S v Bell (6 of 2026) [2026] ZWBHC 3 (13 January 2026)

1 HB 06/26 HCBCR 3396-25 GARRY BELL Versus THE STATE HIGH COURT OF ZIMBABWE MUTEVEDZI AND NDUNA JJ BULAWAYO, 15 September 2025 and 13 January 2026 Criminal Appeal G. Madzoka with S. Chamunorwa for appellant T. Mutukwa for respondent MUTEVEDZI J: Hard drugs such as cocaine never used to have a market in Zimbabwe. If anything, the country was just a corridor through which the drugs passed in transit to other countries. Today, both the sale and abuse of the drugs have become common place. Concerted efforts are required from everyone if the innumerable problems associated with drugs are to be mitigated. [1] The appellant in this case, appealed against both the conviction and sentence imposed by the Magistrates’ Court for contravening s 157(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the CODE”), that is possession of a dangerous drug. He was found in possession of 8 grams of cocaine. [2] The brief background to the allegations was that on 15 February 2025, detectives from CID Drugs were tipped that the appellant was dealing in dangerous drugs at a bar cum restaurant called Smoke House, in Hillside, Bulawayo. They lay in wait and put the area under surveillance until the appellant arrived at the bar around midnight. He was driving a motor vehicle described as a Toyota GD6 with registration numbers AFX 2911. The detectives pounced on the appellant, searched him and recovered a big plastic bag containing four smaller plastic sachets. They also searched the appellant’s car from where they recovered two plastic sachets hidden in a tray on the left side of the driver’s seat. A further search was HB 06/26 HCBCR 3396-25 conducted at the appellant’s residence, where an additional sachet was recovered from a small blue jewelry box inside the appellant’s built - in wardrobe. The detectives also recovered two digital scales and razor blades smeared with a whitish substance. The recovered substances were then taken first to Bulawayo Main Post Office where they were weighed in the presence of appellant and later to a police forensic science laboratory for examination. The whitish substance tested positive for cocaine. [3] Needless to state, the appellant was arrested and arraigned before the court of a regional magistrate at Bulawayo charged with the crime of possession of cocaine as defined in section 157(1)(a) of the CODE. Thereat, he denied the allegations. His defence was that the allegations against him had been fabricated and that the cocaine he was allegedly found in possession of had been planted by the police officers who arrested him in order to falsely incriminate him. He denied being in possession of cocaine on his person, in the car he was using or at his place of residence. He said he had spent the greater part of the night of 14 February 2025 drinking alcohol at Hartsfield Sports Bar and then at Smokehouse. He denied that he was arrested when he was arriving at Smokehouse at around 0001hrs and said he was actually leaving the place when the police detectives intercepted him after blocking the exit of his vehicle. He further alleged that they seized his vehicle and drove him to his Hillside residence where the officers again claimed that he possessed drugs. He said he did not consent to the searches conducted in his motor vehicle or at his residence. [4] To put this appeal in its proper context, it is important that we also set out in brief the evidence which the prosecution led at the trial. The prosecutor relied on the testimonies of several witnesses, namely Gift Machipisa, Silibaziso Mupombwe, Enock Nyika, Taurai Chinoda, Florence Banda, Nicholas Masendwe [5] Gift Machipisa was the arresting detail in this case. His testimony was that on 14 February 2025, ZRP officers received information that the appellant was dealing in dangerous drugs at Smoke House in Bulawayo. Together with five of his colleagues, they went to Smokehouse where they hid in wait for the appellant’s arrival. He said indeed, the appellant arrived just after midnight, alone in a Silver Toyota Hilux. When he disembarked, Machipisa and other officers approached him, introduced themselves as detectives from CID Drugs and Narcotics section in Harare. Thereafter, constable Masengwe searched the appellant and recovered HB 06/26 HCBCR 3396-25 from his person four sachets of cocaine and another sachet which had a substance called ecstasy. The substances were in the left pocket of the appellant’s black jeans. They promptly arrested him. They further searched the appellant's motor vehicle where they found two more sachets of cocaine in a tray on the left side of the driver's seat. Later, the appellant directed them to his house where they conducted another search and recovered another sachet of cocaine from the appellant’s closet in a jewellery box. They also recovered digital scales and razor blades smeared with a whitish substance which they suspected to be cocaine. The paraphernalia was close to the jewellery box which had the sachet of cocaine. They seized all those items together with the appellant’s cellphone as evidence of the commission of the crime. A notice of the seizure of the items was produced as an exhibit in the court aquo. Critically, Machipisa conceded that they had conducted the searches without a warrant but said they did so because there had not been enough time to apply for such warrant given the circumstances surrounding the arrest. He also testified that he carried out a field test of the drugs they seized from the appellant using a rapid test kit. The substances tested positive for cocaine. Later, he submitted the exhibits to the exhibits officer at CID drugs section Bulawayo as per police standard operations procedure. The drugs were weighed in the presence of the appellant. [6] Under cross examination, the witness disclosed that they had received the tip off around 0630hrs in Harare and then travelled to Bulawayo arriving around midday. He confirmed that they searched the appellant without a warrant and that at the time they arrested him, they did not see him selling dangerous drugs to any person. He denied that the appellant was arrested when he was coming out of Smokehouse. Instead, he reiterated that it was when the was arriving at the place and had just disembarked from his vehicle. He denied planting any drugs on the appellant and said they did not know him prior to this mission. When asked whether the appellant was drunk on the night of arrest, the witness said the appellant appeared sober. He also denied advising the appellant about being in possession of cocaine at some place at Hillside but that he did so at Smokehouse after the search. He added that he was not the investigating officer. He maintained that upon recovery of the dangerous drugs, they used a rapid test kit similar to the ones used for testing HIV or pregnancy. HB 06/26 HCBCR 3396-25 [7] Silibaziso Mupombwe, a Detective Sergeant said she was the exhibits officer at CID Bulawayo. She received the exhibits for