CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISTRY) AT ARUSHA CRIMINAL APPEAL NO. 73 OF 2023 (C/fin the District Court o f Longido, Criminal Case No. 74/2022) KARIM SULTAN SWAI.................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT 16th May; 13 June 2024 D. D. NPUMBARO. J. The appellant Karim Sultan Swai is standing charged with the offence of Trafficking Drugs contrary to Section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act (Cap 95 RE 2019) as amended by Section 19 of Written Laws (Miscellaneous Amendments) (No. 5) Act No.9 of 2021 and convicted to 20 years imprisonment. On the 5th day of November, 2022 at Longido area along Namanga - Arusha Road within Longido District Arusha Region, the appellant was found trafficking narcotic drugs namely Catha Edulis commonly known as "Mirungi" weighing 13.80 kilograms by using Motor Vehicle with Registration Number T 541 AHZ Make Peugeot contrary to law. Dissatisfied with the Judgment of the trial court, appealed before this Court against conviction and sentence by lodging a petition of appeal with 5 grounds and additional 2 grounds total 7 grounds; - 1. The Prosecution did not prove his case beyond reasonable doubt against appellant herein. 2. That the trial court proceedings tainted with gross incurable procedural irregularities which lenders the whole decision thereof null and void. 3. Trial court erred in law and fact to convicting and sentencing the appellant without considering that prosecution failed to call material witness. 4. The trial court erred in law and fact when deals with prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering defense evidence. 5. The there was material variance between the charge sheet and evidence on record that is the appellant convicted and sentenced on defective charge sheet Additional ground 1. The trial court erred in law and fact by convicting and sentencing the appellant relying on exhibit P4, P5, P6 and P7, the court wrongly admitted inventory form without the alleged drug (Khat) to be brought before the court. 2. Trial court erred in law and fact not finding the evidence given by PW2, PW5, and PW6 with material contradiction that goes to the root of the case hence cast doubt as to whether the appellant was found trafficking the alleged drugs The appellant sought to move the court to allow his appeal, set aside conviction and sentence and set the appellant at liberty. Parties chose to dispose the matter by way of written submission. The appellants enjoyed the service of Advocate John Shirima and respondent Republic represented by Geofrey Nugu State Attorney. On the first ground, the appellant counsel argued that, the offence was not proved beyond doubt. The PW1 who is considered as independent witness that he found accused (appellant) was arrested and were inspecting his car in police station. Faulted that independent witness did not witness the search and retrieval of 37 bundle of Khat. On 2nd addition ground, the appellant faulted that, the evidence was not evaluated. There was a contradiction on witnesses. PW1 at page 12 of proceedings testified he was at his working place which deals with collecting revenue, thereafter was called by PW2. While PW2 at page 13 testified that he called PW1 saw him on the road. PW2 further testified that, he kept the exhibit into special room because storekeeper was not around, and handled the exhibit to store keeper PW5 later on the same day around 18:00 hrs. The statement of PW2 contradicts with that of PW5, that, PW5 to have received the exhibit on material day around afternoon hours while PW2 testified to give PW5 around 18:00 hrs. Argued all this shaken prosecution evidence, in term of chain and custody of exhibit, cited a case of Elisha Edward Vs Republic Criminal Appeal No. 33 of 2018 un reported pages 6 &7. That quality of evidence based on credibility of witness. Mr. Shirima faulted that, the certificate of seizure was not signed by independent witness. PW1 on page 12 of typed proceedings testified that on material day was in his work place he was called with PW2 and found the appellant was arrested, and they were inspecting his car, while PW2 on page 12 and 13 testified PW1 was along the road. The section 38(3) of Criminal Procedure Act Cap 20 RE 2019 requires independent witness to be in the scene of crime, the certificate of seizure was signed by arresting officer only. In the case of Hasan Suleiman Vs Mz 2005 TLR at page 237 held that, search must be witnessed by two or more respectable in habitant of the locality and things seized must be signed by witnesses. Argued