ECONOMIC CASE NO 06 OF 2023 BENSON

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

CORRUPTION AND ECONOMIC CRIMES DIVISION AT ARUSHA SUB-REGISTRY ECONOMIC CASE NO. 6 OF 2023

THE REPUBLIC

VERSUS

BENSON EMMANUEL KIRITA

JUDGMENT 3rd and 17th October, 2024 BANZI, J.: The accused person, Benson Emmanuel Kirita stands charged with the offence of trafficking in narcotic drugs contrary to Section 15 (1) (a) and (3) (iii) of the Drug Control and Enforcement Act [Cap. 95 R.E. 2019] ("the Drugs Act) as amended by section 18 of the Written Laws (Miscellaneous Amendments) (No.

5) Act of 2021, read together with paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2022] ("the EOCCA"). The particulars of offence reveal that, on the 21st day of September, 2022, at Njiro area, within the City and Region of Arusha, the accused person was found trafficking narcotic drugs to wit 155.80 kilograms of Catha edulis commonly known as MirungL The accused person denied the charge. Page 1 of 21 During the trial, the prosecution side was represented by Ms. Janeth Sekule and Ms. Janeth Masonu, learned Senior State Attorneys who paraded a total of six (6) witnesses and tendered eight (8) exhibits. On the other hand, Mr. Fridolin Bwemelo and Ms. Leticia Leonard, learned Advocates, represented the accused person who testified under oath as the sole witness for defence. They also relied on one documentary exhibit, birth certificate (Exhibit D2) and in an attempt to impeach the credibility of Noela Olivia Enock (PW5) they, tendered her previous statement (Exhibit DI). In the main, the body of evidence by the prosecution presented a case that, on the 21st day of September, 2022, Assistant Inspector Bashiru Issa Mwagala (PW3) with his colleagues were instructed to conduct a routine patrol around Njiro area and Bypass Road. In the course of patrol around 8:45 AM, they were tipped off by an

informant that, there was a private car, Toyota RAV4 black in colour coming from Kilimanjaro involving in trafficking narcotic drugs namely, Catha edulis and it was expected to pass at Njiro area around 10:00 AM. Upon receiving such information, PW3 assigned CPL Vicent to join the informant and take cover at Bugaloo area while he went back to Central Police Station to procure search order. At 9:01 AM, he was issued with search order and returned at Pepsi area where they eye marked for the intended search. Page 2 of 21 Around 10:00 AM, PW3 received a phone call from the informant who informed him that, the car in question was heading towards their direction. At a distance of 30 metres away, he saw the car with registration number T755 AWD Toyota RAV4 black in colour coming their way. Upon reaching at the cross roads, it turned to Maji Machafu road. PW3 followed it and at a distance of 50 metres away, they managed to block it. The driver in the said car, got out and attempted to flee but D/CPL Kenneth managed to catch him 20 metres away. After the arrest, PW3 introduced himself and his colleagues. Upon being asked, the accused person introduced himself by the name of Benson Emmanuel Kirita. After introduction, PW3 informed him that, they wanted to search his car. The accused person accepted and PW3 called two motorcycle riders, Adam Daniel Shabani (PW6) and Rashid Ramadhan

to witness the search. The accused person was introduced to PW6 and his colleague and PW3 informed them that, he had search order to search the car in question. Before the search began, PW3 asked the accused person to search him. After that, he began to search the car. In the course of search, he managed to find seven sulphate bags and three sacks packed in the boot. After opening them, they found fresh leaves packed in newspapers and banana tree leaves suspected to be Catha edulis. PW3 labelled them Al to A10 and seized them together with the motor vehicle with registration Page 3 of 21 number T755 AWD Toyota RAV4 black in colour (Exhibit P2) through certificate of seizure (Exhibit P4) which was signed by him, PW6 and accused person. Upon signing the certificate of seizure, the sulphate bags and sacks were loaded back to the car and they drove the car up to the office of the Chief Government Chemist (CGC) Northern zone, Arusha for weighing exercise. On arrival, PW3 opened one parcel after another, weighed the leaves and got the total weight of 155.80 kg. After that, they went to Central Police Station where he opened the case file for allegation of trafficking in narcotic drugs which was given reference number AR/IR/9626/2022. Upon getting the case reference number, he recorded it on the certificate of seizure, Exhibit P4 after he informed the accused person and

