CRIINAL APPEAL NO

THE JUDICIARY OE TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 000039062 OF 2023 WILSON PHARES MOSHI.................................. COMPLAINANT I APPELLANT I APPLICANT VERSUS REPUBLIC.................................. RESPONDENT / DEFENDANT JUDGMENT A. Z. BADE, J 1 he Appellant herein was charged before the District Court of Arusha on a single count of trafficking in narcotic drugs, contrary to section 15A (1) and (2) (c) of the Drug Control and Enforcement Act [Cap 95 R.E 2019], as amended by section 19 of the Written Laws (Miscellaneous Amendments) (No.5) Act No. 9 of 2021. According to the particulars of offence on the charge sheet which was presented to the trial court, on the 21st September, 2022 at Arusha Bus Stand within the City, District, and Region of Arusha, the Appellant was found unlawfully trafficking in narcotic dings namely, "Catha Edulis" commonly known as "Mirungi” weighing 4.70 kilograms. The Appellant denied having committed the offence. Nonetheless, the trial court found him guilty, and upon conviction, he was sentenced to serve 30 years in prison. The brief facts giving rise to the present Appeal may be summarized thus in the context of the prosecution that on January 21, 2022, while on patrol in Arusha main bus stand one F4826 Corporal Alfred (PW2) a police officer, together with one Theresia, also a police officer, saw one passenger entering into the bus by the name of Salama Luxury Coach with a small bag, which was black in color. They became suspicious concerning him, so they entered the bus and took the accused together with the bag to a checkpoint. They checked him and searched his bag in the presence of two independent witnesses. On the bag, they found 28 bundles of green leaves suspected to be narcotic drugs commonly known as “mirungi” weighing 4.70 Kilograms. They took the suspected narcotic drugs to PW4, a government chemist and after laboratory examination it was confirmed that the leaves were narcotic drug by the name of “Mirungi”. On the Appellant’s part, he denied the commission of any offence. He testified that the bag was pinned to him and he was forced to enter the bus, after which a person dressed in civilian clothing entered the bus, went straight to the back and came out with a bag and told him the said bag belonged to him. He denied owning the said bag but they arrested him and took him to a police station. As alieady pointed out above, after hearing the evidence of both sides, the trial magistrate did not buy the Appellant s story. She found him guilty, convicted and sentenced him to 30 years imprisonment. The Appellant was aggrieved by the said decision and decided to lodge the instant appeal based on 8 grounds to his memorandum of appeal, to the effects that: 1. The trial magistrate erred in both law and fact in failing to draw an adverse inference to the prosecution case lor failure to summon a material witness, one Fadhili Msangi to testify and prove whether the Appellant was the one found with the said mirungi and if true whether the witness witnessed the process of seizure of the said mirungi. 2. I he trial was unfairly conducted for failure of the court to explain to the Appellant to call a defence witness in contravention of the provision of section 231 (1) (b) of the Criminal Procedure Act 3. The trial court proceedings were vitiated due to the court’s failure to comply with the provisions of section 230 of the CPA. 4. 1 he trial court grossly erred in both law and facts in finding and holding that, the appellants herein was found in possession of mirungi despite that the prosecution failed to comply with requirements under part V AND VI of the Drug Control and Enforcement (General) Regulation, 2016. 5. The trial court grossly erred in both law and facts in finding and holding that, the appellant was found in possession of mirungi despite there being no receipt produced and tendered in evidence pursuant to section 38 (3) of the CPA. 6. The trial court grossly erred in both law and fact in convicting the Appellant despite the charge being not proved beyond reasonable doubt and to the required standard of the law. 7. The trial court erred both in law and fact for failure to adequately and properly address the contradictions that appeared in the prosecution case and give the Appellant the benefit of the doubt. 8. The trial court grossly erred in law and fact for failure to see that the chain of custody in respect of handling the alleged mirungi was broken and mishandled by the prosecution witnesses which raised doubt on the guiltiness of the Appellant. At the hearing of this Appeal, the Appellant was represented by Mr. Richard Mosha and Ms. Jenifer John, learned advocates while the Respondent Republic was represented by Mr. Charles Kagirwa and Ms. Lilian Kowero, learned State Attorneys. The Appellant’s counsel took leave of the court to abandon grounds 2, 3, and 5 and submitted on the rest of the grounds. Submitting on ground 1, they contended that the trial court failed to draw a negative inference as the prosecution could not summon a witness one Fadhili Msangi, who was the free agent that could have testified if the Appellant was the one found with the said mirungi when the search and seizure were conducted, adding it is a legal requirement that on seizure and search, a free agent should be present. To support their position, they cited