Mariam Hassan @ Mhando vs Republic (Criminal Appeal No. 409 of 2023) [2026] TZCA 317 (18 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARIJA, J.A.. KENTE. J.A. And MURLIKE, J.A.^t CRIMINAL APPEAL NO. 409 OF 2023 MARIAM HASSAN@MHANDO ................ . ......................... . ...............APPELLANT VERSUS THE REPUBLIC................................................................... . ........... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) fDe-Mello.Jl dated 06th day of September, 2021 In Criminal Appeal No. 54 of 2021 JUDGMENT OF THE COURT 25th February & 18th March, 2026 KENTE. J.A.: The appellant, as the accused, appeared before the District Court of Kibaha in the Coast Region where she was convicted of trafficking in narcotic drugs contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act, Chapter 95 of the Revised Laws. The particulars of the offence alleged that, on 13th April, 2020 at Mwanalugali Area in Kibaha District, the appellant trafficked 382.29 grams of marijuana or cannabis sativa. She denied the charge whereupon the case proceeded to trial. At the conclusion of the trial, she was convicted as charged and sentenced to thirty years imprisonment.

The evidence led before the trial court was that, on 13th April, 2020 some officers from Kibaha Central Police Station, received information that the appellant who was at the time, selling beverages and local brew, was also dealing in drugs. Upon that information, several police officers based at Kibaha set out for the appellant's business premises where she was alleged to be selling marijuana. A search that ensued revealed the drugs that are the subject of the present appeal. The appellant was subsequently taken into restraint after the police finalized the search and seizure of the disputed drugs. On 15th April, 2020 the seized items were all taken to a public analyst one Anastazia Gwandi (PW7) who examined them and confirmed that, indeed they were cannabis sativa. Moreover, there was evidence from the police officers that, when the appellant was arrested, she admitted that she was trafficking in drugs and that the seized drugs were hers. In her defence however, the appellant denied not only being found in possession of the disputed drugs but also trafficking in them. She also denied admitting the subject offence. With unfaltering confidence, she told the trial court that, she was selling only alcoholic and non-alcoholic beverages together with a local brew commonly called "wanzuki". She 2

explained that, being a lone parent, she relied on this business to raise her children. After considering the evidence of either side, the trial magistrate accepted the version of the police officers who said that the disputed drugs were found in the appellant's pub and that, upon interrogation, she confessed trafficking in them. Upon the above findings of fact, the trial magistrate went on convicting her as charged. Dissatisfied with the trial court's decision, the appellant referred her grievances to the High Court (the first appellate court), advancing fourteen grounds of appeal, one of which faulted the trial magistrate for convicting her despite unexplained gaps in the chain of custody of the disputed drugs. Specifically, the appellant's complaint to the first appellate court was that, the trial court ought to have found that the prosecution had failed to establish a proper chain in the seizing, receiving, handling, storing and presentation of the disputed drugs as exhibit in court. Dealing with the appellant's aforementioned complaint, the learned Judge of the first appellate court appears to have made light of this crucial aspect in the prosecution case. Without seeking to establish if the drugs exhibit had probably been contaminated or otherwise tampered with, she quickly concluded that the appellant's complaints on that score were 3

unfounded. Taking into consideration some other evidence as adduced in support of the prosecution case, the learned Judge concluded that, the circumstances of this case showed clearly that the conviction of the appellant would inevitably have followed even if her confessional statement had been discarded and that the appeal before her was utterly bereft of merit. According to the learned Judge, the evidence on record confirmed the prosecution's compliance with a proper chain of custody in line with our earlier decision in the case of Paulo Maduka and 3 Others v. Republic, Criminal Appeal No. 110 of 2007. As previously mentioned, the present appeal is on several grounds but, knowing that the appellant's complaint in the second ground of appeal was not without merit, and as such, the issue of custody of the disputed drugs could prove decisive in the determination of this matter, we find it appropriate to prioritize addressing that issue with a view to resolving the appeal without addressing the remaining grounds. Submitting in support of the appellant's case, Mr. Aloyce Komba, learned Advocate who appeared before us to represent her, contended that, as opposed to the view taken by the first appellate court, PW2 one WP Constable Happy, who had received the drugs in dispute from the arresting and seizing officer, one Inspector Michael Milinga (PW3) on 13th 4

