20181219 TZHC Dodoma3

IN THE HIGH CORUT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA APPELLATE JURISDICTION DC CRIMINAL APPEAL NO. 69 OF 2018 (Originating Criminal Case 124 of 2017 from the District Court of Kongwa at Kongwa) SHAURI ELINA @ JACKSON PI.....U......U....I.I..................APPELLANT VERSUS THE REPUBL.IC ....................... ................................RESPONDENT 511212018 & 1911212018 JUDGMENT MASAJU, J. The Appellant, Shauri Elina @ Jackson, was charged with, and convicted of the offence of Unlawful Cultivation of Narcotic Plants contrary to section 11(a) (b) of the Drug Control and Enforcement Act, 2015 and sentenced to thirty years imprisonment by the District Court of Kongwa at Kongwa. Aggrieved by the Judgment of the trial Court, the appellant came to the Court by way of an appeal against both the conviction and the sentence thereof as it can be so seen in the Petition of Appeal that bears six (6) grounds of appeal in which he essentially argues that the case against him was not proved beyond reasonable doubt. It has been alleged 1 / in the trial court that the Appellant together with one Jomo co-owned the bhang farm. The said Jomo has not been prosecuted but the Appellant alone. The appellant was not arrested at the scene of crime, but at his own home whilstasleep on the 4th day of May, 2017. He was arrested by two police officers from the Police Task FOrce for Drug Abuse, Kongwa, who took him to the bhang farm. At the time of his arrest at home the Appellant was not found in possession of any bhang. According to the record of the trial Court, the said bhang farm was then set on fire as the irvesigàti& officers took some few bhang plants as exhibit. The testimonies by A/Irisp. Charles Mwenda (PW1) G. 3738 D/C Hassan (PW2), Stanley chisuligwe Kaka (PW3), P.3630 D/Cpl Zehania (PW5) and Shauri Elina © Jakson (DW1) so confirm. - At the hearing of the appeal on the 17 th day of December, 2018 the Appellant appeared in person and being a layman, he fully -adopted his. grounds of appeal to form his submissions in support of the appeal in the Court. He prayed the court to allow his appeal and set him at liberty. The.. Respondent Republic wa represented by , Ms Miyango Kezilahabi, the learned State Attorney. The Respondent declined: to support the appellant's convicti6n on ,the ground that therewasno any.. report by the Government Chief Chemist for proof that the plants that was allegedly found in the appellant's farm was actually bhang (Cananabis sativa). That, in drug cases it was imperative and advisable to have a competent witness who would testify in the Court as to whether or not the drug that was the subject matter of prosecution was actuafly the drug in 2 issue. The respondent was therefore of the advice that the prosecution did not prove the case against the Appellant beyond reasonable doubt. Since the offence against the Appellant was unlawful cultivation of Narcotic plants, the said offence could only have been able to be proved against the Appellant beyond reasonable if there was evidence that the alleged bhang belonged to the Appellant. There was no such evidence on the secord apart from the allegations by the four prosecution witnesses, which allegations were short of proof that the alleged bhang farm, if any, belonged to the Appellant. The Appellant was not found in the said farm and he was not found in possession of the bhang plants that might have been harvested from the alleged farm. There was also no proof that upon his arrest at this own home, the Appellant ever confessed that the alleged bhang farm belonged to him as there was no any documentary evidence, say cautioned statement, to that effect that was made available to the trial Court. Since the Appellant denied ownership of the alleged bhang farm, in the absence of the would be convincing evidence by the prosecution, it cannot be said that the prosecution was in a position to prove the case against the Appellant beyond reasóhable doubt. The appellant and his witness Glads Jacob Ndalu (PW2), the appellant's ten cell leader, testified in the trial Court, that he has all along been cultivating, Maize, Sunflower and Groundnuts but not bhang. Since the alleged bhang farm was on the mountain, a place where it was even difficult to reach according to the prosecution witnesses PW1, PW21 PW3, Ester Dominick (PW4) and PW5, anybody could have cultivated the alleged bhang there, not necessarily the Appellant whose ownership of the land and the alleged farm there leaves 3 much to be desired Stanley Chisuligwe Kaka (PW3) a village chairman, who alleged that the alleged bhang belonged,.tb tbe Appe!lnt and one Jomo must be taken so lightly because he was witness with interest to serve for his failure to report to the relevant ajthoritis the alleged bhang cultivation in his village only to act upon the Pgiie9irs1ntervention when his presence was required by the police officers as a witness. For the foregoing reasons, the Court is of the considered opinion that the prosecution failed to prove that it was the Appellant who had actually cultivated the alleged bhang farm in order to hold him accountable for Unlawful Cultivation of Narcotic Plants contrary to section 11 (a) (b) of the Drug Control and Enforcement Act, 2015. Since the alleged bhang was seized from the alleged bhang farm whose ownership of the Appellant has not been proved, it was wrong the seizure of some bhang plants from the alleged bhang farm to be imputed to the Appellant, according to the Certificate of Seizure thereof that was tendered in the trail court, amidst objection by the Appellant, as prosecution Exhibit "P2". The tendering and admission in evidence of the alleged exhibit could be commendable if the appellant has been charged with unlawful possession of the said bhang. The tendering and admission in evidence of the alleged bhang plants saved no useful purpose on the prosecution case as against the defence thereof. The appeal is hereby allowed accordingly. The Appellant's conviction and sentence of thirty (30) years imprisonment are quashed and set aside respectively. The Appellant shall be released from the prison forthwith unless he is otherwise held for another lawful cause. 4 • c C NO \GEORGEM.MASAJU , JUDGE • j•; 19/12/2018 5