salum shamte vs the republic 2023 tzhc 22080 8 september 2023

THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF MTWARA

AT MTWARA CRIMINAL APPEAL NO. 21 OF 2023 (Originating from Criminal Case No. 21 of 2022 in the District Court of Mtward, at Mfwara.) SALUM SHAMTE------- - -- - -- -- ----- ------- ---------- - APPELLANT

VERSUS THE REPUBLIC..................... -- -....... . ............ RESPONDENT

JUDGMENT Date of last Order: 04.08.2023 Date of Judgment: 08.09.2023 Ebrahim, J. Before Mi war a District Court (hereinafter to be referred to as the trial court), the above-named appellant was charged with one count of drug trafficking contrary to Section 15A (1) and (2) (a) of the Drugs Control and Enforcement Act, [Cap. 95 R.E 2019] as amended by the Written Laws (Miscellaneous Amendments) (No.5) Act, 2021. It was alleged that on 21.01.2022 at Libobe area within the District and Page 1 of 23 Region of Mtwara, the appellant was found in unlawful possession of narcotic drugs equivalent to 12.22 Kilograms of ‘bhang’. The Appellant pleaded not guilty to the offence, hence full trial ensued. At the end, the Appellant was convicted and sentenced to serve 30 years imprisonment. A brief factual background leading to the arraignment of the appellant before the trial court as gathered from the record is that PW2 a police officer was on 21.01.2022 in her official duties in different areas at Mtwara Region. She received information that at Libobe village there is a person engaging in bhang business. Together with WP Lillian and PC Monzo, they went to the scene and arranged for an independent witness. They knocked at the house of the Appellant, introduced themselves and fold him that they want to conduct a search in his house. The Appellant allowed them. PW2, independent witness and the

Appellant entered into the house to conduct the search and they managed to seize bhang in one sulphate bag and 1 /2 sulphate bag tied with a rope. She filled the certificate of seizure and issued receipt to the Appellant exhibit P3 Page 2 of 23 collectively. Later on they handed over the Appellant and the seized drugs to PW4. PW3 recorded the Appellant's cautioned statement which was admitted as exhibit P4. PW3 took the seized drugs to Chief Government Chemist Mtwara Zone. She tendered the DCEA 001 Form and Chain of Custody Form which were collectively admitted as exhibit P5. PW1 tendered two sulphate bags of drugs aqua’ Io 12.22 Kg which were collectively admitted as exhibit Pl and chemist report which was admitted as: exhibit P2. On the side of PW4 who is the exhibits keeper al Mtwara Central police station, his testimony was on how he received the seized drugs from PW2 and kept them in a store room. On 24.01.2022, PW3 took the seized drugs to the Chief Government Chemist and returned them to PW4 and on 25.07.2022, PW3 took exhibit Pl to the trial court. The Appellant denied to have committed the offence. He preferred the instant appeal advancing detailed 10 grounds of appeal which can be summarize as follows; 1. That, the lower Court erred in law and fact by convicting and sentencing the Appellant based on defective charge; 2. That, the lower Court erred in law and fact by

convicting and Page 3 of 23 sentencing the appellant while the prosecution side failed to call maferial/important witness to prove the Appellants apprehension in connection to this incident of drug trafficking; 3. That, the lower Court erred in law and fact by convicting and sentencing the appellant herein above without satisfying itself on the proper and correctness of the scene of event; 4. That, the lower Court erred in law and fact by convicting and sentencing the appellant while the proceeding record does not show whether the fact read over to the language which the accused understand, which was done in preliminary hearing; 5. That, the lower Court erred in law and fact by convicting and sentencing the appellant based in the evidence adduced by PW1 (Government Chemist) where he failed to inform the Court about his experience as a Government Chemist and which Government Gazette number he was published; 6. That, the lower Court erred in law and fact by convicting and sentencing the Appellant without determination/consideration which kind of the offence that appellant was charged.

