Judgement Criminal Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 19354 OF 2023 (C/F Criminal Case No. 15 of 2023 in the District Court of Moshi at Moshi) IDDY OMARY IDDY@ BABAA.............................................. APPELLANT VERSUS REPUBLIC....………………………………………………….… RESPONDENT JUDGEMENT 23rd September and 21st October 2024 MONGELLA, J. The appellant was arraigned in the District Court of Moshi at Moshi (henceforth, the trial court) for trafficking in narcotic drugs contrary to Section 15A (1) of the Drug Control and Enforcement Act [Cap 95 R.E 2022]. The particulars of the offence were to the effect that: on 03.01.2023 at Pasua Matindigani area within Moshi district in Kilimanjaro region, the appellant was found trafficking 114.0 grams of narcotic drugs commonly known as “bhangi”. He denied the charge levelled against him. To prove the case against him, the prosecution paraded 4 witnesses and tendered Page 1 of 9 seven (7) exhibits, which were all admitted. The Prosecution’s account was as follows: On the material day of 03.01.2023, three police officers were patrolling around Mitindigani area in Moshi district, Kilimanjaro region. One of the Police officers, G. 8674 CPL Hamisi (PW4) saw the appellant who he alleged to have evaded them. Suspicious of him, PW4 apprehended him and together with CPL Bashiri and G. 4309 CPL Salim (PW1), they searched him. In that course, the appellant was found in possession of a wallet hanging in the locks of his trouser. The wallet carried 39 rolls of what they suspected to be narcotic drugs to wit, cannabis sativa, commonly referred to as “Bhangi”. A seizure certificate was filled and the appellant was taken to Central Police station together with the seized substance. At the Central Police station, PW4 handed E.447 CPL Ibagi (PW2) the 39 rolls of what was suspected to be “bhangi” and the wallet the “bhangi” was found in. On the same day, G. 342 CPL Benson (PW3) interrogated the appellant who he alleged to have admitted being found in possession of narcotic drugs. On 09.01.2023, PW3 took the samples from PW2 and submitted the same to the Government Chemist Office in Arusha. Samples were examined and a report issued. The exhibit was then returned to the police exhibit room. On 10.01.2023, the exhibits were allegedly destroyed owing an order by the primary court of Moshi district at Moshi urban. Eventually, the appellant was arraigned. The copy of exhibit register reflecting the movement of the exhibit, sample Page 2 of 9 receipt notification by the government chemist office, form to hand the exhibit to government chemist (DCEA 001), list of exhibits (DCEA 006), government chemist report, seizure certificate and handing over form between PW4 and PW2 were all admitted as exhibits and marked P1, P2, P3, P4, P5, P6 and P7 in the presented order. The trial court found a prima facie case established against the appellant and invited him to enter his defence. His defence was brief whereby he alleged the case was fabricated against him. He said that he is a bodaboda (motorcycle) driver and police officers raided the place he and his colleagues parked their motorcycles. That, while the rest of his friends ran away, he was caught and the narcotic drugs planted on him. The trial court found the case against the appellant proved beyond reasonable doubt. He was convicted and sentenced to serve 30 years in prison. Aggrieved, he has preferred this appeal on the following grounds: 1. The learned trial magistrate erred in law and factual analysis when he failed to note that the alleged narcotic drugs were not proved to be narcotic drugs as the alleged government chemist who made analysis never came to testify to prove the same and the chemist report (Exh. P5) was tendered by a witness who did not prepare it, thus incompetent to testify about it and being examined on its contents (sic). Page 3 of 9 2. The learned trial magistrate erred in law and factual analysis when he failed to note that there was no proof of the chain of custody of the items seized from where they were found up to the point when they were tendered in court as exhibits. 3. The learned trial magistrate erred in law and factual analysis when he failed to note that essential prosecution witnesses were never summoned to testify. 4. The learned trial Magistrate erred in law and factual analysis when he failed to note that prosecution documentary exhibit P5 (the Government Chemist report) was not read out to the appellant to enable him to know the contents therein. 5. The learned trial Magistrate erred in law and factual analysis when he relied on weak, inconsistent and uncorroborated prosecution evidence. 6. The learned trial Magistrate erred in law and factual analysis when he failed to note that the charge against the appellant was not proved beyond any reasonable doubt. 