in this case search was witnessed and signed by one person. Further argued the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 not credible and pray to be expunged. On 2nd 4th and 1st additional ground, the prosecution witness was not credible as PW6 at page 30 of the proceedings testified that sampling was taken by inspector Annastella on 7/11/2022 and accused were sent to the court on 8/11/2022 while PW2 on page 17-20 testified exhibit P4, P5, P6 and P7 which are inventory form, sampling form, disposal form and certificate of destruction respectively was procured from Longido District Court on 8/11/2022. Argued those contradiction does not support conviction. Further faulted that in the entire proceedings from page 15 to 30 nowhere appellant was involved in processing exhibit P4, P5, P6, and P7. The Khat was destroyed by order of the court without proper procedure, as it was not forming part of proceedings of trial court, and the accused was not involved. Cited the case of Buruka Leken Ole Ndida and another 5 Vs R Criminal Appeal No. 459 of 2020 unreported, which referred decision of Mohamed Juma Mpakama Vs R (2019) T.L.R 514 emphasizing the importance of presence of accused at the time of disposal of exhibit. In 3rd ground, argued prosecution failed to call material witness one Noela Enoko conducted examination of the said Khat and was mentioned by PW2, PW5 and PW7. Argued the said Khat are not the one seized in the scene of crime. In the case of Aziz Abdallah Vs R (1999) TLR 71 where it was held that failure to summon important witness who is within reach is the court may draw adverse inference to the prosecution, concluded that, prosecution failed to proof the case beyond reasonable doubt. The appellant raised doubt and should benefit on the said doubt. Mr. Shirima did not argue anything on the ground number 5 that, there was material variance between the charge sheet and evidence on record that is the appellant convicted and sentenced on defective charge sheet, impliedly we can say he chose to abandon the ground. In reply, the respondent argued that the court order made on 22/02/2023 the appellant found guilt with the offence charged. On 1st, and 2nd of additional ground the respondent argued the case was proved beyond the reasonable doubt. In proving trafficking of narcotic drug, the section 2 of Drugs Control and Enforcement Act Cap 95 RE 2022 lay down key elements among others importation, exportation, possession storage. The said decision was seconded by the case of Livinus Uzo Chime Ajana Vs R Criminal Appeal No. 13 of 2018. Which lay down the said element to ascertain that the case of trafficking narcotic drugs is proved. PWI witnessed the search conducted in appellant car, even if the PW1 was absent can not vitiate the conviction. PWI witnesses that, on material date 5/11/2021 was at his work place near Longido Police Station, later was called by PW2 who had arrested the appellant, reached to the police station and asked to witness the inspection conducted in the said car. The said evidence was never cross examined by the appellant. Failure to cross examine means admission, the potion is supported in the case of Goodluck Kyando Vs Republic (2006) TLR 363. The claim of contradiction of prosecution witness and the case was not proved beyond reasonable doubt due to absence of independent witness; variation of time of arrest and chain of custody of handling exhibit, argued the appellant ought to cross examine it PW2, PW3 and PW5 in the trial. Further argued the variation does not go to the root of the case. In support of his argument cited a case of Dickson Nsamba Elia Shwapata Vs R Criminal Appeal No. 92 of 2007 that normal discrepancies do not corrode the credibility of parties' case. Material discrepancies do. On the 1st additional ground that on variation of evidence the respondent argued, the variation does not go to the root of the case. Referring the case of Dickson Nsamba Shapwata (Supra). Argument that Noela was not called as part of prosecution witness argued it is not fatal. PW6 being investigator of the case was competent witness to tender chemist report. In support of argument cited the case of The Director of Public Prosecution Vs Mirzai Pirbakhishi @ Hadji and 3 others Criminal Appeal No.493 of 2016. Held that, the test of tendering exhibit is having knowledge and possession of the thing. Further argued section 48A (2) of Drugs Control Enforcement Act Cap 95 of 2019 provides document signed by Government Analyst shall be admissible without further proof, unless it is rebutted shall be conclusive. Argued further that, the said exhibit P ll was not objected nor rebutted by the appellant as per section 48A (2) supra, further the law did not limit number of witness to proof the case, rather evaluate the evidence as per section 143 of the law of the Evidence Act Cap 6 RE 2022. The report tendered by PW6 and admitted was sufficient to the evidence of Noela. 