WALTER MLAKI DRAFT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

CORRUPTION AND ECONOMIC CRIMES DIVISION

AT DAR ES SALAAM ECONOMIC CASE NO. 34 OF 2023

THE REPUBLIC

VERSUS 1. JIMMY WALTER MLAKI 2. STANLEY SALVATORY NGOWI @SULTAN

JUDGMENT 6th December 2024 & 14th February 2025 KISANYA, J.: The present case lays a single count of trafficking in narcotic drugs against Jimmy Walter Mlaki (the 1st accused person) and Stanley Salvatory Ngowi @Sultan (the 2nd accused person). This charge stems from section 15 (1) (a) and (3) (i) of the Drug Control and Enforcement Act [Cap. 95, R.E. 2019] (“the Drug Act”), read together with paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act [Cap. 200, R.E. 2019] ("the EOCCA"). It is alleged that, on 27/01/2020, the accused persons were found trafficking in narcotic drugs namely, heroin weighing 509.63 grams, at Ubungo Kibo, within Ubungo District, Dar es Salaam Region. 1 The accused persons pleaded not guilty, denying the allegations and disputing the material facts outlined during the preliminary hearing. As a result, the case proceeded to trial, with the prosecution represented by Ms. Tully Helela, Mr. Ramadhan Kalinga, Ms. Monica Ndakidemi, Ms. Batilda Mushi, Ms. Elizabeth Muhangwa, learned Senior State Attorneys and Ms. Marietha Maguta, Ms. Eva Kassa and Mr. Hamisi Katandula, learned State Attorneys. On the other hand, the defence team comprised Mr. Peter Kibatala, Ms. Marietha Mollel and Ms. Rebecca Ezekiel, learned Advocates, representing the 1st accused person, while Ms. Banana Feruzi Kalema, also

learned Advocate represented the 2nd accused person. It is noteworthy that the prosecution called eight witnesses and tendered a total of fourteen (14) exhibits. In response, each accused person testified under oath, with the 1st accused person being the only one to call an additional witness in support of his defence. Summarily, the prosecution's evidence reveals that, on 27/01/2020, Insp. Beatus (PW4) led a team of Drug Control and Enforcement Authority (DCEA) officers on patrol in Magomeni area, Dar es Salaam. Around 3:00 p.m., he was contacted by a confidential informant regarding a narcotic drug deal expected to take place in the Ubungo area. After updating his colleagues, PW4 met the informant at Magomeni Mikumi, who then guided them to the suspects' location. 2 The team proceeded to Ubungo in two vehicles. Upon arrival, the informant pointed out a silver vehicle, later identified as a Toyota Sienta with Registration No. T776 DSE (Exhibit P12), parked on the service road at Ubungo Kibo area. After the informant left, PW4 took charge of organizing the approach for the arrest. As they approached the suspected vehicle, PW4 noticed the suspects attempting to flee but managed to apprehend two individuals inside the car. He ensured the area was secured and enlisted the presence of a local leader (mjumbe), Steven Mwita Kelesa (PW7), who, alongside Hamisi Juma, acted as a witness

during the search. Thereafter, PW4 ordered the suspects to exit the vehicle and informed them of their suspected involvement in narcotic drug trafficking. The suspects complied, and PW4 conducted a search in the presence of PW7 and Hamis Juma. First, PW4 conducted a search on the person seated in the driver’s seat, who identified himself as Jimmy Walter Mlaki, the 1st accused person. He found a yellow-and- black iPhone 5C (Exhibit P13) and a black backpack (bag) labeled "TINGLE 30" (Exhibit P11) that the 1st accused person was wearing in front. Inside the backpack, PW4 discovered a transparent nylon bag containing a granular/powdery substance suspected to be narcotics, which he labeled as A. He also found another small transparent package with a granular substance, which he labeled as B, as well as a digital scale and a brush, which he collectively labeled as C. Turning his 3 attention to the second suspect, who identified himself as Salvatory Ngowi (the 2nd accused person), PW4 found a black Sony Xperia phone (Exhibit P13) and a one- dinar note from Saudi Arabia in his possession. Afterward, he conducted a search of the silver Toyota Sienta (Exhibit P12), registered in the name of Amina Mvungi, and recovered various items, including its registration card (Exhibit P10). After completing the searches, PW4 filled out a certificate of seizure (Exhibit P14), listing all seized

items which were 16 in total. It is contended that, both accused verified the accuracy of the list by signing and thumb printing the certificate of seizure. PW4 then took custody of the seized items and transported the two suspects to the DCEA office, where he opened case file number DCEA/IR/02/2020. At around 6:00 PM, he handed over the seized exhibits to the exhibit keeper, Inspector Violeth (PW2). In her testimony, PW2 asserted that she received the following exhibits from PW4: a transparent nylon bag labeled A containing a substance suspected to be narcotic drugs; a transparent nylon bag labeled B with another substance suspected to be narcotic drugs; a digital scale and brush collectively labeled C; a small black bag labeled D with "TUNGLE 30"; an identification card labeled D1 bearing the name Athuman Kivuma Haliki; a voter ID of Issa Omary labeled D1; a bank card of Stanley Ngowi labeled D3; a small khaki bag labeled D4; two driving licenses of Issa Salum Omary labeled D5; a motor vehicle registration card labeled 4 E1 for a vehicle with registration number T776 DSE (Toyota Sienta); a car key labeled E2 for the vehicle with registration number T776 DSE; a farm sale agreement labeled F; a black and yellow iPhone labeled G; a black Xperia phone labeled G1; an empty black wallet labeled H; and one note of Saudi Arabia labeled H1. The handover was documented in the exhibit

