director of public prosecution vs raymond james kimario 2015 tzhc 2104 27 may 2015

IN THE HIGH COURT OF TANZANIA AT IRINGA DC CRIMINAL APPEAL NO. 6 OF 2015 (Originating from PI Case No. 355 of 2014 At Iringa District Court) THE DIRECTOR OF PUBLIC PROSECUTION-------- APPELLANT VERSUS RAYMOND JAMES K IM A R IO --------------- RESPONDENT 18/05/2015 & 27/05/2015 JUDGMENT KIHWELO, J . This is an appeal preferred by the respondent, Republic having been dissatisfied by the decision of the District Court of Iringa Hon. Kasele, SRM which granted bail to the respondent on 7th January, 2015. The appellant has raised one ground of appeal namely; 1. That the learned Senior Resident Magistrate fatally misdirected him self on a pure point o f law by granting bail fo r an offence that is not bailable. l The appeal was argued orally. Whereas the appellant Republic was represented by Mr. Alex Mwita, learned State Attorney the respondent was under the services of Mr. Zuberi Ngoda, learned counsel. The brief background to this appeal is that the respondent was charged before the District Court of Iringa for two counts one of which is drug trafficking contrary to section 16(1) (b) (i) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap 95 RE 2002. That on 16th day of June, 2013 at Lungemba area within Iringa Rural District in Iringa Region was found conveying Narcotic Drugs to wit 72.5 (Seventy Two and a Half) Kilograms of Khat (mirungi) valued at TShs. 2,361,827/= by using a motor vehicle with Registration Number IT 2126 Make Mazda Arteza. On 5th January, 2015 when the matter came for mention Mr. Ngoda, learned counsel applied for bail which application was objected by Mr. Mwenyeheri , learned State Attorney on account that the offence to which the respondent is charged is not bailable. Consequently on 7th January, 2015 the Iringa District Court delivered the ruling which granted bail to the respondent hence this appeal. Arguing in support of the appeal Mr. Mwita was very brief. He strenuously contended that this honourable court is empowered to grant bail by virtue of Section 148 of the Criminal Procedure Act, Cap 20 RE 2002. Mr. Mwita further submitted that Section 148 also prescribes non-bailable offences and in particular he cited Section 148(5) (5) (ii) which categorically spells out in clear terms that drug trafficking is non bailable offence. Mr. Mwita invited this court to the case of Director of Public Prosecutions V Bashiri Waziri & Mugesi Anthony, Criminal Appeal No. 168 of 2012, Court of Appeal of Tanzania (unreported) in which the Court of Appeal held that drug trafficking is a non bailable offence. Amplifying his argument Mr. Mwita contended that he is surprised as to why the District Court of Iringa granted bail for a non-bailable offence and finally requested this honorable court to allow the appeal, quash the decision of the District Court and set aside the order that granted bail to the respondent. In response Mr. Ngoda valiantly submitted that Section 148(5) (a) (ii) and in particular (iii) restrict bail only in offences where the value of drugs exceeds TShs. 10 Million. Mr. Ngoda further contended that the case of DPP V Bashiri Waziri (supra) did not discuss Section 148(5) (a) (iii) and that the respondent is charged with an offence of drug trafficking and the value of drugs is merely TShs. 4.2 Million and to his view Section 148(5) (a) (iii) does not provide an absolute bar to bail. Mr. Ngoda finally referred to the celebrated case of DPP V Daudi Pete where it was stated that bail is a constitutional right of the accused. I have anxiously and carefully considered the submissions made by both sides and the central issue for determination is whether or not the offence which the respondent stands charged is bailable. In order to put things into their right perspectives let me reproduce the relevant provision of Section 148(5) (a) (ii) of the. Criminal Procedure Act, Cap 20 RE 2002. 148(1) N/A (2) N/A (3) N/A (4) N/A (5) A police officer in charge o f a police station or a court before whom an accused person is brought or appears, shall not admit that person to bail i f - *■ • (a) that person is charged with - (i) murder, treason, armed robbery or defilement (ii) illicit trafficking in drugs against the Drug and Prevention o f Illicit Traffic in Drugs Act, but does not include a person charged fo r an offence o f being in possession o f drugs which taking into account all circumstance in which the offence was committed, was not meant fo r conveyance or commercial purpose; It is my considered opinion the above provision of the law is very clear and unambiguous in that there is an absolute bar when it comes to bail for one charged with drug trafficking which is not the case for one charged with an offence of being in possession of Narcotic Drugs. I am therefore inclined to agree with the submission made by the learned State Attorney that Drug Trafficking is not a bailable offence. I agree with the concern expressed by the counsel for the defence that bail is a constitutional right guaranteed under Article 13(6) (b) of the Constitution of the United Republic of Tanzania which - underscores the presumption of innocence. However, this guarantee is subject to the laws of the land and Section 148(5) (a) (ii) is such law of the land which curtails bail under the circumstances enunciated therein and one of which is drug trafficking. «■ Mr. Ngoda’s submissions that the court of Appeal in DPP V Bashiri Waziri (supra) did not discuss Section 148(5) (a) (iii) or reference to the case of DPP V Daudi Pete with due respect appears somewhat to be misguided, misconceived and out of context. Mr. Ngoda submission that the provision of Section 148(5) (a) (iii) requires only literal interpretation as there is no any ambiguity is necessarily self defeating because it ignores or overlooks the fact that the offence which the accused stands charged is drug trafficking which is covered under Section 148(5) (a) (ii) and not 148(5) (a) (iii). The law is very settled and clear as stated in the case of DPP V Bashiri Waziri (supra) while interpreting Section 148(5) (a) (ii) that; $ “A plain and ordinary meaning o f this provision is that where the charge is illicit trafficking in drugs the doors o f bail are closed, but where the charge is being in possession o f drugs not meant fo r conveyance or commercial use the doors to bail are open In the final analysis, therefore this appeal succeeds, I quash the decision of the District Court and set aside the order that granted bail to the respondent. Ordered accordingly. P. F. KIHWELO JUDGE 27/05/2015 Right of Appeal is fully explained. JUDGE 27/05/2015