19700529 TZHC Mwanza4

'0 j4w IN THE HIGH OF TANZANIA AT MWANZA. APPELLATE JURIDITION CRIMIN,.L APPEAL NO. 52 OF 1970 Original Criminal Case No. 352 of 1969 of the District Court of Maswa District at ivlaswa: Before F.S. Litanda Esq. District Magistrate. GAVITA s/o MWIGULU ................ Appellant (Original Accused) El V E R S U S THE RbPUBIC ................. Repondent (Original Prosecutor) Charge:- Unlawful Brewery of Local Liquor known as Moshi c/s 30 act 62/66 of the Law. JUDGMEWP. SEATON, J. The appellant was convicted on his plea in the District Court of "unlawfully brewing of local liquor known as moshi c/s 30 Act 62/66 of the Lws and sentenced to 2 years' imprisonment. The appellants' petition of appeal raised objections against both conviction and sentence but at the hearing of this appeal, his learned Counsel withdraw his appeal against conviction and confined his submission to the question of sentence. The offence of "unlawful brewing" of moshi is not, strictly speaking, created by the section and law under which the appellant was charged.. S. 30 of the Moshi (Manufacture and Distillation) Act (No. 62 of 1966) makes the unlawful possession of moshi an offence 4.cf- i punishable with imprisonment for 5 years. Theirnmediately before and after, i.e. seôtions 29 and 31, refer respectively to the unlawful salc and consumption of moshi, both of which are prohibited on pain of imprisonment for 5 years0 It is 6 . 3 of the ot (No, 62 of 1966) which makes it an offence to manufacture moshI save under a licence granted by a licensing authority - an offence which is punishable with a maximum imprisonment of 5 years. It appears from the facts outlined by the prosecutor and agreed by the appellant, that the appellant was "found brewing pombe called moshi who was by then with three bottles. "Learned counsel for the appellant submitted that it is not clear from the facts whether the appellant was actually brewing, moshi as the record states he waa only found in possession of three bottles. Although learned counsel did not wish to dispute the validity of the conviction (in the absence of an affidavit as to the language in ishiob the appellant was required to plead) however he pointed out that, ambiquity to counter the submission of learned State Attorney that unlawful brewers of moshi should be more severely dealt with than possesses or drinkers of moshi, as the latter were often more victims of the brewers. --2-- The cases of R. i. Jonothani sZo Chamade (1)68) H.C.D. 237 and Thomas @ I'&iria Ikwabc r.R. (1968) H.C.D. 371 were referred to. In the former case, I confirmed a sentence of two years imprisonment imposed for unlawful possession of moshi, while remarking that this Court will not intcrfrc in a matter of sentence unless it is no excessive as tobe unsustainable. In the last—cited case, I reduced a fine of shs. 500/= or six months imprisonment for unlawful possession of moshi, remarking that fines imposed for liquor offences should bear a reasonable relation to the accused's power to pay taking all his circumstances into account. It seems that both of the cases cited above arose out of prosecutions under the llocal Liquor Ordinance, Cap. 77, S. 36 (1), (2) and Government notice 229 of 1941. The maximum Penalty under that Ordinance was a fine of shs. 4000/= or two years imprisonment or both. Since then the legislature has repealed Cap. 77 and replaced it with the present Act (No. 62 of 1966), more than doubling the the maximum period of imprisonment and eliminating the option of fine. In passing sentence, the District Magistrate noted this maximum penalty and the local prevalence of the brewing and drinking of "this type of pombe which is very dangerous to human life." It is unfortunate, as pointed out by learned counsel for the appellant, that the trial court made no finding of the appellant's age. The charge sheet alleges he is aged 45 years but learned counsel disputcthis and suggests he is at least 50 years. Nor is there any record of the appellant's family or financial circumstances; again it is only from the charge sheet that one learns the appellant is a peasant. However, the record shows that when the appellant had been convicted and was given the opportunity of addressing the court in mitigation of sentc-nce he had nothing to say. It cannot be considered that the appellant suffered any injusticeor that the District court failed to direct As mind to all of the releVant considerations. The sentence is undoubtedly one which some might consider to be severe. But considering the view which the legislature appears to have of this type of offence, the sentence cannot be said to be so manifestory excessive as to warrant the interference of this Court. The appeal is accordingly dismissed. 0.- ? a &;f B. B. SEATON, /J1aNa. JUDGB.