register (Exhibit P9) under case number DCEA/IR/02/2020, which was signed by PW2 and PW4. Upon registering the seized exhibits, PW2 stored them in the exhibit room until the morning of 28/01/2020, when she retrieved the narcotic drug-related exhibits, labeled A, B and C, for sealing process. According to her testimony, the sealing was done in the presence of the 1st and 2nd accused persons, an independent witness namely, Erick Barthwery Mwinuka (PW3), and H 2731 CPL Jackson Shambwe (PW5). The testimony of PW2, PW3, and PW5 reveals that the sealed exhibits included a transparent nylon bag containing granular/powdery substance suspected to be narcotic drugs, a small transparent package with granular/powdery suspected to be narcotic drugs, a digital scale, and a small brush. They clarified that these items were placed in three khaki envelopes. The first two, labeled A and B, contained a transparent nylon bag and a small transparent package, each holding substances suspected to be narcotic drugs, while the third envelope, labeled C, contained a digital scale and a small brush. It 5 was their evidence that, each envelope was sealed with the DCEA seal and bore the signatures of PW2, PW3, and both accused persons. After sealing, PW2 stored the exhibits in the exhibit room. Later that day, around 11:00 AM, she handed over the three sealed envelopes (labeled A, B, and C) containing the

suspected narcotic drugs to PW5 for delivery to the Government Chemist Laboratory Authority (GCLA). PW5 testified that he delivered the three sealed envelopes to the GCLA and handed them over to PW1. In his testimony, PW1 confirmed that he received three sealed envelopes labeled A, B, and C from PW5, along with Forensic Labolatory Submission Form No. DCEA 001 (Exhibit P2), and registered them under Laboratory No. 347/2020. He further explained that he weighed the powder contained in Exhibits A and B, recording 501.86 grams and 7.77 grams, respectively. PW1 then proceeded to extract samples from each exhibit for testing. The preliminary test using Mecke reagent caused samples A and B to turn from off-white to green, indicating the likely presence of heroin, morphine, or codeine. Sample C, however, did not exhibit any colour change. After sealing the exhibits and returning them to PW5, PW1 conducted confirmatory tests using Gas Chromatography Mass Spectrometry (GC-MS), identifying samples A and B as narcotic drugs (heroin), and sample C as free of 6 narcotic drugs. Following these results, PW1 prepared and signed a Government Chemist Laboratory Analyst Report, which received approval from David Elias, Acting Director of the Forensic Science Department. This report was entered into evidence as Exhibit P1. Simultaneously, PW5 returned the three sealed envelopes with the

exhibits inside to DCEA and handed them over to PW2. In her testimony, PW2 affirmed that she received the said exhibits and indicated that they were kept in the exhibit storage room until they were brought to court. The envelopes labeled A, B, and C, were admitted as Exhibits P3, P4, and P5, respectively. Moreover, the granular substances confirmed to be heroin from Exhibits P3 and P4 were admitted as Exhibits P6 and P7, respectively, while the digital scale and small brush from envelope C (Exhibit P5) were collectively admitted as Exhibit P8. As part of its case, the prosecution led evidence from Amina Nuhu Mvungi (PW8), who confirmed that she owned the vehicle (Exhibit P12), in which the accused person were arrested. She explained that she had hired Issa Salum Omary (PW6) to operate the vehicle for taxi services, including online services. PW8 expressed her surprise when she learned that the vehicle was connected to a drug trafficking case. 7 PW6, for his part, testified that he had been employed by PW8 as a driver for the vehicle in question. He stated that, on the day of the incident, he was the one driving the vehicle and had transported four passengers, including the 1st and 2nd accused persons, from Magomeni Kagera to Ubungo. PW6 further deposed that, upon arrival at Ubungo Kibo, he parked the vehicle by the roadside, allowing his passengers to wait for someone who was

supposed to pay him. He stated that he later went to a nearby booth to have a meal, leaving the passengers inside the vehicle. While eating, he noticed another car arriving, and saw individuals, whom he later recognized as police officers, surrounding his vehicle. According to him, they searched his vehicle and passengers and took the 1st and 2nd accused persons away along with the vehicle. PW6 further stated he did not intervene or reveal his identity at that time due to fear. He followed up on the matter at DCEA on 29/01/2020, two days after the incident, and was arrested and charged with the 1st and 2nd accused persons for trafficking in narcotic drugs, though he was later discharged by the prosecution. As a result of the evidence presented by the prosecution, the Court found that both accused persons had a case to answer and invited them to provide their defense. While attempting to challenge PW3's credibility using a witness statement he had introduced during the prosecution's case as Exhibit D1, the 1st accused 8 person did not present any exhibits to support his defense, nor did the 2nd accused person. Testifying as DW1, the 1st accused person maintained his innocence regarding the charges. He stated that he had lived in Mererani, Manyara Region, for about five years before 2020, residing in Block D near Franone Mining and Gems, a company owned by his uncle, Francis

