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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CRIMINAL APPEAL NO 17072 OF 2024 (Originating from Criminal Case No. 33 of 2023 in the Resident Magistrates Court of Songwe at Vwawa) MOSES PELEGRIN KIMBINDU.………………………..…………………… APPELLANT VERSUS THE REPUBLIC……………………...…..……………………….…………..RESPONDENT JUDGMENT Date: 12 August 2024 & 4 September 2024 SINDA, J.: The appellant was charged with the offence of trafficking narcotic drugs contrary to Section 15A (1) and 2(C) of the Drugs Control and Enforcement Act, Cap. 95 R.E 2019 (the DCEA). The Resident Magistrates Court of Songwe at Vwawa (the Trial Court) convicted and sentenced him to serve thirty (30) years imprisonment. The particulars of the offence are that on 20 October 2022 while driving a vehicle from the port of Dar es Salaam to Zimbabwe via Tanzam highway, 1 at Chimbuya area within Mbozi District. Songwe Region the appellant was stopped by the Police Officers for vehicle inspection. Upon inspection, a box was retrieved. Inside the box they found about 59 bundles of leaves which after examination were confirmed to be narcotic drugs, namely cadha edulis (mirungi). The appellant was then arraigned before the Trial Court and was found guilty of the said offence. The appellant challenges his conviction and the corresponding sentence on the following grounds: 1. That, the trial Magistrate erred in law and in fact in convicting the appellant on charges which were not proved beyond reasonable doubt. 2. That, the learned trial court Magistrate erred in law and facts by convicting and sentencing the appellant by basing on the weakness of the appellant’s evidence brought before the court. 3. That the learned trial court Magistrate erred in law and facts by deciding the case basing on the exhibits which were retrieved in an illegal search conducted by violating law governing the procedures for search hence unjustifiably convicted and sentenced the appellant. 4. That the trial court Magistrate erred in law and facts for not considering the defence evidence of the appellant who denied to have know the 2 said narcotic drugs as they were not belonging to him hence wrongly convicted and sentenced the appellant. 5. That the learned trial court Magistrate erred in law and facts for failure to properly evaluate the evidence in record hence unjustifiably convicted and sentenced the appellant. Hearing of the appeal was by way of written submissions. The appellant was represented by Mr. Jackson Ngonyani, learned counsel and the respondent was represented by Ms. Prosista Minja, learned State Attorney. Submitting for the appeal, Mr. Ngonyani consolidated all five grounds of appeal into one, that is, the prosecution had failed to prove its case beyond reasonable doubt. He started with the principles of the law governing how the prosecution has to discharge its burden in criminal cases. He cited the case of Jonas Nkize vs Republic [1992] TLR 214 and that of Isidor Patrice vs Republic, Criminal Appeal No. 224 of 2007 CAT (unreported). That, for the case to be declared by the court that it has been proved beyond reasonable doubt, the prosecution has to prove the Actus Reus of the offence with the necessary mens rea. 3 Mr. Ngonyani added that based on the facts of the case. The box containing cadha edulis was retrieved from the car driven by the appellant. He acknowledged to carry the said box but denied to know what the box contained. That is why the appellant cooperated with the officers to make sure that the owner of the box is arrested. The counsel continued that the police officers confiscated the phones of all suspects in connection to the offence but unfortunately, they did not unearth the communication so as to ascertain the mens rea of the appellant pertaining to the said drugs. For emphasis the counsel referred to paragraph 2 page 6 of the typed judgment. Adding that PW3 who was tasked to investigate the matter was handed seven (7) phones but did not bring anything substantial before the court. Further, Mr. Ngonyani added that the Trial Court included in its judgment facts which were not reflected in the proceedings of the Trial Court (the Proceedings). He referred to page 6 paragraph 3 line 4-5 of the typed judgment where the court stated that “at the time being he was phoned so that he can pick son of 3rd accused from school”. Mr. Ngonyani was of the view that the above statement is nowhere to be found in the proceedings, especially in the 2nd or 3rd accused’s defence. Supporting his argument, he 4 cited the case of Atanas Julias vs. Republic, Criminal Appeal No. 498 of 2015 (unreported). In her reply submission, Ms. Minja argued that the main complaint by the appellant was that the prosecution failed to prove its case beyond reasonable doubt. To establish its case, she stated that the prosecution brought eight witnesses and three exhibits. That PW1, one ASP Mtewele, was the one who conducted the search on a vehicle driven by the appellant. PW1 retrieved among other things 59 bundles of Catha edulis weighing 13 kilograms. She continued that PW1 tendered a certificate of seizure of the said drugs which was admitted and marked Exhibit P1 without objection from the appellant. That, the evidence of PW1 was not challenged by the appellant because he did not cross examine PW1. Ms. Paul referred to page 30 of the Proceedings and cited the case of Nyerere Nyague vs The Republic, Criminal Appeal No. 69/2020 (Tanzlii) to support her argument. Ms. Minja’s further submitted that it is undisputed that the appellant was found trafficking drugs. However, what is disputed is the knowledge of what was in the box. The assertion that the republic ought to prove mens rea of 5 the appellant is a misconception of the principle of the law governing trafficking of narcotic drugs. It was Ms. Minja submission that what the prosecution had to prove was possession of the drugs and not the mens rea of the accused person. That, the appellant was aware of the presence of the drugs in a motor vehicle and had control of the drugs until he was arrested by PW1. she cited the case of Song Lei vs DPP, Consolidated Appeal No. 16 ‘A’ of 2016 & 16 of 2017 where the CAT referred to the case of Moses Charles Deo vs Republic (1987) TLR. 134 to support her argument. On the assertion that the Trial Court included facts not reflected in the Proceedings, Ms. Minja admitted that it is true at page 6 of the judgment, the trial Magistrate when analyzing evidence stated ‘at the time being he was phoned so that he can pick son of the 3rd accused from school’. However, the learned State Attorney argued that the statement did not prejudice the appellant because the trial Magistrate was making reference to 2nd accused who is not part in this appeal and in fact was acquitted. The appellant did not file any rejoinder submission. 