19741104 TZHC Mwanza

IN THE HIGH COURT OP TANZANIA

AT MWNZA

AEPIILATE JURISDICTION HIGH COURT CRIMDIAL APPEpL NO. 176 OF 1974 ORIGflJ\L C LUNPJJ CASE iO. 567 . .. .OF 1973.. DI'STRICT COURT OF BUKOBA DISTRICT AT .. . .... .. . . BUKOBA BEFORE .L.. B. MCHOME Esq. 9 .......RES1DE1rT MAGISRATE. - FIDUI MG(ivJI3O......,........ . (Orina1 Aocused) versus Ti t, ETtJBLIC . . .......... .. •••• • • •,.. (Oriinal- Prosecutor) C1IARGE: .. UnlawftilPOSSCSSiOI'i of Part I c/s 25(2) of Pharrkpcy andPoi-son Ordinco Cap. 416 of the Laws..

JUDGMENT WGANGA, Ag.J: -- The appellant was, convicted of unlcvfu1 possession of Part I Poison contrary to s'etion 25(2) of the xcy rind - Pbisbns Oxdi- noncc Cap.

416. The first issue in this appeal is whether the substccwhich wcre produced bcf ore the court wore proved to be part I poisons. The evidence adduced before the trial magistrate by police constable Wazirj (P. 1,7.4) was that he took the bottles citaining the substances which were suspected to be Part I poisons to the Bukoba District Medical Officer for excinatjon. He later received a report (&hibit C) from the District Medical Officer cortifyind the ctontc of the battles to be Part I poisons. --This witias produced the report which is in these words: - UUTAULI SIlO VIA ii' 1.. Tumeona leo vyupa (vials) 1100 vilivyo na kitanbu- lisho (labels) stieptornycin - N 198 vycnyo viteabu- lisho bivyo hivyo. Unga mv;oupe • Zipo katika Batch No. 21124 na 21127 zoto ziractoka India kila Id.uoja hi p.i 5. Ju1a ni 1298 vya stroptonycin.

2. Iirapouls (vichupa) 88 vyenyo vitambulisho vya chioroquin Inj. Lot No. 144 kutoka Uicransa, kila 1d.uoa fli 5 ml. i.e., 200 ragu. Zote ubili (i) amcl (2) zipo katika Part.I Poison. .../2 •L1kIP GA •UCtJU WA V/IiAYA. BUKOEA 11 This report" was in rey view most unsatisfactorJ 'as it oh talneci no indication whether the bottles wore sealed or not, nor the natitro of oxcsoinationcnrriecj out to determnie their contents. But most inportant ws the absence of any i•ndicetin in the "report" that the District Medical Officer is a Governcnt Analyst as defined in sectidn 154( 4) of the Cxdnal Procedure Ood.e or that he has been so ointdd by tbe Minister under that section. Under th; provisions of 'that section only a docur..icnt purportin to be a reort 'cinder the h'rnd of a Government Arielyst my be used as evidence in a trial. Since in the instant case there was no ovi.dence at all that the District Medical Officer who yiroe.the roport.ie a Governnont Analyst, his 'report' was wrongly a&itted and as such the substances he exanined wore not conclusively proved to bc Pa't :1 poisons. Taldiag into account the unsatisfacto7 nature df the "report" itself as well, the appellant' s conviction caraot be supported. The conviction is there- fore quashed and the sentence set aside. Since the appellant decc1 ownership nc1 possession of the I drugs' , the forfeiture order is left to stand, Dolivorcid this 4th day of 1Tcember, 1974. i\4 y,>< B. M.JUDGE. Shaidj for the Republic. Rugarabiu for , the ApPellant.