CRIMINAL APPEAL NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 326 OF 2024 (Arising from the Resident Magistrates’ Court of Dar es Salaam in Criminal Case No. 82 of 2023) HALIMA ZAHORO MANENO ……………………..…………………… 1ST APPELLANT MWICHANDE SAID MWICHANDE ……………………..………..….. 2ND APPELLANT VERSUS REPUBLIC ................................................................................... RESPONDENT JUDGMENT 15th December, 2024 & 24th March, 2025 BWEGOGE, J. In the Resident Magistrates’ Court of Dar es Salaam, the appellants herein were arraigned on the offence of trafficking in narcotic drugs contrary to section 15A (1) and (2) of the Drugs Control and Enforcement Act [Cap. 95 R.E. of 2019]. The particulars of the offence alleged that on the 31st day of March, 2023 the appellants herein were found trafficking in narcotic drugs namely, heroin hydrochloride weighing 11: 21 grams in their residence. 1 Eventually, after a full trial, the appellants were found guilty for trafficking in narcotic drugs; and a sentence of 30 years imprisonment was imposed against them. The appellants herein, being aggrieved by conviction and sentence entered by the trial court, preferred an appeal on twelve (12) grounds, as hereunder rephrased: - 1) That the preliminary hearing proceedings were a nullity. 2) That the trial court imposed excessive sentence on the appellants. 3) That the trial court failed to draw adverse inference against the prosecution for their failure to summon material witnesses. 4) That the trial court convicted the appellant based on an illegal search. 5) That the chain of custody of the alleged drug substance was broken. 6) That the trial court erred in composing a ruling under section 231 (I) of the Criminal Procedure Act [Cap. 20 R.E. 2022] without disclosing the reason for the decision while the defence made a submission on no case to answer prior to the ruling. 7) That non-compliance with the provision of section 231 (1) (a) (b) of the CPA invalidates the proceedings. 8) That the trial court admitted exhibit P3 without considering the objection raised by the defence side. 9) That the trial court failed to consider the defence martialled by the appellants. 10)That the prosecution side failed to prove their case beyond reasonable doubt. 11)That the search involving the 1st appellant which led to the seizure of the alleged narcotic drugs (heroin hydrochloride; exhibit P.5) did not follow the procedure provided under sections 26 and 43(3) of the Criminal Procedural Act. 12)That the 2nd appellant was convicted based on evidence (exhibit P.5) seized from his house in his absence. 2 A short resume of the prosecution case in the trial court is thus: The appellants herein are husband and wife. They resided at Magomeni Mwembechai area within Kinondoni District in Dar es Salaam. On the fateful day of the 31st day of March, 2023, ACP Salim Shirima, the law enforcement officer working with the Drug Control and Enforcement Authority (DCEA) received information from the informer that the appellant dealt in drugs. Consequently, he instructed ASP Hassan Msangi (PW2) to search the residence and arrest the suspects (appellants). The search warrant was duly issued by one Aretas Lyimo, Commissioner General of the Drug Control and Enforcement Authority (henceforth “DCEA”). PW2 was accompanied by inspector Wamba Msafiri (PW7) in the search exercise conducted in the residence of the appellants. They arrived at the appellants' residence during the hours of darkness. They procured the presence of the Ten-Cell leader namely, Mwanvita Hassan (PW8) who ascertained that the respective residence belonged to the 2nd appellant herein. Only the 1st appellant was found in the house. A search exercise ensued in the respective house. Cash money to the tune of TZS. 242,500/= was recovered in the children's room wrapped in a nylon bag. One room was found locked. The 1st appellant told the law enforcement officers that she had no keys. PW2 opted to break the 3 door and entered therein. The search therein led to the discovery of various suspicious items namely, 16 rolls suspected to be narcotic drugs which were marked by the letter A; small particles of the suspicious powdery substance found on the floor which were collected and put in a small bag marked by letter B; big tile, marked labelled by letter C; three packages of suspicious powdery substance marked by letters DI, D2 and D3; nylon bag containing suspicious powdery substance marked by letter E; a paper bag containing grey powdery substance marked by letter F; spoon stained with powdery substance marked by letter G; small digital weighing scale marked H; small bags marked