safe keeping from the arresting detail on 15 February 2025. She took them for forensic examination on 17 February 2025 and collected them thereafter in a sealed package. She confirmed that during the time they were in her custody and during transportation to Harare, the drugs were never tampered with. She agreed that she might have mixed up the dates in error but she was very positive that the substances she received were in a tamper proof and sealed blue case. [8] Enock Nyika is a controller at Bulawayo Post Office. He weighed the sachets after a request from the police. The satchets with the substance which the police said was cocaine weighed 7g and the ones with what he was advised was ecstasy weighed 2g. The prosecution tendered the certificate of weight with the consent of the defence. Of importance to the appeal was his testimony that he used a digital scale that had not been calibrated for ten years. [9] Taurai Chinoda is a forensic scientist with the ZRP science laboratory. He holds a National Diploma in Applied Chemical Technology from Harare Polytechnic, a Certificate in Science Technology from the same college and a Certificate in application and operation of gas chromatology and mass spectrometer from South Africa. He said he obtained the National Certificate in 2012, the National Diploma in 2014 and the certificate in Gas chromatograph in 2022. There was therefore, no debate that he was an expert in forensic sciences. He advised the court aquo that when the drugs were presented for examination, there were seven sachets inside a blue box. He weighed the contents of seven sachets which was suspected to be cocaine and the weight was 5,67g. According to him, the evidence bag had not been tempered with because it is tamper- proof. If it has not been tampered with it displays the inscription “safe” which if and when opened changes to “opened”. He was required to demonstrate his explanation in the court aquo. When opened the evidence bag read “stop”. He confirmed that the seven sachets of the white substance inside the jewellery tested positive for cocaine. [10] Under further probe, he said he used the analytical balance scale to weigh the cocaine. When asked to explain whether there were any differences between an analytical balance scale and a digital scale, he said an analytical balance scale has higher precision HB 06/26 HCBCR 3396-25 and is more sensitive, and is mostly used in chemical laboratories whilst a digital is just a general scale which is usually used to weigh parcels. He further explained that an analytical scale rounds up to six decimal places whilst a digital scale rounds to two decimal places. He said he was familiar with the process of calibration and said at the police forensic laboratory they calibrate their machines daily in order to ensure reliable results. His forensic examination report consent, and the exhibit bag were both tendered and accepted as exhibits in the court aquo. [11] Under cross examination, he confirmed that he had neither seen nor examined the scale that was used at Zimpost. He said in his National Diploma in Applied Chemical Technology and his National Certificate of Science Technology studies, he took a module dealing with analytical chemistry where all the machines and operations are studied in depth. He was adamant that the total weight of the contents of the seven sachets was 5.76g. He explained that he weighed contents of each sachet separately though he had not recorded the individual weight of the sachets. His view was that the differences in weight between the measurements at Zimpost and his were more to do with the precision of the scales used more than the exhibits having been interfered with. [12] Florence Banda is the exhibits officer at Bulawayo CID Drugs and Narcotics. On 15 February 2025 she received some exhibits from Detective Sergeant Machipisa which consisted of seven sachets of suspected cocaine, some small blue tablets which were suspected to be ecstasy and two digital scales. There were also two cell phones and razor blades. She entered them in the exhibit book under Exhibit number 105/25. On the same day, she handed back the exhibits to Machipisa to convey to Harare for forensic examination. [13] Nicholas Masengwe was part of the team of detectives which raided the appellant at Smokehouse. He arrested the appellant for unlawful possession of dangerous drugs on 14 February 2025, and at around midnight. He was the one who searched the appellant in the full glare of his fellow detectives. He said he seized one big transparent plastic sachet from the front left pocket of the black jeans which the appellant was wearing. That big sachet contained four smaller sachets with a whitish substance which the detectives suspected to be cocaine. Thereafter, they took the appellant to his motor vehicle where he HB 06/26 HCBCR 3396-25 conducted more searches, and recovered two small sachets containing the same whitish substance suspected from a tray on the left side of the driver’s seat. Later, they proceeded to the appellant’s residence. His testimony was exactly the same as that of Machipisa regarding what happened at the appellant’s house, the recoveries made and the tests which were carried out. The Appellant’s Case [14] In his defence, Gary Bell (the appellant), told the court aquo that on the relevant day he was at home until 1615hours when, in the company of his friend went for drinks until around 2100hours. They later went to Smoke House pub and grill and consumed alcohol until the time of his arrest. At Smoke House, he was in the company of Lucky Sibanda, Adolph Mpofu and Lionel Bell who witnessed his arrest. He refuted the allegation that he was arrested when he was entering Smoke House. He found his car blocked as he came out of the pub. He approached the club’s security to enquire but before he could do so, the police officers came and arrested him, and took him to a white Toyota Fortuner car into which where they bundled him. They took him to some road in Hillside where they parked the car. His brother and the other officers were in his (appellant’s) car which was being driven by Machipisa. When they parked at Hillside, the detectives then showed him the drugs which they alleged were his. He further testified that the police officers then switched him from the Fortuner back into his car. They took his brother Lionel who was handcuffed, into the white Fortuner. After the exchange, Machipisa drove the appellant to his place of residence in Burnside with the white Fortuner following behind. He told the court that the police knew his address and when they got to the house, Machipisa asked the appellant to direct him to his bedroom where he began searching. He said that he was not present in the room when the police were searching and that one of the officers was holding him at gun point. After the search the police informed him that they had recovered drugs from his room. They drove him to his parents’ home in Queens Park, where more searches were conducted