19840810 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SAL,,AM ,. (CORAM: Mustafat JoAo 1 Makame 1 JoAo and Kisanga, J.A 0 CRIMINAL APPEAL NO. 61 OF 1983 .BETWEEN JUMA s/ o CHAMOTTO • o o • • o • o • ., ., • " o o • • APPELLAI.\':T AND THE REPUBLIC • • ., • • • • • ., • • • • o o • o o .. RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mbeya) (Munyera, J.) dated the 29th day of A~gust, 1983 in Criminal Appeal No. 33,of-1983

JUDGMENT OF THE COURT MUSTAf A, J. Ao: The appellant was convicted of maki,ng a false document contrary to section 148(a) of the Customs and Transfer Tax Management ,. Act in the District Court and was sentenced ,, to eighteen months' imprisonment. He appealed his conviction and sentence to the High Court. The conviction was affirmed, but the sentence of imprisonment was reduced to twelve months. He is now appealing to this Court. The appellant, at the mat~rial time, was a Customs Officer. He had arranged with one Jensen, whn was,P.W.1 at the trial, to order a radio casette for him from overseaso Jensen was an expatriate working at that time at Mbeya'. i.Jensen ordered that along with other i terns and these goods eventu~·lly arrived at Mbeya by 1 air post .. Jensen had stated that he h~d ~hown the appellant the catalogue anq the invoice in respect of·the goods being ordered, tI i and if Jensen was belir?ved the appellant knew exactly what the ' br·t:&t:r s:r cost o~ the radio cas~tte and the other items wasp L .,. .... j , \I 2 When the parcels arrived at Mbeya in the neme of Jensen, the appellant came to know of the arrival, and by virtue of his office, obtained possession of thEc parcels, took them home, and opened the one, according to him, which cont.ained the radio c:;asetteo According to Jensen both the ·parcels were opened by the appellant in Jensen's o.bsence. · The

appellant asses5ed customs and sales tax on the radio casette at T.shso 369/-, a gross underv~luation. tater wh~n a proper assessment was made of the contents of the parcels, a sum . . . 1· of over Tushso 4,000/- was mad.~. The appellant had alleged that one parcel contained the radio casette and the other parcel contained only books and magazines, for which no customs or sales tax was leviableo However, the customs declarations: on the parcels, according to which the appellant alleged he had based his assessment, were not availableo · The appellant :1ad alleged 'th at those forms were torn off by the Police, who had conspired with Jensen to frame himo Both the courts below believed J~nsen as a truthful witnesso The trial court was prepared to treat Jensen as an accomplice, However, there were corroborative circumstances. The appellant _himself, in the absence of Jensen, collect_ed the parcels, knowing that they wer,, addressed to Jensen. The' .appellant himself paid the customs and sales taxo The customs declaration forms have mysteriously disappeared, tHe allegati~n' that the Police had deliberately destroyed them being compl~tely incredible ln t.he circumstances.; • 0 0 .-/3 ,, '· ' ' ~ .- ,. ,_..-fl- r l l I :;i I' I ~ () !!( ,1 3 ,,,j Il I 11 ·, ; i\ properly We are satisfied that the appellant\1 was . j 'I . 1 We are also convicted on the evidence adduced at the I trilal. I I_ ',i I . I of the Criminal satisfi~d that the provisions , of secti6~ . I 19~(1} i' -- - . I II . ,. Procedure Code we_:i::e -c9mplied with in this case~1 -l 1; ' . / . . .' ! The 'appeal ,.ts., ~ismi,s~ed. J 1 ...~:•.~,: : ·• ':\ ·: '1 ! ..... ;~ _. .: .. ·. -. . . . .. ', 10th September, 19840

DATED j I at DA,R ES S_ALAAM ,this .,_' ; l, ., - t- ..;;__ ♦ iA • l