I; nylon bag containing suspicious powdery substance marked J; razor (rungu max) marked K; two mobile phones marked L and M; and cash money TZS. 362,900/= and TZS. 543,850/. PW2 filled a certificate of seizure (exhibit P6) respecting the seized items which was signed by the 1st appellant, PW7 and PW8. Eventually, the 1st appellant was arrested being the prime suspect. The law enforcement agents left the appellant's residence around 22:00 hrs. The 1st appellant and the above-named exhibits were submitted to the Drugs Control and Enforcement Authority (DCEA) around 23:00 hrs. PW2 handed the exhibits A, B, C, D, E, F, G, H, and J to Inspector Johari Msirikale (PW3) 4 and kept the rest of the exhibits in his office. PW7 recorded the statement of the 1st appellant who denied possession of the suspected drugs. On 04/04/2023, PW7 sealed exhibits A, B, C, D, E, F, G, H, and J in nine (9) envelopes (collective exhibit P5) in the presence of the 1st accused, an independent witness namely, Julias Peter Mazimu (PW6); and inspector Seleman Mbwambo (PW5). Thereafter, PW5 delivered the exhibits to the government chemist laboratory on 05/04/2023 which were received by Kulwa Ogesa (PW1) for laboratory test. After laboratory analysis, PW1 handed over the exhibits to PW5 having signed the sample receipts form (exhibit P1). Thereafter, PW5 handed the exhibit to the exhibit keeper namely, Inspector Johari Msirikale (PW3) for safe custody. Eventually, the 2nd appellant was arrested on 31/03/2023 and both appellants were arraigned in court. The evidence led by PW1 was to the effect that on 05/04/2023 he received 9 envelopes from PW5 for laboratory analysis to find whether the same were narcotic drugs. PW1 conducted a preliminary and confirmatory test and discovered that exhibits marked A, B, O, D, E, G, and H contained narcotic drugs namely, heroin hydrochloride with a total weight of 11: 21 grams. However, the laboratory findings made by PW1 revealed that exhibits 5 marked F and J were normal flour, not narcotic drugs. The report was tendered and admitted as exhibit P1. The testimony of PW1 was augmented by the evidence led by PW2 and PW7, the law enforcement officers who testified that the incriminating exhibits were found in the residence of no other persons but the appellants herein. On the other hand, the appellants herein vehemently refuted the charge and evidence implicating them. After the conclusion of the trial, based on the evidence laid on the table, the trial court found that the prosecution case was proved beyond reasonable doubt. The appellants were convicted and sentenced to languish in jail for 30 years. Hence this appeal. The appellants herein fended for themselves; and the respondent Republic was represented by Mr. Adolf Veladumi, state attorney. The appellant preferred to argue the appeal by written submissions. 6 In substantiating the 1st ground of appeal, the appellants argued that section 192 (1) of the Criminal Procedure Act requires the court to hold a preliminary hearing as soon as the accused pleads not guilty. And the provision of section 192 (3) of the Act requires the trial court to prepare the memorandum of the agreed facts which should be read over to the accused person. However, the trial court did not comply with the relevant provision. Hence, the non- compliance with the law mentioned above renders the proceeding a nullity. The cases of Mt 7479 Sgt Benjamin Holela vs. Republic [1992] TLR 121 and Mohamed Juma vs. Republic (Criminal Appeal 434 of 2020) [2023] TZCA 17648 were cited to bolster the point. Respecting the 2nd ground of appeal, the appellants argued that they were sentenced to serve 30 years imprisonment having been found guilty under the provision of 15A (1) and (2) of the Drugs Control and Enforcement Act. However, the penal section of the relevant Act implies that thirty (30) years of imprisonment is the maximum sentence. Hence, the trial court was not bound to impose the maximum sentence. Further, the appellants argued that the trial court should have opted for an alternative sentence considering that they were first offenders. The cases of DPP vs. Paul Makujaa [1922] TLR 7 2 and Tabu Fikwa vs. Republic [1988] TLR 48 were cited to validate the assertions. Concerning the 3rd ground of appeal, the appellants argued that the court may draw adverse inference against the prosecution for not calling material witnesses. That PW1 deponed that the report he prepared was signed by the Director namely, David Elias who was not called to testify in court. Likewise, PW2 testified that the search order was issued by the commissioner General of DCEA one Arestas Lyimo who was likewise