SEURI ZAKAYO MATHAYO ANOTHER VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISTRY) AT ARUSHA CRIMINAL APPEAL NO. 73 OF 2023 (C/fin the District Court of Longido, Criminal Case No. 52/2022) SEURI ZAKAYO MATHAYO AND FRANK MZUNGU MOLLEL............................................................. APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT JUDGMENT 24th October; 7th November 2024 P. P. NDUMBARO. J. The appellants Seuri Zakayo Mathayo and Fank Mzungu Mollel jointly charged with the offence of Trafficking Drugs contrary to Section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act (Cap 95 RE 2019) as amended by Section 19 of Written Laws (Miscellaneous Amendments) (No. 5) Act No.9 of 2021 and convicted to 30 years imprisonment. On the 27th day of June Enduimeti Wildlife Management Area 2023 at Lelemeta Sinya within Longido District Arusha Region, the appellant was found trafficking narcotic drugs namely Catha Edulis commonly known as "Mirungi" weighing 74.40 kilograms contrary to law. Dissatisfied with the Judgment of the trial court, appealed before this Court against conviction and sentence by lodging a petition of appeal with 10 grounds as; - 1. That, the trial court erred in law and fact in not finding that there was a violation of section 48(2) (c) (iii) of the DCEA. 2. That, the trial court erred in law and fact in not finding that chain of custody was broken. 3. That, the trial court erred in law and fact in not finding that there was a contradiction between PW1 and PW2. 4. That, the trial court erred in law and fact in not finding that section 39 of Ant Drug Unit Act (ADU Act) was contravened 5. That, the trial court erred in law and fact in not finding that the weight of the said psychotropic substance was not established as the said drug was not taken to the weight agency for measurement. 6. A case against the appellant was not proved as required by section 3(2) of TEA. 7. The trial court erred in convicting the appellant for the case of charge and failed to note that the certificate of seizure exhibits P3 and P4 were filed at the police station and not at the crime scene. 2 8. That, the trial court erred in not summoning honourable U. Shayo who gave an order of disposal of the purported Khat. 9. Without prejudice to the above ground of appeal the trial court erred in not finding that the evidence given by PW1, PW2, PW3, PW4, and PW5 was highly questionable as to shake the prosecution case 10. That the trial Court erred in believing that the appellant's defence did not shake the prosecution case. The appellants sought to move the court to allow his appeal, set aside conviction and sentence and set the appellants at liberty. Parties chose to dispose the matter by way of written submission. The appellants were self-represented and the respondent Republic was represented by Geoffrey Nugu State Attorney. On the first ground, the appellants argued that they were detained in custody for more than 48 hours contrary to section 48(2)(c)(iii) of DCEA. The procedure of search and seizure was not adhered to. Initially, the searches were conducted at Lelemeta Sinya however no certificate of seizure was issued and no independent witness witnessed the seizure, after the arrest were taken to the police car to Longido Police Station. The seizure and arrest certificate was not filled and compounded at the scene, 3 contrary to section 48(2) of DCEA and 38 of CPA. Exhibits P2, P3, and P4 were filled at Longido police station, argued ought not to be used to convict them. On the 2nd ground the chain of custody was broken, the alleged Khat claimed to be arrested together with the accused was not the same as they destructed, the accused was arrested at Lelemeta Sinya with claimed to have the said khat but no seizure certificate was filled during arrest, these create uncertainty as to the chain of custody. The search order and certificate of seizure were made before the police and it was tendered by PW1, the accused was arrested at Lalemeta Sinya but the seizure certificate was filed at Longido police station contrary to section 48(2)(c)(iii) of DCEA and section 38 of CPA. Which also received support in the case of David Athanas @ Makas and Another Vs Republic Criminal Appeal No. 16 of 2017 Page 8, reported at Tanzilii. The appellant argued discrepancies create the possibility that the seized Mirungi does not belong to the accused. On the 8th ground, the appellants argued the prosecution failed to summon a key witness who was Hon U Shayo to testify on the disposal of said Khat and verify that the procedures were adhered to. The appellant argued that the accused were arrested at Leremeta Sinya on 27th June 2023, it was the testimony of PW1. PW2, PW5 and PW6 the sample of arrested drugs were taken to a Government chemist on 03/07/2024. Contrary to section 39 of the Ant-Drug Act which requires the sample to be taken within 48 hours from the arrest of the accused and compounding of drugs. The appellant argued grounds 5, 6, and 9 together that the case was not proved beyond a reasonable doubt, and that the testimony of PW1, PW2, PW3, PW4, and PW5 contradicts each other. Argued on page 38 of trial court proceedings