JENIPHER judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

CORRUPTION AND ECONOMIC CRIMES DIVISION MUSOMA SUB-REGISTRY ECONOMIC CASE NO. 9719 OF 2024

THE REPUBLIC

VERSUS

JENIPHER PETRO SPRIAN

JUDGMENT 20th November & 6th December 2024 KISANYA, J.: The Republic initiated proceedings in this Court against Jenipher Petro Sprian, accusing her of trafficking in narcotic drugs, contrary to section 15(1)(a) and (3)(iii) of the Drug Control and Enforcement Act [Cap. 95 R.E. 2019] (“the DCE Act”), as amended by section 18 of the Written Laws (Miscellaneous Amendments) (No.

5) Act, 2021, read together with paragraph 23 of the First Schedule, and sections 57(1) and 60(2) of the Economic and Organised Crime Control Act [Cap. 200 R.E. 2022] (“the EOCCA”). According to the information, the accused is alleged to have been found trafficking in narcotic drugs, namely cannabis sativa, weighing 254.30 1 kilograms, on October 2, 2023, at Nkerege Village within Tarime District of Mara Region. In support of the information laid against the accused, the prosecution, led by Ms. Angela Chacha and Mr. Mafuru Moses, learned Senior State Attorneys and Mr. Davis Katesigwa, learned State Attorney called four witnesses and tendered eight exhibits. On the defence side, the accused, represented by Mr. Juma David Mwita, presented two witnesses, including herself, and presented no exhibit. The material facts culminating in the arraignment of the accused, as derived from the evidence presented, can be summarized as follows: On October 2, 2023, G.5602 CPL Jackson (PW2) was part of a DCEA (Drug Control and Enforcement Authority) team arrived at Nkerege Village, Tarime District in Mara Region. The team’s mission, based on information from a tip- off received by the team leader, ASP Kanyumbu, was to track down suspects involved in cannabis sativa trafficking, allegedly residing at a guesthouse in that village. As the team arrived at Nkerege Village, the informant led them

to an unregistered guest house locally referred to as "Kwa Matete." ASP Kanyumbu knocked on the door and was greeted by an attendant. After clarifying the reasons of their visit, the attendant cooperated and showed 2 them the rooms where the suspects were staying. PW2 was then instructed to knock on one of the rooms, where he met a person who identified herself as Jenipher Petro Sprian, the accused in this case. Pursuant to PW2, he informed the accused that the purpose of their visit was based on information regarding her involvement in the narcotic drugs trade. He stated that the accused was cooperative and guided him to the place where the drugs were concealed. After arriving at the scene, PW2 made an effort to locate a witness among the neighbours and surrounding households but was unsuccessful, suspecting that they may have fled upon seeing the DCEA patrol vehicle. He proceeded with the search and recovered sixteen (16) sulphate bags, which he seized and labeled as C1 to C16, along with the case number DCEA/MARA/03/2023. The seizure was formalized in the certificate of seizure, Form No. DCEA 003 (Exhibit P3), which was signed by both PW2 and the accused, with the accused affixing her thumbprint as part of the procedure. Afterward, PW2 supervised the relocation of the 16 sulphate bags from the bush area to a secure, well-lit place. He then reached out to the

National Prosecution Service to engage other government agencies and communicated 3 with the Government Chemist Laboratory Authority (GCLA) office to organize a chemist for the analysis. In the evening hours, Gabriel Jacob Gabriel (PW1), a chemist from the GCLA, who was in Nkerege Village on other official duties, arrived at the scene. Upon his arrival, PW2 handed over the 16 sulphate bags containing the suspected narcotic drugs for analysis. Both PW1 and PW2 testified that the handover was documented through the Forensic Laboratory Submission Form, DCEA 001 (Exhibit P2), which was signed by both of them. After receiving the 16 sulphate bags, PW1 registered them under Laboratory Number LZO23-00630 and initiated the analysis process. He weighed the net weight of the cannabis leaves in each sulphate bag, resulting in a total weight of 254.3 kilograms. PW2 then extracted 5 grams of samples in duplicate from each sulphate bag, placed them in separate envelopes and labelled them based on the corresponding sulphate bags. He then conducted a preliminary test on the samples, and the results confirmed that the substances were narcotic drugs identified as Cannabis sativa. After completing the process, PW1 labeled all the sulphate bags with the laboratory number, signed them, and handed the exhibits back to PW2. 4 Afterwards, PW2 filled out Inventory of Exhibits for Disposal, Form DCEA

