JAMAL MUSA SWAIBU V R judgement

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA CRIMINAL APPEAL NO. 25279 OF 2024 (Arising from Criminal Case No. 38851 of 2023 of Missenyi District court at Missenyi) JAMAL MUSSA@SWAIBU…………….…….…………...……..……..APPELLANT VERSUS THE REPUBLIC ……………………..………………………..…………RESPONDENT JUDGMENT 18th & 21st March, 2025 ITEMBA, J. The appellant was arraigned before Misenyi District court with an offence of unlawful possession of Narcotic Drugs contrary to section 15A (1) (2) (c) of the Drug Control and Enforcement Act, Cap 95 R.E 2019. It was alleged that on 20th day of September 2023, at Kyaka village within Misenyi District in Kagera, the appellant was found in unlawful possession of 3.78 kilograms of narcotic drugs to wit Khat commonly know as, Mirungi. At the trial, the prosecution paraded, four witnesses, namely, E5518 D/SGT Rous (PW10), Ezekia Jovin Zimbeiya, (PW2), Jazira Mzawadu Swaibu, (PW3), and H3664 D/CPL Edward (PW4). They also had six exhibits, namely, Certificate of Seizure (Exhibit P1), report from 1 the Government Weight and Measurement Agency report (Exhibit P2) inventory form (Exhibit P3), Government Chemist Report, (Exhibit P4), a ‘sample’ (Exhibit P5), The Chain Of Custody Documentation which was admitted as (exhibit P6). In brief, at the trial court the prosecution case was that on the incident's day, the appellant was found in, a passenger bus, with a bag of narcotic drugs, which he had put under his legs. His arrest was following an inspection, which was done by PW1, and he was found with 60 pieces of ‘gomba’ in his bag. The alleged drugs were seized, and a certificate of seizure was filled, Exhibit P1, by PW1. Another person who witnessed the search and seizure was PW2 a passenger Jezira Mzawadu, PW3, who is the bus agent. PW3 explained that the appellant was found with dry leaves in his bag, and he had carried the bag with his hands, and at the bottom there was a small bag wrapped with banana leaves, which had the said “mirungi” and that the appellant admitted that the bag belonged to him. The last witness was a police officer, D/CPL Edward, who testified as PW4, and he stated that he received the sample of green leaves. On the same day, he took the said samples to measure its weight, and it was 3.78 kg. And then he sent the said sample to the Magistrate of Kasambya Primary Court for 2 destruction order. He also gave the sample to DC Willbert for examination, who handed it to the government chemist, that the test results were positive that the leaves were narcotic drugs, namely “mirungi”. He produced the report from the Government Weight and Measurement Agency as Exhibit P2. He also produced the inventory form from Kasambya Primary Court as Exhibit P3. Pw4 also produced a Government Chemist Report, (Exhibit P4), and lastly, he produced the “sample” which was admitted as exhibit-P5. The Chain of Custody Documentation which was admitted as (exhibit P6). The appellant defended himself very briefly by totally denying to be involved in carrying of the narcotic drugs. In cross-examination he admitted to have been arrested and taken to the police station and to the weight and measurement agency. Based on this evidence, the trial court convicted the appellant as charged and sentenced to him of 30 years of imprisonment. The appellant, was not amused with the decision of the District Court and after being granted with an extension of time to file notice of 3 appeal, he preferred this appeal which had four grounds as reproduced here in under: 1. The trial magistrate erred in both law and fact to convict the appellant by relying on contradictory and unsatisfactory evidence of the prosecution evidence. 2. The trial court erred in law and fact to convict and sentence the appellant basing on improper identification of the said grasses known as Narcotic drugs. 3. The trial magistrate misdirected himself when deprived the appellant’s right to give defense evidence which led to miscarriage of justice. 4. The case against the appellant was not proved to the required law standard in criminal cases. During hearing of this appeal, the appellant was unrepresented, the respondent was represented by Ms. Matilda Assey learned State Attorney. The appellant informed the court that, he is illiterate but he can explain the grounds of appeal. That, he did not posses the narcotic drugs and that no witness appeared to testify. The appellant acknowledged his arrest in the Kyaka area for possession of alleged 4 drugs. He argued that there were contradictions in the prosecution's evidence and claimed the case was fabricated against him. He noted that the government chemist did not testify, and he was not given an opportunity to defend himself. He concluded by stating that the drugs purportedly involved were not presented in court; instead, it was claimed that they had been taken to a Primary Court for destruction. With these points, he requested that the court grant his appeal and release him. In reply, the learned state attorney expressed her support for the appeal, citing the case not being proved beyond a reasonable doubt against the appellant. She pointed out that PW4 presented a government chemist’ report which was read and admitted but failed to inform the appellant of his right to cross-examine under section 18 (3) of the Government Chemist Laboratory Authority Act. Consequently, she argued that it was necessary for the chemist to appear in court to clarify details regarding this report. Furthermore, she highlighted issues with maintaining a proper chain of custody concerning the alleged exhibit. That PW1 claimed to have seized 60 packets of suspected drugs but handed them over to an exhibit keeper who did not testify about their handling or transfer of the same to the government chemist. That the evidence indicated samples 5 were sent first to Weight and Measurement Agency and then weighed the leaves before reaching the government chemist; however, crucial documentation (form number DCEA-001) was improperly filled according to section 2 regulation 18 of the Drugs Control Enforcement Act. Additionally, there was no testimony from how samples were weighed or packaged by officials involved. She explained that regulation 18 mandates for each packet be stored separately within containers during sampling procedures. Due to these significant weaknesses in evidence presentation handing of exhibit, she concluded that proof beyond reasonable doubt had not been established against the appellant and supported the appeal. When questioned further on sentencing, she initially stated it should have been considered but later affirmed her belief that the sentence remained appropriate under existing circumstances. After considering the submissions of both parties, I will now consider the grounds of appeal. Section 15A (1)(2)(c) which the appellant was charged with states that: 15A.