PW5 (Romayan Lashinuni Laizer) testified accused was arrested by a Police Francisca with 4 sacks of Khat, the accused signed a seizure certificate in the presence of the independent witness Innocent Kitisya, Lenguti Nderume, while PW6 in page 40 testified that the seizure was witnessed by PW6 himself, Innocent Kitisya and police Fransca to make the piece of evidence questionable. In reply, the defendant argued the case on the prosecution side was proved beyond reasonable doubt hence the appeal has no merit. On the 1st ground argued there was no violation of 48(2) (c)(iii) of the Drug Control Enforcement Act Cap 95 RE 2019. That general rule accused should not be detained for more than 48 hours if there is no article used or suspected to be used in possession of custody of the officer. Argued the provision is irrelevant to the case at hand. On the 8th ground argued section 36 of the Drug Control and Enforcement Act provides certification of inventory by the magistrate. On page 14 of the trial court proceeding PW1 testified exhibit P8 was certified by the magistrate. Further argued sect 143 of the Law of Evidence Act provides no number of witnesses required to prove the fact, the provision receives support from the case of Erick S/O Michaek Vs R Criminal Appeal No. 80 of 2020, CAT, pages 19 and 20. On 4th ground argued, the appellant cited the wrong provision, Section 39 of the Ant Drug Unit Act does not exist. The respondent consolidates grounds 2,3,5,6,7 and 10. On the issue of illegality of arrest Section 106 of Wildlife Conservation Act Cap 283 RE 2022 mandated the authorized officer to search without a warrant if believes that any person is committed or is about to commit an offence under the Act, the search was under emergency, supported the argument in the case of Omary Said @ Lubawa Vs R Criminal Appeal No. 31 of 2023 CAT 486 page 13 and 14. On the issue of chain of custody argued that it was properly retrieved, controlled, stored, transported and finally tendered before the 6 accorded an opportunity to give objection or comments before the court as per Buruka case supra. It is time for the court to consider if the appeal has merit. It is the duty of prosecution to prove that the accused persons trafficked the alleged drugs and, particularly by proving that, the three sacks of Khat were seized from none but the accused persons. The court chose to argue the 1st and 2nd grounds together because of their nature. The issue raised by the appellants was they were detained in custody for more than 48 hours contrary to section 48(2)(c)(iii) of DCEA, whereby the respondent argued no violation of the provision as there is the exception to the section if the article used or suspected to be used in possession of custody of the officer. I don't agree with the respondent's argument, on the reasons that the provision allows an extension of time for the detention of the accused into custody if is made in writing to facilitate further investigation, but there was no evidence as to whether there was an application for extension of time to facilitate the investigation. Despite the fact, it was the testimony of PW7 on page 45 that on 28 and 29/06/2023 they were looking for the owner of the motor vehicle arrested with the accused hence delayed. However, the said testimony contradicts the testimony of PW1 on page 36 that, they did not conduct sampling on 28 and 29 /06/2023 because police attended Uhuru touch at Longido. Despite this fact but accused did not show how they were prejudiced on the delay. On the issue that searches were conducted at Lelemeta Sinya no certificate of seizure was issued and no independent witness witnessed the seizure and thereafter taken to the police car to Longido Police Station and filled seizure and search warrant. It was the testimony of the accused that they were arrested at Sinya market walked half an acre distance and taken into their car to Longido police station. The car had a sack of the said Mirungi. It was a testimony of PW2 referring to trial proceedings page 19 that he was in patrol with a fellow wildlife officer PW5 received information from an informer that two persons had sacks of Khat and they acted promptly and went to arrest the appellants herein, therefore under such circumstances, the requirement of the search and arrest warrant is of no need. I agree with the submission of the defendant on the issue of arrest and search conducted under emergency no need for a search and arrest warrant, that is the legal position. However, the requirements of an independent witness were not lifted. The presence of an independent witness was important at the scene of the crime to show the 4 sacks of 9 Khat were from non but accused. Furthermore, the fact that the independent witness witnessed the arrest and seizure before the Longido police station while the accused were arrested at Lelemate Sinya distorts the chain of custody and creates doubt as to what he witnessed since the Khat was seized in his absence. The said independent witness was told by PW2 and PW5 that they seized Khat, this is to say the testimony of an independent witness is hearsay from PW2 and PW5. Exhibits P2, P3, and P4 Khat