Matunda. He testified that he worked there as an Assistant Geologist. The 1st accused person explained that, on 26/01/2020, his employer instructed him to travel to Dar es Salaam with engineers Elvis Lekule and Reginald Lekule to purchase mining equipment from Nitro Explosives Limited. He left Mererani at 23:00 hours, arrived in Dar es Salaam at 07:00 hours on 27/01/2020, and checked into Double View Hotel in Sinza. At 08:00 hours, he went to Nitro Explosives, placed an order for drilling rods and drill heads, made the payment, and received an invoice for mine records. Afterward, he informed his colleagues that he would meet his friend, Abel Shoo, and attend prayers at Rev. Gwajima’s Church located Ubungo Maji. Upon arriving at Ubungo Maji by boda-boda, the 1st accused person was suddenly apprehended by a police officer, slapped, and forcibly taken into a black Land Rover Defender. Inside the vehicle, he found five men and one woman, none of whom he knew. 9 The 1st accused person further deposed that he was taken to Dar es Salaam Central Police Station, where he surrendered his phone (Samsung S10), belt, and cash money (TZS 105,000). He claimed that he was locked up without any record in the logbook and remained in detention for over 30 days, from 27/01/2020 to 03/03/2020, before being taken to Court for Economic Case No. 3 of 2020 at Kisutu. In conclusion, the 1st accused

person urged the court to consider that the prosecution's evidence did not substantiate the allegations against him, and he respectfully requested acquittal. To support his defence, the 1st accused person summoned Abel S. Shoo (DW2), a car dealer living in Mbezi Beach, Dar es Salaam and his long-time friend. DW2 testified that the 1st accused person worked as a storekeeper at a mine in Mererani, owned by his uncle. He recalled that on 26/01/2020, the 1 st accused person contacted him to inform him that he was coming to Dar es Salaam with his bosses to purchase goods. The following day, they planned to meet at Gwajima’s Church located at Ubungo Maji. Upon arrival, DW2 saw commotion and people being arrested, including the 1st accused person, who was being beaten by the police. DW2 noted that the 1st accused person had arrived on a motorcycle, but by the time DW2 reached the scene, the motorcycle was no longer present. He stated that the 1st accused person was caught, placed in a police Defender vehicle, and 10 driven away with other detainees. Later, DW2 informed the 1st accused person’s mother about the incident, and they unsuccessfully searched for him at Kilwa Road Police Post. Eventually, he learned that the 1st accused person had been transferred and taken to court. The 2nd accused person, testifying as DW3, told the court that he was a resident of Tabata. He recalled that

26/01/2020, while watching a football match at Toto Tundu, Tabata Segerea, a commotion ensued, leading to arrests. He claimed that he was struck by an individual, whom he initially thought was a civilian. When he attempted to defend himself, police officers arrived and, witnessing his actions, they beat him and accused him of attacking a police officer. The 2nd accused person further stated that he was placed in a vehicle with other detainees and taken to a police station, where he was severely beaten and left barely conscious. He was locked up in a holding cell at Central Police Station and later taken to Kisutu Court, where he was charged with trafficking in narcotic drugs. He learned that the 1st accused and PW3 Issa Salumu Omary (who was discharged), were involved in the same case. The 2nd accused person also stated that he had never seen the exhibits presented in court and had never met the witnesses. Furthermore, he denied signing any documents related to the case, including the certificate of seizure and cautioned statements. He further denied ownership of the mobile phones and the 11 car presented as evidence, stating that he had never seen them before. Additionally, he disputed the testimony of PW6, who claimed to have been hired by him, asserting that he did not know the person. As a result, the 2nd accused person implored the court to acquit him, maintaining that he

was innocent. Upon the conclusion of the defence case, the parties sought and were granted leave to file final submissions in writing, which they duly filed. The court appreciates the learned Counsel’s efforts and assures them that their arguments will be carefully considered in determining the issues in this case. At the heart of criminal law is the well-established principle that the prosecution carries the burden of proving the accused person’s guilt beyond a reasonable doubt. This requirement is enshrined in Sections 3(2) and 114(1) of the Evidence Act, Cap 6 R.E. 2022, and reaffirmed by case law, including Jonas Nkize vs Republic [1992] TLR 124, which was brought to the court’s attention by Mr. Kibatala. In light of this, the central issue before the court is whether the prosecution has successfully discharged this burden to the required legal standard. To address this pivotal question, it is essential to first outline what the prosecution must establish in proving the charge of trafficking in narcotic drugs against the accused. Pursuant to Section 15(1)(a) and (3)(i) of the Drug Act, as well as the particulars of the offence of this case, the prosecution was required to 12 prove that the accused persons were found trafficking narcotic drugs, namely heroin, weighing 509.63 grams. It should further be noted that under section 2 of the Drug Act, any of the acts of

importation, exportation, purchase, sale, provision, supply, storage, possession, production, manufacturing, transport, delivery, or distribution of narcotic drugs or psychotropic substances amounts to trafficking. In the present case, the prosecution alleges that two transparent nylon bags (Exhibits P6 and P7), both containing granular/powdery substances later confirmed by PW1 to be heroin, were seized from the accused persons at Ubungo Kibo area in the presence of independent witnesses, Steven Mwita Kalesa (PW7) and Hamis Juma. In contrast, the accused denied any involvement in the offence, stating, among others, that they were not at the scene when the alleged incident occurred. Therefore, to determine whether the prosecution has discharged its burden of proof beyond a reasonable doubt, the court will be guided by the following sub-issues: One, whether the two transparent nylon bags containing granular substances were seized from the accused persons. Two, whether the granular substances in the transparent nylon bags in question were narcotic drugs, namely heroin, weighing 509.63 grams. Three, whether the integrity of the chain of custody of narcotic drugs (Exhibits P6 and P7) was properly maintained. Four, 13 whether the defence has successfully raised any reasonable doubt regarding the prosecution's case. The first sub-issue for determination is whether the two transparent

