CRIMINA APPEAL NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 45 OF 2023 ESTOMIH JOEL SINDIYO................................... COMPLAINANT I APPELLANT I APPLICANT VERSUS DPP................................... RESPONDENT / DEFENDANT JUDGMENT A. Z. BADE, J 22/07/2024 & 20/09/2024 BADE, J. The Appellant herein was arraigned at the Resident Magistrate’s Court of Arusha and charged with one count of trafficking in narcotic drugs contrary to section 15A (1) (2)(a) of the Drug Control and Enforcement Act No.5 of 2015 as introduced by section 9 of the Drug Control and Enforcement (Amendment) Act, No. 15 of 2017 (the “Act”). After ex-parte hearing, as the Appellant jumped bail and would not appear to defend his case, the trial court found him guilty and sentenced him to 20 years imprisonment. Aggrieved by the aforesaid conviction and sentence, the Appellant appellant lodged this appeal on the 7 grounds on the petition of appeal and 4 additional grounds supplemented as follows:on the additional grounds of appeal. Those grounds are as follow: 1. That, the charge sheet was defective for being at variance with the evidence on the weight of the substance allegedly found with the Aappellant. 2. ExhibitThat, exhibit Pl, P3, P4, P5 and P6 were improperlyimpropcr admitted as they were not read out in court after being admitted, thus they should be expunged. 3. That, the search and seizure was conducted illegally for want of search warrant and receipt contrary to section 38(1) (2) (3) of the Criminal Procedure Act. 4. That, the chain of custody of the suspected drug was broken and its integrity was not guaranteed. 5. That, the trial magistrate erred in believing that the chain of custody was proved despite failure by the prosecution side to call oncthe said J. Gabriel from the Chief Government Chemist in Dar cs salaam who allegedly recaptioned the exhibit. 6. That, the trial magistrate erred to believe that the substance allegedly found with the Aappellant was heroine despite there being at no proper sampling from PW4. 7. That, the charge against the Aappellant was not proved beyond the reasonable doubt. 8. That, trial court erred for failure to deal with the Aappellant in terms of section 226 (2) of the Criminal Procedure Act. 9. That, the trial court erred to convict the Aappellant by basing on exhibit P5 (caution statement) which was recorded outside the legal period contrary to section 50 of the CPA. 10. 1 hat, the trial court erred in law and in facts to believe and hold that, the Aappellant was found trafficking in narcotic drugs but failed to see that the adduced evidence was about being found in possession. 1 1. That, the trial court erred in law and in fact for failure to see that prosecution evidence is not incredible and doubtful. Before going to the merit of this appeal I will The briefly review of thereview the contextual background leadingd to this appeal is captured as. It was a prosecution case that on 26/04/2020 at Sanawari area within the city. District and Region of Arusha the Aappellant was found trafficking in 42 sachets of Narcotic Drugs namely heroine weighing 2.0 grams. On the fateful day at about 08:00AM PW2, who is a police officerman together with other four policemen were patrolling around Sanawari area when they were informed by an informer that the Aappellant was suspected that he was using and selling narcotic drugs, and also, he is stealing. Through the assistance of the hamleta chairpersoman forof the area (PW3), they managed to get to the o to the place the where AaAppcllant’s dwelling, was living. They entered into his room and found him sleeping. Upon searching conducted to the room, they found the 42 of sachets suspected to be narcotic drugs in thehis jacket beleived to belong to the Appellant, which was hanged at the back of the door. The suspected narcotic drugs later on were later on sent to the Government Chemist (PW4) who after conducting an examination to the said exhibit it turned came out it was 2 grams of heroin. This Aappcal was disposed of by way of written submissions. While the Appellant appeared in person, unrepresented, the. Respondent did not file theirhis reply to the submission made by the Aappellant as it he was ordered by the court. Submitting onOn the argument that, trial court did not comply with section 226 (2) of the CPA, athe Appellant contendsubmitted that he was convicted and sentenced while he was still yet to be arrested and the record of the proceedings is silent on what happened when he was re-arrested. He added that section 226 (2) of the CPA is settled that an accused person who is arrested following his conviction and sentence in absentia should be brought before the trial court first to be dealt with in accordance with the provision of the law and not to be taken straight to prison. To support his position, he cited the case of Adam Angelius Mpondi vs R, Criminal Appeal No. 180 of 2018. With regard to the issue of variance between the charge sheet and the evidence adduced, The Aappellant argues that, according to the charge sheet the weight of the suspected heroin was 20 grams, but PW4 and PW5 testified that the weight was 2 grams. He referred this court at page 16 and 21 of the proceedings. Further since the prosecutiontheThat, as prosecution did not amend the said charge, it remains unproved and he is entitled to acquittal. To buttress his position, he cited the case