19750421 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA HIGH COURT CRIMINAL APPEAL UOS.513 519 OF 1974 - ..Original: Criminal Case No.308 of 1974. of tne District .Cour of Geita District at.LGeita.1efore H.J.Mkatte, Esq.,. F.M.. -. GABRIEL MAJUVA & ANOTELR • . • . . . . AFFELLANTS versus .. -• 4. THERLPLIC .............. . RESF0iWT CHARGE:- Unlawful possession of local liauor commonly known as "moshi" c/s 30 of the Moshi Mcnufctured Distalation Act No 62/66 & G N No 451/68 of the Laws, . ... . . JGI'iENT MFALILA, J.: In the district court at Geita, the two appellants GABRIEL HAJUVA (let accused) and WASHINGON KUBINI (3rd accused) were jointly charged with Businga Masano (2nd accused) who did not a.eal, with two offences. They were jointly charged in the first count with unlawful possession of native liquor commonly known as moshi, and in the second count they were oharged4ith the offence of d estTcy ingei id ertc The second accused was convicted on both counts and sentenced to 6 months and 3 months' imprisonment resrectively, the sentences to run concurrently. The present appellants were acquitted on the second count, but convicted, on the let count and sentenced to si.c months imprisonment each. They appealed against their convictions. Their appeals have been consolidated. The evidence on which the learned Resident Magistrate relied in convictin' the appellants was iven principally by the District Development Director for Geita District JUNA NGOSSONGWA (F.W.2). According to him he had found in a certain house the two appellants drinking what he suspected to be moshi. This was during office hours and the two appellants were middle grade civil servants. Naturally this was a source of great concern to the D.D.D.. who is the head of the Civil Service in the District.. He therefore took immediate action of arresting the appellants and the pombe they were drinking. But before he could seize the pombe, the second accused poured it down, but there were a few drops left in the tin. The third accused absconded hence he could not be taken to the police station along with his colleagues. He was however arrested later at the hospital where he works as a Medical Assistant. At the police station the police officer on duty examined the tin from which the appellants had been drinking. He was satisfied from the smell that the tin had contained liquor known as moshi. On this evidence the learned Resident Magistrate found that the appellants had been seen in a house by the D.D.D. and that in this house they were drinking liquor later identified as "moshi", He accepted P.W.l's identification of this liquor as moshi basing his observation on his experience in such matters. The magistrate found that the witness was sufficiently experienced to identify moshi by its smell. I am satisfied that the magistrate's conclusions were sound in any case no one gainsaid P.7,l 1 s evidence that the tin before him had contained liquor known as "rnoshi". The appellants of course denied that they were at any time in possession jointly or seierally of this tin, each of them gave an account of his movements showing that he was not at the scene at the time the D.D.D. alleged to have seen them. The learned trial magistrate considered this aspect of their cases, but he had no difficulty in rejecting them. On the evidence, I think he was quite right. For as he correctly remarked, why should the D.D.D. have sent out to frame false allegatjons against his ... . . 2