19780308 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARU.SHA APPELLATE JURISDITON HI:H COURT CRIpIINAL APIAL NO0 147 OF 1975 ORIGINAL CRIMINAL C?3E NO0 102 OF 1975 OF THE DITIC COurT 7 KOROGWE DIT (ICT iT KOROGWE Before W.R. Mramha Esq0, ---------------------Resident Magistrate The Republic --------------------------------Appellant (Original Prosecutor) versus ALP'-IONCE e/o JC1HN ----------------------------RESPOj )ENT (Original Accused) JUDG6NENT riNz.vAs , j. In this case the Repuhlic is appealinq aqainst the decision of Pramaba, Resident :agistrate (aS he then was), in which he convicted the respondent of unlawfully transporting 1-gricultural Products c/s 3 and 8 of the National Agricultural Pro( 9 ucts Board Act nuliuber 39 of 1964, Governmeot No.:ice No0 247 of 1969 and sentenced him to shs. 150/- fine or one month imprisonment in default0 The learned magistrate also ordered that the produce - 59 bags of bans b returfled to the respondent. The l - arned state attorney arued that the sentence of shs. 150/- fine was manIfstly inadequate taking into account that the maximum penality for this offence is a Line of shs0 2000/- or six months imprisonmont or -)oth such fine and imprisonment. it uas argued that the learned trial magistrate erred in ordering that the produce be return -'d to the responent. it was argu:d that had the trial maqistrato exercised his discretion properly he would hve ordered forfeiture of the 59 bas of •:eans to the Government. The respondent who appeared before this Court in person erciu:d tht he had a lettar from his ;r-a Commissioner to the effect thr the beans beloned to him and that he had only failed to got a permit to enable him to transport the produce out of his distict. That the 59 bags belonged to the respondent there can be no doubt. The letter from the Area Comrnissioner says: IKwa yeyote anayohusika: Ndugu John Has a';e " FeliSiani '3eiya ' John Mshanca II j\Tdugu ni liowataja hapo juu kua hahati mbaya wamechukua mz'haragwo, gunia 69, bila kibaii chochotu chEl ofisi hii mpaka Zoroc!we wakipeleka Dar es Salaam. Nchgu ban wariekuja kuangu leo hii na kuomba kiali cha kuendelea na safari yào hadi Dar Cs Salaait0 1(wa Luwa maharaqwe havo ni yao na wtefika hadi Korogwe kwa kuya- .safirisha hdi Dar es Salaam, natoa fibali achiwe waendele na safari van hadi Dar es Saleam. Hawn iee ni Wakaaji we Wilaya ya iruha na wanatambulika vyema hakuna shaka. 1 laendelpe na safari ,, yao kwa kiheii hiki". sgn MOO MA 'NT)A MKUU u; 1ILAY, -A ... ... 0. • S The Republic argued tht the :rea Commission:r's lett.r did not constitute a valid permit entitling the r. sponiant to transport the produce from his district0 According to the learned state attorny's submission National Milling authorities weL - e the only people authorized to issue a permit to enable a person to transport scheduled produce otitside a given district0 With respect 1 aqfee with the le'rnad state attorney's argument that only a p.rmit issued by the N tional Agricultural product Board would have authorized he rosiDonclent to transport his beans butsi-e his district, Arusha0 That this is the law i& evident from the languag: of 3ection 4 of the Nat:onal Agflcultural Products Board (Trarisp2rt Control) Orier, 1969- Government Notice No0 47/1969 published on 679/69 But, as the learned state attorney will 1 hope, agr2. with me on reflection, the Area Commissionerappears to have been under te impression, no doubt wrongly, that hth iettér.ws..a: - va1id petmit authorizing th respondent to transport the produce-from Arusha district to Dar es Salaam. The Respondent quite innocently accepted the letter of the irea Commissioner as a valid permit entitling him to transport his produce to Dar es Salaam0 Had the Area Coimission.r known that the respondent was required to g.t such a permit from the National Agricultural Product Bord or from an acent of the 3oard, he would no doubt have advicd the resrondEnt to get such a permit; and from tha tenor of the Area Commissioner's letter issued to the respondent it would appear that had the respondent ben so advice he would, with th recommendaton of his Area Commissioner, have got such a prmit from the Looking at the case in the light of the Area Commissionr's lettr, it is amply clear tht respondent's offence of transporting the produc&'ithout a vlid prmit was purely technical 0 He was authorized by his urea Commissfentr to transport the bans outside his district but he. did not apparently he thL , necessary prmit frem the Natio -ial bgriciiltural Product .3oard0 Defacto had I a permit0 De- jürhe did nothave a valid: p4ermit0 it was, in the opinion of this cour,. the ,lettr o the Area Commissioner bich sd :s a .miioating factor reg.irding sentence0 On th facts, as 1, have 1 hope amply demonsrated aove, the learned trial magistrate was in my view, right in xercising leniency on-the accusedo 1 aii far from being pesuaded by the Repubii- rumt•tha.t the sent-nce • of shs 150/-. was -so -manifst-ly- inadeuate-as to call, for enhancement by this court0 ;s. for the order of the low-r court th. t the produce be rcturnd to th respond:nt . 1 find no valid r ason to interfre. in his lett4r' the i,rea Commissioner s.ays that th beans helong-c1 to the accud and hi two companions0 There wrs no evi nce frm thL prosecution that ci. led for foreiurd of the produce0 The respondent is to bu, refundd his 59 bags of beans (as shownin th ch.rge -;haet), as ordered by the lo"er court0 if the beans hav since been sold h is to be efundod the proceeds thereof0 - in the eyent tL CpP tal by the gepunlic. fails • ' -' • • 5,5r,0 - 0.3.78 JUDGE =1lawa f or the Repu1'tc/Appellant Re-suonthTut prsent in psoil0 - • NSi/GKK - S - :_•____ -- "- . 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