not called to testify in court. And no explanation was given by the prosecution for the failure to call the respective witness. Hence, the trial court should have drawn adverse inference against the prosecution. The cases of Aziz Abdallah vs. Republic [1991] TLR71 and Amini Juma vs. Republic, Criminal Appeal No. 303 of 2008, CA (unreported) were cited to buttress the point. Pertaining to the 4th ground of appeal, the appellants alleged that the trial court convicted them by relying on the search warrant issued by one Arestas Lyimo, the Commissioner General of DCEA who was not called to testify in court to such effect. Hence, the search order was illegally admitted in evidence pursuant to section 38 (1) (a) of the Criminal Procedure Act. The appellants opined that the respective search order (exhibit. P7) ought to be 8 expunged from the record. The case of Joseph Charles Bundala vs. Republic (Criminal Appeal No. 15 of 2020) [2021] TZCA was cited to reinforce the point. Regarding the 5th ground, the appellant argued that the chain of custody respecting the purported incriminating exhibits was broken. Hence, the possibility that the exhibits might have been planted against the appellants cannot be overruled. That the contradiction between the testimonies of PW1 and PW5 leaves doubts on whether the alleged narcotic drugs were heroin or cannabis sativa. With respect to the 6th ground of appeal, the appellants argued that it is on record of the trial court that on 16th May, 2024 both the defence and prosecution made a final submission on the case to answer. However, on the 28th day of May, 2024, the trial court delivered its ruling finding the appellants with a case to answer without assigning any reason to justify the finding. That the omission renders the proceeding a nullity. The case of Mashaka Mgunda vs. Republic, Criminal Appeal of 1999, CA (unreported) was cited to bring the point home. 9 In arguing the 7th ground of appeal, the appellant alleged that the provisions of section 231 (1) (a) (b) of the Criminal Procedure Act obliged the trial court to inform them of their right to give evidence either on oath or affirmation or otherwise without oath and the right to call witness in defence. The appellants alleged that the trial court omitted to comply with the relevant mandatory provision of the law which is fatal to the proceedings. The case of Cleopas Mochiwa Sospeter vs. Republic (Criminal Appeal No. 51 of 2019) [2020] TZCA 287 was cited to validate the assertion. Submitting on the 8th ground of appeal, the appellants alleged that exhibit P3 (sample receipt notification) was admitted without determination on the objection raised by the defence side. That the exhibit was not cleared for admission in evidence. Hence, the admission of an uncleared exhibit was detrimental to the appellants. The case of Bakari Selemani @ Binyo vs. Republic (Criminal Appeal No. 12 of 2019) [2021] TZCA 100 was cited to bolster the point. Respecting the 9th ground of appeal, the appellants argued that the trial court failed to consider the defence martialled by the appellants. The appellant opined that the alleged omission is fatal as it renders the whole proceedings nullity. 10 In substantiating the 10th ground of appeal, the appellants asserted that the prosecution case was not proved beyond reasonable doubt to justify their conviction on the charged offence. That the prosecution had two legal obligations to discharge in this case; one, to prove that the offence was committed; two, that it was the appellant herein who committed it [Maliki George Ngendakumana vs. Republic, Criminal Appeal No. 353 of 2014, CA (unreported)]. The appellants opined that the prosecution (respondent) in this case failed to discharge its legal burden on this case. The appellants advanced the following grounds to validate their assertion: First, there was material discrepancy in the evidence adduced by the prosecution witnesses in this case, specifically, PW1 and PW5 which go to the root of the case. That PW1 deponed that upon laboratory analysis on the samples marked A, B, C, D, E and G b brought to his attention, all samples save those marked F and J, were found to be narcotic drugs namely, heroin hydrochloride. To the contrary, PW5 deponed that having remitted the exhibits to PW1 for laboratory analysis, PW1 conducted the preliminary test on the samples brought to his attention and informed PW5 that the test results confirmed that the suspicious items were cannabis sativa. The appellants reiterated that the discrepancy alleged herein is material to the case and irreconcilable 11 [Dickson Elia Nsamba Shapwata and Another vs. Republic, Criminal