19940202 TZHC Dar es Salaam

IN THE HIGH COUR,T OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION CRIMINAL APPEAL N0 113 0F 19<22 0 ORI 1aNAL CRIMINAL. CASE· NO., L~,3 OF 1~91 OF THE DISTRICT COURT OF UTETE DISTRICT AT RUFIJI . . Before Jo Po MtuiyF Esqo, ~istrict Magistrate SAIDI HASSANI NDAMBWE o<•ooo••••co APPELLANT versus REPUBLI!J • • • • 1 • e • ~ • e o o o e • • • • o ~ • • e 1 RESPONTIENT JUDGMENT .• MKUDE, J. This is a hopeless appeal4 It was admitted mereli te 8~ns±.der propriety of the sentence bf twl)_ years impris~:nmen-. impesed by the trial courto The appellant was charged with offence ef being i~ possession C'_f bh.3:ng c/s 2 ,b) r:,f the Cultivation ef Noxi~us Plants (Prohibiti~n) Ordinance in the District Cburt ~f Rufiji at Utete. It was alleged by t the prosecuti~n that the appellant was on 22/1r/91 it about . - 140~ Hrs at Uteto Market arr.ested and sent to the pelice stati~n on suspicien that he had been smeking bhang. On being searched at the· pelice station he was found with three grams of bhang in hi.s· pockets and a charge was preferred against him. At the trial the arresting efficer, B3897 ~/Cpl Kadi ~- (P.W.1) and c2a,a P.C. Kizitt (P.W.2) teetifioo. t, th~ . . .,arrest and search . ef the appellant and the fact that I grams e! bha.Jl8 were found in his ptckete. This evidenoe was supp-8rted by that ~f tne S:A,IDISALUM a civilian wbf . was als~ ar~3eted at the market . ~ut wae found t~ have- nothing on him ~pon being sear•~;hed·. He was pr~e•t . whe:n. the appellant was sear(::l'".."',l and he tes-ti,t'ied tha.t h~ Gaw the 3 ~~ams of bhang as it was retrieved from th~ appellant 1-'- p.ockets • I In his appeal th€ appellant merely challenges the finding~ o-f taet 1:IY t.he trial court without saying why f ' . ., j I - 2 the three prosecution witnesses who testified against him should not be telievedo His appeal against conviction is therefore baseless and I dismiss ita The sentn.ce of twn years imprisonment passed on 27/11/91 is cJearly illegal in view of the provisions of section _2 of :he Writ.ten Laws (r1iscell~neous Amendments) 1 Act, 1991. That section amend_s section 2 of the Culti~tien of Noiioo.s P.l:l:~ts ~prohibition) Ordinance ( Cap 134) by . deleting s€ction 2nd substituting for it the following:- "Specified plant" means any pl?,nt specified in the Schedule to this Ordinance. (2) Any person who ~- (a) plants, grc·ws, or in any other manner cultivates any specified plant, or (b) consumes, uses o~ has in his possession any specified plant, or any substance from the specified plant, ~r any compund or admixture of it, is guilty of an offence and shall be liable to· a fine equel t• the market value of the spe<?,ified ·:· . .1 plant or dangerous drug .but shall not in every case be less than ten thousand shillings, o-r to a t-erm of imprlsorunent not exceeding twenty· years nor less/thpn three years, and the court shall order that any such pla plant ,-.-dangerous drug or sub_stan<?e in respect of which an offence has been com.mi tt€d shall be desj;royea.- 11· ·1 In the light tf these pr~visir.ns there is a. mini.. mum sentence •f-shs.10 1 000/ fine or three years impria"1Ullent 4 in default tf the fine intriduced by the Written Laws (Miscellaneous Amendments) Act 1991 ,(Act No. 4 of iil9~1) which :· ' . . .-~: . was already in f•re~ when the appellant was searc~ea and found with the three grams of bhang. · Accerdingl:y- :the sentence Df two years imprisonment is hereby set aside and the appt!llant is sentenced . to sb.a.lO,f08/= . ' fine ~r three years imprisonment in default, the said three years to run from the date of his conviction en 27/11/91~ •••• /3 I l 3 - Before I end this jud~ment there is one thing deserv- ·ing comment ir,. the judgment of the learned trial ·magist,rate • . In the course of his judgment he treated the evidence of the two polic2men, P.W.l and P~W.2, as evidence requiring corroboratior and found such corr: b: rat.ion in the evidence of of P.W.3 a cjvilian~ There is neither a rule of law n~r practice reqt.-Lr±ng the evidence of policemen to _be ·c_orroborated Oefo:ve ·it can be used to found a convictibl1-• There was therefore no need t~ look for• evidence tn . corroborate the evidence of the two~ police officers,. What really matters is the.ir credibility and_ so if the two policem8n are believed the evidence of a civilian does not become necessary. T. L. MKUDR JUDGE 13/1/94 2/2/94 Coram: P.o R. Manent•,_SDR-HC State Attorney - Kasuk~:, Mi.s's _c.c. Mjaya Accused: Absent Judgment of the c?urt has been read today, 2nd February, 19!14 in the absence •'t the accused. The result of the appeal ,. ' - . . ~ . b~ e•mmunicated t~· the accused immediately,. l. L. MKUD.E JUDGi 2/2/~... I CERTIFY THAT TH.IS IS A TRUE COPY OF THE ORIGINAL • ....