CRIMINAL APPEAL NO 81 OF 2022

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MTWARA ATMTWARA CRIMINAL APPEAL NO. 81 OF 2022 (Originating from Criminal Case No. 09 of 2022 in the District Court of Lindi, at Lindi) JUMA ABDALLAH MKANYAKULE ------ — — ————— APPELLANT VERSUS THE REPUBLIC...................................................................................... RESPONDENT JUDGMENT Date of last Order: 18.08.2023 Date of Judgment: 14.12.2023 Ebrahim, J. The above named appellant was charged and convicted at the District Court of Lindi at Lindi for the offence of drug trafficking contrary to Section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act, [Cap. 95 R.E 2019] as amended by the Written Laws (Miscellaneous Amendments) (No.5) Act, 2021. It was alleged that on Page 1 of 12 02.03.2022 at the police barrier, Sido area within Lindi Municipal, Lindi Region, the Appellant was found trafficking narcotic drugs to wit; 8.7 kilograms of bhang. The appellant pleaded not guilty to the offence, hence full trial ensued. At the end the appellant was convicted and sentenced to serve 30 year's imprisonment. A brief factual background leading to the arraignment of the appellant before the trial court as gathered from the record is that on 03.03.2022, the Appellant herein boarded a bus KING YASSIN from Mtwara to Dar Es Salaam with registration no. T.549 DTQ. He was seated at seat No. 15. On reaching the area called SIDO at Lindi the bus was stopped by the police for inspection. It was when a bag believed to belong to the Appellant was found with 9 kgs of bhang. The Appellant was then arrested and charged with the offence of trafficking drugs contrary to the law. The prosecution side called five witnesses and the Appellant adduced his own evidence. At the end and after evaluation of evidence presented before him, the trial Page 2 of 12 magistrate found the Appellant guilty, convicted and sentenced him to s erve a m a n d a to ry mi n i m u m se n t enee o f t h i rty ye a rs, Aggrieved by conviction and sentence, he preferred the instant appeal advancing detailed 20 grounds of appeal which can essentially be grouped into 5 groups as follows: J. Whether the case was proved beyond reasonable doubt 2. Whether there was contradiction in identifying the colour of the bag 3. Whether chain of custody was properly established. 4. Whether or not the trial Magistrate; analyzed-the evidence properly 5. Whether the trial Magistrate made a ruling onestablishment of a prima facie case. At the hearing of the appeal, the Appellant appeared in person, unrepresented. The respondent was represented by Mr. Edson Laurence Mwapili learned State Attorney. When the appellant was called to expound his grounds of appeal, he opted to let the learned State Attorney respond first and reserved his right to rejoin should the heed arise. Page 3 of 12 Mr. Mwapili argued the 1st, 4fh, 5th, 9th, 10th, 11th and 12th grounds of appeal and the 2nd, 3rd and 5th additional grounds of appeal filed on 21.06.2023 together on whether the case was proved beyond reasonable doubt. He argued that the case was proved to the hilt through their 5 witnesses and 6 exhibits. He said SM3, a conductor proved that the Appellant was among the travelers in the bus with Reg. No. T.549 DTQ He also witnessed exhibit P2 being opened by SM4 and SM5. He explained further that SM4 arid the Appellant signed certificate of seizure - exhibit P5 and a bus tic kef exhibit P6. He further referred to exhibit P2 and submitted that it was tested on 22.03.3033 by the Government Chemist - SMI and found to be bhang. Therefore, the. case against the Appellant was not planted, insisted Mr. Mwapili. He admitted that the Appellant was not availed receipt of certificate of seizure c/s 38(3) of Cap 20 RE 2022. He however made a justification that the omission is not fatal so long as there were witnesses to that effect as held in the case of Ramadhan Idd Machafu Vs The Republic, Criminal Appeal No. 328 of 2019 pg 15. Page 4 of 12 As for the complaint concerning the ticket Mr. Mwapili said the Appellant admitted to have boarded the bus and was allocated seat no. 15. Mr. Mwapili admitted the contradiction in describing the bag containing the bhang by SMI, SM2, SM3, SM4 and SM5. He was however of the views that the contradiction is minor and does not go to the roof of the case. He referred to the case of Dickson Anyosisye V R, Criminal Appeal no.155 of 2017. .... On the chain of custody regarding exhibit P2, Mr. Mwapili explained that the same was established by the evidence of SM4, SM2 and SMI. He further referred to the case of DPP Vs Mussa Hatibu Sembe, Criminal Appeal No. 130 of 2021, pg 16 on the position that oral account can equally establish chain of custody. As for the evaluation of evidence, Mr. Mwapili referred to page 2-15 of the trial court judgement and said that the trial magistrate properly evaluated the evidence of both parties. He referred to the case of Leonard Mwanashoka Vs The Republic, Criminal Appeal No. 22. He concluded that the ruling in establishing prima facie case was delivered on 06.09.2022 and the proceedings reflect so. Page 5 of 12 He prayed for the court to dismiss the appeal. In rejoinder, the Appellant insisted that there were contradictions on the colour of the bag whereby PW3 said it was black and red whereas other witnesses said another colour. He rejoined further on prevailing contradictions that While PW3 said it was three people who signed certificate of seizure, the police said it was signed by 4 people. He argued on the absence of explanation at the length of time taken to send exhibit P2 to the Government Chemist since he was arrested on 02.03.2022 and the exhibit was sent to SMI on 22.03.2022. He pointed the contradictions on the vehicle registration no. of which SM5 said it is T549BTQ but PW3 and PW4 said it is T549 DTQ. He prayed for the court to see that the contradictions are major and they should benefit him. i have considered the. submission as well as the trial court's proceedings. The core issue for determination is whether the case against the appellant was proved to the required standard. Answering this question requires me to examine the evidence on record. Before determining the grounds of appeal at hand, it is worthwhile noting here that in criminal matters a fact is said to be proved when Page 6 of 12 