006 (Exhibit P4) and handed it over to Lusako Lusubilo, a State Attorney who presented it to Stanley Julius Mwakihaba (PW3), a Senior Resident Magistrate of Tarime District Court, for the purpose of procuring a disposal order. Pursuant to PW3’s testimony, before issuing the disposal order, he asked the accused if she had any objection to the destruction of the exhibits, to which the accused responded that she had no objection and also consented to being photographed with the sulphate bags. PW3 subsequently issued the disposal order through Inventory (Exhibit P4), directing that the exhibits be destroyed by fire. The accused, along with PW2, signed the inventory. During the destruction process, photos were taken by Lilian Boniface Mato (PW4). These photos were later certified by PW3, who signed each photograph after it was printed as per Exhibit P8. PW3 and PW4 also signed a Certificate of Photograph (Exhibit P7). Following the destruction, the Certificate of Destruction (Exhibit P5) was prepared and signed by the stakeholder present, confirming that the exhibit 5 had been destroyed. As for the 16 empty sulphate bags, PW2 testified that he retained them in his custody until they were presented before the court. At his office in Mwanza, PW1 carried out a confirmatory test using a Gas Chromatography Flame Ionization Detector on the day after drawing the samples. The machine

processed the samples, and the results revealed that all the leaves from each sample were confirmed as narcotic drugs, specifically Cannabis sativa, after they were found to contain a chemical compound known as Tetrahydrocannabinol (THC), which is exclusively found in narcotic drugs. After obtaining the results, PW1 prepared an analysis report (Government Chemist Analyst Report) and submitted it to his supervisor for review. Upon receiving approval, both PW1 and his supervisor signed the report, and it was stamped with the Chief Government Chemist stamp. This analysis report was admitted as Exhibit P1. Following the closure of the prosecution's case, the court ruled that the accused had a case to answer. She subsequently called two witnesses, as previous mentioned. Testifying as DW1, the accused stated that she is a resident of Nyahongo Village in Rorya District. She recounted that on 01/10/2023, she was in Nkerege Village working at a bar known as "Kwa Matete's Bar" and 6 had been there for a week. She told the court that after closing at midnight, she and her fellow bartender, Damary (DW2), went to sleep in the staff room. Suddenly, they heard a voice from Mama Geto, an attendant in the guesthouse section, telling them to open the door because there were police officers outside. Upon opening the door, four male police officers entered, searched the room, but found nothing.

They were then taken outside and placed in a white vehicle covered at the back. After a short distance, they were transferred to a larger truck and taken to the bush. She added that some other guests at the guesthouse were also arrested. DW1 further testified that on the way to the forest, they were beaten and upon reaching the forest, they found a large group of people and vehicles already gathered, with several sacks already unloaded. She claimed that more vehicles continued to bring in more sacks. The accused and her colleague were taken out of the vehicle, beaten, and brought to the area where the sacks were lined up. They were asked to state their names, which were then written on top of the sacks. A magistrate approached, accompanied by a woman who was a photographer. They were made to hold a sack while photographs were taken. The sacks were then opened, and cannabis sativa 7 was poured out on the ground and burned. Further photographs were taken of them standing next to the burning exhibit with the magistrate. The accused went on to testify that they were then taken back to the truck and transported to Tarime Police Station, where they spent the night. The following day, they were taken to a room for statements to be recorded. In that room, they were only asked about their names, where they came from, the schools they had attended, and their occupations. They were