7. That, the lower court erred in law and fact by convicting the Page 4 of 23 appellant while prosecution tailed to prove their case per section 3(2) (a) of the Tanzania evidence Act 1967; 8. That, section 38 (1) of the Criminal Procedure Act was not complied during the search and seizure of the said bhang; 9. That, the lower court erred in law and fact by convicting the appellant while the Exhibit Register was not tendered to prove paper trail of the said bhang; 10. That the lower court erred and fact by convicting the appellant while prosecution failed to establish chain of custody. In light of the loregoing grounds, he prayed to this court to allow the appeal, quash the conviction and set aside the sentence. When the appeal was called for hearing, the Appellant appeared in person, unrepresented; while the Respondent was represented by Mr. Edson Lawrence Mwapili learned State Attorney. The Appellant opted for the learned State Attorney to begin while retaining his right to rejoin should the need arise. At the outset, Mr. Mwapili challenged the appeal and submitted on the 1st ground of appeal on the defective charge. He argued that the charge sheet was properly framed as per Section 135 of the Criminal Procedure Act, [Cap. 20 R.E 2022], On the issue concerning Page 5 of 23 the term drug trafficking while the alleged bhang was found in the room; he referred to Section 2 of the

Drugs Control and Enforcement Act, [Cap. 95 RE 2019] on the meaning of the word “trafficking” which includes “possession”. He concluded on the issue that the charge was properly drafted. Submitting on the 2nd ground of appeal, he referred the court to the case of Aziz Abdallah v. R, [1991] TLR at page 71 on the principle that failure to call material witness allows the court to draw an adverse inference and argued that at page 23 of the court proceedings prosecution informed the court on their failure to call such witness i.e., the witness was not within reach. Thus, he argued, there is no adverse inference. On the 3rd ground of appeal, the learned State Attorney argued that the trial court was satisfied on the arrest, inspection, investigation and the exhibits admitted in court. He argued on the 4'h ground of appeal that the preliminary hearing was duly conducted and the default in it does not vitiate the trial proceedings. To cement his argument he cited the case of DPP vs. Jaba John, Criminal Appeal No. 206 of 2020 at page 8. Page 6 of 23 Moving to the 5th ground of appeal, he contended that PWlfthe Government Chemist) to be gazetted is not the: requirement of the law. He referred to the case of Samwel Stanley v. R, Criminal Appeal No. 67 of 2022 at page 20 which elaborated three factors in receiving expert opinion of which being gazetted is not one of them. He thus argued

that PW1 was qualified to give evidence. He submitted on 6!h ground of appeal concerning the different years on the proceedings and judgement that the same is a normal clerical error which did not prejudice the Appellant. He said the correct citation is Criminal Case No. 21/2022. On the 7th ground of appeal, Mr. Mwapili argued that the case was proved beyond reasonable doubt. He cited the case of Magendo Paul and Another v. R, [1993] TLR 219 and said that the Republic called four witnesses and tendered five exhibits. Speaking of the procedures to be followed on search and seizure under PGO No. 226; he referred to the exception under Section 42 of Griminal Procedure Act, [Cap. 20 R.E 2022] on the existence of emergency on seizure. He cited the case of DPP v. Doreen John Mlemba, Criminal Appeal 359 of 2019. Page 7 of 23 On the 9th ground of appeal concerning chain of custody, ho referred to the case of Paul Maduka & 4 Others v. R, Criminal Appeal No. 110 of 2007 and the case of DPP v. Mussa Hatibu Sembe, Criminal Appeal No. 130 of 2021 saying that chain of custody can be established by oral account of witnesses. He encountered the oral testimonies of PW1 to PW4 and contended that chain of custody on the movement of exhibit Pl was established properly from PW1 to PW4. In rejoinder, the Appellant prayed to adopt his grounds of appeal and prayed for the court to consider the same.

He challenged the submission by the Respondent to be incorrect. He prayed for the court to allow his appeal. I have considered the submission as well as the trial court’s proceedings. The core issue for determination is whether the case against the appellant was proved on the required standard i.e., beyond reasonable doubt. Before determining the grounds of appeal at hand, it is worthwhile noting here that, in criminal matters, in terms of Section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2019], the guilt of the accused person Page 8 of 23 must be established beyond reasonable doubt. Generally and always, such duty lies with the prosecution except where any statute or other law provides otherwise. Section 28 (1) of the Drug Control and Enforcement Act [Cap. 95 R.E. 2019] is among such exceptions. 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 persons trafficked the alleged drugs. Particularly by proving that, two sulphate bags of narcotic drugs (bhang) were seized from the Appellant. Likewise, it is the duty of the: accused person to prove on balance of probabilities that the traffic was in accordance with the license or permit granted under the Drug Act. Starting with Is' and 6th grounds of appeal on the issue of defective charge; adjudication plan is based on the