but nothing was recovered. [15] The appellant gave further evidence that when they left Queens Park, the police drove him to Southampton in town where Lionel and himself were requested to produce their identity cards which they did. Lionel was released, whilst he was asked to sign some HB 06/26 HCBCR 3396-25 papers which, because of the shock he was in, he did. Thereafter, he was taken to Central Police Station and lodged in the holding cells until Saturday morning when Gift Machipisa, and one of his colleagues came and took him out to Southampton to sign some seizure forms. The appellant insisted that the things listed on the seizure forms were not found on him. He argued that the GD6 car he was using on the day in question did not have a driver’s left hand side tray as alluded to by the police. Instead, the tray is on the right-hand side of the driver’s seat. The appellant further alleged that he was framed for the crime and the evidence against him was fabricated because there was a prominent business man who was seeking revenge against him over a dispute, which they had in 2021 regarding a girlfriend who double crossed them. He told the court that he suspected that Gift Machipisa was the one dealing with that businessman as he kept making calls to an unknown male person who appeared to be giving him directions. The appellant denied owning any of the things on the exhibit form except for his two cellphones. He also said that he was drunk on the day. [16] Laino L. A. Bell is the appellant’s brother in whose company he was at Smoke House when he was arrested. He told the court aquo that as they left the club around eleven, he was intercepted and stopped from following the appellant by police officers. The Police drove off with him in his vehicle whilst the appellant was put in the police officers’ white Fortuner motor vehicle. Along the road, he requested to relieve himself. It was at that point that they swapped cars with his brother. They were later driven to the appellant’s house, to Queens Park and to Southampton where they were told to produce their IDs before he was subsequently released. The witness said whilst at the appellant’s house and Queens Park, he did not alight from the car he was in. Findings of the court a quo. [17] In its judgment, the court aquo held that the testimony of the specialist who scientifically examined the white substance and found it to be cocaine was irrefutable. It also held that the appellant had no leg to stand on regarding his challenge of the integrity of the process through which the examination was carried out. Having found that the substances were indeed cocaine, the court aquo turned to deal with the question whether or not the appellant HB 06/26 HCBCR 3396-25 had been in possession of the same. Guided by a number of authorities, it held that the prosecution had proved the two elements of possession; that is, the physical and the mental elements of that concept. It dismissed the appellant’s explanation for his innocence as not only improbable but also beyond reasonable doubt false. In that regard, the learned regional magistrate said: - “Accused blames it to a conspiracy between police and the rival suitor located in Bulawayo which suitor promised to get even with him. The threat being made in 2021 accused refused to name that rival. Accused produced warrants of search against him unlawfully gotten from the court in an endeavour to establish the basis of the theory of conspiracy. However, from the court’s opinion that is not the only inference which can be made concerning the issue of warrants. Accused also attempted to impugn the chain of custody of the Exhibits which he said he did not recognize as they were planted by the police at the instance of the rival. However, his expression was mere suspicion for he had no evidence to point or to show that he saw the said suitor conspire with officers from CID Harare. It only an assumption. Police acted on intelligence, proceeded to Bulawayo and effected an arrest.” (Sic) [18] For the above reasons and despite, the appellant’s protestations, the court aquo dismissed his defence and found him guilty of the charge. Proceedings before this court [19] Aggrieved by the decision of the court aquo, the appellant approached this court on appeal against both conviction and sentence. He relied on grounds of appeal couched in the following manner: - GROUNDS OF APPEAL 1. The court a quo grossly misdirected itself on a point of law by not ruling on the appellant's argument asserting the inadmissibility of evidence obtained through an unlawful police search. 2. The court a quo grossly erred in fact by failing to consider that the items allegedly seized from the accused are different from those stated in the exhibit seizure confirmation receipt. 3. The court a quo grossly misdirected itself on the facts by failing to recognize the critical gap in evidence, as Machipisa, Banda, Mupome and Masengwe did not identify the sachets examined by Chinoda as the exhibits allegedly recovered from the appellant. 4. The court a quo misdirected itself in law by not applying the cautionary rule to the evidence of Masengwe and Machipisa, whose testimony was compromised as shown by their colluded written statements and Machipisa's involvement in the investigation and handling of exhibits. 5. The court a quo grossly misdirected itself on the facts by deeming Machipisa and Masengwe reliable witnesses, notwithstanding their collusion, fabricated details of the appellant's arrest and search, and the irregular handling of exhibits. 6. The court a quo misdirected itself on the evidence by accepting that drugs were recovered from the motor vehicle, Registration No. AFK 2911, despite the non-existence of the purported 'tray' on the driver's left side. HB 06/26 HCBCR 3396-25 7. The court a quo grossly misdirected itself on the facts by failing to acknowledge a critical break in the chain of evidence, characterized by unaccounted custody of exhibits, compromised exhibit integrity, and a failure to follow proper exhibit handling procedures. 8. The court a quo misdirected itself on a point of law by failing to appreciate that the appellant was not required to prove police motive for evidence fabrication to establish reasonable doubt. Ad Sentence 9. The court a quo erred on a point of law in sentencing the appellant to 18 months imprisonment with 6 months suspended for 5 years on condition that he is not within that period convicted of dealing, possession and manufacturing of dangerous drugs in that it failed to pay due regard to the applicable presumptive penalty of a level 5 fine provided in the Criminal Procedure (Sentencing Guidelines) Regulations, 2023. 10. Having determined to sentence the appellant to imprisonment for a period less than 24 months, the court a quo erred on a point of law in that it did not consider community service as a form of punishment. 