-(1) Any person who traffics in narcotic drugs, psychotropic substances or illegally deals or diverts precursor chemicals or substances with drug related effects or substances used in the process of 6 manufacturing drugs of the quantity specified under this section, commits an offence and upon conviction shall be liable to imprisonment for a term of thirty years. (2) For purposes of this section, a person commits an offence under subsection (1) if such person traffics in- (a) n/a (b) n/a (c) cannabis or khat weighing not more than fifty kilogram. Guided by this provision, it was necessary for the appellant to be found trafficking or illegally dealing with narcotic drugs and they should not be more than 50 kilograms. For an exhibit to be relied upon by the court to convict an accused, its chain of custody from the time of its seizure to when it is tendered in Court as exhibit, has to be satisfactorily established. The rationale is to ensure the integrity of the chain of custody to eliminate the possibility of the exhibit being tampered with and to establish that, the alleged evidence is in fact related to the alleged crime in which it is being 7 tendered, rather than for instance having been planted fraudulently to make someone guilty. See: Chukwudi Denis Okechukwu And 3 Others v R Criminal Appeal No 507 Of 2015 , CAT, Dar Es Salaam and Paulo Maduka and Others Vs Republic, Criminal Appeal No. 110 of 2007. Based on the record and summarized above, the one who was to establish that the appellant was found in possession of narcotic drug was either PW1 or PW4. Records show that the offence occurred on 20th September 2023. From the testimony of PW4, he received a sample of the alleged drugs and on 21st of September he sent it to the Weight and measurement agency and it was it weighed 3.78 kilograms. On 2nd of October PW4 sent the sample for destruction at Kasambya Primary Court and on 24th of October he handed the sample to DC Wilbert for examination whether it was narcotic drugs or not. Therefore, the destruction was done on 2nd of October, then on 24th of October the sample of exhibit is alleged to have been handled to the government chemist for examination. There are several questions which arise in this handling of the said exhibit. First of all, it is not clear how PW4 received the exhibit because PW1 just stated that he left it at the exhibit room and as rightly stated by the state attorney, there is no witness from the 8 exhibit room who testified on how he handled it. Then suddenly PW4 is picking up the exhibit on 21st of September and send it to the Weights and Measurements Agency. And then it is not known from that date of 21st of September up to 2nd of October where was the exhibit. More surprisingly, on 2nd of October the exhibit was destroyed at the Kasambya primary court. But after being destroyed, PW4 states that on 24th a sample was handed to DC Wilbert for examination. If PW1 seized 60 packets did PW4 take a sample of each packet or not? In order to establish the chain of custody, these witnesses were supposed to testify on the movement of the exhibit. The exhibit keeper, DC Wilbert and the government chemist did not testify and we are not told why. These are a number of weaknesses in handling the exhibit which break the chain of custody. Therefore, at this point, there is no way we can say that it has been proved that the said exhibit was actually the one seized at the scene and whether was the narcotic drugs namely khat or ‘mirungi weighing 3.78 kg. The breaking of chain of custody raises serious doubts and it cannot be said that prosecution has proved its case to the required standard. Further on proof of contents of substance which was seized, section 18(3) of the states that: 9 ‘Where a report is used in any proceedings in a court of law other than an inquiry, the court may summon and examine the Chief Government Chemist or Government Laboratory Analyst on the veracity of the report.’ Due to the nature of the case, the prosecution was required to establish that the alleged seized leaves were actually drugs. Therefore, the Chief Government Chemist who is alleged to have tested the said leaves, was an important witness to establish that. Under section 18(3) above the court ought to have summoned the government chemist or at least to inform the appellant that he has a right to request for his summoned. This omission occasioned miscarriage of justice to the appellant. Lastly, I thought it was important to note that in the judgment, the trial magistrate did not at all consider the appellant's defence. Although it was brief, but it was crucial because he mentioned something about, he once for someone who was involved in his arrest. This was important, but it was not considered, and which also taints the trial court's decision. 10 Another issue to note is the sentence. The words used in the section 15 are, shall be liable to imprisonment for a term of 30 years. This means there's a room to sentence between 1 to 30 years. But the magistrate did not give the reason why they preferred the maximum sentence of 30 years, considering that this was the first offender. So, this sentence, as well, was excessively high. Having said that, the second and fourth grounds of appeal have merit the appeal is allowed, consequently i quash the conviction and set aside the sentence of (30) years meted against the appellant. I further order for an immediate release of the appellant from prison custody unless he is held for some other lawful cause. It is so ordered. Right of appeal fully explained to the parties. DATED at BUKOBA this 21st Day of March, 2025. L.K.J. ITEMBA JUDGE 21/03/2025 11 Judgment delivered in chamber in the presence of the appellant in person, Ms. Matilda Assey State Attorney for respondent and Ms. Florentina Vedasto, RMA. L.K.J. ITEMBA JUDGE 21/03/2025 12