the director of public prosecutions 2023 tzhc 19915 7 august 2023

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY)

AT MUSOMA CRIMINAL APPLICATION No. 6 OF 2023 THE DIRECTOR OF PUBLIC PROSECUTIONS............ APPLICANT EX-PARTE FORFEITURE RULING 07.08.2023 & 07.08.2023 Mtulya, J.: The present application was filed under the provision of section 30 (1) (a) & (6) of the Proceeds of Crime Act [Cap. 256 R.E. 2022] (the Act) seeking for ex-parte forfeiture order to confiscate a motor vehicle make CRV Honda species with registration number KAU 446L (the vehicle) to the Government of the United Republic of Tanzania (the Government). According to Mr. Juma Mahona, learned State Attorney for the Director of Public Prosecution (the applicant), the vehicle was used in trafficking of narcotic drugs of cannabis sativa species commonly known as bhangi of 32.2 kilograms (bhangi). In his opinion, the move was initiated to forfeiture the vehicle in order to discourage the culprit from enjoying the fruits of the proceeds of the crime and to decline commission of future crimes. In MrT Mahona's opinion, any property connected to the commission or suspected commission of an offence is an i instrumentality of the offence and may be liable for confiscation. In substantiating the link between the narcotic drug bhangi and the liability of the vehicle, Mr. Mahona submitted that the vehicle was found with bhangi of 32.2 kilograms at Nyabisaga Village within Tarime District in Mara Region on 25th November 2019.

In supporting the submission, Mr. Mahona had produced in this court exhibit P.l collectively which contained: certificate of seizure of bhangi, weight report of bhangi, report of the sample of bhangi, bhangi analysis report and bhangi inventory form. According to Mr. Mahona, the efforts to find and arrest culprit have proved futile as their whereabout is unknown and no one who had showed up for interest in the vehicle. In order to justify the statement, he registered Attachment A in this court which contained a publication of notice to all interested parties at page 18 of Habari Leo Newspaper of 5th July 2023. Finally, Mr. Mahona prayed for confiscation of the vehicle by citing provisions of sections 2(a), 4(l)(c), 12(l)(a) and 30 (1) (a) & (6) of the Act. I have glanced Attachment A, exhibit P.l collectively and submission of Mr. Mahona and think the materials point fingers at the vehicle to have connection in the commission of the offence. The indicated citation of section 30 (1) (a) & (6) of the Act permits this court to issue a forfeiture order to confiscate tainted properties. The interpretation of the section has received precedent 2 of this court which was pronounced today in the decision of Ex- parte Forfeiture Ruling in the Director of Public Prosecution, Criminal Application No. 8 of 2023. This court in the precedent had cited the Republic of South African s decision

in The National Director of Public Prosecutions v. Egidius Hamutemya Hausiku, Case No. 2330 of 2021 (HC-RSA), and resolved that: where there is sufficient dose link between the property and its criminal use, the property becomes an instrumentality of the offence liable for confiscation. This court is bound by its previous decision on the same subject matter for want of certainty and predictability of decisions emanating from this court. This court shall cherish the already set standard practice in the indicated case of Ex-parte Forfeiture Ruling in the Director of Public Prosecution (supra). In the end, I make the following orders, under the provision of section 30 (1) (a), (6), (7), (8) & (9) of the Act: 1. The CRV Honda species with registration number KAU 446L (the vehicle) is hereby forfeited to the Government of the United Republic of Tanzania; 2. When it happens, any person has an interest in the vehicle cited in order number 1 above and has exercised reasonable care to ensure that the vehicle 3 was not tainted, the interest shall not be affected by the instant forfeiture order; 3. Where, any person claims an interest in vehicle cited in order number 1 above was not given notice, may file an application to this court praying for a set aside order of this court delivered today, 7th August 2013; 4. Any application which is filed to contest this order must be registered

within sixty (60) days from today, 7th August 2023; and 5. The applicant in this application must comply with the provisions of the Proceeds of Crime Act [Cap. 256 R.E. 2022] in taking over the indicated vehicle in order 1 above. Ordered accordingly. .kt o? F. H. Mtglyaj Judge 07.08.2023 This Ruling was delivered in Chambers under the Seal of this court in the presence of Mr. Juma Mahona, learned State attorney for the applicant, the Director of Public Prosecutions. F. H. Mtulyc Judge 07.08.2023 4