nylon bags containing granular substances were seized from the accused persons. The prosecution presented direct evidence supporting this claim. As previously mentioned, PW4 testified that on 27/01/2020, he led a team of officers in arresting both accused persons at Ubungo Kibo area. He stated that the accused attempted to flee from a Toyota Sienta vehicle (Exhibit P12), with registration number T776 DSE, which they had boarded. PW4 further testified that upon searching a backpack found in possession of the first accused, he discovered and seized, among other items, two transparent nylon bags containing granular substances suspected to be narcotic drugs. The evidence establishes that the arrest, search, and seizure were conducted in the presence of independent witnesses Steven Mwita Kalesa (PW7), who was at the scene waiting for his son, and Hamis Juma. Moreover, the search took place under emergency circumstances within the meaning of sections 41(c) and 42 of the Criminal Procedure Act,[ Cap 20, R.E. 2022) (the CPA), following intelligence received by PW4 during routine patrol at Magomeni, suggesting that a drug transaction was about to take place. 14 The evidence further reveals that the seizure was documented in a certificate of seizure (Exhibit P14), which was completed immediately after the seizure and signed by PW4, PW7, Hamis Juma, and both accused persons, who also

affixed their thumbprints. PW7, as an independent witness, corroborated the testimony of PW4. However, the weight of the evidence regarding the arrest of the accused persons, along with the search and seizure of the two transparent nylon bags containing granular substances, is best assessed in light of the credibility and reliability of the witnesses who testified. In line with the principle established in cases such as Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2000 (unreported), Galus Kitaya vs. Republic, Criminal Appeal No. 196 of 2015) [2016] TZCA 301 and Raphael Ideje @ Mwanahapa vs. The Director of Public Prosecutions, Criminal Appeal No. 230 of 2019) [2022] TZCA 71 and, the credibility of witnesses is determined by observing their demeanor and assessing the coherence of their testimonies. Throughout their testimony, PW4 and PW7 displayed clarity and consistency in their responses, without any irrational or evasive answers. Their demeanor and the coherence of their accounts support their credibility and reliability. As demonstrated in the land mark case of Goodluck Kyando vs. Republic [2006] TLR 363, witnesses are presumed credible, and their testimony is typically accepted unless there is substantial and compelling evidence that undermines it. 15 Therefore, based on the consistent nature of their testimonies, the court finds PW4 and PW7 to be credible

witnesses, and accept their testimony regarding the retrieval of the transparent nylon bags with granular substances from the 1st accused person’s backpack The court has kept in mind that in criminal proceedings, the accused person does not have to prove their innocence but only needs to cast doubt on the prosecution's evidence. Starting with the defence, both accused persons presented alibis. The 1st accused person, supported by the testimony of DW2, claimed he was arrested at Ubungo Maji and taken to the Dar es Salaam Central Police Station, where he was later charged with trafficking in narcotic drugs. He denied being in possession of the black bag containing the suspected narcotic drugs and denied being in the vehicle in question. The second accused, for his part, his testimony suggested that at the time the granular substances were seized from the vehicle at Ubungo Kibo on 27/01/2020, he was in detention at the Central Police Station, having been arrested the day before, on 26/01/2020. However, the court has noticed that the alibi defence put forward by the accused persons was raised in contravention of Section 42(1) and (2) of the EOCCA. Specifically, they did not notify the court of their intention to rely on an alibi during preliminary hearing nor did they provide the prosecution with the relevant details of their alibi before the prosecution’s case was closed. If their

alibi 16 defence was legitimate and they were not at the scene of the crime, they had an obligation to disclose it before the trial began, ideally during the preliminary hearing or shortly thereafter. Their failure to provide this information beforehand, despite being represented by legal counsel familiar with the procedural rules, casts doubt on the sincerity of their alibi. As if that was not enough, their alibi was never raised during the cross- examination of the prosecution’s key witnesses, PW4 and PW7, who testified about the arrest of the accused at Ubungo Kibo, with suspected narcotic drugs. It is the law in this jurisdiction that failure to cross-examine a witness on material facts amounts to an acceptance of those facts. See for instance, the cases of Martin Misara vs Republic, Criminal Appeal No. 428 of 2016 [2018] TZCA 318 (13 December 2018), George Maili Kemboge v. Republic, Criminal Appeal No. 327 of 2013 and Nyerere Nyague vs. Republic, Criminal Appeal No. 67 of 2010. Therefore, by not questioning PW4 and PW7 on this vital issue, the accused persons accepted the truth of their testimonies. It is further established in the case law, as seen in the case of Nkanga Daudi Nkanga v. Republic, Criminal Appeal No. 316 of 2013) [2014] TZCA 213, and Miraji Idd Waziri @ Simwana & Another vs Republic, Criminal Appeal No. 14 of 2018, [2020] TZCA 387 (7 July 2020), that an

accused person’s lies can be used as corroborative evidence for the prosecution’s case. In this case, the 1st 17 accused person had originally stated during the preliminary hearing that he resided in Magomeni, Kinondoni District. However, when testifying under oath, he claimed that he actually lived in Mererani, Manyara Region. As such, the 1st accused person’s change in his story about his residence undermines his credibility, and his claim that he was in Dar es Salaam to purchase mining equipment on the day of the incident cannot be accepted as truthful. This is particularly relevant given that, under Section 192(3) of the CPA, any fact recorded as undisputed during the preliminary hearing is taken as proven by the prosecution and does not necessitate additional evidence. In addition, the prosecution has, through the testimony of PW4 and PW7, consistently maintained that both accused persons signed the certificate of seizure (Exhibit P14). Notably, Exhibit P14 entered into evidence without any objection from the defence, and PW4's assertion that the accused persons signed and thumb printed it was not substantially challenged. This is because there is no evidence to suggest that their thumbprints and signatures were forged for PW4’s career progression, as implied during the cross-examination by the counsel for the 1st accused person. Now, as per the established principle,