Appeal No. 92 of 1997, CA (unreported)]. Secondly, the chain of custody was irreparably broken. Thirdly, as aforementioned, the search was illegally conducted. Fourthly, PW8, the purported independent witness in this case deponed that during the search conducted in the residence of the appellant, only a money, spoon and a piece of tile were discovered. Hence, her evidence doesn’t tally with the testimonies of PW2 and PW7, the law enforcement agents who conducted the impugned search. Fifthly, PW2 conceded that he searched the residence of the appellants herein during the hours of darkness between 20:00hrs to 22:00hrs whereas no explanation was given as to why search and seizure was conducted during the hours of darkness. That the alleged search was conducted beyond the prescribed time. The case of Shaban Said Kindamba vs Republic, Criminal Appeal No. 390 of 2019, CA (unreported) was cited to validate the point. Hence, it is alleged that taking into consideration that PW8 didn’t witness the discovery of the alleged incriminating exhibits, the possibility of the law enforcement officers planting the incriminating substance in the appellant’s residence cannot be ruled out. 12 Based on the above grounds, the appellants insisted that the case was not proved to the standard required in criminal cases. In arguing the 11th ground of appeal, the appellants submitted that the search did not follow the procedure provided under sections 26 and 43 (3) of the Criminal Procedure Act and section 48 (2) (c) (iv) of the Drugs Control and Enforcement Act applicable when the search is conducted on the body of a woman and search conducted in the house of a woman. Lastly, pertaining to the 12th ground of appeal the 2nd appellant argued that they were convicted based on items seized in his house (exhibit P.5) while he was absent. That PW7 did not tender the 1st appellant’s caution statement to prove that he admitted ownership of the seized items. Based on the foregoing arguments, the appellants prayed this appeal to be allowed. In reply to the 1st ground of appeal, Mr. Veladumi argued that the memorandum of agreed facts was read over to the appellants and it was signed as it is reflected in the proceedings according to the law. Hence the 1st ground of appeal is misconceived. 13 Respecting the 2nd ground of appeal, Mr. Veladumi conceded that the sentence of 30 years imposed against the appellants was improper in the circumstances of this case because the provision of law on which the sentence was based does not impose an obligation upon the sentencing court to award the maximum sentence of 30 years. The attorney opined that the trial magistrate ought to have adhered to the dictates of the provision of section 170 of the Criminal Procedure Act in imposing a lesser sentence. Responding to the 3rd ground of appeal, the attorney argued that the failure to call one David Elias, the Director in the office of the Chief Government Chemist and one ACP Salim Shirima, the Commissioner of the DCEA was not fatal to the case as the testimonies of PW1 and PW2 sufficed. The attorney opined that under section 143 of the Evidence Act [Cap. 6 R.E. 2019] there is no particular number of witnesses required to prove a fact in issue. Submitting on the 4th ground of appeal, the attorney argued that, the search order (exhibit P7) was tendered by PW2 who was given the order to conduct the search. Hence, he was a proper witness to tender the respective evidence in terms of the provisions of section 62(1)(a) of the Evidence Act. That the search was properly conducted by PW2 in the presence of the first appellant and PW8 who had signed the certificate of seizure. The case of 14 Jumanne Mpini Kumbilombilo and Another vs. Republic (Criminal Appeal 195 of 2020) [2010] TZCA 303 was cited to bring the point home. Respecting the 5th ground of appeal, Mr. Veladumi contended that based on the evidence of PW1, PW2, PW3 and PW5, the chain of custody was established. The attorney expounded that on 31/3/2023, after the arrest of the 1st appellant and seizure of exhibits, the exhibits were handed over to PW3, the exhibit keeper. And, on 5/04/2023, PW3 handed the exhibit to PW5 who remitted them to PW1, the government chemist for laboratory examination. Having accomplished the laboratory analysis of the exhibits, PW1 returned the exhibits to PW5 on the same date who had taken custody of the same until 18/04/2024 when the exhibits were tendered by PW2. Further, the attorney contended that there is ample oral evidence showing that the seizure of custody, control, transfer, analysis and disposition of the pellets on the trial court was not interrupted at any