of Mashaka Bashiri vs R, Criminal Appeal No. 242 of 2017. On the allegation that, the exhibited documents were not read out before admitted, the Aappellant submitted documentary evidence which formed the basis of the prosecution case was not read out in court after they wcrewas admitted contrary to the prescribed procedure. He referred this court to exhibits Pl, P3 and P4. He prayed these documents to be expunged from the record. To cement his position, he cited the case ofRamadhani Mboya Mahiinbo vs R, Criminal Appeal No. 326 of 2017, and as well as as well as section 226 (2) of the Criminal Procedure Act. On the issue of illegality of the search, athe Appellant submitted that not only was. there was no search warrant but alsoissued and no receipt was issued after the search contrary to section 38 (1) (2) (3) of the Criminal Procedure ActCPA and Police General Order No. 226 (1) (a) (b) (c) and 2 (a). To support his position, he cited the case of DPP vs Doreen John Mlemba, Criminal Appeal No. 359 of 2019 and the case of Andrea Augustino @ Msigara vs R, Criminal Appeal No. 365 of 2019. Expounding, That, in the presentnee case, there is nothing to suggesting that the search was an emergencye or whether there was a risk of destruction or moving the substance from the house to warrant the search conducted in this way. The Appellant further argues that, the chain of the custody of the suspected drug was broken as the arresting officer did not state if he sealed the exhibit after its seizure. That PW4 did not state where she kept the sample after collecting it from 29/04/2020 to 20/05/2020, neither was. He further argues that, the movement of the exhibit from PW4 to one .1. Gabriel who examined the same explained or was never supported by documentation nor ora] account. To support his position, he cited the case of Farida Abdul Ismail Vs R, Criminal Appeal No. 348 of 2015. On the contention allegation that there was improper sampling, athe Appellant submitted that, the evidence of PW4 was is silent on whether hePW4 took a sample from each of the 42 sachets, neither was it ascertained . That, it is not known if the same were packed separately or together. This he argues, at this is contrary to regulation 18 (1) of the Drugs Control and Enforcement, Regulations, G.N No. 173 of 2016. With regard to the error by issue that, the trial court toerred by rely on the cautioned statement which was illegally obtained, athe Appellant submitted that, they said statement was illegal as it was recorded outside the required legal period, contrary to section 50 of the Criminal Procedure ActCPA. The Appellant added that, there was no clear time of his arrest and this fact leavesleave doubt on whether section 50 of the said Act was complied with. To support his position, he cited the case of Arnold Loishic @ Leshai vs R, Criminal Appeal No. 249 Of 2017. On the contention that the offence of trafficking narcotic drugs was never proved against him, he argues that the evidence adduced by the prosecution was based on being found in possession and not trafficking. That the evidence of PW2 and that of PW3 prove that fact. The Appellant insisted that there was no evidence to prove that he was trafficking in narcotic drugs. On the argument that the prosecution evidence was not credible, the Appellant submitted that it raised doubt how PW5 knew the substance seized was in fact heroine. PW2 and PW3 gave contradictory statement on the number of police officers who went to his house. PW2 stated that they were four police officers while PW3 stated that he met three police officers. Having considered the grounds of appeal, submission made by the Appellant and the record of this file the task before me is to determine firstly, whether the charge sheet was defective, secondly, whether trial court did not comply with section 226 (2) of the Criminal Procedure Act and thirdly, whether the prosecution managed to prove the charge against the Appellant beyond the reasonable doubt. Starling with the first issue, the Appellant strongly argues that the charge sheet is defective as it was not supported by the evidence on the record. The Appellant further contended that according to the charge sheet, the suspected heroin was 20 grams, but the evidence from the record speaks different as PW4 and PW5 testified that the suspected heroin was 2 grams. Perusing the record of this file I find the argument by the Appellant is lacking any basis, factual or legal. As I read the charge sheet, it is clear that the weight of the suspected heroin was 2.0 grams and not 20 grams as alleged by the Appellant. Now, turning to the second issue, the Appellant is faulting the decision of the trial court as it contravened section 226 (2) of the Criminal Procedure Act. The Appellant alleges that according to section 226 (2) of the Criminal Procedure Act, once an accused is arrested following his conviction and sentence in absentia, the accused is supposed to be brought before the court first before being taken to prison. The Appellant contended that after he was re-arrested, he was taken straight to the prison, instead of being taken first to the court, and made to show cause why he did not appear. For better understanding of the Appellant’s argument, I shall reproduce the said section: "226 (2) Where the courts convict the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no control and that he had a