20170508 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE.DISTRICT REGISTRY OF ARUSHA]

AT ARUSHA CRIMINAL SESSION N0.46 OF 2015 (Originating from District Court at Kibaya Pl No.9/2014)

THE REPUBLIC Versus

ELIAKUNDA MBAGA

JUDGMENT S.M. MAGHIMBI, l: The accused herein was charged with, the offence of trafficking narcotic drugs c/s 16(b) of the Drugs and Prevention of Illicit Traffic in Drugs ACy, Cap. 95 R.E 2002 as amended by the written Laws (Misc. Amendments) (No.2) Act, 2012. It was alleged by ,the prosecution side that on the 10/03/2014, the accused person was found trafficking narcotic drugs namely khat (Catha edulis) commonly known as "Mirungi" weighing 106 kgs valued at Tshs. 5,300,000/- on a motorcycle with Reg. No. T 504 BWM at KKKT Hospital Area along Orkesumet-Kiteto Road within Simanjiro District of Manyara Region. ' In order to prove their case the prosecution called six witnesses. At the conclusion of evidence from both sides; the court found that it was not in dispute that on the alleged incident date and time, the accused was ' stopped by police while rinding EXP2 along Orkesumet-Kiteto Road. It was 1 f further not disputed that while he was arrested, he was earring a sack at the back of his motorcycle. However, the following facts have been found to be in issue; 1. Whether the accused was arrested trafficking illicit drugs katha commonly known as mirungi. The crucial issue to be determined at this point id the chain of custody of the said exhibit from the time the accused was arrested to the time of this trial. The concept of chain of custody was well elaborated by the Court

of Appeal in the case of Paul Maduka Vs. : By "chain of custody" we have in mind the chronological documentation and/or paper trail showing the seizure, custody, control transfer, analysis, and disposition of evidence, be it physical or electronic. The idea behind recording the chain of custody, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crime - rather than, for instance, having been planted fraudulently to make someone appear gw'lty. -,. Indeed, that was the contention of the appellants in this appeal. The chain of custody requires that from the moment the evidence is collected, its every transfer from one person to another must be documented and that it be provable that nobody else could have accessed it. I will now elaborate the detailed flaws of the prosecution evidence with regard to chain of custody as it will be evidenced that required due diligence was not observed and enforced. Starting with the evidence of PW!, he testified to have arrested the accused while they were on patroal 2 t.. with his ·fellow police officers in a private car "Toyota Spacio" model. After they arrested the accused, they put him in their car and one Coplo Josam drove the motorbike which had the EXP1 qn it to the police station. The car that they had carried the accused in went to the police station first and the motorbike with the exhibit in it

came later. At this point alone, the prosecution evidence has begun to shake. Why didn't the exhibit be transported in the same vessel that the accused was kept in? How can the prosecution I prove that what Coplo Josam , brought to the police station was exactly what he was arrested with, in fact throughout their evidence, it has not been proved to that effect .. Furthermore, PW1 admitted on cross examination that the accused did not sign anywhere that he w~s arrested with the alleged mirungi. It was just a police show. Next is the handling of exhibit from the time it arrived at the police station to the time o its destruction. PW2 was the investigator who filled inventory form for the purpose of taking the exhibit along with inventory form to the Court. Further that the Court ordered that the exhibit be destroyed as it was not fit for human consumption. Th~ exhibit was then taken back to Orkesmet police and handed to the custodian of exhibit. The reason why they took the exhibit back to police was that the staff from Government Chemist had to come and collect sample of the exhibit as well confirm its weight for the purpose of lab testing to confirm that the exhibit was a narcotic drug called Mirungi. The testimony of PW2 confirms that the exhibit that the accused is alleged to have been arrested with had made several movements. From the police to the court, after court order

back to police. Kept in the exhibit room, then again taken out for the Government 3 I chemist to take samples for testing. After testing, the exhibit was taen for destruction. However, crucially so, the PW2 the investigator, did not explain the chain of custody of the alleged exhibit. The exhibit exchanged hands several ties, from PW2 to Court, then PW2 then to the custodian of exhibits, then exposed to PW3 for sample taking and later on back to exhibt room and later for destruction. As stated in the above cited Paul Maduka case, the PW2 and the whole of prosecution evidence was duty bound to explain to the court the chronological documentation and/or paper trail of the movement of the alleged exhibit. The chain must show how the exhibit was seized, which as I have elaborated in the evidence of PWl, from the time the exhibit was seized, the irregularities begun. The chain ought to have also elaborated the custody, control and transfer as it was testified by PW2 that the exhibit made several movements to and from the police station. Then is the analysis and disposition of evidence. PW2 further admitted in cross examination that there is no proof that the exhibit was actually destroyed. As PW3 who took the alleged samples for testing testified that he labeled the samples as SMl - SMS and put the same label to the respective sulphate which the sample came from. Thereafter he

assigned them each on one lab number which was N2 - 42/2014. Thereafter he filled the prescribed form, signed and stamped it he then handed back the remaining exhibits in the five samples to the police Anna for her procedures then He made a copy of the form and left them with the original form. However, the said copy was not availed to the defence during committal proceeding and was hence not received in court at the trial stage. The result is that the 4 r • I prosecution failed to prove to the court that the sample that was taken from police was that what the accused is alleged to have been arrested with. The chain of custody principle ends with_ the disposition of evidence. At this trial the prosecution also did not explain as to how and when or even whether the said evidence was disposed. Upon cross examination of PW2, she admitted that she does not have any proof to show that the evidence· was actually destroyed. In the absence of the chain of custody to s_how how. the exhibit was handled, it is hence not proved whether what PWS had valued and PW6 had analysed was actually what the accused was found with. In the same Paul Maduka case cited, the court further held: "The idea behind recording the chain of custody, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crime - rather than, for instance, having been planted fraudulently to

make someone appear guilty. Indeed, that was the contention of the appellants in this appeal. The chain of custody requires that from the moment the evidence is collected, its every transfer from one person to another must be documented and that it be provable that nobody else could have accessed it 11 Having made those findings on the absence of chain of custody of the exhibit. It is conclusive that the prosecution has totally failed to prove the linkage between what the accused was arrested with and what was brought to court as exhibit. Consequently, the entire prosecution evidence 5 is vague and unreliable and hence bound to crumble. For that reason;, it is· · ·•• I ·--; : obvious that the prosecution side has failed to prove their case against the,...',·-. · • accused beyond reasonable doubt. The accused is hereby acquitted of-:the offence of trafficking narcotic drugs c/s 16(b) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap. 95 R.E 2002. Dated at Babati this 08 th day of May, 2017. . I t-; -~~-- ................. . S. M. A HIMBI l GE 6