stage. Hence, the chain of custody was not broken. With respect to the 6th and 7th ground of appeal argued jointly, the attorney argued that the provisions of section 231 (1) of the Criminal Procedure Act enjoin the magistrate with power, at the end of the prosecution case, to 15 enter a ruling on whether the prosecution has established its case sufficiently to require the accused to make his defence. That in this case, the trial magistrate, having gone through the evidence adduced by the prosecution, found that the prosecution established a prima facie case against the appellants. Likewise, the attorney submitted that the record speaks volumes in that the appellants were addressed in terms of the provisions of section 231 (2) of the Act. Hence, the trial court complied with the law to the letter. Regarding the 8th ground of appeal, the attorney conceded that the sample receipt notification (exhibit P3) was admitted without being cleared irrespective of the objection advanced by the defence. The counsel prayed the impugned documentary evidence to be expunged from the records. Concerning the 9th ground of appeal, the attorney contended that the trial Court considered the defence and evaluated the same before reaching her conclusion as depicted by the record of the trial court. The counsel opined that the respective ground of appeal was misconceived. Submitting on the 10th ground of appeal, the attorney conceded that PW5 deponed that some exhibits (marked F and J) had elements of cannabis sativa contrary to the testimonies adduced by PW1 and PW7. However, the 16 attorney opined that the discrepancy between the evidence adduced by PW1 and PW5 did not go to the root of the case. He prayed this court to consider the evidence adduced by PW1 the expert who analysed the relevant samples brought to his attention and found to be narcotic drugs namely, heroin hydrochloride. The case of Anna Jamaniste Mboya vs Republic (Criminal Appeal No. 295 of 2018) [2021] TZCA 601 was cited to buttress the point. Responding to the 11th ground of appeal, the counsel argued that in this case, the search in question involved a premise, the house under the possession of the appellants, not in the body of the woman/1st appellant. Hence, the allegation that the law enforcement agents treated the 1st appellant indecently, is unfounded. Lastly, respecting the 12th ground of appeal, the respondent’s attorney contended the 2nd appellant was convicted based on the narcotic drugs (exhibit P5) discovered in his residence. And the fact that the 2nd appellant admitted the commission of the offence to PW7 during the interrogation confirms his guilty mind. 17 Hence, the attorney concluded that the case was proved beyond reasonable doubt. He prayed this court to dismiss this appeal for being devoid of merit and uphold the conviction and sentence entered by the trial court. In rejoinder, the appellants reiterated their submission in chief which I find needless to recapitulate herein. Having navigated the grounds of appeal preferred by the appellants and submissions made by both parties thereon, I opt to delve into the 10th ground of appeal which in substance comprises significant complaints made by the appellants. In substance, the appellants alleged that the prosecution had two legal obligations in this case; to prove that the offence was committed; and that it was no other than the appellant herein who committed the offence [Maliki George Ngendakumana vs. Republic (supra)]. The appellants asserted that the prosecution failed to discharge its legal burden on this case on the following grounds: One, there are material discrepancies in the evidence adduced by the kye prosecution witnesses (PW1 and PW5) which go to the root of the case. Two, the chain of custody was irreparably broken. Three, the search was illegally conducted. Four, the evidence of PW8 (Ten-Cells 18 leader doesn’t tally with the testimonies of PW2 and PW7, the law enforcement agents who conducted the impugned search. Five, PW2 conceded that he searched the residence of the appellants herein during the hours of darkness contrary to the law. I will respond to the above allegations sequentially commencing with the first charge that the prosecution in the trial court was tainted with material discrepancies. The mainstay of this charge is that PW1 deponed that based on the result of the laboratory analysis he conducted on the samples marked A, B, C, D, E and G brought to his attention, all samples save those marked F and J, were proved to be narcotic drugs namely, heroin hydrochloride. Contrarywise, PW5 deponed that having remitted the exhibits to PW1 for laboratory analysis, PW1 