signing a certificate of seizure by an accused person is interpreted as confirming that the items listed were found in their possession. The case of Song Lei vs The Director of Public 18 Prosecutions and Others, Consolidated Criminal Appeals No. 16A of 2016 & 16 of 2017 [2019] TZCA 265, lends credence to this position. Since the accused persons signed the certificate of seizure (Exhibit P14), it serves as their admission of possessing the transparent nylon bags containing substances suspected to be narcotic drugs, as recorded in Exhibit P14. Based on the above analysis, it is evident that the defence presented by the accused, including their alibi, does not create a reasonable doubt regarding the prosecution’s evidence. As such, the court answers the first sub-issue in the affirmative, affirming that the accused persons were found in possession of two transparent nylon bags containing granular substances suspected to be narcotic drugs. Following the determination of the first sub-issue, the second sub-issue requires an examination of whether the granular substances contained in the transparent nylon bags indeed constitute narcotic drugs, specifically heroin, weighing 509.63 grams. Under section 48A(1) and (2) of the Drug Act and the legal principles established in the cases of Omary Said @Athumani vs R, Criminal Appeal No. 58 of 2022 and Charo Said Kimillu vs. R, Criminal

Appeal No. 111 of 2015 (both unreported), the authority to weigh and analyze substances suspected to be narcotic drugs is vested in the Chief Government Chemist. As an 19 expert, the Government Analyst bears the duty to provide the court with the necessary scientific criteria for testing the accuracy of the conclusion or results. This enables the court to form its own independent judgment by applying these criteria to the facts proven in evidence. In this case, PW1 serves as a Government Analyst who was gazetted under GN No. 2 of 2018, making him qualified to conduct analysis of substances suspected to be narcotic drugs. He provided an in-depth account of the methods he used to analyze the granular substances recovered from the two transparent nylon bags. These items, along with a digital scale and a brush were presented to him for examination and formed part of his analysis. He informed the court that after weighing the contents of the transparent nylon bags marked A and B, he recorded their respective weights as 501.86 grams and 7.77 grams, making a total of 509.63 grams. It is evident that he extracted two samples from each of the transparent nylon bags, in addition to swabs from the digital scale and brush. Furthermore, accounted that he performed a preliminary test using Mecke reagent by placing small portions of each sample on labeled spot tiles. When the reagent was

added, samples A and B changed from off-white to green, pointing to the possible presence of heroin, morphine, or 20 codeine. Sample C, which was taken from the scale and brush, showed no color change. PW1 stated that he conducted confirmatory testing by injecting the samples into the GC-MS after dissolving them in ethanol, mixing them with a vortex mixer, and using centrifugation to separate the components. The analysis confirmed that Sample A and Sample B contained heroin, while Sample C tested negative for narcotic substances. Following his analysis, he prepared an Analyst Report (Exhibit P1), which confirmed that the powdery substances in the transparent nylon bags were heroin weighing 509.63 grams. He further opined that heroin causes severe drug dependence, deteriorates the nervous system, and can contribute to mental health disorders. In line with section 48A(2) of the Drug Act, the Analyst Report (Exhibit P1) is taken as conclusive proof of its contents unless rebutted by contrary evidence. The defence raised concerns about the possibility of contamination, arguing that PW1 did not explicitly address the issue. However, while PW1 admitted that he was not directly examined on this aspect, it is evident that he explained the preparatory measures undertaken to ensure the accuracy of the analysis. Moreover, there is no evidence indicating that the samples were

contaminated. Given this, the court finds no substantial basis to discredit PW1’s testimony or the contents of Exhibit P1. The prosecution has therefore established that the granular 21 substances in the transparent nylon bags are heroin, weighing 509.63 grams. Consequently, the second sub-issue is determined in the affirmative. A crucial sub-issue to be examined next is whether the prosecution maintained the chain of custody for the narcotic drugs (Exhibits P6 and P7). It is fundamental to state that the principle of the chain of custody dictates that an unbroken record of the movement of exhibits be established, from seizure to court production, to prevent allegations of tampering. This position has been underscored in a number of cases including Alberto Mendes vs. Republic, Criminal Appeal No. 473 of 2017, Republic vs. Adam Jalala Khan, Criminal Session No. 144 of 2017, and Chacha Jeremia Murimi and 3 Others vs. Republic, Criminal Appeal No. 551 of 2015 (all unreported). Moreover, proving the chain of custody is not confined to a paper trail but can also be demonstrated through the reliable testimony of witnesses. Therefore, even in the absence of written records, the chain of custody remains intact if the nature and handling of the exhibit confirm its integrity. Referring back to this case, the prosecution has established the chain of custody for Exhibits P6 and P7 through

both written records and oral testimony. As indicated herein, the accounts of PW4 and PW7, supported by the certificate of seizure (Exhibit P14), confirm that two transparent nylon bags containing granular substances were recovered from the accused persons, specifically inside a black 22 backpack carried by the 1st accused person. Immediately after the seizure, PW4 assigned labels A and B to the respective transparent nylon bags. It is further deduced from PW4’s testimony that that the seized transparent nylon bags containing the suspected narcotic drugs remained under his custody, along with other exhibits, and that he personally transported them to the DCEA office, where he opened case file number DCEA/IR/02/2020, detained the suspects and transferred the exhibits to the custody of Inspector Violeth (PW2), the exhibit keeper. To substantiate PW4’s account, PW2 was called by the prosecution and confirmed that she received the two transparent nylon bags containing granular substances labeled A and B from PW4. PW2 stated that she duly recorded them in the exhibit register (Exhibit P9), under case number DCEA/IR/02/2020, and kept them in the exhibit room. On the following day, she retrieved the exhibits from the exhibit room, sealed them, and prepared them for submission to the Government Chemist Laboratory. The sealing process took place in the presence of PW3 and PW5. The