section 38 (3) of the Criminal Procedure Act and section 48 (1) (c) of the DCEA. On further argument, they maintained that the one who was brought by the prosecution as an independent witness was Angel Faith, a bus conductor who had the same interest as the owner of the bus and so had an interest to serve, which disqualified her from being a free agent and independent witness. They contended that according to the tecoid, thcie was a passenger by the name of Fadhili Msangi who witnessed the search, and in their view, he qualified to be an independent witness, but to their surprise, the prosecution did not bring him before the trial court neither did they give the reason for failure to bring such witness. Arguing further, they contended that there are known circumstances when such an independent witness could not be procured (during the search and seizure), citing the cases of Haji Rashid vs R, Criminal Appeal No. 231 of 2016. and Sahim Mohamed vs R, Criminal Appeal No. 109 of 2018. where the prosecution did state that the villagers were uncooperative, or it was during the night and in a non- residential area. They argue that to the contrary, when the Appellant was apprehended it was in a busy location at the bus stand. This person. Fadhili Msangi was there but was not procured during the hearing. In their opinion, the trial court should have thus drawn an adverse inference on the prosecution side. To cement their position, they cited the case of Boniface Kundakira Tarimo vs R, Criminal Appeal No. 35 1 of 2008. Regarding the 4th ground of appeal, they argued that the inventory form contravenes Police General Order 229 (PGO) requiring the accused to be present and be heard while the exhibit was being disposed off. To support their position, they cited the case of Buluka Leken Ole Ndiday and Another vs R, Criminal Appeal No. 459 of 2020. They argue exhibit P6 has the signature of the Appellant, but does not show if the Appellant was accorded the right to be heard before the order for destroying the inventory was issued. In that case, they urged the court to expunge the inventory from the record which would leave the prosecution case without the actual subject matter of the charge sheet. Arguing grounds 6 and 7. counsels for the Appellant contended the presence of contradictions in the prosecution case which made the prosecution fail in proving the case against the Appellant beyond the reasonable doubt. On these grounds, they pointed to inconsistencies in Exh Pl which was PF 16, where the entry no of the exhibit was noted to be 163/2022, while all witnesses were referring to this form as 162/2022. Further, they argue that Exh Pl shows the contraband was in a brown handbag, while all witnesses spoke of the contraband being found in a small black bag referring to pp 10 & 11 of the typed proceedings. Pointing to further inconsistencies, the number of the parcels of the khat mirungi did not match (there were 28 pieces as per p 48 of the proceedings, while Exh Pl speaks of 30 parcels. Further, the time that the inspection was done showed that they were searched at 10 past 2 at the main bus stand, while the exhibit keeper spoke of receipt of the said exhibit at 2 pm, which makes the exhibit to have been received even before the search took place. Further, they pointed to the fact that the inventory was incomplete, which makes the case unproved beyond reasonable doubt. To prove their point, they cited the case of Pascal Yoya Maganga vs R (supra) On the last ground, they submitted that, the chain of custody was broken as PW1 who was the exhibit keeper testified that she received the said exhibit and oversaw its destruction, however the record is silent on who brought the said exhibit to PW1. Responding to the submission by the Appellant’s counsels. Mr. Kagirwa supported the Appeal based on 4th ground ol appeal. That, it is legal requirement that while destroying the inventory, the accused should have been present and should have been accorded the opportunity to comment on the process. That, it is not on the record if the Appellant was given such right. Referring to the Buluka Loken Case, the Court grounded its reasons that during the destruction of the inventory, the accused should have been present and made clear that the consequence of not affording opportunity to the accused person makes the inventory not to be able to be relied upon. This makes the whole process ineffectual. Reasoning against the Court of Appeal decision, he maintained that if the court was to expunge the inventory form PE3, it would mean that the case against the Appellant could not be proven beyond the reasonable doubt. On such basis, the 28 parcel of mirungi that were apprehended against the accused, which had made the basis of the accusation and charge against the Appellant become non existent in the eyes of the law. Further, since the said subject of the charge sheet which was tendered in court under exhibit P6 did not comply with requirement under PGO 229, there is no any base for the conviction, praying in conclusion that the Appellant’s conviction and sentence by the trial court be quashed and the Appellant be set free. After going through the court’s record, grounds of appeal and submission by the parties I think the task before the court is to determine the issue whether the prosecution proved the case against the Appellant beyond the reasonable