independent witness. Around 10:20 AM, he handed over the exhibits to J.1193 CPL Dastan (PW1), the custodian of exhibits. According to PW1, he received seven sulphate bags marked Al to A7 and three sacks marked A8 to A10 together with Exhibit PIO with its ignition key. After receiving, PW1 registered them in PF.16 at entry number 159 of 2022 (Exhibit Pl) and labelled all exhibits by using the said entry number. On the same date around 11:20 AM, PW1 handed over seven sulphate bags and three sacks containing fresh leaves to PW3 who together with the Page 4 of 21 accused person and other police officers took them to the CGC. On arrival, PW3 handed over the sulphate bags and sacks to government chemist namely, Noela Olivia Enock (PW5). According to PW5, he received three sacks labelled A3, A4 and A5 and seven sulphate bags labelled Al, A2, A6, A7, A8, A9 and A10. She received them together with letter of request and submission form. Upon receiving, she opened the parcels and found bundles of leaves wrapped in newspaper and sole tape. She weighed each parcel and since the bundles were many, she drew samples through cluster sampling in order to get representative sample. Thereafter, she registered the samples by giving them laboratory number NZL 994/2022. After registration, she sealed the remaining exhibits, labelled them with laboratory number, signed and handed over to PW3.

After that, she filled in and signed form DCEA 001 and sample receipt notification. She then stored the samples in sample storage room while PW3 left with the exhibit. On arrival at the station, PW3 handed over the parcels to PW1 by signing in Exhibit Pl. According to PW1, on the same date at 1:30 PM, he received sealed parcels from PW3 and stored them until 22nd September, 2022 at 10:00 AM, when he handed over the same to PW3 who took them to court before Hon. Pamela Meena (PW4) for purpose of procuring disposal order. PW4 issued disposal order in the presence of accused person and then Page 5 of 21 she filled in and signed in inventory form (Exhibit P5) and certificate of photographs (Exhibit P7). After completion, PW3 took back the sulphate bags and sacks to the station where around 12:00 noon, he handed over to PW1 who stored them until 11th October, 2022 at 10:00 AM, when he handed over to PW3 for destruction. The destruction exercise was conducted at Muriet damp by using bulldozer which mixed the exhibits in question with existed garbage. The exercise was witnessed by the magistrate namely Regina Cyprian Oyier (PW2), the accused person, PW3 and other officers. Thereafter the certificate of destruction (Exhibit P3) was duly prepared and signed which indicates that a total of 155.8 kilograms were destroyed. On the other hand, PW5 conducted laboratory analysis on the

samples she drew. She conducted preliminary test through Chen Kao test and confirmatory test through the machine called Gas Chromatography Mass Spectrometry (GCMS). After analysis, the leaves from each sample were confirmed as narcotic drugs, namely Catha edulis after being found with Cathinone and cathine chemicals which are only found in Catha edulis plant. After getting the results, on 29th September, 2022, she prepared a report which was approved by Zonal Manager. The report was admitted as Exhibit P8. Page 6 of 21 In his defence, the accused person came up with a general denial. He categorically denied to have committed the alleged offence. He further denied to be arrested at the crime scene in the course of driving Exhibit P2 which was found with the leaves in question. He also denied to be called Benson Emmanuel Kirita claiming that, his name is Benson Paulo Daudi. According to his testimony, on 17th September 2022 while he was at Bill Rivers club located at Kilombero area, a fight arose and in the course of fight, he threw a stone which ended up breaking the car of a certain lady who upon seeing that, he called the police who came and arrested him. Thereafter, they took him to Ngarenaro Police Post and upon being asked, he mentioned his name, Benson Paulo Daudi. He stayed in lock up until 18th September, 2022 when the OCS ordered the ones who took him there to release