evidence of PW2, PW3, and PW5 indicates that the granular substance in the transparent packages labeled A and B was sealed in envelopes, which were also labeled A and B, respectively. Apart from PW2, PW3, and PW5, the sealed envelopes were signed by the first and second accused persons, who were present during the process. 23 PW2 has further explained that after completing the sealing process, she kept the sealed envelopes in her custody before handing them over to PW5 a few hours later for submission to the GCLA as shown in Exhibit P9. PW5 confirmed this, stating that he received the envelopes and delivered them to the GCLA. The record further shows that once at the GCLA, PW5 handed over the sealed envelopes, which included two suspected narcotic drug substance and one containing a brush and a digital scale, to PW1. This transfer is reflected in Exhibit P2, signed by both PW1 and PW5. There is also evidence of PW1 who confirmed receiving the sealed envelopes and, upon opening them, found two labeled A and B, each containing a transparent nylon bag with a granular substance, while the remaining one, marked C, contained a digital scale and brush. PW1 testified that, upon weighing the substance, extracting a sample, and conducting a preliminary test in the presence of PW5, he returned the exhibits to PW5. This fact is reflected in the report (Exhibit P1), which confirms that PW1

returned the three envelopes, including the two with the suspected narcotic drugs, to PW5. PW5 accounted that after receiving the exhibits, he handed them back to PW2, as documented in the exhibit register (Exhibit P9) while, PW2 confirmed that she kept them in her custody until they were eventually submitted to the court. 24 From the preceding analysis, it can be concluded that the oral and documentary evidence presented by the prosecution does not indicate any disruption in the chain of custody. Mr. Kibatala, however, questioned the integrity of Exhibits P6 and P7, arguing that PW3, the independent witness who observed the packaging process, failed to comprehend the importance of taking an oath. According to him, this failure raised doubts about the credibility of the samples analyzed by PW1 and led to a break in the chain of custody. However, the record reflects that while PW3 initially stated he did not understand the significance of an oath, he later affirmed that he had been informed that giving false testimony could result in prosecution. His testimony was, in fact, given under oath in accordance with section 48(1) and (2) of the EOCCA, undertaking to tell the truth. Furthermore, the court, found him to be a competent witness under section 127(1) of the Evidence Act, as he comprehended the questions posed to him and provided logical responses. Given the settled legal

principle that credibility is established through a witness’s demeanor and the coherence of their testimony, the court is of the view that PW3’s credibility cannot be undermined merely because he initially stated that he was unaware of an oath’s significance. The manner in which PW3 was selected as an independent witness to the sealing has also been cited as a factor challenging the integrity of Exhibits P6 and 25 P7. According to Mr. Kibatala, PW3, PW4, and PW6 gave conflicting testimonies on this issue. However, a review of their testimonies reveals no inconsistencies regarding the procurement of PW3 in the sealing process. PW3 stated that he was called by PW4, while PW4 did not mention in his evidence-in-chief whether he had procured PW3. During cross-examination, PW4 only confirmed that he had not included this detail in his earlier testimony and was not specifically asked whether he was the one who called or procured PW3. This does not, in my considered view, amount to a contradiction. As for PW6, his testimony establishes that he had not yet been arrested when the sealing process took place on 28/01/2020. Furthermore, he did not provide any statement regarding the procurement of PW3. In light of this, the claim that there were contradictions regarding PW3’s procurement as an independent witness lacks merit. The defence further questioned the integrity of Exhibits P6, P7,

and P8, arguing that PW6’s assertion about seeing them during his statement recording contradicted PW2’s testimony that she had sole custody of the exhibits until they were transferred to PW5 for submission to the Chief Government Chemist. However, the record indicates that PW6 merely stated that his witness statement was recorded on 27/06/2023, without specifying whether he saw the exhibits at that time. Regarding the issue of PW6 seeing the packets containing the narcotic drugs, his testimony, both in chief and during cross-examination, suggests that he 26 only saw them during the search conducted at the crime scene. There is no evidence suggesting that he encountered the exhibits at any other point, particularly when recording his statement. It follows, therefore, that the defence’s contention of a contradiction between PW6’s testimony and that of PW2 and PW5 regarding the handling of Exhibits P6, P7, and P8 is unfounded. The defence also argues that PW1, PW2, PW3, and PW4 gave contradictory descriptions regarding the texture, colour, and appearance of Exhibits P6 and P7. Upon considering the evidence as a whole, the court has found that these witnesses consistently described the suspected narcotic drugs as either powdery or granular substances, with an off-white or milky colour. Although PW7 initially described the colour as having a blue hue (light blue), he later

