datus kanoni alphonce vs republic 2022 tzhc 15806 14 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA DC. CRIMINAL APPEAL NO. 31 OF 2022 (Originating from the decision of District Court of Nkasi in Criminal Case No. 19 of2021 before Hon. B.B. Nkomoia - RM dated l&h Februaryf 2021) DATUS s/o KANONI @ ALPHONCE .............. APPELLANT VERSUS THE REPUBLIC ............... ....................................RESPONDENT JUDGMENT 05/12/2022 & 14/12/2022 MWENEMPAZI, J: The appellant is aggrieved by the decision of trial Court, the District Court Of Nkasi (Hon. B.B. Nkomoia, -RM) whereby the Court convicted him with the offence of Unlawful cultivation of Cannabis Sativa Contrary to Section 11(1) (a) of the Drugs Control and Enforcement Act, Cap 152 R.E 2019). He is therefore appealing against both conviction and sentence. He has filed six (6) grounds of appeal to demonstrate his grievance. I will not reproduce all of them herein but the key ground is the second one which 1 reads "that the trial Court erred in law point and fact by convicting and sentencing the appellant for the case which were (sic) not proved beyond all reasonable doubt as required by law". In the District Court of Nkasi District at Namanyere, the appellant was charged with the offence of Unlawful Cultivation of Cannabis Sativa Contrary to Section 11(1) (a) of the Drugs Control and Enforcement Act, Cap 95 R.E 2019. It was alleged that the appellant Datus s/o Kanoni @ Alfonsi on the 13th day of February, 2021 at Itindi Village within Nkasi District in Rukwa Region was found in Unlawful Cultivation of Cannabis Sativa commonly known as 'Bhang' to wit 1/4 acre. When the charge was read over and explained to the accused, he (appellant) pleaded guilty to the charge and the Court entered a plea of guilty to the charge. The facts constituting the offence were also read over and explained to him he admitted to the facts as being true and correct. The trial Court found the accused guilty as charged, convicted him of Unlawful cultivation of Cannabis Sativa Contrary to Section 11(1) (a) of the Drugs Control and Enforcement Act, Cap 152 R.E 2019). The appellant was sentenced to serve thirty (30) years imprisonment in jail. 2 According to the proceedings nothing further was done by the prosecution, other than adducing plain facts without any further proof of the allegations leveled against the accused person. At the hearing the appellant was unrepresented and he prayed that the Court considers the grounds of appeal and allow the appeal. The Respondent was being represented by Mr. John Kabengula, Learned State Attorney who submitted that the prosecution did not prove the case against the accused (appellant) beyond reasonable doubt. Although the appellant pleaded guilty and admitted to the facts as the true and correct, the prosecution is obliged to prove the offence. The circumstances of this case demand that there is proof of the plants alleged to be prohibited that the plants are really cannabis sativa as alleged. And that the same were found with the accused person in his farm. The Learned State Attorney cited the case of Omary Joachim Vs. Republic, Criminal Appeal No. 536 Of 2016, Court of Appeal of Tanzania at Arusha wherein it was held that it is necessary to produce evidence of a report of a Government analyst and short of that the case was not proved to the required standard. He prayed that the appeal be allowed. 3 I have read the record in the appeal at hand. It is indeed true that the trial magistrate recorded the plea in words as nearly as stated by the accused person during plea. The appellant also admitted to the facts of the case as true and correct. That Is according to section 228(2) of the Criminal Procedure Act, Cap 20 R.E 2019. In this case, despite of the said plea of guilty and admission to the fact, the lingering question is whether the offence alleged to have been committed was proved to the required standard. The available information as said earlier and which was relied upon by the trial magistrate are the facts which were read by the prosecution. Nothing was tendered to prove that the plants alleged to be Cannabis Sativa are really the same plants. In the cited case of Omary Joachim Vs. Republic (supra) the Court of appeal of Tanzania had a to decide whether the impugned substances found in the possession of the appellant were actually prohibited plants. In that case it was observed that the substance ought to have been proved by producing the report of the Government analyst. That was the duty of the prosecution. The Court of Appeal observed as follows: - was incumbent upon the prosecution to seek and adduce into evidence a report of a Government analyst with respect to the 4 nature of the plants which were seized. As that was not done, the true nature of the seized plants which were the subject of the trial is a matter of conjecture. To say the least, the case for the prosecution fell short, much as, upon the admitted facts the offence of transporting prohibited plants was not established". In this case, the plant alleged to have been cultivated were not subjected to Chief Government Chemists' analysis. The trial Court did not receive any such report of the Government analyst. Under the circumstances, the appeal has merit and is allowed. The order and findings of the trial Court convicting the appellant are quashed, sentence is set aside. It is further ordered that the appellant be released forthwith unless otherwise he is being lawfully held. It is ordered accordingly. Dated at Sumbawanga this 14th day of December, 2022. 5