probable defense on the merit The above provision vests a discretional power to the trial magistrate either to set aside or confirm the conviction of the accused person who was convicted in absentia. According to the cited provision, the conviction should be set aside and re open the proceedings after the trial court satisfies itself on the reasons that made the accused absent himself as the accused could have a probable defence on the merit. Nonetheless, the provision is silent on how the trial court should exercise the said discretionary power. In the cited case of Adam Angelins Mpondi (supra), when facing a similar situation like the one presented in the instant case it was held: "However, as rightly submitted by the learned Senior State Attorney, the wording "upon being satisfied" means that the trial magistrate or judge has to inquire from the accused person in order to know the reason and be satisfied on whether his absence was from causes over which he had no control and that he had. a probable defence on the merit ”. This essentially means that after rc-arrcsting the accused person, he should be brought before the court for the trial magistrate to make an inquiry from the accused person to establish the reason that caused the accused person not to appear and defend the case against him. Going through the record of this appeal, it is silent on what happened after re-arrest of the Appellant. It is not recorded whether upon re-arrest, he was brought before the trial court and given a chance to explain the reason of his absence and for the trial court to assess whether the absence was due to causes beyond the control of the accused and that he had a probable defence on the merit. In the case of Olonyo Lenuma and Lekitoni Lenuna vs Republic [1994] TLR 54 the Court observed: "In our view the sub-section that is section 226 (2) of the Criminal Procedure Act is to be construed to mean that an accused person who is arrestedfollowing his conviction and sentenced in absentia should be brought before the tried court first, and not to be taken straight to prison.... The need to observe this procedure assumes even greater importance bearing in mind that by and large accused persons of our community are laymen not learned in the law, and are often not represented by counsel. They are not aware of the right to be heard which thev have under the sub-section. It is therefore, imperative that the law enforcement agencies make it possible for the accused person to exercise this right by ensuring that the accused, upon his arrest, is brought before the court which convicted and sentenced him. to be dealt with under the sub-section ". It follows that the Appellant was required to be brought to court after his re-arrest and be given a chance to explain away his absence as to why he has absconded during the trial and not to be taken straight to the prison as it was done. In the cited case of Adam Angelins Mpondi (supra) it was held that failure by the trial court to comply with section 226 (2) of the Criminal Procedure Act in finding the cause of the accused’s absence during the trial vitiates the proceedings of the trial court which was conducted in his/her absence. In the instant appeal I have shown that the trial magistrate did not comply with the requirement under section 226 (2) of the Criminal Procedure Act. As such the proceedings conducted in the absence of the Appellant’s are a nullity. In that regard, I find merit in this ground. I now turn to determine the last issue, on whether the prosecution managed to prove the case against the Appellant beyond the reasonable doubt. This issue is based on six main complaints raised by the Appellant; enumerated as i) improper sampling, ii) broken chain of custody, iii) the search was conducted without a search warrant, iv) some of documentary evidence were not read out before being admitted in evidence, v) the cautioned statement relied by the trial court to convict the Appellant was illegally obtained, and lastly the Appellant was charged with trafficking in narcotic drugs while evidence on the record shows he was found in possession of narcotic drugs. I will examine each complaint separately, starting with the argument that there was improper sampling. Going through the record as correctly submitted by the Appellant it is true that the evidence of PW4 is silent on whether he took samples from each of the 42 sachets. Obviously, this offends the procedure under regulation 18(1) of the Drugs Control and Enforcement (General) Regulations, G.N No. 173 of 2016, which requires the sampling officer to draw one sample in duplicate from each package. In the case of Republic vs Maulid s/o Hamis and Another, Economic Case No. 3 of 2021 (unreported) the Court of Appeal was forthcoming on sampling: "The testimony of PW1 regarding how' sampling and packing was done, make the situation even worse. This is because PW1 had lumped together into one mass all samples taken from 94 small packing bags wrapped by gazette. This was irregular, the law requires the sampling officer to draw one sample in duplicate from each package and where it is found that drawn sample from individual package or container are unreasonably lengthy exercise then the package ought to be hunched in lots of 10 packages or containers, therefore two representative samples weighing the prescribed quantity of not less than 5 grams by way of bunching in