corrected himself and stated that it was milky colour. Moreover, while PW1 recognized minor changes in the exhibits’ texture and color, he explained that such variations are a natural result of storage conditions and time passage, with no effect on their chemical composition. Given the nature of the substances and time passage, the court holds the view that the stated discrepancies are inconsequential and do not affect the integrity of the chain of custody. It is further contended that there are doubt regarding the very genesis of the episode as the independent witness (PW7) did not identify his own signature as well as that of the accused persons on the certificate of seizure (Exhibit P14). 27 Pursuant to section 48(2)(b) of the Drug Act prescribes that the role of independent witness is to testify on an article seized. This role was duly executed by PW7 who explained how the substances suspected to be narcotic drugs were seized from the accused at the crime scene. PW7 further stated to have signed the certificate of seizure in which the suspected narcotic drugs and other items seized by PW4 were listed. Although he was not led to identify his signature on Exhibit P14, his evidence in respect of items seized from the accused persons remained intact. Therefore, I dismiss this ground. All the above considered, the third sub-issue is positively answered, confirming that the chain

of custody for Exhibits P6 and P7 was properly preserved. The final sub-issue for consideration is whether the defence has managed to introduce reasonable doubt in the prosecution's case. Having assessed the accused persons' testimonies, including their alibi and concerns over the chain of custody of Exhibits P6 and P7, attention now turns to additional aspect raised by the defence. One of the key issues under scrutiny is the presence of contradictions in the prosecution’s case. Fortunately, this issue has been addressed in various precedents, including Dickson Elia Nsamba Shapwata vs. Republic, Criminal 28 Appeal No.92 of 2007, Said Ally Saif vs. Repubic, Criminal Appeal No. 249 of 2008(unreported), and Maramo Slaa Hofu and Others vs Republic, Criminal Appeal No. 146 of 2011 (all unreported). The established principle in these cases is that contradictions in the testimony of a single witness or among witnesses are inevitable. This is because no witness can be expected to recall and recount every single detail of an incident with absolute precision. Therefore, contradictions must be evaluated in their proper context to assess their significance. The critical task is to assess these contradictions in their proper context and determine whether they are substantial enough to undermine the case or the credibility of the witnesses. The defence contends that PW4’s testimony conflicts

with that of Abel Shoo (DW2) and DW1 Jimmy Walter Mlaki (DW1) concerning whether DCEA officers escorted the suspect’s vehicle. To begin with, it should be noted that discrepancies between prosecution and defence witnesses do not inherently create inconsistencies within the prosecution’s case; rather, they may be relied upon to cast doubt on its reliability. In this case, DW1 and DW2 testified that the arrest took place at Ubungo Maji, while PW4 stated that it was at Ubungo Kibo. As held earlier, since PW4 was not cross-examined on this issue and the defence failed to issue a notice of alibi as required by law, the defence’s version remains untested. Consequently, the court cannot rely on it solely on the basis of the defence counsel’s assertion. 29 Another contention is that PW4 testified that the accused persons were transported from the crime scene in a DCEA vehicle, but PW7 did not specify the particular vehicle. However, as stated earlier, the mere omission by PW7 to state the exact vehicle does not mean he contradicted PW4. A contradiction would only arise if PW7 had stated that the accused were not transported in a DCEA vehicle, which was not the case. Moving forward, the court concurs with the defence that, there is a discrepancy regarding who was found in possession of the Saudi Arabian currency. PW4 stated it was the 2nd accused person, while PW7 testified it was the

1st accused person. Furthermore, while PW4 stated that the accused were handcuffed after alighting from the vehicle, PW7 testified that they were already handcuffed when they exited. These inconsistencies, however, do not go to the core issue, whether the accused were found in possession of narcotic drugs. The primary issue before the court remains the possession of narcotic drugs, not the Saudi Arabian currency. As the testimony of PW4 and PW7 confirms that the search leading to seizure of the narcotic drugs in question, the discrepancies raised are not substantial enough to cast doubt on the prosecution’s case. The second aspect pertains to the credibility of PW6, a driver whose vehicle was found with the narcotic drugs in question. There is no dispute that PW6 was initially an accused person in this case before being discharged at the instance of 30 the prosecution. Given this background, he has an interest in exonerating himself. Therefore, his testimony must be scrutinized with great caution, as emphasized in DPP v. Elias Laurent Mkoba and Another [1990] TLR 115 and Christian Kaale and Another & Joseph Melkior Shirmina @Temba v. Republic, Criminal Appeal No. 261 of 2014 (unreported), which Mr. Kibatala relied upon. Notably, the prosecution did not provide an explanation for PW6’s removal from the case. Furthermore, his testimony that he left the accused persons inside the

vehicle with the engine running, despite allegedly not knowing them, raises doubts, particularly given that he did not come forward on the day of the incident or notify his employer about what had transpired. However, even if the court was to disregard his testimony, the evidence of PW4 and PW7 remains intact, demonstrating that the accused persons were found inside the vehicle and that, upon being searched, narcotic substances were recovered from them. The next aspect concerns the credibility of Amina Nuhu (PW8), the owner of the vehicle in question. The defence argues that her testimony is unreliable because it is improbable that she would entrust PW6 with the vehicle without knowing where he lived. In my view, the absence of a written contract between PW6 and PW8 and the fact that PW8 was unaware of PW6’s residence do not necessarily render her testimony unreliable. It is not uncommon for vehicle owners to entrust their drivers without knowing their exact place of residence. Moreover, 31 even if, for the sake of argument, PW8’s testimony was to be disregarded, the evidence of PW4 and PW7 still stands. As demonstrated, their testimony confirms that the accused persons were found in possession of the narcotic drugs, which were inside the bag held by the 1st accused person. Another aspect refers to the argument raised by the counsel for the 2nd accused that the prosecution