8 In rejoinder, the applicant reiterates his submission in chief he further faulted that, no one witnessed packing of Khat in the appellant car, the prosecution failed to call the important witness, the possession of motor vehicle was not proved, and the fact that State Attorney agreed there are variation of witness evidence weaken prosecution evidence strength, in support of this cited a case of Christian Kale & others Vs Republic (1992). The appellant duty is to proof their defense are true, and raise doubt on prosecution case, in support of this cited a case of Mwita &2 others Vs R (1977) LRT 54 The appellant therefore pray that this honorable court allow this appeal quash conviction and set aside the sentence passed by trial court for weakness and irregularities. Considering the submission of both parties and evidence from the court records, on the first ground, this court is of the view that, despite the fact that the independent witness arrived after inspection of the car commenced, going through page 12 trial court proceedings shows, the independent witness (PW1) was at the time of retrieval of Catha Edulis from the car. Therefore, requirement of Section 38(3) of Criminal Procedure Act Cap 20 RE 2019, was met accordingly. I therefore, found this ground to have no merit. The claim that the certificate of seizure was not signed by independent witness. I went through the trial court record and find certificate of seizure to have been signed by Karim Sultan who is appellant, Christopher Robert who is PW1 (independent witness), J5371 PC Innocent and Inspector Anastazia who is PW2, also in trial court proceedings page 12 shows it was signed by the independent witness. Therefore, this ground also is of no merit. On the issue that evidence was not evaluated to the effect that PW1 and PW2 testimony differs as to where the independent witness was on material date. The PW1 testified to be at his work place, while PW2 said he was along the road. It is my view that do not go to the root of the case, even if will agree with evidence of appellant would shake credibility of prosecution but would not affect the conviction made I also found this ground to have no merit. On 2nd ,4th and 1st additional ground that there are variation on evidence of PW1 and PW2 as to sampling date and when the exhibit was procured to Longido District court. The appellant claimed on page 30 of trial proceedings shows the sampling was taken on 7 /11/2022 and accused was send to the court on 8/11/2022 while PW2 on page 17-20 of the said proceedings testified P4, P5, P6 and P7 was procured from District 10 Court on 8/11/2022. Going through the trial court proceedings on page 30 shows, PW6 to have received sampling inventory form on 7/11/2022 thereafter was send to the court on 8/11/2022. The appellant mis quoted the evidence therein, therefore I found that this ground to have no merit. On the third ground that material witness was not called to testify contrary to section 143 of law of evidence Act Cap 6, therefore court could draw adverse inference to the prosecution. I agree with respondent submission that PW6 who investigated the case was competent witness to testify and tender the exhibit as per Section 84A (2) of Drugs Control Enforcement Act Cap 95 of 2019. That the key is to have knowledge and possession which PW6 was having. The position is also support of the position the case of The Director of Public Prosecution Vs Mirzai Pirbakhishi @ Hadji and 3 others Criminal Appeal No.493 of 2016. Held that, the test of tendering exhibit is having knowledge and possession of the thing. On the variation that PW5 that to have received the exhibit from PW2 around afternoon, while PW2 testified that PW5 was not around he decided to keep the exhibit in special room, and gave to PW5 the same day around 18:00, it is my view that the variation shaken credibility of chain of custody ii in the case of Pascal Yoya @ Maganga Vs R Criminal Appeal No. 248 of 2017 Unreported it was held that. "It is cardinal principle o f criminal law in our jurisdiction that, in cases such as one at hand, it is prosecution that has burden o f proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some doubt on the prosecution case and he need not to proof his