11. The court a quo erred on a point of law in sentencing the appellant to a term of imprisonment in that it did not first consider any other non-custodial forms of punishment as required of it by section 14 of the Criminal Procedure (Sentencing Guidelines) Regulations. 2023. 12. The court a quo erred on a point of law in finding that the appellant intended to sell or deal in dangerous drugs when no evidence was adduced to that effect and when the appellant was not given an opportunity to address the court on that issue.. WHEREFORE, the appellant prays that: 1. The appeal against both conviction and sentence be upheld and that his conviction and sentence be set aside and be replaced by the order that: "The accused is found not guilty and acquitted." 2. Alternatively, that the appeal against sentence be upheld and that his sentence be set aside and replaced with an order that: "The accused shall pay a fine in the sum of US$200." [20] We heard the appeal. At the end of the hearing, we dismissed both the appeal against conviction and against sentence. Our reasons for the dismissal were extempore. The appellant later requested for fuller reasons for our decision. It prompted us to prepare these. Issues for determination [21] The appellant raised eight grounds of appeal against his conviction. The grounds, can broadly be categorized as challenges to the legality of the search, admissibility of the evidence as a result of the search, credibility of the state witnesses, the chain of custody of the exhibits and the alleged wrongful dismissal of the appellant’s defence. Although at the hearing, he did not expressly abandon the other grounds of appeal, the appellant chose HB 06/26 HCBCR 3396-25 to mainly concentrate and rely on challenging the manner in which the exhibits were handled. In the end we streamlined the issues for determination to be whether or not: - a. b. c. d. e. the exhibits recovered through a search without a warrant were inadmissible the evidence of the prosecution witnesses was credible the chain of custody of the exhibits was broken the state’s evidence proved the crime of possession of dangerous drugs the court a quo erred in failing to consider the imposition of a non-custodial sentence. We turn to deal with each of the issues. The absence of a search warrant The law on search and seizure without warrant [22] Section 51(1) of the Criminal Procedure and Evidence Act [Chapter 9;07] (the CPEA) renders a search without warrant lawful in certain circumstances. It provides as follows: (1) “A police officer may, without warrant, search any person or container or premises for the purposes of seizing any article referred to in section forty-nine and additionally, or alternatively, seize any such article- (a) if the person concerned consents to the search for and additionally, or alternatively, the seizure of the article in question or if a person who may consent to the search of the container or premises consents to such search and additionally, or alternatively, the seizure of the article in question; or (b) if he on reasonable grounds believes that – (i) (ii) a warrant should be issued to him in terms of paragraph (a) of subsection (1) of section fifty if applied for one; and the delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as the case may be.” (Underlining is my emphasis). [23] In addition, the execution of search warrants in cases of unlawful possession of dangerous drugs is also governed by the Dangerous Drugs Act [Chapter 15:02] (“the DD Act”). In fact, the non - obstante clause in s 14D gives the DD Act overriding power in cases where it conflicts with any other statutory provision. It reads as follows: - 14D. Powers of search, seizure and forfeiture (1) Notwithstanding anything to the contrary contained in any other enactment, and without derogation from section sixteen, if any inspector, customs officer, or police officer above the rank of sergeant (or below the rank of sergeant with the written authorization of a police officer above the rank of sergeant) has reasonable grounds for believing that any person is in unlawful possession of any dangerous drug, he may, without a search warrant- (a) enter upon any land where such person is believed to be, and there require him to produce for his inspection such dangerous drug; or HB 06/26 HCBCR 3396-25 (b) search such person or any animal in his possession, and enter and search any land, building, vehicle, aircraft, train, vessel, or boat in the possession or use of such person: (i) (ii) Provided that- a person shall be searched only by a person of like sex; and such search shall be done with the strictest regard to decency and decorum; and seize any dangerous drug in the possession of such person and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest and detain him.” [24] We are not sure of the ranks of the other police officers who participated in the search of the appellant in this case given the circumscription regarding the rank of the searching officer which appears therein. What is clear is that detective Masengwe who admitted to personally searching the appellant was of the rank of constable. He could not therefore, properly rely on s 14D for searching the appellant without a warrant. From his and the other officers’ testimonies, they appear not to have relied on the provisions of the DD Act. Instead, they expressly derived their authority for the search without warrant from s 51 (1) of the CPEA. Both Machipisa and Masengwe explained that the exigencies of the arrest and search did not permit them to first seek a warrant and return to search the appellant without defeating the object of the search. [25] In his first ground of appeal, the appellant argued that the trial court misdirected itself by not ruling that the evidence obtained through what he perceived as an unlawful police search was inadmissible. That argument flies in the face of the trial magistrate’s finding that the search was lawful. That finding of lawfulness is supported by the law regarding searches. [26] As quoted above, s 51 (1) of the CPEA demands the fulfilment of two requisites for a search without warrant to be lawful. First, sub item (i) of subparagraph (b) of subsection (1) requires that a police officer must, on reasonable grounds, believe that a warrant would be issued to him in terms of paragraph (a) of subsection (1) of section fifty if he /she had applied for one. In addition, the law requires the police officer to demonstrate that the delay in obtaining a warrant would have prevented the seizure or defeated the object of the search. In this case, any reasonable person could see that if the police officers had applied for a search warrant, it could have been given as envisaged by s 51(1)(b)(i). The officers had cornered someone they suspected of serious criminal activity. Any court acting reasonably would not have prevented them from searching the person or residence of the suspect. The actions of the detectives therefore satisfied the HB 06/26 HCBCR 3396-25 first requirement under s 51. Further, the arresting details could not have been expected to abort their mission in order to seek