20171121 TZCA Dar es salaam

IN THE C_OURT OF APPEAL OFTANZANI~~ AT D.AR ES SALAAM (CORAM: LUANDtl, J.A., MZIRAY, J.A. And MWAMBEGELE, J.A.) CRIMINAL APPEAL NO. 493 OF 2016 THE DPP ..............................................,.-; ...................... ; ....• , ......... APPELLANT. 1. MIRZAI PIRBAKHSI-II @ HADJI 2. AZIZ JUMA KIZINGITI · · 3. SAID MASHAKA MRISHO J VERSUS . , · ............. : ........... : ........ RESPONDENTS - - 4. ABDULHARMAN MTUMWA LUKONGO (Appeal from the decision of the High Court of Tanzania, at Dar Es Salaam) (Dyansobeia, J.) Dated the 2 nd day of November, 2016 in Criminal Session Case No. 24 of 2015 JUDGMENT OF THE COURT 1st November & 4th December, 2017 LUANDA, J.A.: In the High Court of Tanzania (DSM Registry), the above named respondents stand charged with Trafficking in Narcotic. Drugs contrary to S.16(1) (b) (i) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap 95 RE. 2002 (the Act.). We are saying they stand charged because the trial is yet to be concluded. It is alleged in the charge sheet that on or. about the 7th day of September, 2011 at Africana Mbuyuni area within 1 Kinondoni District in Dar Es Salaani -Region, the respondents did traffic in·· Narcotic Drugs namely, Heroin Hydrochloride weighing 65730.67 grams·:· valued at 1Z Sh 2,300,573,450.00 and Cocaine Hydrochloride· weighing:: 30537.51 grams valued at Tsh. 1,068,812,850.00 all total valued at Tsh:: . · 3,369,386,300.00. All the respondent pleaded not guilty to the charge~·· So, the trial commenced. The prosecution opened its ·case by parading the first prosecution witness an officer from the office of the Government Chief Chemist one . Bertha Mamuya ' . :, (PWl). . When she was. about to produce the boxes . allegedly containing the said ·drugs, after she had carried out analysis, the defence side which was represented by Mr. Johnson Jamhuri and Mr. Yasin Membar learned counsel who also appeared for the respondents in this · appeal, resisted 'the tendering of the boxes on the ground that PW1 is not the custodian of those boxes as such she is not competent to tender them. Further, it is not shown how the same landed on her hands as the - custodian of those boxes is Insp. Neema. The appellant argued vigorously in opposition of the objection raised. and said PW1 is competent witness to tender the boxes. This is because 2 · she is the one who carried out toe_ analysis the contents found in the• boxes,:~ealed and signed. • After headng the argument of the parties, the trial learned judge made a ruling, the subject matter of this appeal, ·where he said that PWl is not a competent witness to tender the boxes. Aggrieved by the decision, . hence-this appeal lodged by the Director of Public Prosecutions (the OPP) as permitted by S. 6 (2) of the Appellate Jurisdiction ,Act .Cap 141 R.E. 2002. In this appeal, the appellant was represented by Ms. Monica Mbogo . ' and Mr. Kenneth Sekwao learned Principal State Attorney and State : Attorney respectively. On the other hand, the respondents continued to enjoy the services of Mr. Jamhuri Johnson and ·Mr. Yasin Membar, learned advocates. The two are also representing the respondents in the High Court of Tanzania as said earlier on. The appellant has raised three grounds of appeal namely, we _reproduce:- " 1. That the learned Honourable Judge erred in law and facts when rejected to admit the ,.., :) .......... three boxes as exhibits on the groui7d that the witness PWl was n,ot the . right .· and con1petent witness to tender it as she was not the custodian of it · 2. That the learned Honourable Judge erred in lavy and facts when held there is. no explanation on how .the exhibits were removed from custody of Neema and put into the hands of PWl as there was no dispatch. 3. The learned Honourable Judge erred.in law and facts .when he held that there is no .'J--uggestion or indication that the said Neema ls unable to come to court she being tf1e custodian of the same. // Ms. Mbogo argued with force all the three grounds which we shall shortly discuss that PWl was a competent witness to tender the boxes. Initially, Mr. Johnson resisted the appeaL contending that PW1 was not a proper person to tender the boxes. However, upon reflection, Mr. Johnson conceded to the arguments raised in the appeal that PW1 is a proper person to tender the boxes. Arguing the first ground, Ms. Mbogo sa·id PWl is the one who analyzed th~ contents found in the boxes, sealed and signed. In terms of· 4. S. 127 (1) of the Evidence Act, C_ap.6 RE 2002, PW1 is a competent witness ; to tender the boxes. She ·referred us to our decision in the DPP V . . Kristina d/o Biskasevskaja, Criminal Appeal No. 76 of 2016 (CAT-~-· Unreported). First and foremost it should be born~ in mind that PW1 has,• not yet finish tendering her evidence. However, the evidence she has already given