understanding that in criminal justice a charge sheet is the foundation of any trial - See the emphasis by the CAT in the case of Elisha Mussa v. Republic, Criminal Appeal No. 282 of 2016, CAT al Tabora [unreported). The law is trite and clear that every charge sheet must have two major parts, namely "the statement of the offence" and "the particulars of the offence." The statement of the offence describes Page 9 of 23 the offence shortly in ordinary language. If the offence charged is one created by an enactment, if shall contain a reference to the section of the enactment creating the offence. The particulars of the offence must be set out in ordinary language and must have the required particulars of the crime at issue. These are requirements set under Section 135 (a) (j) - (iii) of the Criminal Procedure Act [Cap. 20 R.E. 2022] as underscored in the case of Juma Mohamed v. Republic, Criminal Appeal No. 272 of 2011, CAT at Arusha (unreported). Case law has further elaborated the requirements for a proper charge sheet. In the case of Athuman Juma and 4 others v. Republic, Criminal Appeal No. 37 of 2009, CAT at Tabora (unreported); the court held that the particulars of the offence in a charge sheet must contain such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. The Appellant was charged with the offence of drug

trafficking contrary to Section 15A (1) and (2) (a) of The Drug Control and Enforcement Act [CAP. 95 R.E. 2019] as amended by the Written Laws (Miscellaneous Amendments) (No.5) Act, 2021. The Appellant Page 10 of 23 complained in his petition of appeal that the charge against him shows drug trafficking while PW2 claimed to find the said bhang in his house. He added that the proper offence ought to have been unlawful possession of narcotic drugs contrary to Section 11 (1) (a) (c) (d) The Drug Control and Enforcement Act [CAP. 95 R.E. 2019] which reads; 11.- ; h "Any person who- (a) cultivates any prohibited plant; (ty...... ................................. ; (c) being the owner, occupier or concerned in the management of any land or piece of /and, permits the land to be used for purpose of cultivation of any prohibited plant; (dj produces, possesses, sells, purchases, transports, imports into Mainland Tanzania, exports, use or does any act or omits to do anything in respect of prohibited plants which act or omission amounting to contravention of the provisions of this: Act, commits an offence and upon conviction shall be liable to imprisonment for a term of not less than thirty years. ” Now, the issue is whether the charge was defective. It is incumbent to firstly reproduce its pertinent parts [especially the statement of the Page 11 of 23 offence and the particulars of the offence) for the sake of readymade reference. They are couched thus: ’’ ...STATEMENT OF OFFENCE DRUG TRAFFICKING; contrary to Section 15A (1) and (2) (a) of The Drugs Control and Enforcement Act [CAP. 95 R.E. 2019] as amended by the Written Laws (Miscellaneous Amendment (No. 5 of 2021).

PARTICULARS OF OFFENCE SALUM S/O SHAMIL, on 21st day of January, 2022 at Libobe area within the District and Region of Mfwara was found in unlawful Possession Narcotic drugs to wit; Sacks equivalent to 12.22 kilograms of Narcotic Drugs, commonly known as ‘Bhang’. The complaint is that the said section which the Appellant suggested to be charged varies with the particulars of the offence charged. Section 2 of The Drugs Control and Enforcement Act [CAP. 95 R.E. 2019] define the word trafficking to mean; "the importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any person of narcotic drug or psychotropic substance any substance represented or held out by that person to be a narcotic drug or psychotropic substance or making of any offer but shall not include-..... .." Page 12 of 23 From the above provision of the low, it is clear that the word trafficking includes possession. That being the position therefore grounds of appeal are without merits. Before going to another grounds of appeal, on my perusal of the trial court record, I have observed that the cautioned statement which was also relied by the trial court to form a conviction of the Appellant (exhibit P4) was taken out of the prescribed time as per the requirement of Section 50 (1) (a) of the Criminal Procedure Act [CAP. 20 R.E.

2022[. Looking at the chain of custody record form, PW2 seized the alleged bhang from the Appellant on 21.01.2022 at 0046hrs. The Appellant signed the said document but PW2 did not. It therefore means that the Appellant was arrested at 0046 hrs. I also went through exhibit P4 where I found that the Appellant was arrested on 20.01.2022 at 2300hrs. However, the Appellant's statement started to be recorded on 21.01.2022 from: 0600hrs and completed at 0730hrs. The statement was supposed to be taken from 0046hrs when the alleged bhang was seized but instead it was taken at 0600hrs so they were late for about five hours with no explanation for the delay offered. Page 13 of 23 Section 50 (1) (a) and (b) of the Criminal Procedure Act [CAP. 20 RE. 2022], provides for the requirement of recording the statement of the suspect/accusod within four hours. In calculating time, the statement was recorded beyond the prescribed time of 4 (four) hours. In the case of Lumuda Mdhushi vs Republic, Criminal appeal No. 239 of 2011, the court found that the caution statement was not recorded within 4 hours and that failure to comply with the above requirement was fatal. The court proceeded to expunge the statement in the court records. Indeed, the interview should be completed within four hours unless the reasons for delay are clearly explained. The Court of Appeal of Tanzania in different occasions