lots often packages as provided in rules ”. The lationale behind, it would appear to me, is to establish if each bundle constitutes narcotic drugs. Failure by prosecution to establish that they took sample from each sachet out of 42 sachets to establish if each sachet contains narcotic drugs created a reasonable doubt on the prosecution case. This now takes me to the second complaint on chain of custody not being fully established. I carefully scanned the record and I could not find where the chain of custody broke. It is clear from the record that after the seizure of the said narcotic drugs, the exhibit was taken to PW1 who was the exhibit keeper by PW2. After which the exhibit was handed to PW5, the investigator who took the exhibit to PW4, a government chemist for sampling and measurement. Alter the sample was taken, the exhibit was returned to PW1 by PW5. It is also on record that it is PW4 who took the sample to Dar es salaam. At Dar es salaam PW4 handed the said exhibit to one J. Gabriel who was an analyst. Failure to call the said Gabriel to testify does not make the chain of custody broken as alleged by the Appellant. Regarding the allegation that documentary evidence was not read out before its admission, it is true from the record that some of the documentary evidence was not read out before its admission. However 1 do not think see it as fatal bearing in mind that the hearing was cx-partc. it would have been absurd in my view, to read the document out loud in court while the Appellant was absent. The aim of reading out the document before its admission I think is to inform the other side its contents for them to be able to challenge its admission and or cross examine on its content if so preferred. In the instant matter, the Appellant was absent during the hearing and as such the necessity of the document being read out diminished. On the issue of the caution statement, going through the record, PW5 did not state at what time he started to take a statement from the accused, but the caution statement (exhibit P5) indicated the time the caution statement started and the time it ended, so this allegation has no merit. In any case, it is not true that the decision of the trial court is solely based on the caution statement. On the issue of illegal search, the Appellant argues that the search was illegally conducted as there was no search warrant and no evidence that either PW2 was an OCS or the search was an emergency one. It is true that there is no evidence on record to suggest that the search was an emergency one because according to PW2, they received information about the drugs being at the Appellant’s house from their informer as early as 08:00 Am, and PW2 did not make any effort to obtain a search warrant. There is also no dispute that the police did not have a search warrant. Section 38 (1) of the Criminal Procedure Act provides that a search warrant has to be issued where it is not an emergency. The rationale for the requirement of search warrant is to safeguard the constitutional right to dignity and privacy of a person. Reading of the Police General Orders (P.G.O) 226 shows the circumstances over which a search warrant should be taken. Since the general rule under the Criminal Procedure Act is that a search of a suspect shall be authorized by a search warrant unless it falls under the exceptions provided for under section 42 of the Criminal Procedure Act, and since the instant case does not fall under such exceptions, the search was illegally conducted and this affected the credibility of the search, for which a reasonable doubt is raised on the prosecution case. Another complaint raised by the Appellant is that the offence against him is trafficking in narcotic drugs while the evidence on record suggested that he was found in possession of narcotic drugs. This is misconceived on the part of the Appellant because according to section 3 (g) of the Drug Control and Enforcement (Amendment) Act, No. 15 of 2017 trafficking includes possession. From above discussion, It is my finding that the Appellant absconded himself during the hearing of the prosecution case, making him unable to mount his defence. I have also shown that he was not accorded a right to be heard on why he was absent. Since I have also found that the trial magistrate did not exercise his power under section 226 (2) of the Criminal Procedure Act, under normal circumstances, I would have quashed the proceedings conducted during his absence and set aside its judgment with a direction that the Appellant be brought before the trial court and be dealt with in accordance with provision of section 226 (2) of the Criminal Procedure Act. However, since it is also my finding that there arc other defects on the prosecution’s case such as improper sampling and illegality of the search as pointed out above, causing the prosecution case not be proved beyond a reasonable doubt, it will serve no purpose to send the file back to the trial magistrate to comply with section 226 (2) of the Criminal Procedure Act. For the above stated reasons, I do hereby allow this appeal. Consequently, I quash the conviction and set aside the sentence imposed on the Appellant. I order for his immediate release from prison unless he is otherwise held for some other lawful purpose. It is so ordered. Dated at ARUSHA ZONE this 20th of September 2024. aA A. Z. BADE, J JUDGE OF THE HIGH COURT