james mangenya vs republic 2008 tzhc 137 6 june 2008

IN THE HIGH COURT OF TANZANIA AT TANGA (DC) CRIMINAL APPEAL NO.34 OF 2006 (Originating from Cr. Case No.865 o f205 of Muheza D/Court) JAMES MANG'ENYA............................................ APPLICANT VERSUS THE REPUBLIC......................................................RESPONDENT 21/4/08 & 06/06/08 JUDGEMENT Shayo, J. On 21st April, 2008, I allowed the appeal, quashed the conviction of the appellant and set aside the sentence. I further ordered that he be released from custody forthwith unless otherwise lawfully held. I, however, reserved my reasons for doing so, and the same are contained in this judgement. The appellant, namely, James Mang'enya was charged in the District Court of Muheza with being in unlawful possession of narcotic drugs c/s 12(c) and 6(1) and 19(b) of the Drugs Prevention. Illicit Traffic in Drugs Act No.9 of 1995. He was convicted and sentenced to a fine of Tshs.l50,000/= or to serve 7 years imprisonment in default of fine. It would appear he was not able to pay the fine so he is now serving 7 years prison term. Aggrieved with both his conviction and sentence, he now appeals in this court. The facts of the case are not very difficult. On 17th August, 2005 at 2.00pm., the appellant was taken to Muheza Police station for uttering abusive words to another'person. PW.l CpI. .MwanaRombo had earlier ordered PW.4 PC.' Ismail to arrest the appellant and he did so. At the police station, the appellant was searched by PW.4 in the presence of PW.2 Magogo Buge, PW.3 John Gabriel and PW.l. He was found with a stick of bhang which the appellant admitted was for his personal use. PW.4 recorded a cautioned statement of the appellant in which he confessed that the stick of bhang found with him was his. The appellant was finally charged. In his defence, the appellant denied the charge. He claimed that he was arrested on allegations that he had threatened a magistrate. On the way to police station; he was told to have been found with bhang. That at the police station, he was searched and the police took some bhang from his pocket. In his memo of appeal, the appellant is challenging the trial court's decision in that there was no strong and sufficient evidence that he was found with bhang in the absence of an indepth explanation to affirm that the stick found with him was real bhang. Mr. Oswald, learned State Attorney, who advocated for the Republic/respondent declined to support the conviction of the appellant. Conceding to the appellant's grounds of appeal, he argued that PW.l and PW.4 testified that when they searched the appellant, they found him with a stick they suspected was bang. Citing the case of Rep. vs Damian Paulo (1970) HCD N0.39, the learned State Attorney posed that courts have always insisted that identification of a substance on liquid prohibited by law must be explained by an expert in the substance. He went on to argue that in this case, Pw.4 did not explain their expertise or qualification in identifying bhang. In his view there was no sufficient explanation indicating that the stick found with the appellant was bhang. Mr. Oswald, learned state Attorney, (further argued that there was no evidence that there was formal admission by the appellant that the stick found with him was real bhang. He posed that the trial magistrate in his judgement referred to a cautioned statement of the appellant which apparently was not tendered as exhibit. . It is his strong view that, that cautioned statement was not properly tendered in court and admitted'in evidence. For that reason, the learned state attorney is of the view that there was no sufficient evidence that the appellant 2 , was found with bhang as he was so charged. They were therefore in support of the appellant's appeal. Commenting on the wrong citation of the provisions of the law under which the appellant was charged, the learned state attorney said that sec. 12(c) of Act 9/95 had already been repealed at the time the offence was allegedly committed. That sec. 6(1) and 19 (b) of Act 9/95 indicated were contravened were wrongly cited as they don't relate to the charged offence. He argued that the law applicable at the time the incident occurred was The Drugs and Prevention of Illicit Traffic in Drugs Act Cap. 95 R.E 2002 which came into force on 1/9/2004 vide GN. No. 3/2/2004 of 3/9/2004. He went on to argue that the provisions of the law that were supposed to have been “cited as contravened, are these contained in cap.95. Mr. Oswald referred to the case of Magesa s/o Mjunga vs Rep. (1986) TLR. 10 for the preposition that where the charge and conviction are based on a repealed law, the error can be cured if the repealed section is reenacted in identical words. In our present case, he said, section 12(c) under which the appellant was charged and convicted was reenacted in Cap. 95 R. E. 2002. The learned state attorney thus maintained that being the case, the error is curable as it did not prejudice or occasion any injustice to the appellant. On the evidence, there is no doubt whatsoever that the trial magistrate believed the evidence of Pw.l, PW.2, PW.3 and PW.4 that when the appellant was searched at the police station he was found with a stick of bhang. He was also satisfied that the appellant had admitted in his