a search warrant first in the middle of the night. Taking such course would not have been just a dereliction of duty but equally an unreasonable decision unexpected of competent police officers. It could have easily defeated the object of the search. We are of the view therefore that the decision by the detectives to search the person of the appellant, his vehicle and his residence without warrant was justified in the circumstances. Given that, the correctness of the trial magistrate’s finding in that regard cannot be debated. [27] Once the search was lawful, the admissibility of the evidence obtained as a result of that search became a non-issue. It was admissible. We therefore found no misdirection on the part of the trial court in admitting evidence which was obtained through a lawful search. If the law required the police to carry search warrants for every conceivable search, police work would be severely and unnecessarily hamstrung. For those reasons, and without any evidence to the contrary, we found the ground of appeal to be meritless and accordingly, dismissed it. The chain of custody of exhibits [28] In this jurisdiction, the chain of custody for exhibits simply means the documentation of the hands through which an exhibit passes from the moment it is seized by the police until its presentation before a court of law. The recording of all stages that an exhibit goes through ensures that it is not tampered with and that the exhibit is not swapped for something else different. The admissibility of evidence derived from such exhibits is dependent on that chain of custody. [29] In the case of Ndlovu v The State HB240-23, DUBE-BANDA J described the concept in the following manner: - “The continuity of possession of evidence or custody of exhibits and its movement and location from the point of recovery at the scene of a crime or from a person, to its transportation to the laboratory for examination and until the time it is allowed and admitted in the court, is known as the chain of custody or chain of evidence. The chain of custody is the most critical process of evidence documentation. It is a must to assure the court of law that the evidence is relevant and authentic, i.e., it is the same exhibit seized at the crime scene and it was, at all times, in the custody of a person designated to handle it and for which it was never unaccounted. Although it is HB 06/26 HCBCR 3396-25 a lengthy process, it is required for evidence to be relevant and admissible in the court.” (underlining is for emphasis). [30] The reason for the above requirement is to ensure that the exhibit is not transfigured or swapped for something else. The prosecution must demonstrate that the exhibit, at no time along the chain of custody, fell into unauthorized hands. To achieve that, it is important for the participants, at every stage are identified and their roles clarified. Where there is a dispute as to the handling of the exhibits, the officers who dealt with the exhibits must be called to court to testify and assure the court that the evidence was not tampered with. [31] In Mehluli Sibanda v The State HH533-25, CHIKOWERO J added another facet to the principle. He held that in cases where an accused person simply denies possession of an object and does not argue that he was in lawful possession of something else which was then swapped for the illegal one, the absence of a ‘blow-by-blow production of all the documents tracing the movement of the object from its recovery to its eventual production in court’ is not necessary. [32] In this case, the appellant contended that the manner the exhibits were handled from the time of his arrest to the time of forensic examination rendered his conviction unsafe. Mr Madzoka was at pains to explain how the exhibits recovered from the appellant’s motor vehicle were mishandled. His argument was that according to the appellant, the detectives only advised him of drugs having been recovered in his motor vehicle when they had driven a considerable distance from Smoke House pub. He argued that, that piece of the complainant’s evidence was not challenged during cross examination. He supported his assertion with the case of President of the Republic of South Africa v South African Ruby Federation & Ors 1999 (10) BCLR 1059 where it was stated that a point left uncontested by the party calling witnesses is deemed not disputed. He further stated that the evidence of the appellant was corroborated by his brother, Laino L. A. Bell, and referred the Court to the case of Small v Smith 1954 (3) SA 434. Counsel also challenged the evidence of the witnesses for prosecution on how the exhibits were handled. He said the witnesses gave varying stories on how many times the exhibits were handed over and that in the end, the exhibit officer did not seal the exhibits when they HB 06/26 HCBCR 3396-25 were handed over to Gift Machipisa for transportation to Harare. He further argued that Gift Machipisa had spent considerable time with the exhibits in that unsealed state and when he arrived in Harare it was late and only managed to submit the exhibits the following day. He also directed the Court to the seizure receipt which he said did not indicate some of the exhibits such as the jewellery box. In conclusion, he said there was a lot of unnecessary hand over and takeover of the exhibits. The totality of those indiscretions, so the argument continued, rendered the conviction unsafe. [33] On its part, the respondent chose to abide by the submissions filed of record. In its heads of arguments though, it said the allegations by the appellant were unsupported by any corroborative evidence and were inconsistent with the surrounding facts and the appellant’s conduct. Counsel argued that bare denials and unsubstantiated allegations of police misconduct could not suffice to rebut a strong case against him. The respondent supported its assertion with the authority of S v Bhebhe SC129-03 in which the Supreme Court warned against casually alleging police fabrication without evidence. [34] As can be seen, the issue here falls squarely into the scenario described in Mehluli Sibanda (supra). The appellant did not allege that he was in possession of some other lawful substance which the detectives later swapped for cocaine. To us, the argument of the chain of custody appears to have been made for the sake of it. His defence was a complete denial of possession of any substance-legal or illegal. He said the police planted the cocaine on him. Where that is the case, the question of the chain of custody of the exhibit cannot arise. The case is decided simply on the determination of whether or not an accused possessed the cocaine. Such finding is dependent on the credibility and weight of the evidence for the state and that for the defence. Our view is that the argument about the chain of custody in this case is misplaced. [35] Even if the chain of custody had been relevant, the evidence on record indicates that the State led evidence which traced that trail