conducted the preliminary test on the samples brought to his attention and informed him that the test results confirmed that the suspicious substances were cannabis sativa. It is settled law that not every inconsistency and, or contradiction will cause the prosecution’s case to flop unless it is material to the case. See the cases; Silas Sendaiyebuye Msagabago vs. The D.P.P. (Criminal Appeal 184 of 2017) [2019] TZCA 402; and Said Ally Ismail vs. 19 Republic (Criminal Appeal 241 of 2008) [2009] TZCA 130. In the same vein, case of Dickson Elia Msamba vs Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 at pages 7 and 8 the court instructed thus: “…In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root of the matter.…………” Suffice it to say that witness in the case is not expected to recollect and be accurate in every single detail of the case given to human nature especially where testimony is given after a considerable period has elapsed. As human beings, we are inherently fallible. Hence, it is upon the trial court to reconcile the inconsistencies arising in the case unless given the circumstances of the case, the observed inconsistencies are irreconcilable [Dickson Elia Nsamba Shapwata and Another vs. Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17]. Admittedly, PW5 purported to report what was orally communicated by PW1 after PW1 had made preliminary tests on the exhibits. However, it cannot be ascertained that what was reproduced by PW5 in court is what was exactly 20 communicated by PW1. The test results respecting the items brought to the attention of PW1 were officially communicated in the report and admitted in evidence as exhibit P1. Moreso, PW1 deponed in so many words that the findings obtained after taking laboratory tests on the sample brought to his attention depicted that the respective suspicious powdery substances comprising samples marked with letters A, B, C, D, E and G were narcotic drugs namely, heroin hydrochloride; save samples marked F and J which were proved to be normal flour. Hence, I find that the alleged discrepancy on the part of PW5 arose out of forgetfulness respecting the information he was not necessarily required to recollect taking into consideration that he was merely a go-between. Regarding the 2nd charge in that the chain of custody in this case was irreparably broken, I hastily subscribe to the assertion made by Mr Veladumi, the respondent’s attorney, that this charge was misconceived. It is apparent that the charge herein was not premised on the ground that there was a break of the paper trail of the incriminating exhibits but on the allegation of inconsistencies in the testimonies of PW1 and PW5 respecting the type of narcotic drugs allegedly found in the residence of the appellants of which I 21 have addressed above. Suffice it to say that the charge herein was misplaced. Pertaining to the third complaint, I likewise opine that the complaint herein is misplaced. The reason given to justify the allegation is that the search warrant was issued by one Arestas Lyimo, the Commissioner General of DCEA who was not called to testify in court to such effect. This omission, to the opinion of the appellants, renders the search warrant illegal in law. As rightly opined by Mr. Veladumi, the omission to procure the respective Commissioner to testify in court did no harm to the case as the testimony of PW2 in that he was issued with the relevant document by his superior sufficed in the circumstances of this case. I would dismiss this charge. Now, I proceed to canvass the fourth and pertinent charge herein alleging that the testimony of the independent witness (PW8) doesn’t tally with the incriminating evidence adduced by PW2 and PW7, the key witnesses in this case. Mr. Veladumi, didn’t respond to this charge. Undeniably, the only independent witness in this case who witnessed the search conducted in the residence of the appellants herein is the Ten-Cell Leader (PW8) of the street where the appellant resided. Arguably, this 22 witness would have cleared the doubt as to the discovery of the alleged narcotic drugs (heroin hydrochloride) in the appellants' residence. However, this independent witness, in so many words, denied to have witnessed the discovery of any incriminating suspicious powder suspected to be narcotic drugs in the appellants' house. This relevant witness consistently stated that she witnessed the law enforcement officers (PW2 and PW7) discovering three suspicious items namely, money, teaspoon and a piece of tile. The record of the trial court depicts that the prosecutor did no attempt to solicit further explanation from the respective