6 I have gone through the arguments, records and authorities put before me. The most pertinent issue to be discussed is whether the prosecution proved its case at the required standard. In criminal cases, the standard of proof is beyond reasonable doubt as seen in a number of decided cases. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on weakness of his defence. See: Mohamed Haruna @ Mtupeni & Another vs Republic, Criminal Appeal No. 25 of 2007 (unreported). As such, the defense in criminal trial should not establish its innocence. Its duty is to raise doubt on the prosecution’s case, which will be leveled against the available evidence to determine whether the accused committed the offence or not. See: Mohamed Said Matula vs Republic [1995] TLR 3. Before, I deliberate on the issue, I think it is important to know what constitutes an offence under our laws particularly the Penal Code, Cap. 16 R.E 2022 (the Penal Code). Section 5 of the Penal Code states that: “offence” means an act, attempt or omission punishable by law” In this case, the appellant was arrested within Songwe region transporting drugs from Dar es Salaam. Upon inspection by the Police Officer, the 7 appellant was found with the said drugs Cadha edulis, also known as Khat, in Swahili Mirungi. The appellant does not deny transporting the box that contained the drugs in the boot of the car he was driving. However, he disputes knowing what was inside the said box. He emphased that he was not aware the box he was transporting contained drugs. The box was just handed to him. As per the definition of offence, it is my belief that the appellant first committed an unlawful act by transporting the said drugs. Secondly, he defended himself that he was not aware what is in the box. Thus, he omitted from taking due diligence to know what is in the box. That is “take all reasonable steps" or "all reasonable care" to avoid harm. See: Republic vs British Columbia Hydro and Power Authority, 1997 CanLII 4373 (BC SC). The burden of proof moved to the appellant to prove that the box was not his and he did not know what was in the box. Thus, I agree with the trial Magistrate that the appellant cannot say that he had no idea what he was transporting. That certainly cannot be used as a defense. Since, it is expected that a reasonable person should take all necessary precautions by 8 inquiring what he is transporting. In order to ascertain among other things, its perishability, fragility, and in this case, legality. I therefore find that his contention did not strengthen his defence in a way that he thought it would. It is clear that he knew exactly what was the substance of the box he was transporting. In proving their allegations, the prosecution brought witnesses and exhibits that helped in strengthening their case. This is because, the witness explained the encounter from the very beginning. That is from when the appellant was arrested and found with the said drugs to when they were destroyed before PW8. Thus, I believe the trial Magistrate entered a conviction against the appellant based on the available evidence adduced by the prosecution. Further, at page 8 of the typed judgment, the trial Magistrate also considered the defence of the appellant. He wrote and I quote: “The first accused did not dispute to had been arrested with the said 13 kilograms of Cadha edulis rather he insists in his defence that he was given the box to transport to Tunduma and he was not aware as to what was inside the box.” From the above, the appellant cannot argue that his defence was not considered in reaching the court’s decision. Besides, the prosecution having 9 proved its case at the required standard, the appellant’s defence becomes immaterial. When the box containing drugs was retrieved from the car driven by the appellant, aside from the appellant and the police officer, there was also an independent witness, one Joshua Jofrey Magwaza (PW5). At page 40 to 41 of the Proceedings, PW5 explained how the box was found sealed with a cell tape and when it was opened the drugs were found. Thereafter, a seizure certificate was filled where he signed as a witness. From the above, a search warrant was not expected to be issued to the appellant due to the nature of the inspection. I am of a firm view that the process for search and seizure was adhered to. It was expected for the Police Officer not have a search warrant because the police where doing a normal vehicle inspection. I will briefly discuss another two contentions that were argued by the appellant. First the appellant argued that the trial Magistrate included in page 6 of last paragraph of the judgment facts which were not reflected in the Proceedings, to wit: at the time being he was phoned so that he can pick son of the 3rd accused from school. Secondly, he contended that, seven 10 phones were tendered as exhibits so as to establish communication between the accused person, however nothing substantial was brought before the court. Beginning with the first issue, it came to my attention that on the said page there was an extraneous matter included. However, I agree with Ms. Minja that the statement did not prejudice the appellant in any way as it referred to the second accused person, who is not party to this appeal. On the second issue, in paragraph two at page 6, the trial Magistrate clearly faulted tendering of the said phone as there was no print out or electronic evidence adduced from the phones. Moreover, in the course of his arguments within the judgment, the trial Magistrate barely referred to or relied on the tendered phones as he mainly depended on the witnesses’ testimonies together with other exhibits that were helpful in reaching his decision. In conclusion, the prosecution proved its case beyond reasonable doubt. I find this entire appeal devoid of merit and is hereby dismissed. Right of appeal explained. DATED at MBEYA on this 4 day of September 2024. 11 A. A. SINDA JUDGE 12