the Court is satisfied by the prosecution beyond reasonable doubt that such fact exists. This is provided under Section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2019]. That is to say, the guilt of the accused person must be established beyond reasonable doubt. Generally, and always, such duty lies with the prosecution except where any statute or other law provides otherwise. Section 28 (1) of the Drug Control and Enforcement Act [Cap. 95 R.E. 2019] is among of such exceptions. According to this section, in drugs cases, the accused person has a duty to prove that the possession, dealing in, trafficking, selling, cultivation, purchasing, using or financing is in accordance with the license or permit granted: under the Drug Control and Enforcement Act [Cap. 95 R.E. 2019]. However, it is settled law that, when the burden shifts to the accused person, the standard of proof is on balance of probabilities. See the case of Said Hemed v. Republic [1987] TLR 117. In that regard, and according to the principles underscored above, it is the duty of the prosecution to prove beyond reasonable doubt that the accused persons trafficked the alleged drugs and particularly by proving that exhibit P2 containing 9.0 kgs of bhang seized by the police on 02.03.2022 belongs to the Appellant. Page 7 of 12 In this appeal I shall begin by addressing the 2nd and 3rd grounds of appeal argued together with the 4th ground of appeal on the contradiction pertaining to the colour of the bag. SM3, Jamhuri Ismail was the agent of King Yassin buses who in the morning of 02.03.2022 sold a ticket to the Appellant for the trip from Mtwara to Dar Es Salaam. He described the Appellant having carried an average sized bag which had black and red colour. He testified further that he was the one who wrote a ticket and after that he handed over his bag to the bus conductor who wrote on the bag a seat no. For the case of the Appellant seat No. 15. SM3 testified further that the bus conductor took the bag and put it in the car boot. They we re stopped by t h e p o I ice at SI DO Li nd i a n d u po n s ea rch i n g they asked for the person with the bag written seat no. 15. PW3 said, since the bus conductor was the one who wrote the seat number he went to call the Appellant who refused to open the bag. When the Appellant cross examined PW3, he said the bag had red colour on the straps and he was the last passenger. Further when PW3 was Page 8 of 12 asked if he could identify the bag he said he would because it is black in colour with red. He identified exhibit P2. However, when PW4 was testifying in court, he said the bag that he suspected and it was written seat no. 15 was black, green and pink in colour. He identified exhibit P2 in court. PW2, PW1 and PW5 also identified exhibit P2 being black, green and pink in colour. The Appellant has been persistent that the contradiction is major and s ho u I d b e nef i t h i m wh i 1st Mr. M wa pi li I i g h flys aid that the confra di cf io n is minor. I do not agree. I am saying so because, in court all five witnesses were shown and identified the same bag - exhibit P2. Surprisingly, PW3 while still maintaining that the bag that was with the Appellant was black and red, he identified exhibit P2! At no point he recanted that the Appellant’s bag had green colour to make this court believe that may be he confused between red and pink. He was so certdin that the bag was black and red,. No re-examination was asked to confirm on the colour in consideration of the fact that he was the first person to see the bag that the Appellant was holding. Moreover, in going Page 9 of 12 through his testimony os well os the testimony of PW4, otter being given his ticket, it was the bus conductor (PW4) who labelled the bag and put it in the car boot. The identification of the bag is the core issue as it is the foundation of the case to prove the owner of the illicit drugs found in that bag. In other words, the identification of the bag proves the perpetrator of the alleged offence. Thus, it goes to the root of the case and it cannot be taken lightly considering that the first person to see the bag did not say anything about the green colour nor did he retracted his statement during cross examination or on identifying the same in court. It follows that either he just identified the bag just for the sake of the case or this court cannot rule out the possibility that there were two different bags one with black, green and pink and another one that PW3 identified to have seen with the Appellant to be black and red. The difference is not so benign. ... The Appellant denied to have had any bag and that when they were stopped, the conductor could not first- tell whose bag it was. Page 10 of 12 In the case of Mohamed Said Matula [1995] TLR 3 (CAT) , the Court was of the position that where there is contradiction on the Witnesses of the same party on the same issue, the trial court should address such contradiction and see if if is major and goes to the root of the case. If it does, then, definitely it damages prosecution's case. If it is minor the court can ignore it. As alluded earlier, the certainty of the owner of the bag goes to the root of the case in establishing the offender. Otherwise, prosecution could not prove with certainty which colour was the Appellant’s bag as there is contradiction between themselves. As rightly argued by the Appellant, as per the law a major contradiction should benefit the accused as it brings a shadow of reasonable doubt. That being said, no weight should have been attached at all in exhibit P2 in proving a case against the Appellant. The question now come, would prosecution case stand without exhibit P2? The answer is in the negative. The prosecution case cannot stand without such exhibit since it is the root of the offence as the appellant was charged With an offence of drug trafficking. Therefore,: prosecution case was not Page 11 of 12 proved beyond reasonable doubt. Having found that, I find no need to address the rest of the grounds of appeal since the 2nd, 3rd and 4th additional grounds of appeal alone suffice to dispose of the appeal. In the event, I hereby quash the Appellant's conviction and set aside the sentence. The appellant is to be released from prison forthwith unless held for some other lawful cause. Ordered Ebrahim Mtwara 14.12.2023 Page 12 of 12