witness neither raised concern that the same turned hostile. Thus, I am constrained to subscribe to the assertion made by the appellants herein that there is no independent evidence augmenting the testimonies of the law enforcement agents in that the incriminating exhibits remitted to PW1 for laboratory analysis emanated from the appellants' residence. Lastly, I proceed to attend to yet another pertinent complaint raised by the appellants in that the purported search was conducted during the hours of darkness contrary to the law. Admittedly, this complaint taxed my mind to a great extent. To my dismay, the respondent’s attorney didn’t respond to this complaint as well. 23 It is an uncontroverted fact that PW1 and PW7 in so many words, enlightened the trial court that the appellants’ residence was searched from around 20: 00 hrs to 22; 00hrs; the fact confirmed by PW8 who had also told the trial court that the search in question might have been concluded around 23; 00 hrs or 00: 00hrs. Moreso, it is in the testimony of PW1 that he assigned a duty to search the appellants' residence around 17:00 hrs. However, it was not until 20 hours that they left the office to execute the assigned duty. The provision of section 40 of the Criminal Procedure Act in no uncertain terms provides as hereunder: “ A search warrant may be issued and executed on any day, including Sunday, and may be executed between the hours of sunrise and sunset but the court may, upon application by a police officer or other person to whom it is addressed, permit him to execute it at any hour.” The above provision was revisited in the case of Shabana Said Kindamba vs. Republic, (supra) wherein the Apex court expounded: “…….it must be pointed out that, under section 40 of the CPA search may executed between the hours of sunrise and sunset except with leave of the court, this is the same as what is provided under regulation 2 (b) of the PGO 226. Therefore, it 24 beat as why this search not being an emergency was conducted at night and without permission of the court, this aspect compounds the illegality of the search in this case.” Therefore, in terms of the provision of section 40 of the relevant Act, unless it is an emergency search, the search warrant may be issued and executed during the daytime. Otherwise, the law enforcement officer is obliged to seek and obtain leave from the court to execute a search at any hour. I have painstakingly gone through the testimonies of the law enforcement agents (PW1 and PW7) to find the justification for searching the appellant’s residence during the hours of darkness, possibly on the excuse of emergency; however, my labour was barren of fruit. And, the record entails that, despite cross-examination made against the respective witnesses soliciting an explanation why the impugned search was made at night, the respective witnesses refrained from giving explanation as to why they preferred to search the appellants’ residence during the hours of darkness. Worst of all, PW2 asserted that they have the authority to execute search at any time. Therefore, I find no iota justification to apprehend that the search and seizure in question was prompted by emergency. The non-compliance with the law in executing the search in 25 question invalidates the credibility of the respective search and seizure (exhibits P6 and P.7). Consequently, the prosecution case flops. See the cases; Director of Public Prosecutions vs. Doreen Mlemba, Criminal Appeal No. 694 of 2020, CA (unreported); and Ayoub Mfaume Kiboko and Another vs. Republic, Criminal Appeal No. 359 of 2019, CA (unreported). her Now, considering the fact that the testimony of the independent witness (PW8) is at variance with the testimonies of the law enforcement officers (PW2 and PW7) respecting the items discovered in the appellants' residence during the search; coupled with the fact that the search in question was conducted beyond the prescribed period of the day, sane doubt engulfs the prosecution case in the lower court. It is common ground that doubts in the prosecution case should be resolved to the benefit of the accused person. As the 10th ground of appeal disposes of the appeal herein, I find it needless to further delve into the remaining grounds of appeal preferred by the appellants. 26 In summary therefore, for reasons given, I find the appeal herein meritorious. The appeal is hereby allowed. The conviction and sentence entered by the trial court are hereby quashed and set aside. The appellants are to be released from prison unless they are otherwise lawfully held. So ordered. DATED at DAR ES SALAAM this 24th March, 2025. O. F. BWEGOGE JUDGE 27