him or take him to court. Then, he was taken to Central Police Station where he stayed until 12th October, 2022, when he was arraigned to court where he was charged with trafficking in narcotic drugs by the name of Benson Emmanuel Kirita which was not his name. His attempt to raise concern over his name proved futile as he was informed by the magistrate that, he was not allowed to say anything. He denied to sign in Exhibit P3, P4 and P5 claiming that, the same were signed by Benson Emmanuel Kirita and not him. He further denied to be involved in the Page 7 of 21 exercises concerning drawing of samples, weighing, photographing and destruction of exhibits. He tendered his birth certificate which was admitted as Exhibit D2. He finally prayed to be acquitted as he did not commit the alleged offence. In a nutshell, that was the evidence of the prosecution and defence. Although both sides were ordered to file their final written submission, it is only the defence side who filed the same. In his submission, Mr. Bwemelo raised various issues; one, the weight of narcotic drugs in question was not proved; two, the seized exhibits were illegally disposed; three, material contradictions on prosecution evidence; four, the chain of custody was broken and five, failure to call material witnesses. These issues will be considered in the course of determination of the main issue which is,

whether the prosecution side has managed to prove the case against the accused person beyond reasonabie doubt. It is worthwhile noting here that, according to section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2022], in criminal matters, a fact is said to be proved when the Court is satisfied by the prosecution beyond reasonable doubt that such fact exists. That is to say, the guilt of the accused person must be established beyond reasonable doubt. It is cardinal principle that, the burden of proof lies with the prosecution except where any statute or Page 8 of 21 other law provides otherwise such as section 28 (1) of the Drugs Act which imposes a duty to the accused person 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 Drugs Act. 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 person trafficked 155.80 kilograms of Catha edulis as alleged in the information. Throughout the trial, the prosecution side was optimistic that, the three sacks and seven sulphate bags containing

fresh leaves suspected to be narcotic drugs were seized from the accused person within his motor vehicle with registration number T755 AWD Toyota RAV4 (Exhibit P2). The seizure was executed by PW3 in the presence of independent witness, PW6. They were also optimistic that, the leaves in the sacks and sulphate bags weighing 155.80 kilograms were analysed by PW5 who confirmed to be narcotic drugs namely Catha edulis and were finally disposed of in accordance with the dictates of the law. They tendered inventory form (Exhibit P5) in lieu of the leaves confirmed to be narcotic drugs. On the other Page 9 of 21 hand, the accused person denied any involvement in the alleged incident. In the view thereof, and basing on the submission by learned defence Counsel, the determination of the main issue depends on the following specific issues; one, whether the leaves in question were seized from the accused person, two, whether the chain of custody was maintained and three, whether the exhibit subject matter of the case was legally destroyed. Starting with the first specific issue, the prosecution evidence reveals that, on 21st September, 2022, the motor vehicle with registration number T755 AWD make Toyota RAV4 black in colour (Exhibit P2) was apprehended by PW3 in the course of patrol at Njiro area after being tipped off by their informant. According to PW3, after being apprehended, the

driver of Exhibit P2 introduced himself by the name of Benson Emmanuel Kirita. It was also his evidence that, in the course of search in the boot, they managed to retrieve seven sulphate bags and three sacks containing bundles of fresh leaves suspected to be Catha edulis packed in newspapers and banana tree leaves. PW3 seized them together with Exhibit P2 by signing the certificate of seizure (Exhibit P4). The whole exercise was witnessed by independent witness, PW6. According to PW3 and PW6, the accused person signed in Exhibit P4. Both witnesses identified the accused person in the dock as the person who was arrested on the date of the incident in the motor vehicle in Page 10 of 21 question where seven sulphate bags and three sacks containing leaves were retrieved. As stated herein above the accused person in his defence came up with a general denial. He claimed to be arrested on 17th September, 2022 at the night club and from 18th September, 2022 to 11th October, 2022, he was under police custody at Central Police Station. This implies that, on the date of the incident, the accused person was under the custody of police at central police station. It is well known that; general denial is fundamentally a weak defence; negative and self-serving which cannot impress the Court. See the case of Leonard Joseph @ Nyanda v, Republic (Criminal Appeal No. 186 of 2017) [2020] TZCA 51