emphasized on the requirement of recording the cautioned statement within four hours from the time the appellant was restraint unless the reasons for the delay are explained as held in the case or Adinardi Iddy Salimu and Joseph Evarist @Msoma v Republic, Criminal Appeal No 298 of 2018, CAT at Arusha and Jibril Okash Ahmed v Republic, Criminal Appeal No 331 of 2017, CAT at Arusha. Page 14 of 23 In our instant case the records are silent on the reasons for the delay to record the AppellanTs statement from the time he was arrested. For that reason, I am satisfied that the same was taken out of the prescribed time provided by law and I accordingly expunged it from the court records. The 2nd grounds of appeal is on the prosecution failure to call the independent witness. I am aware that in proving any fact, what matters is the strength of evidence and not a number of witnesses as provided under Section 143 of the Evidence Act [Cap. R.E. 2022]. Equally, it is vital to underscore the general rule that the prosecution has prima facie duty to call those witnesses who from their connection with the transaction in question are able to testify on material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an adverse inference to the prosecution. See Riziki Method @ Myumbo v. Republic, Criminal Appeal No. 80 of 2008 CAT

(unreported). In the present case, PW2 stated that after conducting the search, he prepared a certificate of seizure and have it counter signed by PW2, Page 15 of 23 the Appellant and an independent witness. Surprisingly the said independent witness was not called by the prosecution to testify. During the trial, prosecution told the court that they failed to secure the independent witness and prayed to tender the statement of Sauda Mohamed under Section 34B of the Evidence Act [Cap. 6 R.E 2022]. The prayer was granted by the court and it was ordered that the said statement be served to the Appellant. I have had an ample time to go through the trial court records and found no record that the said statement of the independent witness was tendered, admitted and read in court. It follows that there is no testimony of Sauda Mohamed in court. The said Sauda Mohamed was in my considered view, a material witness particularly on the fact that she was an independent witness. The materiality of her testimony comes from the fact that she witnessed the seizure and signed in Exhibit P3 collectively to confirm that the two sulphate bags in question were seized from the Appellant. This witness was also material to confirm that it was the Appellant who actually signed in Exhibit P3 collectively and to corroborate the evidence of PW2. Page 16 of 23 Therefore, in the absence of the evidence of

Sauda Mohamed, it casts doubt on prosecution evidence if al all the two sulphate bags in question were seized from the Appellant. The Court of Appeal in the case of Aziz Abdalla Vs Republic (1991), TLR at page 72 stated that; 'The genera! and well-known rule is that the prosecution is under a prime facie duty to call those witnesses who from their connection with transaction in question, are able to testify material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution." I subscribe to the above position and hold that adverse inference is accordingly drawn. In view of the above findings, one cannot with certainty state that prosecution's case was proved to the required standard i.e., beyond reasonable doubt. The 8}h ground of appeal which is in respect of complying with Section 38 (1) of the Criminal Procedure Act [Cap. 20 R.E 2022] during the search and seizure. Page 17 of 23 A police officer is authorised by law to enter and search in any premise, vessel, vehicle or land and seize anything which is connected with an offence. It is trite law that the exercise of this function should only proceed upon obtaining a warrant of search save on emergencies in which case the search may proceed without a warrant as per Section 42 of the Criminal Procedure Act [Cap. R.E 2022]. The

rationale behind this requirement is as stated in the case of Director of Public Prosecutions vs Doreen John Mlemba (Criminal Appeal 359 of 2019) [2021] TZCA 482 (14 September 2021) where the Court of Appeal stated thus; “In our view, the meticulous controls provided for under the CPA and a ciear prohibition of search without warrant in the PGO is to provide safeguards against unchecked abuse by investigatory agencies, seeking to protect individual citizens’ rights to privacy and dignity enshrined in Article 16 of the Constitution of the United Republic of Tanzania. It is also an attempt to ensure that unscrupulous officers charged with the mandate to investigate crimes do not plant items relating to criminal acts in people's private premises in fulfilling their undisclosed ill-motives " In the present case, the search leading to the impounding narcotic drugs (bhang) (exhibit Pl) and the appellant’s arrest was conducted Page 18 of 23 at night and without a warrant of search. The question to be answered, therefore, is whether there was an emergency justifying the conduct of search without a warrant. The [earned State Attorney has argued that, he is aware on the existence of PGO No.