then asked to sign a document, but they refused and were sent back to the cell. She prayed to be acquitted, as she did not commit the alleged offence. Her evidence was corroborated by that of Damary Daniel (DW2), who testified that on the material date, she and the accused were arrested together at Kwa Matete's Bar and taken to the bush, where they found cars and sulphate bags filled with leaves suspected to be cannabis sativa. DW2 explained that both she and Jenipher (DW1) worked at the same bar, Kwa Matete's Bar, as bartenders, and that Jenipher had been working there for about a week. It was her testimony that, on the material date, they were asleep in the staff room when the police arrived and arrested them, along with other guests at the guesthouse. DW2 further testified that she was 8 released and returned to the bar, but the accused and the other people were left at the bush. Upon due consideration of the evidence submitted by both sides, I find one major issue for resolution by this Court. This issue hinges on whether the prosecution has proven the case against the accused beyond a reasonable doubt. It is worth noting that, according to section 3(2)(a) of the Evidence Act [Cap. 6 R.E. 2022], a fact is considered proved in criminal matters, when the Court is satisfied by the prosecution beyond reasonable doubt that such a fact exists. This means that the guilt of the

accused person must be established beyond reasonable doubt. It is also a cardinal principle that the burden of proof lies with the prosecution, except where any statute or other law provides otherwise. This includes section 28(1) of the DCE Act, which imposes a duty on the accused person to prove that the possession, dealing in, trafficking, selling, cultivation, purchasing, using, or financing is in accordance with the license or permit granted under the DCE Act. However, when the burden shifts to the accused person, the standard of proof is on the balance of probabilities as held in Said Hemed vs. Republic [1987] TLR 117. 9 With that legal stance, the prosecution's burden, as outlined in section 15(1)(a) and (3)(iii) of the DCE Act, was to prove that the accused trafficked in 254.30 kilograms of narcotic drugs, namely cannabis sativa, as alleged in the information. The evidence needed to establish her involvement in activities such as importation, exportation, purchase, sale, provision, supply, storage, possession, production, manufacturing, transport, delivery, or distribution, all of which fall under the definition of trafficking as outlined in section 2 of the DCE Act. As a starting point, the narcotic drugs allegedly seized from the accused were not brought before the Court. Rather, all witnesses (PW1, PW2, PW3, and PW4) testified that the narcotic drugs from the 16

sulphate bags were destroyed through incineration, a process supported by Exhibits P4, P5, P7, and P8. Considering the pivotal role of the narcotic drugs (cannabis sativa) as the corpus of the offence, the initial question to examine is whether their disposal was carried out in accordance with the law. I am mindful of the provisions of section 36(1) of the DCE Act, which authorizes the DCEA to dispose of narcotic drugs, among other items, due to their susceptibility to theft, substitution, lack of adequate storage, or other reasonable considerations. It is imperative, however, that the disposal of 10 narcotic drugs must comply with the procedure prescribed under section 36(2) and (3) of the DCE Act, as quoted below: "(2) Where any narcotic drug or psychotropic substance has been seized the officer seizing such drug or psychotropic substances or precursor chemicals or substances used in the process of manufacturing of drugs or other substances proved to have drug related effects shall prepare an inventory of such narcotic drug or psychotropic substance containing such details relating to- (a) their description, quantity, mode of packing, marks, numbers; (b) such other identifying particulars of the narcotic drugs or psychotropic substances or precursor chemicals or substances used in the process of manufacturing of drugs or other substances proved to have drug