TanzLII. Apart from denying everything, looking closely at his evidence, the accused person relied on the defence of alibi. Nonetheless, his alibi was raised in contravention of the law because according to section 42 (1) (2) of the EOCCA, the accused person ought to have notified the Court his intention to rely on alibi as his defence during the preliminary hearing. But he did not do so. Likewise, he failed to furnish the prosecution with the particulars of his alibi before the closure of prosecution case as required by law. If his a/ibi\N3S genuine, and he knew he was not at the crime scene, it was expected to be revealed from the beginning at the preliminary hearing considering the fact that, at that stage, he was duly Page 11 of 21 represented by learned Advocate who is conversant with the procedure of notifying the Court to that effect. Moreover, if he truly knew he was not at the scene of crime, he could have at least furnished the particulars of his alibi to the prosecution before the closure of prosecution case. Furthermore, if his alibi was genuine, it was expected to be revealed in the course of testimony of PW3 and PW6. But the questions pertaining to where and when he was arrested were not asked by his counsel when seizing officer and independent witness, PW3 and PW6 respectively, were testifying. PW3 and PW6 were not asked question about the accused person to

be arrested in the night of 17th September, 2022 at Bill Rivers club located at Kilombero area after he damaged the car of a certain lady. In other words, the accused person through his counsel failed to cross-examine PW3 and PW6 on this vital point, which ordinarily implies acceptance of the truth of the witness evidence; and any alarm to the contrary is taken as an afterthought if raised thereafter. See also the case of Martin Misara v. Republic (Criminal Appeal No. 428 of 2016) [2018] TZCA 318 TanzLII. Therefore, this alone is a clear indication that, his so-called alibi is nothing but an afterthought. Apart from that, the accused person went further and denied to be known by the name of Benson Emmanuel Kirita. According to him, Benson Page 12 of 21 Emmanuel Kirita is different person from him, Benson Paulo Daudi as evidenced in Exhibit D2. It is not disputed that; the name of Benson Emmanuel Kirita is different from Benson Paulo Daudi. Legally, these are two different persons. However, the name of Benson Emmanuel Kirita did not fell out of the sky. According to PW3, it was the accused person himself who introduced himself by the name of Benson Emmanuel Kirita. That is to say, it was the accused person who baptised himself as Benson Emmanuel Kirita. It can be recalled that, PW3 identified the accused person in the dock as Benson Emmanuel Kirita whom he arrested at the crime

scene on the date of the incident with sacks and sulphate bags containing the leaves in question. Likewise, the independent witness, PW6 identified the accused person as the one who was found in possession of sacks and sulphate bags containing the leaves in question. It seems that, the accused person introduced himself by another name just by design as trick to escape his liability. Besides, PW3 in his testimony explained in details how the accused person signed in the certificate of seizure. Unfortunately, the accused person through his Advocates did not cross-examine PW3 about the accused person signing in the certificate of seizure. All these connote that, the defence accepted the truth of PW3's evidence concerning the accused person signing Page 13 of 21 the certificate of seizure at the place where the search was conducted. This is a clear proof that, he signed to acknowledge that, seven sulphate bags and three sacks containing bundles of fresh leaves were seized from him. In the case Song Lei v. The Director of Public Prosecutions and Others (Consolidated Criminal Appeals No. 16 A of 2016 & 16 of 2017) [2019] TZCA 265 TanzLII it was emphasised that, by signing the certificate of seizure, the accused person acknowledges to be found with the exhibit in question. In these premises, I find the whole defence by the accused person particularly his alibias nothing but