7. The learned trial Magistrate erred in law and factual analysis when he failed to consider the defence evidence of the appellant at all. Page 4 of 9 When the matter came for hearing, the appellant prayed for his grounds of appeal to be adopted as his submission in chief. Ms. Jesca Kamhabwa, learned State Attorney, who represented the respondent, supported the appeal and saw no need of making any submission. However, I instructed that she submits in respect of her support to the appeal. To that effect, she filed a written submission. In her submission, Ms. Kamhabwa reiterated her stance in supporting the appeal. Substantiating her point, she argued that the case was not proved beyond reasonable doubt by the prosecution. Specifically, she attacked Exhibit P5, the Government Chemist Report, for not being read out after being admitted as evidence by the trial court. She explained that after PW3 had tendered the document and the same being admitted, the witness did not read it before the trial court. in addition, she conceded to the appellant’s claim that the Government Chemist was not called to testify as to the seized items indeed being narcotic drugs known as “bhangi”. Addressing the consequences of failure to read the documentary exhibit after being cleared for admission, the learned State Attorney argued that the omission was a fatal irregularity warranting the exhibit to be expunged from the record. She contended that if the exhibit is expunged, the remaining evidence by PW2 is insufficient to prove that the seized items were narcotic drugs. To cement her averments, she cited the case of Lack s/o Kilingani vs. Republic (Criminal Appeal No. 402 of 2015) [2016] TZCA 688 (29 July 2016) and that of Robinson Mwanjisi and Three Others Page 5 of 9 vs. Republic [2003] T.L.R 218 at page 226, in which the Court of Appeal laid down procedures to be observed in admitting exhibits. I have observed the grounds of appeal and the submission by Ms. Kamhabwa. It appears that her submission only touched the 4th and 5th grounds of appeal. In my view, the 4th ground stands as the core ground on which the other grounds relate to. Under this ground, it is alleged that upon admission, the government chemist report was never read out before the trial court. Upon observing the trial court record, I find the assertion substantiated. Indeed, upon admission of the Government Chemist report as Exhibit P5, the same was never read out. It is well settled that upon admission of a documentary evidence, the same must be read out in court. This position has been emphasized by the Court of Appeal in its plethora authorities including, Jumanne Mondelo vs. Republic (Criminal Appeal 10 of 2018) [2020] TZCA 1798 (6 October 2020) TANZLII, whereby it was stated: It is now settled law that once a document has been cleared for admission and admitted in evidence, it must be read out in court. Failure to do so occasioned a serious error amounting to miscarriage of justice See also; Joseph Mganga Mlezi & Another vs. Republic (Criminal Appeal 536 of 2015) [2019] TZCA 361 (4 November 2019) TANZLII; Geophrey Jonathan @ Kitomari vs. Republic (Criminal Appeal No. Page 6 of 9 237 of 2017) [2021] TZCA 17 (16 February 2021) TANZLII and; Lack s/o Kilingani vs Republic (supra); Robinson Mwanjisi and Three Others vs. Republic (supra). The essence of reading admitted documents is to accord the accused person the opportunity to better understand the case against him so that he could rightfully enter his defence. Thus, the omission to read out the documentary evidence after its admission is a fatal irregularity whose effect is for the exhibit to be expunged. This position was well stated by Court of Appeal in the case of William Maganga @ Charles vs. Republic (Criminal Appeal No. 104 of 2020) [2023] TZCA 17742 (6 October 2023) TANZLII to the effect that: “Reading all documentary exhibits to a person against whom they are sought to be relied upon, gives that person an ample opportunity to defend the case while acquainted with the full content of the entire prosecution case. This is an important part of the doctrine of fair trial. The Court, in discussing the repercussions of the omission, further stated: “According to law and to this Court's decision in Robinson Mwanjisi and Three Others v. R, [2003] T.L.R. 218 and many other decisions, the appropriate remedy to impose where a document is not read after its admission in evidence, is to discard or expunge it from the Page 7 of 9 record, thereby rendering it evidentially worthless.” In the foregoing observation, I hereby expunge Exhibit P5 from the trial court record. Having expunged the same the question is whether the surviving evidence would suffice to prove the facts that the expunged exhibit contained. No doubt, the appellant was charged with trafficking narcotic drugs to wit; “bhangi”. The offence can only stand if the trafficked item is proved to be narcotic drugs identified as “Bhangi”. The only party with such capacity to identify the substance as “bhangi” was the Government Chemist who was alleged to have actually received the suspected substance for chemical identification. However, the said Chemist never appeared in court to testify. PW3 who was only responsible for taking the substance to the Government Chemist for identification, did not testify any details on the substance being narcotic. He only tendered the report. In the premises, and considering that the report has been expunged, I find there standing no proof that the seized 39 rolls were actually narcotic drugs known as “bhangi”. Had the Government Chemist been called to testify, perhaps there would have been oral evidence to prove the substance seized was “bhangi” as alleged in the charge. Without proof of the seized substance to be “bhangi” as alleged, the most vital part of the offence fails. The prosecution thus clearly Page 8 of 9 failed to prove the charge as reasonable doubts persist on the substance seized being “bhangi”. In foregoing observations, I hereby quash the conviction and sentence entered against the appellant by the trial court. I order he be immediately released from prison custody, unless held for some other lawful cause. Dated and delivered at Moshi on this 21st day of October, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 9 of 9