from the time the cocaine was recovered from the appellant, from his car and from his house up to the time it went for testing and was returned for submission in court. The court aquo heard and accepted as credible, the evidence that when the detectives searched the appellant at Smoke House, they recovered what they suspected to be drugs from his person. They not only advised him of the same HB 06/26 HCBCR 3396-25 but as told by Gift Machipisa, they immediately tested the substances using rapid tests kits. The substances tested positive for cocaine. Those same substances, together with others recovered from the appellant’s house, were handed over to the Exhibit Officer at Bulawayo Central Police Station, Florence Banda. Banda confirmed receipt of the same exhibits and said she dealt with them in accordance with police regulations and standards. She entered the exhibits into the exhibit book. Later on, she handed over the same exhibits to Gift Machipisa because the police forensic laboratory is only located in Harare. The detectives who arrested the appellant were travelling to Harare. It was only logical that they could take the suspected drugs to Harare for forensic examination. When they arrived in Harare, again, the exhibits were properly handed over to another exhibit officer. It was that officer who later sent them to the forensic laboratory for testing. The drugs were sealed in an evidence bag which Taurai Chinoda, the forensic officer said appeared not to have been tampered with at all. After testing, the container was again sealed and transferred back to Bulawayo for trial. Chinoda, who sealed the container advised the court in detail what would happen if the evidence bag were tampered with. At the end of his testimony, he said there was no basis for insinuating any misconduct on the part of the police details who handled the exhibits in question. [36] It is from the above that we failed to see any gap in the chain of custody of the exhibits. The appellant’s argument that there were too many handovers and takeovers of the exhibits appears bend of creating his own standards. All the people who handled the exhibits were duly attested police officers and relevant in everything that was done. Police work is never a one-man task. It involves team players and it is inevitable that where exhibits are recovered, they may pass through several hands before they are submitted in court. What is critical is not the number of persons who participated in that chain but that there was accountability and integrity of the processes at every stage of the chain. The evidence led in the court aquo does not reflect that there was a time when the exhibits were unaccounted for or were handled by unauthorized persons. When a court examines evidence, it does so holistically and not in instalments. It does not seek to split hairs. The chain of custody was therefore not broken at any stage from the time of recovery of the cocaine sachets up to the time of presentation in court during trial. For HB 06/26 HCBCR 3396-25 these reasons, we again found this particular ground of appeal without any merit and dismissed it. The credibility of the witnesses for the prosecution [37] The appellant’s fourth ground of appeal attacked the credibility of the evidence of detectives Masengwe and Machipisa on the basis that the court a quo ought to have applied what the appellant called the cautionary rule. That route, so the argument persisted, was essential because the detectives’ testimonies were compromised. Counsel argued that the officers’ statements showed collusion on their part. [38] We pause here to state that this particular ground appears to be based on a wrong understanding of the law. There is no requirement in Zimbabwean criminal law and procedure, for a court to resort to the application of the cautionary rule when dealing with the evidence of police officers. Our view therefore is that, instead, this and the fifth grounds of appeal simply attack the credibility of the state witnesses. In that regard, both the Supreme Court and this court have repeatedly stated that the findings of credibility or otherwise of witnesses is the province of a trial court. Any attack on the trial court’s findings can only be entertained on appeal, if a ground of appeal alleges that the findings of credibility are so outrageous in their defiance of logic that no court acting reasonably could have ever arrived at such conclusions or that the findings were contrary to the evidence led. In S v Mlambo 1994 (1) ZLR 410, the Supreme Court held that: - “The assessment of the credibility of the witness is par excellence the province of the trial court and ought not to be disregarded by an appellate court unless satisfied that it defies logic and common sense.” [39] In this case, the appellant’s argument was that the evidence of witnesses Machipisa and Masengwe was not credible because of the similarities in their statements which suggested collusion. That contention, is unfortunately unconvincing. Granted that there were similarities between the ways in which both witnesses couched their statements. But that alone cannot detract from the truthfulness of what was stated therein. To begin with, the two are detectives who worked on the same team. They were together when the appellant was apprehended, searched and arrested. It was inevitable that they would tell the same story. In fact, there could have been complications if their stories HB 06/26 HCBCR 3396-25 differed. As it stood, their testimonies corroborated each other. In relation to their writing styles, it is again a notorious fact that the police more often than not, use a standard template in the recording of witness statements. It is not so much the style that matters but the efficacy of a witness’s testimony. We would have been more apprehensive if the detectives had turned up in court and gave testimonies which were at variance with what was in their statements. But as it turned out, they told the court exactly what they had stated in the statements. In addition, the testimonies did not only support each other but were corroborated by real evidence in the form of the drugs which were recovered from the appellant and the testimonies of other witnesses. There was nothing before the court aquo that could have persuaded it to hold that the evidence of the detectives was discredited. The appellant is in effect, calling upon us to substitute our discretion for that of the trial court all in the face of the repeated admonishments against such practices as indicated earlier. It is not possible. There is therefore no basis for impugning the credibility findings of the trial magistrate. In the end, we again had no reason to interfere with the decision of the court aquo. We were, therefore, bound to dismiss as we did, this and the fifth grounds of appeal both of which we said attacked the credibility of state witnesses. Proof beyond reasonable doubt. [40] In ground of appeal 6, the appellant claims the court a quo misdirected