failed to prove that the offence was committed on 27/01/2020 at 15:00 hours. As held in the case of Kassim Arimu @Mbwana vs. R, Criminal Appeal No. 607 of 2021 (unreported) cited by Ms Banana, the prosecution must prove that the offence was committed on the date, time, and place as specified in the charge sheet. The information at hand specifies that the offence occurred on 27/01/2020 at Ubungo Kibo, a fact that was substantiated by the evidence provided by PW4 and PW7. Since the information did not explicitly state that the offence occurred at 15:00 hours, as asserted by the learned counsel, the argument challenging the proof of that time lacks merit. The last point to address is failure to call some witnesses and tender some exhibits. Ms. Banana strongly argued that the prosecution’s failure to call Zuwena N. Khatibu, who took possession of the mobile phone from PW2, Insp. Julieth Mwayole from the Cybercrime Unit who analyzed the mobile phones, and DSGT Juma, who allegedly recorded the caution statement, leaves much to be 32 questioned. In her view, the omission justifies the court in making an adverse inference against the prosecution. In accordance with the settled law, as reinforced in Swed Ismail Msangi vs Republic, Criminal Appeal No. 256 of 2019 [2023] TZCA 17681, cited by Ms. Banana, the prosecution has a prima facie duty to call witnesses who, due to their connection

to the transaction at hand, can testify to material facts. If such witnesses are within reach but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution. It should be noted, however, as provided for under section 143 of the Evidence Act (supra) that there is no such number of witnesses required to prove certain facts. Considering the above legal position and the facts of this case, the court holds that the absence of the witnesses and exhibits mentioned by the defence does not undermine the prosecution’s case. Rather, the court finds that even in the absence of the accused persons’ mobile phones and their purported cautioned statement, the evidence presented remains strong in establishing the charge of trafficking in narcotic drugs, as examined in the preceding issues. In conclusion, the defence has failed to create a reasonable doubt in the prosecution's case. As the evidence establishes that the accused persons were in possession of 509.63 grams of narcotic drugs, which qualifies as trafficking under 33 sections 2 and 15(1) (a) and 3(i) of the Drug Act, the court is satisfied that the prosecution has proved its case beyond reasonable doubt. Consequently, the accused persons, Jimmy Walter Mlaki and Stanley Salvatory Ngowi @Sultan are hereby found guilty of trafficking in narcotic drugs and convicted of that offence, under section 15(1)(a) and (3)(i) of the Drug Control and Enforcement Act, read together with paragraph 23 of the First Schedule and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act. DATED at DAR ES SALAAM this 14th day of February, 2025. S.E. KISANYA

JUDGE 14/02/2025 Delivered this 14th day of February 2025 in the presence of Ms. Hellen Masuhuli, learned Senior State Attorney for the Republic, both accused persons, Mr. Peter Kibatala and Ms. Rebeca Ezekial, learned advocates for the 1st accused, 34 Ms. Banana Feuzi Kalema, learned Advocate for the 2nd accused, and Ms. Angel Abasy, RMA S.E. KISANYA

JUDGE 14/02/2025

SENTENCE Following the conviction of Jimmy Walter Mlaki and Stanley Salvatory Ngowi for trafficking in narcotic drugs under section 15(1)(a) and (3)(i) of the Drug Control and Enforcement Act [Cap. 95, R.E. 2019) read together with paragraph 23 of the First Schedule and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap. 20 R.E. 2019], the court is called upon to consider the appropriate sentence. The court has carefully considered the prosecution’s arguments for a sentence in accordance with the law and the defence’s plea for leniency based on the factors presented. However, pursuant to the proviso to section 60(2) of the Economic and Organized Crime Control Act (supra), it is inclined to impose the higher sentence prescribed by the law establishing the offence. Since section 15(1)(a) of the Drug Control and Enforcement Act (supra), which establishes the offence of trafficking in narcotic drugs, prescribes a mandatory sentence of life imprisonment, the court has no discretion to impose a 35 lesser penalty. This position is reinforced by case law, including Islem Shebe Islem vs. Republic, Criminal Appeal No. 187 of 2020 (unreported), where a custodial sentence of 25 years imposed by the trial court was enhanced to life imprisonment. Even the Tanzania Sentencing Guidelines, 2023, which replaced the Tanzania Sentencing Manual for Judicial Officers referred to by the defence counsel, does not require the court to consider the factors raised by the defence in cases where the law prescribes a mandatory sentence, as in the present case. In view thereof, Jimmy Walter Mlaki and Stanley Salvatory Ngowi @Sultan are sentenced to life imprisonment. S.E. KISANYA

JUDGE 14/02/2025 Court: Sentence pronounced in the presence of the parties. S.E. KISANYA

JUDGE 14/02/2025 36

ORDER Simultaneously with the judgment and sentence, the court hereby makes the following orders concerning several exhibits that were entered into evidence: 1. The heroin (Exhibits P6 and P7) and associated packaging/envelopes and black bag (Exhibits P3, P4, P5 and 11) and digital and scale (Exhibit P8) shall be destroyed or otherwise dealt with in accordance with the Drug Control and Enforcement Act [Cap. 95, R.E. 2019] and its Regulations. In the interim, custody of these exhibits is placed under the Drug Control and Enforcement Authority, pending the implementation of this order.

2. The mobile phones (Exhibit P13) shall be restored to the accused persons from whom they were confiscated.

3. The vehicle with registration number T776 DSE (Exhibit P12) and its card (Exhibit P10) shall be returned to its rightful owner, Amina Nuhu Mvungi, as there is no indication that she had constructive possession of the narcotic drugs. S.E. KISANYA

JUDGE 14/02/2025 37 Court: The right to appeal against the judgment, sentence, and/or orders is explained to the parties S.E. KISANYA

JUDGE 14/02/2025 38