226. However, there is exception under Section 42 of Criminal Procedure Act, [Cap. 20 R.E 2022] which is the existence of emergency on seizure. Unfortunately, the [earned State Attorney’s averment is not reflected in the court record. From the evidence, it was simply stated that on the fateful day, PW2 and her fellow police while on operation in different areas received information that at Li bo be village there is a person engaging in bhang business. They went to the scene, they made arrangement to get an independent witness, thereafter they went to the house of the appellant, conducted the search and arrested the appellant. Since the record is silent on why the warrant was not sought/ob.tained, it looks as if the court was made to assume that it was impossible for PW2 and her colleagues to obtain the warrant and that the search was an emergency hence properly conducted in the eyes of law. In my considered view, the search of the house in question was conducted with no lawful mandate or authority and I have no doubt Page 19 of 23 in holding that the search of the house from which exhibit Pl was recovered, was an illegal search. Further, in Badiru Mussa Hanogi vs Republic (Criminal Appeal 118 of 2020) [2021] TZCA 237 (9 June 2021 ). a search was mounted without a search warrant and a stolen motorcycle was recovered in the process of the illegal search and the trial court

admitted it. The Court of Appeal observed that: “Unfortunately, the trial court did not realise that the motorcycle was illegally seized hence if could have not taken that course. Conversely, it went ahead to receive, admit it as exhibit and acted an it to ground the appellant's conviction.11 In the case of Shabani Said Kindamba vs Republic (Criminal Appeal 390 of 2019) [2021] TZCA 221 (2 June 2021) the Court of Appeal had this to say: “Since the general rule under the CPA is that search of a suspect shall be authorized by a search warrant unless it falls under the exceptions provided for under section 42 of the CPA, and since the instant case does not fall under any of the exceptions, the search was illegally conducted." Page 20 of 23 From the explained rationale above and the fact that search without warrant is permissible in exceptional circumstances, if was incumbent for the prosecution to disclose the reasons why the warrant was dispensed with. From the record, it is clear that PW2 received information on the alleged criminal activity. The question is why didn’t they obtain a search warrant. In the absence of such clarity and full disclosure, I find it unsafe to assume as proposed by the learned State Attorney the exception in conducting search without a warrant. The procedures of search ore governed under Part I of Police General Order as outlined in the case of Ritha

Goodluck Mosha vs. Republic (Criminal Appeal 49 of 2021) [2021 ] TZHC 9174 (1 December 2021), for search to be valid the following requirements must be met: i. Search warrant in case the search is not an emergency one. ii. The search must be conducted by officer in charge of the Station, Officer In Charge of Criminal Investigation of District, Unit or Investigating Officer. iii. The above persons under paragraph ii shall apply to the local Magistrate for warrant of arrest. Page 21 of 23 iv. Issuance of receipts acknowledging the seizure in case anything has been seized. The purpose of having these procedures was elaborated in the cited case of Badiru Mussa Hanogi vs Republic (Supra) at page 10-1 T that: “We think that procedure was purposely set out to avoid abuse of authority oh the part of police officers for; it controls unauthorised and arbitrary searches in premises that may be conducted by unscrupulous police officers and therefore avoid the possibility of fabrication of evidence by planting things subject of a criminal charge.” In the case at hand the procedures envisaged under the above provisions were not adhered to. There was no search warrant. This is clear that the search was illegal and due to that even exhibit P2 was illegally obtained warranting this court to expunge exhibits Pl from the court records, as I hereby do. The last issue which needs determination is

whether prosecution case can stand without exhibit Pl and P4. The answer is definitely in negative. The prosecution case cannot stand because in the absence of exhibit Pl which is the root of the offence there is no offence of drug trafficking. Having found that, I find no need to discuss the rest of the grounds of appeal since the above Page 22 of 23 determined grounds of appeal alone suffice to dispose of the appeal. In the event, I hereby quash the Appellant's conviction and set aside the sentence. The Appellant to be released from prison forthwith unless held for some other lawful cause. Ordered accordingly. R.A Ebrahim

JUDGE Mtwara 08.09.2023 Page 23 of 23