19770401 TZHC Arusha

4I 4PL IN THE HIGH C0IJE?.T OF NZNI LT LRUSH !PPELITE JUTEISDICTION HIGH COURT CRIIi'LL JPi'iL NO. 81 OF 1975 ORIGINAL ORmIITLL OLSE.N0. 7 OF 1975 OF THE. DISTRICT COURT OF. ROLIlO DISTRICT AT IiXUU BEFORE: S N. SHARYAN1., Esq., District.M.gistrat t TITO •TRtVJELL LEPIA ... .. . . . . ... . . . . . .... . . APPELL.NT (Origi.na1 L.ccusod) versus' THERE1.JBLIC . . . .. .. . . . . .............. RESPONDENT (Original. osocutor) JUDGMENT : JONATH4TJ. .. . . . . 0 Thc a.pe1loat oq his own pleas of gui1ty was convicted in thp. District Court of Rombo of two counts under the'' East Jrican 'Custonç and Transfer' Tax Lianageinont Act and ' sentenced to a fin. . . He has not appealed from the co1victiohs, but i1, is pertinent to point that one of' the chçge, that of being in possosi.on of uncustofaed goods, is materially defective in that it is not alleged thO appellant know or ought to have known the goods were Ullcustoncd.It..csoential'that for th offen.co of being in possession of uncu OliLA goods thor. enould be staod in the particulars an allegation that. the accused knew dr had reason to knoSu they were. uncusto1iied. For, in' the abonce of uch mons_rca no coiwictioia can stand. I do not however propose to uDs.,.,-u'the 'eresent conviction for, 'both in the facts as outlined by the police prosecutor and 'in the appoliarit's OWfl poti1ion the elomciit of mans rca seems sufficiently brou.jht out and edLiited. Thppea1 is conf±hOd'to.tho lower courts ordQr forfeiting to overniont 'the motor vohiclo in which hd goods were being transpOrted.. Under the provisions of s. 160 (1) of the Act, the motor vchic10 following bhe conviction,' autorntiQallyhocac10 condeLmed property. Cond.oned, that is, not to Govornaent as wo orciercd, but to t1ic Comssioner- General of Customs on behalf 'of' the EaOt kri,can' COimunit. The proceedings in my view hcd a false sthrt mnasmch as•. the Police did not collaboratewith the officials Of the' Customs Pepartaent. .• . . . . . . The Policoby the proviio'nsof o. 158-'l) are " empowered to seize goods and vehicles which appear to them to be liable tfoifeituro.' The rosbntvOh±clo undOr S. 156 (3) wa liable to forfeiture and the police acted well within their powers whon they seized it.. Thereafter, however, there 'iae lack Of c@mplianco with the provisions of sub-section (2) of 's. 158 which required them to hand over the ohi61c.ànd' the goods to officials of the Customs Department. Instead, thoy made no report to thom with 'espoct to the seizure and. proceeded completely on their own. That is... .,... . .. ./2 -2- That is undesirable. Now, alhough the Police are not precluded fron proeecuting such offonces, it is tobc. •fficials noted that s. 172 of the LcteIDccif±cally onpWCrs o.isomaL to prosecute then... They arc, obviousjy urc convorsnt with the propr adtnigr Lion 91' hc' Lct i - n ie Police and the latter Jol2ld dD ill bo apr.ciato this nJ bo prosocubc only in close cooperation withbhO' They are not, so far as I Imow, supposed to arroga:be to themselves is the rosponsibilibics olLausto Land thoiD role should more artmnent properly be to assist then in enf.crclng the Customs laws. In the instant case the police 1by acting indepandQntly of the Custons Deari. e.i'L hev, i effect, rn'erud inoperative certain provisions of' the "act, "jhich niht otherwise have boon expected to give relief to the owner of the m.otcr vehicle who, it would aopcctr, had no knowledge the goods wore uncus -bonod. Had the matter •ben referred to Customs Ghe Cammssionor—G-eneral night have considered to act unctor the provisions of sub—s. (3) of s. 158 and releaed'tho motor vohicle to the ownor. . He night in the alternative have condinded the offoncos as providod in s. 173.. Tho Luthority in the exercisoof its .powr under s.. 16,3 which it has inco doloted to the CbeirLan of nc CO.LJnOn HarkeL Council, night it$clf have rolcosed it to him. These are reliofs thich could have been grart- ecl to him, had the nater been jroper1y rouLed. In uhe eve1L, whey have all been withhelö fror him.. The o rir ceonlo LO have since iiiado rerecentatioj to Custons ofl'icialcj. The at itue ci' the latLer is however that they will have nothing. to doit:i the matter,. understandably becaieeO they" were not appraised, of... it at the outset. There is in' the record 0. letter by the :officer, incharge of Cusoue in Ki1iianaro Region where the offences occurred, from which lecr it would oc vnaU department is not interested in nc vehicle. It scans to inC then that, in the peculiar circumtancae of this case the vehicle and indeed the goods cannot proporlr be treated as condenmod operty within t 1io n1eanln of s. 160(1) end bhat, his courb should ib3lf ispoee of Lhe ihin,o as otherwise scans faii ana just. Both the ellan nc the owner of the voinicle have ap;car Cl in pbrson. They boLh s a y that the lat ber upon boin uo ed by the fornicr ho govo luin a lift Logcthcr with his luggago contained in o box in circumstances frog which no knowledge could have been inuted to the owner/driver that th. goods wor. uncusoned. I am. accordingly in' agreement with the Rc -m.;Oblic7 that the 'motor.. vehicle, registration no. MSB 933, should b'b' handed lack to him. It is so ordered. The order of forfeiture of the :goods to Government will in the circumstances stay ukidisttirbed. Delivered in open Court this let 'dy of April,. '1977. ( (. i J01TLTHn) PMJ/TITPL. JlJDGE