 18