afterthought. Thus, it is the finding of this Court that, on the material day of incident, the accused person was found in the motor vehicle in question in actual possession of seven sulphate bags and three sacks containing bundles of fresh leaves suspected to be narcotic drugs. With this finding, the first specific issue is affirmatively answered. Reverting to the second specific issue concerning chain of custody, the critical question to be answered is whether the analysis conducted by PW5 was based on the fresh leaves found in seven sulphate bags and three sacks seized from the accused person. According to the testimony of PW3, on the material date, 21st September, 2022, he seized a total of ten parcels, three sacks and seven sulphate bags containing bundles of fresh leaves wrapped in newspaper and banana tree leaves. As per testimony of PW6, after Page 14 of 21 opening the sacks, he saw bundles of leaves packed in newspapers and wrapped with sole tape. PW3 labelled the parcels Al to A10. After seizing, he went to GCLA, weighed the leaves separate from the packages and got the total weight of 155.80 kgs. Thereafter, he went to police station where he handed over the parcels to PW1 via Exhibit Pl. Although PW3 did not state the specific number he labelled on the sacks against those on the sulphate bags, according to the testimony of PW1, the three sacks he received were

labelled A8 to A10 and the seven sulphate bags were labelled Al to A7. It is also the testimony of PW1 and Exhibit Pl that, on the same date at 11:40 AM, the parcels in question were handed over to PW3 for purpose of taking them to GCLA offices for analysis. PW3 submitted the parcels to PW5, government analyst at GCLA northern zone. According to PW5, she received ten parcels and among them, three were sacks and seven were sulphate bags all containing bundles of fresh leaves wrapped in newspapers and sole tape. It was also in the testimony of PW5 and Exhibit P8 that, the three sacks she received were labelled A3, A4 and A5 while the seven sulphate bags were labelled Al, A2, A6, A7, A8, A9 and A10. From the evidence of PW1, PW3, PW5 and PW6 it is clear that, what was seized from the accused person was not the same that were submitted Page 15 of 21 to PW5 for analysis. There are material contradictions on prosecution witnesses in respect of packages of bundles which were seized and submitted for analysis as well as the type of mark that were labelled on the sacks against the sulphate bags. First and foremost, there is contradiction between PW3 and PW6 concerning the packages of the bundles of leaves which were seized from the accused person. While PW3 said that, the bundles were packed in newspapers and banana tree leaves, PW6 said they were packed in newspapers and wrapped with

sole tape. Secondly, while PW3 claimed to seize and submit to PW5 bundles of leaves packed in newspapers and banana tree leaves, PW5 claimed to receive bundles of leaves packed in newspapers wrapped with sole tape. During cross- examination, PW5 admitted that and I quote: "Yes, I stated about finding the leaves packed in newspaper wrapped with sole tape. The newspaper with sole tape package is different from banana tree leaves..." It is apparent from the extract above that, PW5 admitted to have received the leaves packed in newspapers wrapped with sole tape. These packages received by PW5 were different with those seized by PW3 at the crime scene; meaning that, what was seized by PW3 was not the same which was received and analysed by PW5. Under the prevailing circumstances, the Page 16 of 21 possibility of the leaves in question to be tampering with is very high. Apart from that, although in his testimony, PW3 did not specify the mark he labelled on the sacks against the sulphate bags, according to PW1, he received from PW3 three sacks labelled A8 to A10 and seven sulphate bags labelled Al to A7. On the other hand, according to the testimony of PW5 as well as Exhibit P8, she received three sacks labelled A3, A4 and A5 while the sulphate bags were marked Al, A2, A6, A7, A8, A9 and A10. This proves that, the sacks and sulphate bags handed over to PW1 were different from the ones