related effects; (c) packing in which they are packed; (d) country of origin; and (e) other particulars as such officer may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act. (3) An officer seizing such narcotic drug, psychotropic substance, precursor chemicals or other substances proved to have drug related effects shall make an application to any magistrate having jurisdiction under this Act, for the purpose of- (a) certifying the correctness of the inventory so prepared; (b) taking, in the presence of such magistrate, photographs of such drugs or substances and certifying such photographs as true; or 11 (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of sample so drawn, Provided that, where it is not practicable to secure the presence of the magistrate, the requirement of subsection (3)(b) and (c) shall be dispensed with. (4) Where an application is made under subsection (3), the Magistrate shall as soon as practicable allow the application. (5) Notwithstanding anything contained in the Evidence Act, or the Criminal Procedure Act, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under subsection (3) and certified by a magistrate court as primary evidence in respect of such offence.” From the above provisions, the first procedural step involves the seizing officer completing an inventory of the seized narcotic drugs. In compliance with section 36(2) of the Drugs Act, the inventory must be in the prescribed format, specifically DCEA Form No.

006. It is designed to capture essential information, including the description, quantity, mode of packing, identifying marks, numbers, and other relevant particulars, to name a few. In the second step, the seizing officer is required to apply to a magistrate to certify the accuracy of the prepared inventory. Furthermore, the application may be made for the purpose of taking photographs of the 12 narcotic drugs in the magistrate's presence and certifying the photographs as true, or allowing the drawing of representative samples and certifying the accuracy of the sample list, unless the magistrate's presence cannot be practically secured. In line with the decision of this Court in the case of Republic vs Kombo Abdarahmani Kombo, Economic Case 1 of 2021, [2022] TZHCCED 11 (29 March 2022), the procedures outlined in section 36 of the Drugs Act are mandatory and must be followed rigorously. This is significant due to the fact that, under section 36(5) of the DCEA Act, the inventory, photographs of narcotic drugs and any certified list of samples must be regarded by the Court as primary evidence in relation to the offence, irrespective of the provisions of the Criminal Procedure Act [Cap. 20, R.E. 2022] (CPA) and the Evidence Act (supra). Turning to this case, the testimonies of the seizing officer (PW2) and the magistrate (PW3) indicate that Mr. Lusako, State Attorney made

an application for the magistrate (PW3) to issue an order for the disposal of the narcotic drugs. However, neither PW2 nor PW3 indicated that the application also sought authorization to take photographs of the drugs in the presence of the magistrate or to have those photographs certified as true. If such 13 application was not made before the magistrate, the validity of the photographs taken and certified by PW3 may come into question. It was crucial for the prosecution, particularly PW3, to establish the foundation for this evidence. I have also observed from the testimonies of PW1, PW2, and PW3 that there is no indication that the samples were taken in the presence of the magistrate. According to PW2, the magistrate arrived only after PW1 had already drawn the samples. While I acknowledge that the magistrate’s presence may be waived if it is not feasible to secure their attendance, PW2 failed to provide any explanation or evidence to show that it was indeed impracticable to have the magistrate present during the sample extraction process. Instead, PW2's evidence shows that the magistrate arrived later, without any justification for not being present during the sample extraction. Furthermore, PW2's testimony about the magistrate's late arrival is questionable. I say this because the forensic laboratory submission form (Exhibit P2) displays that the narcotic drugs were

presented to the chemist (PW1) at 16:20 hours, while the magistrate (PW3) testified in cross- examination that he arrived at the scene between 15:30 hours and 16:00 hours. If he was indeed present when the narcotic drugs were submitted to PW1, it remains unclear why he was not moved to allow and witness the 14 sample extraction as required by law. Consequently, the prosecution cannot rely on the exception provided in section 36(3) of the DCE Act. As for the application for the disposal of narcotic drugs made before the magistrate (PW3), the prosecution relied on the inventory of the exhibit for disposal (Exhibit P4), a prescribed form made under section 36(2) of the DCE Act. In compliance with section 36(3) (a) of the DCE Act, the magistrate is required to certify the correctness of the details completed in the inventory. These details include the name of the narcotic drug, description of the article, estimated weight, quantity, mode of packaging, and remarks. I must emphasize that the certification of the inventory's correctness is a legal requirement. Therefore, the magistrate must sign the order after verifying and being satisfied with the correctness of the inventory. In our case, PW3 stated that he was shown 16 sulphate bags containing dry leaves of cannabis sativa, marked sequentially from C1 to C16, each bearing IR No. DCEA/MARA/03/2023. This may suggest that he was