itself on the evidence by accepting that drugs were recovered from the motor vehicle, with Registration No. AFK 2911, despite the non-existence of the purported 'tray' on the driver's left side. It is trite and probably needs no emphasis, that in every criminal case, the prosecution has the onus to prove the guilt of an accused beyond reasonable doubt. If any support is required for that proposition, it can be found in the oft-cited case of S v Isolano 1985 (1) ZLR 62 (SC) at p. 56 where it was held that: “The State is required to prove the guilt of the accused beyond reasonable doubt, proof beyond reasonable doubt requires more than proof on a balance of probabilities. It is not however, proof to an absolute degree of certainty or beyond a shadow of doubt. When there is proof beyond reasonable doubt no reasonable doubt will remain as to the guilt of the accused. If a reasonable person will still entertain a reasonable doubt as to whether accused is guilt, the HB 06/26 HCBCR 3396-25 accused is entitled to be acquitted. Fanciful or remote possibilities do not introduce a reasonable doubt.” [41] Whether the vehicle in question had a tray on the right side or left side of the driver’s seat is a finding of fact. There is no debate therefore, that this ground, attacks a finding of fact by the trial court. Such finding can only be interfered with if there is an allegation that the finding is so outrageous in its defiance of logic that no court acting reasonably could have ever arrived at such conclusion or where it is not supported by evidence. We read from the record of proceedings, that there was a contention regarding which side of the driver’s seat the tray in the motor vehicle was located. For more reasons than one, we find the dispute to be trivia. First, there is not debate that the car had a tray. Detectives said they recovered a sachet of cocaine in a tray in the car. Second, the contest as to which side of the driver’s seat the tray was located was never brought up during the prosecution’s case. Rather, it was introduced during the defence case, at a stage when the detectives had all testified. The purported pictures of the motor vehicle were produced at that stage. Such course inevitably hamstrung, the relevant state witnesses from commenting on the veracity of the appellant’s claims about the location of the tray. The officers could not also comment on whether or not the car which the appellant was parading was the car from which the drugs were recovered or not. We must state, that an accused who withholds arguments which are material to his defence until the witnesses for the prosecution have all testified does himself/herself a huge disfavour. The only inference which a court can draw from such omission is that the accused was well aware of the untruthfulness of his/her point that he/she did not want state witnesses to comment on it. Where that happens, such as in this case, a court cannot be expected to place any weight on such evidence. A criminal trial is not a guerilla war where ambush tactics reign. On the contrary, there must be full disclosure of the basis of an accused’s defence right from the time the defence outline is presented. The court aquo was therefore within its right to reject that contention by the appellant. Once again, we found no basis of interfering with the trial magistrate’s finding of fact that indeed drugs were recovered from a tray within the appellant’s car. In the end, there was sufficient evidence, meeting HB 06/26 HCBCR 3396-25 the required threshold of proof beyond reasonable doubt and to ground the appellant’s conviction. We accordingly dismissed the ground of appeal. [42] In the last ground of appeal, the appellant contended that the court aquo misdirected itself by failing to appreciate that the appellant was not required to prove police motive to allege fabrication of evidence and create reasonable doubt. Whilst there is no gainsaying the correctness of the argument that the appellant had no onus to prove police motive in fabricating evidence; we have already shown the futility of the argument when discussing earlier grounds. The court aquo dealt with that issue extensively. It held that the allegation that the police were conniving with an unnamed businessman to incriminate the appellant was nothing but a fanciful imagination of his. It said he failed to name the alleged rival suitor with whom he said he fought over a girlfriend. We may add that the appellant did not even name the said girlfriend. It was a random allegation at best. An accused cannot expect a court to believe him where, on one hand, he indiscriminately mentions the basis for an alleged false incrimination by the police, but refuses or neglects to provide detail about it on the other. In the end, the appellant’s explanation of his misfortune remained bare. It could not be held to be reasonably possibly true as required by law. The court aquo concluded that the appellant’s explanation was ‘improbable and beyond reasonable doubt false.’ It had every reason to conclude so. The appellant’s unsubstantiated claims that the drugs were planted on him and that a powerful businessman orchestrated his problems were correctly rejected. If the police had indeed wanted to plant drugs on him, it is inconceivable that they would have just attributed a few grams of cocaine to him. They would not have also taken the trouble of planting the drugs at various places instead of just stashing a substantial quantity on the appellant’s person or in his car. The cumulative evidence and the manner in which the events panned out point to the appellant's guilt beyond reasonable doubt. As a result, the last ground of appeal against conviction, raised by the appellant equally did not have any merit. There was no misdirection by the court aquo regarding the sufficiency of evidence led by the prosecution. We had no choice but to also dismiss this particular ground. The appeal against sentence HB 06/26 HCBCR 3396-25 [43] The appellant’s grounds of appeal against the sentence crystalized into one. They all related to the court’s alleged failure to consider non-custodial options and the finding that the appellant intended to deal in the drugs. [44] The appellant contended that the court erred by not considering the imposition of a fine, community service, or some other form of non-custodial punishment. The appellant was sentenced to 18 months imprisonment of which 6 months imprisonment was suspended on condition of future good behavior. Needless to state, that sentence fell within the ambit of those for which the imposition of community service must as of necessity be considered. We also hasten to state that the trial magistrate’s sentencing judgment was remarkable for its brevity. That however, did not take away his clear conviction that this was a serious offence which needed to be treated accordingly. [45] Whilst the general rule is that for sentences which fall within specified ranges, the option of a non-custodial punishment must be explored