Adam Selemani vs Republic (Criminal Appeal No. 272 of 2023) [2026] TZCA 206 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM; LILA. J.A.. MAIGE. 3.A. And MANSOOR. J.A .^ 1 CRIMINAL APPEAL NO 272 OF 2023 ADAM SELEMANI............................................................ APPELLANT VERSUS THE REPUBLIC ............................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) ( Kulita. J.l dated the 25th day of April, 2023 in Criminal Session No. 97 of 2021 JUDGMENT OF THE COURT 24h February & 3rd March, 2026 MAIGE J.A.: At the District Court of Bariadi (the DC), the appellant was charged with and convicted of the offence of Illicit Trafficking in Narcotic Drugs contrary to section 15A(1) of the Drugs Control and Enforcement Act No. 5 of 2015 as amended by section 9 of Act No. 15 of 2017. It was alleged in the charge sheet that, on 13th day of February, 2020 at Lukungu Lamadi Area, within Busega District in Simiyu Region, the appellant was found unlawfully conveyancing khat i commonly known as "mirungi" weighting 15. 651 kg from Bunda to Lamadi by using motorcycle with registration No. 603 ASJ make SANLG. Upon trial, the DC found that the evidence adduced was sufficient to link the appellant with the offence and thus he was convicted thereof and sentenced to 30 years imprisonment. Both the conviction and sentence were subsequently upheld by the High Court (the HC) on appeal. Unhappy with the concurrent decision of the two courts below, the appellant preferred this appeal. He has, in the memorandum of appeal, raised 6 grounds in which he is faulting the HC for: One, convicting him based on a cautioned statement which was illegally procured; Two, relying on the report in exhibit PI without the Government chemist being called as a witness; Three, wrongly admitting the motorcycle allegedly found in the conveyance of the drugs in question; Four, failure to call the passengers who were carried in the motorcycle in question; Five, not vitiating the whole proceedings of the DC despite being flawed with serious irregularities rendering the trial unfair; and Six, failure to observe that the case was not proved beyond reasonable doubt. The brief facts of the case are narrated as follows. Inspector Vicent Mganga (PW2) was on the material date, on patrol at a barrier 2 in Lukungu Village together with his fellow police officers, including DC Simon(PW3). While on-site, they observed a motorcycle carrying a bag and suspected that it might contain illegal drugs. Despite being directed to stop, the motorcyclist fled the scene and was pursued and eventually arrested by PW3 and other police officers. Upon being questioned, the said motorcyclist identified himself as the person referred as the appellant in this matter. The bag was searched in the presence of Meli Chalanga (PW6) and found with 46 parcels wrapped in magazine papers, which contained leaves suspected to be khat. Both the motorcycle and the bag with parcels were seized as per the certificate of seizure in exhibit 4. Together with the appellant, they were produced to the Lamadi police station. At the police station, the exhibits were left under the custody of the exhibit keeper, WP 11099 DC Flora (PW1). Subsequently, 360 gram sample from the said leaves were taken to the offices of the Government Chemist in Mwanza for forensic examination where they were examined by Bonaventure Njuka Masangu (PW4) and the result as per the forensic examination report in exhibit P7, was that the respective leaves contained Cathinone and Cathine the chemical compounds characteristic of khat. 3 In his defence, the appellant denied the offence, He said, on the material day, he was operating a motorcycle from Serengeti to Lamadi carrying two passengers, one of them being a female who was in possession of a bag. He said, they were arrested and a search was performed in the respective bag but nothing unlawful was recovered. That, afterwards, all of them were taken to the police where they were incarcerated but later the two passengers were released while he remained in the police custody. He completely denied being found in possession with khat, maintaining the case against him had been fabricated. Just as it was in the two courts below, the appellant appeared in person without representation. He did not have anything useful to comment on the merit or otherwise of his appeal apart from placing heavy reliance on his memorandum of appeal which he fully adopted and urged us to set him free as he was innocent. The respondent Republic was duly represented by the learned Senior State Attorney Ms. Sophia Fidelis Mgassa who vigorously contested the appeal. The first ground of appeal, she submitted, correctly in our view, is misplaced because, the prosecution did not rely on a confessional statement to establish their case. We entirely agree as there was no such substance of evidence on the record. Neither is such kind of evidence reflected in the judgments and proceedings of the two courts below. We, therefore, dismiss it. Concerning ground two, it was the contention of the learned Senior State Attorney that the claim is devoid of any merit as it is manifestly apparent on the face of the record that the Government chemist who conducted the forensic investigation, testified as PW5. Without spending much time, we agree with this submission because the record speaks that, PW5 is an expert who conducted the forensic examination and his testimony is on the record and good enough, it is him who tendered it into evidence. Ground 2 of the appeal is, therefore, dismissed. In respect to ground 4 as to the propriety of admitting the motorcycle in evidence, the learned Senior State Attorney contended that the same was properly admitted after being identified with its special marks as of the time