MARIA ABDUL GIDA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 9403 OF 2024 (C/F Criminal Case No. 143 of 2022, in the District Court of Arusha at Arusha) BETWEEN MARIAM ABDUL GIDA.................................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT JUDGMENT 14/08/2024 & 06/09/2024 MWENDA, J.: The appellant was charged before the district court of Arusha at Arusha with an offence of Trafficking in Narcotics Drugs contrary to Section 15A (1) and (2) of the Drug Control and Enforcement Act, (Cap 95 R.E 2019) as amended by section 19 of the Written Laws (Miscellaneous Amendments) (No. 5) Act No. 9 of 2021. It was alleged by the prosecution that on 21st day of September 2022 at Arusha Bus Stand area within the city, District and Region of Arusha, the appellant was found in unlawfully Trafficking in Narcotic Drugs namely "catha Edulis" commonly known as "Mirungi" weighing 8 kilograms. The appellant denied the charge and In order to prove its case, the prosecution lined up five (5) prosecution witnesses and tendered nine (9) exhibits. The facts which led to the arraignment of the appellant were that; on 21/09/2024, when they were on patrol at Arusha Bus stand PW2, (F 4826 CPL. Alfred) together with his fellow officers saw the appellant carrying a black bag while entering and entered in the bus (Salama Luxury Coach). Thereafter, they suspected her as she looked suspicious. They then followed her into the said bus together with WP. Telesia. Having entered in the bus they found the appellant already seated and the bag was placed below her seat. They, then asked her if the bag belongs to her, and in turn she admitted. PW2 directed WP Theresia to search her, and they found 50 bundles of green/ fresh leaves suspected to be narcotic drugs commonly known as "Mirungi". The appellant was then arrested, and seizure certificate (Exhibit P3) was filled and signed by PW2, an independent witness and also the appellant. They also seized a mobile phone make Itel (exhibit P2) and the appellant was conveyed to Arusha Central Police Station. After that, the said exhibits were handled to exhibits keeper (PW1) one PC Dustan for safe keeping after signing the register book PF 16 Exh. Pl. On 22/9/2024 the said drugs Page 2 of 9 were handled over to PW2 who tMk to fw and collection of samples for laboratory examination. After that, they requested for the disposition of the drugs and an Inventory form was issued (Exhibit P5) to that effect. The drugs were then destroyed on 20/06/2023. On 22/9/2022 a laboratory examination was conducted by PW3 and it was confirmed that the samples were narcotic drugs namely Catha Edulis" which is commonly known as "Mirungi". Upon completion of investigation the appellant was then arraigned before the court to answer the charge. In her defence, the appellants denied the prosecution's assertions. The appellant alleged that this the police officers boarded in the bus with the bag and asked who was its owner and thereafter they forced her to admit that it belonged to her. The appellant denied having been found with narcotic drugs commonly known as "Mirungi". After a full trial, the trial court accepted the version by the prosecution's evidence and the appellant was found guilty, convicted and sentenced to serve thirty (30) years jail imprisonment. Aggrieved, the appellant has preferred this appeal. In the petition of appeal, the appellant has raised four (4) grounds of appeal which can be conveniently paraphrased as follows: Page 3 of 9 1. That the Hon. Trial Magistrate tried the case convicted the appellant and sentenced him without jurisdiction. 2. That the trial court erred in law and in fact in convicting and sentencing the appellant herein while the republic did not prove its case beyond reasonable doubt. 3. That the Honourable magistrate erred in law and in fact by convicting and sentencing the appellant without properly evaluating the evidence as adduced during the hearing. 4. That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant based on non-existing law. At the hearing, the appellant was represented by Mr. Sylvester Kahunduka, learned counsel whereas the respondent Republic had the services of Mr. Charles Kagirwa, learned Senior State Attorney. The appeal was disposed by way of oral submission which shall be considered in the course of disposing the grounds of appeal. The first issue for my consideration is whether the trial magistrate evaluated the evidence on record properly to prove the offence beyond reasonable doubt. aware that this being the first appeal, the appellate court it is entitled re evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at own decision. See the Philipo Joseph Lukonde vs Faraji Ally Said! (Civil Appeal No. 74 of 2019) [2020] TZCA 1779 (21 September 2020) (Tanzlii). In the present