innocence" On the claim that the accused/appellant was not involved on preparation of inventory form, sampling form and disposal form and the Catha Edulis (Khat) was destroyed without following procedure. It is my view that, it is not requirement of law that the appellant be involved on preparing inventory form, sampling form and disposal form rather was required to be involved in disposal of exhibit, if exhibit is perishable in nature and is required to be disposed before the hearing of the case, to justify the admission of the said exhibit during hearing as per Police General Order (PGO) No. 299 Paragraph 2(a) and 25 that; - In disposing perishable exhibit the PGO requires to prepare inventory form and fill the 12 same; thereafter be submitted to the magistrate for order allowing the disposition o f the said exhibit. The inventory form is required to be signed by Magistrate and Police Investigator. The there is no requirement that accused person be involved in that exercise o fpreparing inventory. However, it is requirement under PGO that the accused be present before magistrate on the application for disposal o f perishable exhibit so he may be heard and there after the magistrate may note the exhibit and order immediate disposal, and if possible, the exhibit is required to be photographed. In the instant appeal, despite the fact that the applicant was involved in the disposal of exhibit in page 19 of trial court proceedings but nothing from court records and evidence tendered by PW2 shows the appellant was taken before the District Magistrate Court and be heard before the magistrate who issued the disposal order on exhibit P6. This is to say procedure were not adhered. There was no dispute that the Police Investigator, WP 5496 DCPL Francisca (PW6) was fully entitled to seek the disposal order from the District Court Magistrate, but the appellant was not 13 given the opportunity to be heard in relation to inventory form Exhibit P4 by the District Court Magistrate. In addition, no photographs of the perishable Khat were taken as directed by the PGO. Therefore, exhibit P4 ought not to be relied on to prove that the appellant was found in unlawful possession of 37 bundle of Catha Edulis (Khat) mentioned in the charge sheet. The Khat found in possession of the appellants were required to be tendered in Court as exhibits. This was not done. Instead an inventory form and disposal form were tendered and admitted in court whereby the appellants did not have an opportunity to raise an objection before magistrate before making an order for disposal. Given the position, the requirements under the law have not been met. In support of argument the case of Mohamed Juma @Mpakama Vs R Criminal Appeal No 385 of 2017 Court of Appeal of Tanzania Page 23, whereby the admission of core exhibit was rejected to the effect that the appellant was not accorded right to be heard by primary court magistrate that: - "That exhibit PE3 cannot be proved against the appellant because he was not given the opportunity to be heard by the primary court Magistrate." 14 The argument that the statement of PW2 contradicts with that of PW5, that, PW5 to have received the exhibit on material day around afternoon hours while PW2 testified to give PW5 around 18:00 hrs. on my view prosecution evidence was shaken in term of chain and custody of the exhibit. Considering the argument of appellant on third ground that, the said Khat are not the one seized in the scene of crime. Evidence of PW2 AND PW5 in the chain of custody create slight doubt which benefit the appellant. In support of this the case of Said Hemed v. Republic [1987] TLR 117 Had this to say, "it is the duty o f the prosecution to prove beyond reasonable doubt that the accused persons trafficked the alleged drugs and, particularly by proving that, the three sacks o f cannabis were seized from the accused person". From the evidence and submission of parties, it is my view that, there was procedural irregularity on disposal of core exhibit to warrant improper admission of the tendered exhibit. Further the appellant raised doubt on the chain of custody of the exhibit Catha Edulis, the variation by DW1,DW2 and DW5 on chain of custody cannot be overstated. It is my view that prosecution did prove the case beyond reasonable doubt. I, therefore, set aside the sentence and conviction of the 15 District Court of Arumeru Arusha imposed against the appellant. Appellant be released in custody unless lawfully ordered otherwise It is ordered accordingly. DATED at ARUSHA this 16 day of November 2023. D. D. NDUMBARO JUDGE 13/06/2024 16