by the sentencing court, it does not follow that where that is not done, the resultant sentence ought to be vitiated even if it was deserved and justified. That is particularly so, given the equally important principle that sentencing is the discretion of a trial court. An appellate court will not readily interfere with that discretion except in exceptional circumstances where it is shown that the sentencing court adopted a wrong approach to sentencing or imposed a sentence whose severity induces a sense of shock. [46] In S v Fredrick Ngorima HH43-15 this Court held that whilst it is salutary to consider the options of non-custodial punishments, that approach must not be taken as a measure “to unwittingly foster a soft approach to crime but to encourage the adoption of a critical approach to sentencing that is equally alive to the seriousness of the offence committed as it is to the environmental circumstances leading to the commission of the crime as well as other personal factors that pertain to the accused.” Even counsel for the appellant must have realised how much of a scourge the abuse of drugs and other intoxicating substances has become in our society. It is from that premises that the learned regional magistrate approached the assessment of the appellant’s sentence. HB 06/26 HCBCR 3396-25 [47] Mr. Madzoka argued that the trial magistrate erred by making reference to the fact that the appellant intended to deal in the drugs. Granted that the appellant was not convicted of the crime of dealing in dangerous drugs. But that cannot take away a court’s right to note such aspects in aggravation of sentence. It is permissible to do so. Authorities abound where the courts have said the quantity of drugs that one is found in possession of may be used as aggravation to show that he/she intended to traffic the drugs. See for instance, the cases of S v Tendai Mayambo HH105-15; S v Dube Sixpence HH 77-03; and S v Olly Sibanda HB128-10 in which the following was held: - “Possession of dagga of this magnitude can only lead to one conclusion, and one conclusion alone, that is, the accused intended to sell the dagga. It was therefore for commercial purposes. In view of such irresistible conclusion, the court should have viewed the case in the most serious light and therefore treat it as such.” Whilst in the above cases, the intention to sell the drugs was apparent from the [48] quantities involved, that factor is not the only one that may show possession for commercial purposes. In this case, counsel for the appellant must have also observed the correctness of the sentence imposed because at the hearing his motivation of the appeal against sentence was completely tepid when compared to his spirted efforts regarding conviction. In truth, the appellant must count himself lucky to have been charged with possession of the dangerous drugs because the charge could have been worse. When they raided him and searched him, his car and his house, the police recovered, the cocaine which was packaged in sachets indicative of an intention to sell it in properly measured quantities. Worse still, in the house the detectives also recovered scales and razor blades which were smeared with the same whitish substance they recovered and which later tested positive for cocaine. The packaging and the apparatus could have easily supported a charge of dealing in cocaine. The trial court was therefore perfectly entitled to hold that the appellant was a person who possessed the cocaine for commercial purposes. Once that conclusion was made, the appellant deserved a sentence worse than that of someone who merely possessed for personal consumption. In addition, the Criminal Procedure (Sentencing Guidelines) Regulations, 2023 (the Sentencing Guidelines) which the appellant sought to rely on to support the imposition of a non-custodial sentence ironically lists the possession of a dangerous drug in a public place as an aggravating factor triggering the presumptive penalty of 3 years imprisonment. Contrary to the HB 06/26 HCBCR 3396-25 appellant’s argument therefore that the presumptive penalty for the crime is a fine of level 5, it is in fact 3 years imprisonment. The appellant possessed the cocaine at a pub and restaurant. That the place is a public area is beyond debate. Given that, if the court aquo erred in any way, it was that its starting sentence was lower than the presumptive penalty yet it did not give reasons for that. [49] We have already highlighted the documented problems that are associated with the intake of drugs. There is no need to reemphasize that. The entire nation is grappling with those challenges. Very few families if any, have escaped being directly affected in one way or another by drug related problems. The youths are turning into zombies with some committing horrific and unconscionable crimes whilst under the influence of these mood-altering drugs. The moral fabric of many communities has totally broken down. Stories of young men and women even having sexual intercourse in public abound. The vice of children insulting and assaulting their own parents and other elders have become daily cooccurrences. Yet the reality is that most of those youths are themselves victims of drug lords who think that they can make a living out of merchandising drugs. They do not care about the welfare of these youths. Resultantly, they do not care about the future of the country because with drunken young people, any country will be doomed. It will therefore be remiss of us, to allow the appellant to get away with a slap on the wrist on the lame basis that the trial magistrate failed to mention something about community service. We are convinced that this is pone case, where the appellant did not deserve a non-custodial sentence. The indiscretion regarding the magistrate’s failure to pronounce himself on why non-custodial options of punishment were inappropriate cannot be used as a premises to vitiate in otherwise overly lenient sentence for the appellant. We rejected his contention that we must interfere with the penalty. For those reasons, we found that the grounds of appeal against sentence equally lacked merit and we dismissed it. [50] Clearly, the totality of the evidence led at trial left no doubt about the guilt of the appellant. The trial court was correct to convict him of the possession of cocaine, one of the worst hard drugs currently doing the rounds in Zimbabwean narco- markets. Once convicted of its possession in circumstances that suggest an intent to commercially benefit from it, the imposition of a custodial penalty is inevitable if the courts have to HB 06/26 HCBCR 3396-25 discharge their mandate to protect innocent citizens from the harmful effects of drugs. Given the above, we had no choice but to dismiss as we did, both the appeals against conviction and sentence. MUTEVEDZI J……………………… NDUNA J …………………………Agrees Calderwood, Bryce Hendrie & Partners, Appellant’s legal practitioners National Prosecuting Authority, Respondent’s legal practitioners