indicates that she received the boxes containing 67 packets from Inspector Neema. She opened them and saw the contents - powder . substance. She then examined the powder substance, sealed and stamped. It were those boxes which she wished to tender, hence the objection. In upholding-the_ objection raised the learned trial judge said as follows:,.. "The objection however is sustained on three grounds. Frist PWl was not the custodian of the exhibit Secon~ there is no explanation how the exhibit was removed from the custody of Neema and put into the hands of PWl. There is even no dispatch. Third there is no suggestion or indication the said Neema is unable to come to court she being the custodian. The objection is sustained but with· the direction that the exhibit should be admitted for identification purposes and then Neema tender it// 5 -. .' . ' . . We wish to point out at the outset that we had travelle~ t~rough the evidence of PW1 on record, there is nowhere indicated that PW1 said Insp. Neema was the custodian of the boxes intended to' be tendered. ' . . . Assumi,ng. that Insp. Neema was the one who had the cwstody. of the boxes, ,is PWl · not a competent witness to tender the boxes? In Kristina case cited supra, the facts are almost similar with this case in that when an officer from the office of the Government Chief Chemist was about to tender the Exhibit alleged to be drugs, an objection . . . was taken out by the defence. that ·the.. witness was not competent to . . tender it. The trial High Court sustained the objection raised. On appeal, this Court said as follows:- ''Since · the envelope was addressed to the Government Chemist and PWl/ a Chemist in that .office is the one who analysed the same/ we buy the argument by the learned Senior State Attorney that PWl was in the circumstance with full informatiCJn and knowledge of the envelope and therefore/ a competent witness than anyo(le else to tender in court the envelope and its contents. F/ 6 _) · In our ct1se, P\/\11 ,in her evidence she has tendered so far shows that · she. had· come into contact with the boxes by seeing, t0Lichin9,· analyzing the contents therein arid finally vvrote a report. So, what she intended to · · produce is something which. is within her knowledge and possession ·at one. · point in time . Her evidence is direct oral evidence falling under S. 62 (1) (a) and (c) of the Evidence Act, Cap. 6 RE 2002 which reads as follows:- 62 (1) Oral evidence must in all cases whatever,· be direct that is to say:- {a) If It refers to a fact which could be seen> it must be the evidence ofa witness who says he saw i 0· {b) N/A {c) If it refers to a fact which could be perceived by any other sense/ or in any other manner, it must be the evidence of a witness who says he perceived it by that sense_ or in that manner. A person who at one point in time possesses anything, a .subject matter of trial, as we said in Kristina Case i~ not only a competent witness to testify but he could also tender the same. It is our view that it is not the law -tha~ it must always be tendered by a custodian as initially 7 contended by Mr. Johnson, The test for tendering the exhibit therefore is. whether the witness has the knowledge and he possessed 'the thing iri · question· at some point in time, albeit shortly. So, a pcissesser or a custodian or an actual owner or alike are legally capable .of tendering .t~e intended exhibits in question provided he has the knowledge of the thing tn _. question. Tu~riing to the second ground, we have shown that PWl is yet to finish tendering her evidence. PWl did not say that after she had finished analyzing the ~ontents in the boxes she handed over the same to Insp. · Neema. It is therefore not correct to put words in .PW1's mouth that she had handed over the boxes to Insp. Neema. And so the need to explain how PW1 came about the boxes was prematurely made. The finding by the trial learned judge is not borne by the retard. As regards the third ground of appeal indicated supra/ like the second ground, the .trial learned judge was also wrong when he held that Insp. Neema was the custodian of those boxes. There is no such evidence on record at the moment. 8 ., . All in all, we agree· wlth Ms. Mbogo that ··the intended exhibits· were· wrongly rejected. The appeal has mer-it. The same is allowed. ;We quash and set aside the ruling of the'triai learn·ed judge and remit the record to · the High Court for admission of the boxes. We further direct the trial to proceed before the same learned judge unless there are- reasons for not doing so as mandated by S. 299 (1) of the Criminal Procedure Act, Cap 20 ·.· R.E. 2002. Order accordingly. DATED at DAR ES SALAAM this 21 st day of November, 2017. B. M. LUANDA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. . J. R. KAHYOZA REGISTRAR COURT OF APPEAL