which were submitted to PW5 for analysis. Furthermore, the evidence of PW1 and Exhibit Pl reveal that, on 21st September, 2022 at 11:40 HRS, he handed over the parcels to PW3 for purpose of submitting them to GCLA for analysis. At 13:30 HRS, he received back the parcels from PW3. On the other hand, PW5 during cross- examination admitted to receive the parcels in question from PW3 at 14:00 HRS. The same time appears in her previous statement which was tendered and admitted as Exhibit DI. From their evidence, it is obvious that, at the time when PW5 alleged to receive the parcels for analysis, the same were already retuned under the custody of PW1. These contradictions are not minor and they go to the root of the matter concerning chain of custody which is the key aspect in proving the offences involving drug trafficking or Page 17 of 21 possession. With these glaring contradictions, I am constrained to agree with Mr. Bwemelo that, the chain of custody is broken because what was seized from the accused person is different from what has been transmitted to GCLA and analysed by PW5. Thus, the second specific issue is negatively answered. Concerning the third specific issue, it was the contention of Mr. Bwemelo that, the disposal of the leaves in question was illegally conducted for want of disposal order. It is prudent to underscore that, section 36(1) of the Drugs Act allows

disposal of narcotic drug depending on its hazardous nature before the same is tendered as evidence in court. Equally, sub section (5) of the same section mandates courts to treat the inventory as primary evidence. In that regard, Exhibit P5 is primary evidence as far as disposal of the exhibits seized from the accused person is concerned. Despite being primary evidence, Exhibit P5 does not contain the disposal order alleged to be issued by PW4. One may wonder if the disposal order was really issued why, it was not recorded in Exhibit P5 as required by law. The form prescribes for the part for recording the order in question but in Exhibit P5, that part is blank. It is unbecoming for PW4 to remember to record trivial things like her address and forget to record the disposal order which was the centre of the whole exercise before her. In the absence of disposal order, it Page 18 of 21 cannot be said that, the seized exhibit intended to be put in evidence was legally disposed. With such irregularity, Exhibit P5 has no probative and evidential value. In that regard, Exhibit P5 which was tendered in lieu of physical exhibit, three sacks and seven sulphate bags containing fresh leaves cannot be relied upon to prove the offence of trafficking narcotic drugs namely Catha edulis weighing 155.80 kgs. Furthermore, according to certificate of destruction (Exhibit P3), the net weight of

narcotic drugs subject to destruction after taking samples was not recorded. However, in the same Exhibit, PW2 endorsed that, the accused person witnessed 155.80 kgs of Catha edulis being disposed. These were the same kilograms which were seized from the accused person as reflected in the information. In other words, basing on Exhibit P5 and P3 the same kilograms seized from the accused person are the same one that were destroyed. This connotes that, there is no sample that was drawn from the seized leaves for analysis in order to confirm that, what was seized from the accused person was narcotic drug. This concludes the third specific issue which is also negatively answered. For the reasons stated above, and since two specific issues were negatively answered, it is the finding of this Court that, the prosecution side has failed to prove the case against the accused beyond reasonable doubt. Page 19 of 21 Thus, the main issue is negatively answered. Consequently, I find the accused person not guilty and I hereby acquit him on the charge of trafficking in narcotic drugs. As a result, the accused person is hereby set free. It is so ordered. I. K. BANZI

JUDGE 17/10/2024 Delivered in open Court this 17th day of October, 2024 in the presence of Ms. Amanda Lushakuzi, learned State Attorney for the Republic, Mr. Nerius Rugakingira, learned defence Counsel, accused person, Hon. Sophia Minja, Judge's Law Assistant and Ms. Mariam Gallawa, RMA. Right of appeal duly explained. I. K. BANZI

JUDGE 17/10/2024 Page 20 of 21

ORDER Since the accused person denied to be the owner of Exhibit P2, motor vehicle with registration number T755 AWD Toyota RAV4 black in colour and since there was no evidence from either side to establish its real owner, I hereby confiscate it to the Government of the United Republic of Tanzania pursuant to section 49A (1) of the Drug Control and Enforcement Act [Cap. 95 R. E. 2019]. I. K. BANZI

JUDGE 17/10/2024 Page 21 of 21