satisfied with the details in columns 1, 2, 3, 4, 6, and 7 of the inventory (Exhibit P4). However, with respect to column 5, which concerns the estimated weight, PW3 did not provide any explanation on how he was satisfied with its accuracy. Given that the weight of narcotic drugs is a key element in proving 15 trafficking under section 15(3)(iii) of the Drugs Act, it was crucial for the magistrate to specify how he was satisfied with the estimated weight. This is notably absent from his testimony. Moreover, PW3 emphasized during cross-examination that the destruction order was not based on transportation concerns, but lack of storage facilities, and the risk of spoilage if exposed to rain. However, the inventory he signed cites transportation issues as one of the grounds or remarks for the application for disposal of narcotic drugs. It follows that there are doubts regarding the certification of some of the contents of the inventory in accordance with the law. Lastly, it is settled law, as affirmed in a plethora of authorities that the accused must have the opportunity to be heard when an application for the disposal of exhibits is made before the court. For instance, in the case of Buluka Leken Ole Ndidai and Another vs. Republic, Criminal Appeal No. 459 of 2020 [2024] TZCA 116 [21 February 2024] cited with approval in Kwabi Nila Limbu vs Republic, Criminal Appeal No. 26 of

2021 [2024] TZCA 1028 (4 November 2024), the Court of Appeal held that any objections or remarks made by the suspect must be recorded, either on the reverse side of the Inventory Form or on separate papers, with the magistrate’s signature. 16 Though the case cited above involved perishable exhibits under the Wildlife Conversation Act, 2009 (as amended), I am of the view that this principle extents to the disposal of narcotic drugs. Considering the above position, I then examined the evidence from PW3 and Exhibit P4. As mentioned earlier, PW3 testified that the accused was informed and given the chance to consent to the destruction of the exhibits, and that she agreed without objection. Furthermore, PW3 stated that the accused admitted to being apprehended with the narcotic drugs, though she intended to provide more details at trial. Even though PW3 was not cross- examined on this matter, I hold the view that, since the inventory does not include the comments allegedly given by the accused, PW3’s oral testimony alone is insufficient to demonstrate that the accused was properly informed of her right to be heard and responded to regarding the exhibits sought to be disposed of, as required by the established principles. Based on the points above, I find that the disposal of the narcotic drugs did not conform to the law. As the narcotic drugs form the corpus of the offence, this

alone is sufficient to resolve the core issue in the negative. Nevertheless, I find it necessary to address additional points concerning the accused person’s alleged trafficking of narcotic drugs. 17 The first aspect involves the prosecution's evidence, which points to the accused staying at a guesthouse with the purpose of engaging in drug-related activities, as suggested by the tip-off given to PW2's superior. However, PW2’s testimony was not corroborated by the guesthouse attendant who allegedly directed them to the accused person's room. If, as mentioned by the accused and DW2, the attendant was Mama Geto, she could have provided critical information about the accused’s arrival, origin, and purpose. Alternatively, any other person with relevant knowledge of the accused’s presence at the guest house would have been significant. Despite this, the prosecution did not call the guesthouse attendant to testify nor provide any justification for this omission. Notably, DW2, who worked at Kwa Matete and had been listed as a prosecution witness, was not called to testify for prosecution, and no justification for this omission was offered. Instead, she appeared as a defence witness, asserting that the accused was not a guest but a bartender at Kwa Matete and shared the staff room with her on the material date. Yet, neither this account nor her credibility was adequately questioned in