case, Mr. Kahunduka submitted that at the trial court, the prosecution alleged that the appellant was found trafficking Narcotic drugs to wit Edulis commonly known as "Mirungi". According to him as the said drugs are perishable, the investigation team sought for an order to destroy it under paragraph 25 of the Police General Order, 229. However, he said when the said drugs were destroyed the appellant was not present which is contrary to the said Order. He supported his argument by citing the case of Mohamed Juma Mpakama v. Republic [2019] 1 T.L.R 514. At the end, he prayed for the said exhibit to be expunged from the records as it was illegally procured. It was his further submission that if the said exhibit is expunged from record then there is no evidence which remains to warrant the conviction against the appellant Page 5 of 9 herein. Having submitted as such, he prayed for this appeai to be allowed and the conviction and sentence passed by the trial court to be quashed and set aside. On his side, Mr. Kagirwa supported the appeal. He submitted that it is not in dispute that exhibit P5 an (Inventory form) was procured illegally, as the appellant was not given a chance to comment, remark, or object the same, according to him, if Exhibit P5 is expunged from the records, then there is no evidence which will remains to support the conviction of the appellant. He then prayed the appeal to be allowed. That being the submission in support of this appeal, the issue is whether an inventory form (Exhibit P.5) was legally procured. To respond to this issue, it is apposite to go through the legal guidance regarding disposal of perishable exhibits. The same is found under the Police General Order 229. Under Paragraph 25 of the Police General Order, 229 it provided that: "Perishable exhibits which cannot be easily preserved until the case is heard, shall be brought before the magistrate, together with the (Prisoner) if any, so that the magistrate may note the exhibits and order immediate disposal. Where Page 6 of 9 possible such exhibits should be photographed before disposal."' On what should be done In the course of d.soosai of perishable exhibit, the court discussed as such in vanous decisions. In the case of Mohamed Juma Mpakama *. Republic (supra) the court held that: "...paragraph 25 [paragraph 25 of PGO No. 229 (Investigation-Exhibits)] envisages any nearest magistrate, who may issue an order to dispose of perishable exhibit. This paragraph 25 in addition emphasizes the mandatory right of an accused person (if he is in custody or out on police bail) to be present before the magistrate and be heard. In the instant appeal, the appellant was not taken before the primary court magistrate and be heard before the magistrate issued the disposal order (exhibit PE. 3). While the police investigator, was fully entitled to seek the disposal order from the primary court magistrate, the resulting Inventory Form (exhibit PE.3) cannot be proved against the appellant because he was not given the opportunity to be heard by the primary court magistrate. In Page 7 of 9 addition, n° Photographs of the perishable Cr> *ere taken 'e Government as by the cannot be relied Exhibit PE. 3 On to prove that th ‘ the ap^ant was found in unlawful Possession of the me^inthecf,argesheer the C'ted ***** *d through a carefu«y n9S, it is evident that on 22nd September, 2022 PW2 one 4826 ed Sought for disposal order and the same was issued before Hon. ssy, RM. However, the record is silent on whether the appellant was ever given a chance to be heard or comment before the destruction order was given. That being said, exhibit P5 (Inventory Form) is hereby expunged from the records for being illegally. Having expunged exhibit P5 from the records, the remaining evidence are not sufficient to warrant the conviction of the appellant for the alleged offence of trafficking narcotic drugs. As a general rule, the burden of proof in criminal cases, lies on the prosecution. The same position was stated in the case of Nathaniel Alphonce Mapunda and Benjamin Alphonce Mapunda Vs. R, [2006] T L.R 395, where the court held: - Page 8 of 9 criminal trial the burden of proof always lies on the p ecution and the proof has to be beyond reasonable doubt' In this case, having expunged exhibit P5 from the records, it is clear that the remaining evidence cannot warrant the conviction of the appellant herein. Having said so, it is obvious that the offence was not proved beyond reasonable doubt and I find this appeal meritorious and allow it. I thus quash the conviction and sentence imposed against the appellant is hereby set aside. I also order for an immediate release of the appellant from prison unless he is lawfully held. It is so ordered. DATED at ARUSHA this 6th day of September, 2024. JUDGE 06/09/2024 Page 9 of 9