cautioned statement that the stick of bhang found with him was for his personal use. On the basis of that the trial court found the prosecution evidence cogent and sufficient to prove the charge against the appellant beyond reasonable doubt hence his conviction. The question for determination was whether the available prosecution evidence was sufficient to show or confirm that the stick was real bhang. Apparently, none of the prosecution witness, particularly, PW.l and Pw.4 all police officers, was able to explain his qualification, expertise or experience in 3 identifying or ascertaining the stick to be real bhang. In the case of Damiano (supra) the appellants were convicted of unlawful possession of moshi. The only evidence as to the nature of the pombe was that of two police officer that they recognized the pombe by its smell. The prosecution witness did not describe themselves as experts in the detection of moshi or indicate in what manner they came to be certain what kind or pombe it was. The court held that it has frequently pointed out the necessity of establishing the qualification on experience of witness who testifies the nature of substance or liquids alleged to be prohibited. Further that in absence of any indication that the police officers were qualified or experienced, their description of the pombe as moshi because of its smell, is insufficient to establish the guilt of the appellant beyond reasonable doubt. In an analogues case of Salum Haruna (1968) HCD 37 , the accused was convicted of possession of bhang. The only substancial evidence was that of a police officer who testified that" I found one police of cigarette of bhang. I know bhang". In was held that it would be most unsafe to base a conviction on the bald evidence of a police constable that he knows bhang without any inquiry as to how he acquired his knowledge. In our instant case as amply demonstrated herein above, the substance of the prosecution witness was only to the effect that the appellant was searched and found with a stick of bhang. None of them could explain as to how he knew that to be bhang or his qualification or experience in identifying bhang. However, the trial magistrate also relied on the alleged cautioned statement of the appellant in which he said that the appellant had admitted to have been found with a stick of bhang which was for his personal use. But, with respect, that cautioned statement was never produced and admitted in evidence as exhibit. The record of proceedings is totally silent on that. One actually wonders from where did the trial magistrate invent the notion of cautioned statement in his judgment when he said at pg. 2:- "Pw.4 tendered cautioned statement of the accused who admitted to have been found 4 with the bhang". Going by the record of proceedings, Pw.4 testified in court on 22/9/2005. He never mentioned the issue of the cautioned statement of the appellant nor did he tendered it as part of the evidence. What Pw.4 - Pc Ismail tender in court as exhibit was a stick of bhang which was admitted as exhibit PI, that is all. The evidence adduced by the prosecution witnesses before the trial court was, in the circumstances of this case not cogent and sufficient to prove the guilt of the appellant beyond reasonable doubt. The trial court's conviction of the appellant was therefore faulty and as such cannot be left to stand. It is for the foregoing reasons that I allowed the appeal, quashed the appellants conviction and set aside the sentence. I further ordered that the appellant be released from custody forthwith unless lawfully held. Before I pen down, let me remark that the appellant was charged under wrong sections of the law. The offence of being in unlawful possession of narcotic drugs is provided under sectionl7(l) (a) of the Drugs and Prevention of Illicit Traffic in Drugs Act Cap.95 R. E. 2002. The cited section 12(c), 6(1) and 19(b) of Act 9/95 are not at all related to the offence charged. The whole of section 12 of that Act 9/95 which was repealed and re-enacted in Cap.95 R.E.2002 deals with prohibition of cultivation of certain plants and substances. Section 6 (1) of Act 9/95 which is now section 6 Cap.95 deals with Reports of the Commission to be laid before the Parliament. Section 19(b) of Act 9/95 which is now section 19 Cap.95 R.E. 2002 deals with Penalty for embezzlement by authorized cultivators. There is no doubt that wrong citation of sections of the law are serious defects which, however, did not in my view occasion any failure of justice because, the appellant fully understood the substance of the charge and essence of the charge against him. The^defects are therefore curable under section 388 of the Criminal Procedure Act. Cap. 20 R.E. 2002. This position, with respect, is different from the learned state Attorney's stance that section 12 (c ) of Act 9/95 was repealed and re-enacted in identical words in Cap. 95 R. E. 2002, so 5 the error in a charge and conviction based on repealed law is curable as was! held in Magesa's case (supra).. Be that as it may, this remark is obiter dictum in view of the fact that the appellant's conviction as amply demonstrated hereinabove, was not legally tenable in law._ A . A . M l / S ^ A Y O , J. 25/5/2008 6/6/2008 For Appellant:- Absent. "Rep./Respondent:- Ms. Msofe - S/A. 6