accordance with established legal standards. 18 While section 143 of the Evidence Act (supra) states that no specific number of witnesses is required to prove a fact, I find that the prosecution’s failure to summon the guesthouse attendant or DW2, both of whom had direct and relevant knowledge about the guest house in question, undermines the credibility of its evidence on the issue under consideration. Thus, it was not duly proved that the accused person was staying at the guest house in question for purpose of engaging in narcotic drugs business. Another piece of evidence linking the accused to the trafficking of narcotic drugs stems from PW2's testimony, suggesting that the accused directed the officers to the location where the 16 sulphate bags were recovered. This implies that the accused made an oral confession leading to the discovery of the narcotic drugs. However, two issues arise concerning this evidence. Firstly, PW2 did not explicitly state that the accused orally confessed to trafficking in narcotic drugs. Secondly, it was also not shown that PW2 adhered to section 48(2)(a)(iii) of the DCE Act by cautioning the accused that she was under no obligation to speak and informing her that any statements she made could later be used against her as evidence. This failure significantly weakens the weight of this evidence, as highlighted in the case of Boniface Mathew

Malyango @ Shetani Hana Huruma & Another vs. 19 Republic, Criminal Appeal No. 358 of 2018 [2020] TZCA 314 (18 June 2020). This position is further compounded by the prosecution’s omission to call crucial witnesses, such as the guesthouse attendant who was reportedly present with PW2. The final issue for consideration concerns the legality of the seizure of the 14 sulphate bags containing cannabis sativa. According to PW2's testimony, the search was conducted under emergency circumstances. The tip-off received by his supervisor while on patrol suggested that a drug trafficking transaction was imminent. It is well-established, and I need not cite further authority, that in situations involving emergency searches under sections 41 and 42 of the CPA, strict compliance with the requirements set out in section 38 of the same Act may not always be possible. Now, one of the conditions is the presence of an independent witness, as required by section 38(3) of the CPA and section 48(2)(d)(i) of the DCE Act. The later provision explicitly directs that the authorized officer conducting the seizure to ensure the presence of, and obtain statements from, persons who can testify about the seized article. The Court of Appeal in The Director of Public Prosecutions v. Mussa Hatibu Sembe, Criminal Appeal No. 130 of 2021 [2022] TZCA 238 (TanzLII), reiterated the requirement for witnesses 20 present

at a search to sign Form No. DCEA 003, which is part of the DCE Act. Furthermore, the requirement of independent witness for the search is crucial to ensuring the transparency and integrity of the search process, particularly in cases involving serious allegations like drug trafficking as emphasized by the Court of Appeal in Mwanahamis Makenzi Said vs. The Director of Public Prosecutions, Criminal Appeal No 687 of 2023 [2024] TZCA 330 (8 May 2024, TanzLII). In the current case, the certificate of seizure (Exhibit P3) lists Jessica K. Magesa as the independent witness to the search. However, PW2’s testimony does not align with this, as it neither confirmed Jessica K. Magesa’s role as a witness nor detailed her signing of the certificate of seizure. Instead, PW2 focused on unsuccessful efforts to find a witness in the surrounding neighborhood and did not explain how Jessica K. Magesa appearing in the certificate of seizure was identified or what part she played in the search and seizure process. If Jessica K. Magesa was indeed a witness to the search, PW2's failure to disclose her involvement or provide reasons for not calling her as a witness raises doubts about the credibility of PW2, and the legality of the search and seizure. 21 In light of the above considerations, I hold the view that the evidence against the accused does not meet the required standard of proof beyond a reasonable doubt. As such, I find the accused, Jenipher Petro Sprian not guilty, acquit her of the charge of trafficking in narcotic drugs, and order her release from custody, unless there are other lawful reasons for her detention. Dated this 6th day of December, 2024. S.E. KISANYA

JUDGE 22