were seized at Lelemata Sinya in the absence of an independent witness and filled at Longido police station. The question is could PW2 and PW5 failed to procure an independent witness at Lelemata Sinya to witness the search and seizure? Despite the fact that the prosecution tried to prove the chain of custody was intact from the police station to disposal of the exhibit by court order, referring to page 20 of trial court proceedings the chain was not intact at the initial stage, to create doubt, the independent witness (PW5) was not at the time of retrieval of four sacks of Khat in the Lelemata Sinya contrary to Section 38(3) of Criminal Procedure Act Cap 20 RE 2019, which requires an independent witness to be at the scene of the crime, the position receives support in the case of Hasan Suleiman Vs Mz, 2005 TLR on page 237 held that a search must be witnessed by two or more respectable 10 Khat contradicts hence creating doubt. In the case of Pascal Yoya @ Maganga Vs R Criminal Appeal No. 248 of 2017 Unreported, it was held that. "It is a cardinal principle o f criminal law in our jurisdiction that, in cases such as one at hand, it is the prosecution that has the burden o f proving its case beyond a reasonable doubt The burden never shifts to the accused. An accused only needs to raise some doubt on the prosecution case and he need not prove his innocence" From the evidence and submission of parties, it is my view that the chain of custody was distorted, the so-called independent witness did not witness the retrieval of four sacks of Khat, what he testified was mere hearsay and the ownership of two motor vehicles claimed to have arrested with accused was not established, there was a procedural irregularity in the disposal of the core exhibit to warrant improper admission of the tendered exhibit. It is my view that the appellant created a doubt which ought not to be overstated. On the 8th ground, the appellants argued the prosecution failed to summon a key witness who was Hon U Shayo to testify on the disposal of 12 said Khat, and showed that the procedures as to the disposal of the exhibit were adhered. It was the argument of the respondent that, on page 14 of the trial court proceeding PW1 testified exhibit P8 was certified by the magistrate. Further argued Sect 143 of the Law of Evidence Act provides no number of witnesses required to prove the fact. Going through page 15 of trial court proceedings PW1 testified to have taken sampling, inventory and seized exhibit for disposal (Form DCEA 006) for both accused, the trial magistrate granted an application for disposal, PW1 tender the disposal form and it was admitted as exhibit P10. Testified further that, after the order, the Khat was disposed of in the presence of the accused and magistrate. On the claim that the important witness Hon U Shayo was not called, it is my view that there was no need to bring Hon Shayo before the court to testify, however it was necessary to show that procedures were adhered to as per Police General Order (PGO) No. 299 paragraph 5 which makes it mandatory for the suspect to be brought before the magistrate for disposal order and filing of exhibit P9. In supporting his argument cited the case of Mohamed Juma Mpakama referring to the case of Buruka Lekeni Ole Ndidai and Lekitoni Kaika Lendiare Vs R. Criminal Appeal No. 459 of 2020, pages 15 and 16 which shows procedures of disposing exhibit that; 13 1. The investigator or prosecutor shall make a prayer before a magistrate in the chamber 2. Suspect must be present during the hearing of the application 3. The suspect must be asked for comments, remarks or objections regarding perishable exhibits thought to be disposed of. 4. If the suspect does not have any comments, remarks or objections regarding a perishable exhibit, the court should record that the right was given and opted not to use it. 5. If the suspect gives comments, remarks or objections regarding a perishable exhibit, the court should record it on the back of the inventory form or separate piece of paper and should be signed by the magistrate. Referring to the matter at hand and court records particularly exhibit P7 show the accused to have signed the document for disposal (Form No. DCEA 006) but nothing was recorded to show that they were given the right to be heard, give comments, remarks or objections regarding the perishable exhibit, and nothing was recorded that magistrate signed to have recorded the accused comments contrary to PGO supra. Therefore exhibit P4 ought not to be relied on to prove that the appellant was found in unlawful possession of the 74.4 bundles of Khat mentioned in the charge 14 sheet. I therefore expunge the exhibit and since other evidence from the prosecution side does not prove the case beyond reasonable doubt, I therefore find this appeal to have merit. Based on the said position, I, therefore, set aside the sentence and conviction of the District Court of Longido Arusha Criminal Case No. 52 of 2023 imposed against the appellants. Appellants be released in custody unless lawfully ordered otherwise. It is ordered accordingly. tfA T ^ a t ARUSHA this 07 day of November 2024. D. D i JUDGE 07/ 11/2024 15