doubts under the circumstances. As already explained above that Respondent had conceded with the appeal supporting it on the ground that they failed to follow procedures provided by the law during application of the order for disposal of the allegedly narcotic drugs found in possession of the Appellant; and this is in contravention of PGO 229 Paragraph 25. I join hands with learned State Attorney and counsels for the Appellant that the prosecution did not follow the procedure provided by the law during procuring the disposal order. For case of reference, the said Order provides: "Perishable exhibits which cannot easily be preserved until the case is heard, shall be brought before the magistrate, together with the prisoner (if any) so that the Magistrate may note the exhibits and order immediate disposal. Where possible such exhibits should be photographed before disposal In interpreting the above Order, the Court of Appeal had on multiple occasions pronounced its position on the issue of involvement of the suspect or suspects at the time of ordering a disposal of perishable exhibits, and the effect of failure to procure participation of the suspects at the session seeking to secure the order. In the cited case of BuLuka Leken Ole Ndidai (supra), while citing the case of Mohamed Juma Mpakama vs R, [2019] 1 1LR 514 it was held that: Paragraph 25 of the PGO envisages any nearest Magistrate, who may issue an order to dispose of perishable exhibits. This paragraph, 25 in addition emphasizes the mandatory right of an accused person (if he is in custody or out on police bail) to be present before the magistrate and be heard’'. [Emphasis added] The issue of presence of the suspect at the session seeking a disposal order is a requirement traceable from the PGO no. 229 paragraph 25, which relates to investigation and exhibits. Suffice to say that it has been insisted by the Court of Appeal times without a number that the presence of a suspect and ascertaining if S/he had any remarks, comments or objection with regard to the said inventory is mandatory. In the cited case of Mohamed Juma Mpakama (supra) it was further pronounced: .... while the police investigator, Detective Corporal Simon (PW4), was fully entitled to seek the disposal order from the primary court magistrate, the resulting inventory form (exhibit PE3) cannot be proved against the appellant because he was not given the opportunity' to be heard by the primary court magistrate. ” With the above understanding of the law, I will now turn to the record in order to find out whether the Appellant was present before the magistrate who issued the disposal order, and whether he actively and effectively participated in the process. A scrutiny of the prosecution’s evidence particularly the evidence of PW2 who presented the perishable exhibit before the magistrate to seek a disposal order is at issue. On page 23 of the typed proceedings, PW2 testified that the accused, the investigator of the case and himself went together to District Court and appeared before Hon. Ndossy where he handed her with a letter, picture, document and prayer of destruction of the exhibit, afterwhich the Magistrate signed on it, stamped and date it. Further that she proceeded to order the said exhibit to be destroyed. As seen above, it is indicated that PW2 testified that at the time of seeking a disposal order, the suspect was present but he did not state if the accused was accorded his fundamental right, a right to be heard. The inventory form only bears his name and signature. It docs not contain his remarks or comments. The inventory form is silent on whether the accused was asked to offer his comments if any regarding the said inventory. The silence of the inventory form on the said issue leaves many more questions unanswered, in line with the guidance from the referred authorities. Questions like whether he was asked for any comment, remark or objection as regards the exhibit which was being sought to be disposed of, and If yes, where is the record of his comment, remark or observation in that respect? In my view, the emptiness left by the above questions lead to the conclusion that the Appellant was not heard and his objections or comments (if any) were not taken at the time the disposal order was being procured. If that is the case, which I am convinced it is, the inventory form cannot be relied upon to prove the case against the Appellant as it is ineffectual. In short, the Appellant was not heard at the time the magistrate was making an order to destroy the narcotic drugs. Based on the above explanation, I expunge exhibit P6 from the record. In the absence of the inventory form, which stands in the place of the destroyed narcotic drugs, there is no legally conceivable way that the Appellant can still remain blameworthy of the offence charged. Since ground 4 is sufficient to dispose of the Appeal, which 1 will allow. I find no need to engage in discussing any other concerns raised by counsels for the Appellant. In the final analysis, the Appellant’s finding of guilty is quashed, the respective orders of his conviction are nullified and sentences meted upon him is set aside. It is hereby ordered that the Appellant be released forthwith from prison, unless he is held for other lawful causes. It is so ordered. Dated at ARUSHA ZONE this 27th of September 2024. A. Z. BADE. J JUDGE OF THE HIGH COURT