April, 2020 retained the said drugs until the next day when she finally passed them on to No. WP 3665 Corporal Mwamvita (PW6). Notably, the explanation given by PW2 to account for the unusual retention is that, she could not pass on the said drugs to PW6 who was a police exhibit keeper as she at the time, (PW6) was away enjoying Easter Monday. According to Mr. Komba, based on the available evidence, the most likely improper storage of the disputed drugs by PW2 who was not the exhibit custodian, broke the chain of custody and ought to have led to their inadmissibility into evidence. Submitting in reply to Mr. Komba's submissions on this ground, and after we drew her attention to the fact that the record was as well silent with regard to the name of the police officer who had handed over the drugs exhibit to PW7 who finally tendered them in court, Ms. Janeth Masonu, learned Senior State Attorney who was being assisted by Mr. Pius Ruge, learned State Attorney to represent the respondent/Republic, readily backed out of the respondent's initial position of resisting the appeal. Elaborating on the respondent's predicament, Ms. Masonu submitted, correctly so in our view that, it was not clear as to where had PW2 kept the disputed drugs all night long on 13th April, 2020 and who 5

had at last handed them over to PW7, before she went on to tender them in court on 20th October, 2020. In our judgement, the only question on the chain of custody of the drugs exhibit in this matter, concerns not the identity but only the integrity of that exhibit. To start with, we pose here to underscore the point that, a proper chain of custody is always essential in drug cases to ensure that the physical evidence forming the subject of the charge such as the 382.29 grams of marijuana in this case, is authentic, has not been tampered with and is admissible in evidence. This is critical in drug cases to, among other things, prevent tampering, substitution or contamination. There is no gainsaying that, drugs such as marijuana are fungible items that can easily be substituted, altered or contaminated and they are not uniquely identifiable. To put it in a nutshell, that is why the courts of law insist on strict adherence to maintaining a proper chain of custody in drug cases because the drug itself is the corp u s d e lic ti, the evidence showing that indeed a crime was actually committed. As we have already indicated in the present case, there is no evidence of where PW2 kept the disputed drug exhibit throughout the night after she received it from PW3 on 13th April, 2020. There is also no evidence of who issued and handed over the said exhibit to PW7 who 6

went on to tender it in court on 20th October, 2020. In such circumstances, we entirely agree with Mr. Komba and Ms. Masonu that there was a break in the chain regarding the handling and storage of the drug exhibit. To be precise, the place and conditions under which the said exhibit was kept by PW2 from 13th to 14th April, 2020 are not known, and the person who issued it to PW7 whether it be on 20th October, 2020 or sometimes before, is equally not known. Needless to say, these two pieces of evidence which are missing were crucial to build a case against the appellant as they were part and parcel of the basis of the learned Judge's conclusion that the prosecution had led evidence establishing a proper chain of custody and that, the appellant's complaints on that score, were unfounded. For our part, we take the view that, properly directing herself, the learned Judge of the first appellate court, on the evidence adduced before the trial court, should have found that indeed there was a break down in the chain of custody of the drug exhibit. To that end, she should have ultimately found that because of loss of track of the drugs exhibit, even if it existed at some point, this made it inadmissible as the prosecution cannot prove beyond reasonable doubt, that it was not tampered with. Consequently, the learned Judge ought to have found that the case against the appellant was not proved to the required standard and that, 7

the guilt of the appellant as found by the trial court, was not free from doubt. In the circumstances, we allow the appeal, quash the conviction and set aside the custodial sentence meted out on the appellant. We order for her immediate release from jail if her further detention is not for some other lawful cause. DATED at DODOMA this 18th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL Order delivered this 18th day of March, 2026 via virtual court, in the presence of appellant in person, Mr. Amani Lugoye, learned counsel for the Appellant, Ms. Janeth Masonu, learned Senior State Attorney for the Respondent/Republic and Ms. Tabitha Daniel, Court Clerk; is hereby certified as a true c o d v of the oriainal. 8