of its seizure. Having gone through the record, we are unable to see any relevance of the respective 5 complaint. For, as correctly submitted for the respondent, the motorcycle was properly admitted into evidence after it had been positively identified as the one which was seized from the appellant. Notably, when the prosecution was praying to tender the exhibit, the appellant objected on a ground that it was not his property. That was irrelevant as the issue was whether the respective item is that which was found with appellant while conveying illegal drugs. Ground three is therefore dismissed. On ground four which is on failure of the prosecution to call the passengers as witnesses, Ms. Mgassa submitted that as the alleged passengers do not feature out in their case, the prosecution cannot be blamed for failure to call the alleged witnesses. Without consuming much of our time, we find the ground misconceived too as, despite our critical appraisal of the record, we could not come across any suggestion from the prosecution witnesses of there being passengers in the motorcycle. Both the testimony of PW2 and PW3 indicates that the appellant was alone. The issue of him being with passengers was raised in the testimony in defence and it was, therefore, upon the appellant to prove that such passengers were there. Ground 4 is therefore, dismissed. 6 Ms. Mgassa submitted on the 5th and 6th grounds concurrently under the issue whether the case against the appellant was proved beyond reasonable doubt. She submitted that, the testimony of PW2 and PW3 on the arrest of the appellant and seizing the drugs in exhibit P4, coupled with the expert evidence of PW5 and his forensic report in exhibit P4 established, without any reasonable doubt that the appellant was found conveyancing the illegal drugs in question. Before she concluded her submission, we requested her to address us whether the destruction of the substance of the drugs before trial adhered to the procedure. In response, she submitted that the procedure was followed as the appellant signed in the certificate of destruction (exhibit P3). We note that, when the prosecution was praying to tender the inventory and certification of destruction (exhibits P2 and P3, respectively) in lieu of physical exhibits, the appellant objected and stated in particular at page 12 of the record that, " Your honour, I did not sign the form." He repeated the same in his rejoinder submission appearing at page 13. The trial magistrate overruled the objection for being premature as, in his view, whether the signature in exhibit P4 was that of the appellant was a question of fact which required evidence. In its judgment, however, the DC did not resolve such issue. Neither the HC. in our humble view, that amounted to curtailment of his right to be heard on that respect. The destruction of the exhibit in question was in pursuit of section 36(1) of DCEA which deals with disposal of among others, exhibits which are perishable in nature. In conducting such disposal, it is now settled, compliance with paragraph 25 of the Police General Orders No. 229 which requires presence of the accused in the session seeking for the destruction order. We have said from time to time that failure to adhere to this mandatory requirement amounts to infringing his right to be heard. For instance, in Buluka Leken Ole Ndidai & Another v. R (Criminal Appeal No.459 of 2020 [2024] TZCA 116, TANZLII. "This Court however has had on multiple occasions pronounced its position on the issue o f involvement o f the suspect or suspects at the time of ordering a disposal of perishable exhibits, and the effect of failure to procure participation of the suspect at the session seeking to secure disposal order. In the case o f Mohamed Juma @Mpakama v. Republic (supra) we observed that, the issue 8 o f presence o f the suspect at the session seeking a disposal order is a requirement tracibie from the Police General Orders[the PGO]". See also Haji Rashidi Matundu & Another v. R (Civil Appeal No. 314 o f2021) [2024] TZCA 210, TANZLII and Mohamed Juma @ Mpakama v. R. (Criminal Appeal No. 385 o f 2017) [2019] TZCA 518, TANZILII. In this case, the appellant denied participation in the destruction process. He equally denied signing in the inventory and the certificate of destruction by not only raising an objection when the documents were being tendered in lieu of physical exhibits but by way of cross examination and his evidence in defence. It is very unfortunate that despite its serious implications as we have shown above, the issue was not resolved. As the presence of the appellant in the session seeking a disposal order was seriously disputed right from the outset, it was for the prosecution to prove in the required standard that the appellant was afforded such right. There being no proof, we are inclined to agree with the appellant in the 5th and 6th ground of appeal that the existence of the respective physical exhibit was not proved. In the absence of the certificate of destruction and inventory in lieu of physical exhibit, there remains nothing on the record which can prove the charge beyond reasonable doubt. For the foregoing reasons, therefore and the extent as afore stated, the appeal is hereby allowed. We quash the convictions and set aside the sentence imposed on the appellant. We, therefore, order that the appellant be set free unless he is so held for any other lawful cause. DATED at SHINYANGA this 2n d day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 3rd day of March, 2026 in the presence of the Appellant appeared in person by virtual Court, and Mr. Abdulkarim Salim, learned State Attorney for the respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. ■ 3 $ — D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 10