Mshamu Omary Tindwa vs Republic (Criminal Appeal No. 826 of 2023) [2025] TZCA 1159 (20 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LEVIRA. J.A.. MGONYA. 3.A. And MPEMU. J.A.l CRIMINAL APPEAL NO. 826 OF 2023 MSHAMU OMARY TINDWA ................................................. APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Dar es Salaam) fMwanaa. 3 / > dated the 22n d day of February, 2023 in Criminal Appeal No. 168 of 2022 JUDGMENT OF THE COURT 30th September, & 20th October, 2025. LEVIRA, 3.A.: The appellant, Mshamu Omary Tindwa was arraigned before the Resident Magistrate Court of Kibaha at Kibaha facing a charge of Trafficking in Narcotic Drugs contrary to section 15A (1) and (2) of the Drug Control and Enforcement Act, Cap 95 RE 2019. It was alleged in the particulars of the offence that on 21s t day of July, 2021 at Tawi Village within Rufiji District in Coast Region, the appellant was found trafficking 26.69 kilograms of narcotic drugs commonly known as Bhangi. He denied the charge and thus the prosecution had to call six witnesses and tendered seven exhibits to prove the case against him. After a full trial, the appellant was convicted and sentenced to thirty (30) years imprisonment. He was aggrieved by the decision of the trial court. As a result, the appellant unsuccessfully appealed to the High Court, hence the present appeal. A brief background of this matter is to the effect that: On 20th July, 2020, Insp. Brown (PW4) who is working at the DCEA Office in Dar es Salaam together with a team of other police officers, working on the information received from the secret informer, went to the house of the appellant located at Tawi - Kiboko village in Ikwiriri Rufiji and arrested him. Eventually, they searched his house where 2 sulphate sacks of leaves (Exhibit PE2) were seized. PW4 marked those sacks as B1 and B2. Abdalla Salum Kilimba (PW5), Village Executive Officer (VEO) of Tawi Village, Rufiji witnessed search and seizure of exhibit PE2 collectively from the appellant's house as an independent witness. During trial, PW4 tendered exhibit, search permit, Form No. 17 from Ikwiriri Primary Court and certificate of seizure which were admitted and marked exhibits, PE5 and PE6, respectively. Upon arriving back to the office from the scene of crime, he handed exhibit PE2 to the custodian of exhibits, one Insp Johari Misirikale (PW3). In his testimony, PW3 confirmed that on 23r dJuly, 2021 while at his office, he received exhibit, 2 sulphate sacks, one marked B1 and another B2 from PW4. The said sacks contained some old and fresh leaves. Having received the exhibits, he registered and kept them in the exhibit room. PW3 testified further that, on 26th July, 2021 he gave Optatus Onesmo Kimunye (PW2) the said exhibit to send it to the Government Chemist Laboratory for examination and he received them back on the same day after examination. PW3 kept that exhibit in the exhibit room till on 30th November, 2021 when he took it to the court for court procedure. At the trial PW3 tendered the exhibit register book of the Drugs and Enforcement Authority and it was admitted as exhibit PE4. PW2 testified that on 26thJuly, 2021 he received from PW3 two sacks of leaves and sent them to the National Chemist Laboratory for examination where he handed them to Joseph Jackson Ntiba, Government Chemist (PW1). Following PWl's examination of exhibit PI, the leaves seized from the appellant's house were 'bhangi' containing a chemical known as Tetrahydrocannabinol which when used by a human being, can cause mental disorder. He tendered the investigation report which he prepared and the same was admitted as exhibit PEI. Another exhibit which he tendered was 2 sulphate sacks of narcotic drugs 'bhangi' which were admitted and marked exhibit PE2, collectively. After examination, PW1 3 handed back exhibit PE2 to PW2 who sent it back to the exhibit custodian (PW3). Juma Seleman Ally (PW6) was working at the DCEA, Dar es Salaam and was among the team which arrested the appellant on the material date. Apart from that, he recorded the appellant's cautioned Statement twice; first, at the scene of crime and the second on 23r dJuly, 2021 upon arriving to the officer. The first Statement was about how police officers searched the appellant's house and went to his shamba to destroy what they alleged to be bhangi; and, the second statement was about packing of exhibit done for the preparation to take it to the Government Chemist for examination. He tendered the second cautioned statement of the appellant which was in Form No. DCEA 005 and it was admitted as exhibit PE7. In his defence, the appellant denied the charge arguing that, he was charged with the offence of trafficking while the police who allegedly searched his house did not find any car or vehicle in his home. He was surprised that, if at all the police went to his shamba and destroyed 'bhangi', why they did not charge him with the offence over that shamba? He claimed that he had a conflict with the VEO, who the prosecution termed as an independent witness during the alleged search in his house. 4 According to him, the VEO was the one who fabricated the case against him due to the conflict they had over the project of building teacher's house at Kikobo Secondary School. In that project, the appellant was a chairman of a committee composed by the villagers of Kikobo Village to make follow up. He explained in extenso about the said conflict in his defence. However, at the end of the trial, the trial court found the appellant guilty, convicted and sentence him to thirty (30) years imprisonment as intimated earlier on. In this appeal, the appellant has presented five grounds of grievance in the memorandum of appeal and one in the supplementary memorandum of appeal. The main complaint in those grounds is that, the charge against him was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic had the services of Ms. Gladness Mchami, learned Senior State Attorney assisted by Ms. Neema Kwayu, learned State Attorney. The appellant adopted his grounds of appeal as part of his oral account before the Court and reserved his right to make a rejoinder should a need arise after hearing from the learned Senior State Attorney. 5 We wish to point out at the outset that, initially, the learned Senior State Attorney opposed the appeal. However, having submitted on all the grounds of appeal and upon reflection following the question paused by the Court in relation to the appellant's main complaint, Ms. Mchami changed her position and supported the appeal. In her submission in support of the appeal, Ms. Mchami stated that the particulars of the offence with which the appellant was charged did not disclose the elements of the offence as they did not express what was meant by the term "trafficking" in narcotic drugs. For that matter, she added, the appellant did not understand the charge he was facing for him to prepare his defence. Besides, she argued, there was variance between the charge and the prosecution evidence which led to unproven charge. Apart from that, she submitted that the chain of custody of exhibit PE2 was broken as the said exhibit was tendered by PW1 who did not state when and how he took the said exhibit from the exhibit keeper (PW3) with a view of tendering it during trial. Failure to state so, she said, was fatal as it was not certain that the exhibit which was stored by PW3 allegedly seized from the scene of crime and later taken to the Government Chemist where it was proved to be narcotic drugs, was the same tendered at the trial. In the circumstances, she urged us to make a finding, as alleged by the appellant, that the prosecution failed to prove the charge against the appellant beyond reasonable doubt and allow the appeal. In rejoinder, the appellant had no much to say. He only prayed for the appeal to be allowed and the Court to set him free. Having carefully considered submission by both parties, record of appeal and the grounds advanced by the appellant, we do not think that this appeal needs to detain us much. The main issue to be considered is whether the charge against the appellant was proved beyond reasonable doubt. This issue has been answered in the negative by the counsel for the respondent, which was the appellant's main complaint in this appeal. Section 135 of the Criminal Procedure Act, Cap, 20 RE 2023 (the CPA) requires the offence(s) with which an accused person is charged to be specified in the charge with necessary particulars. It reads: "135. A charge or information shall contain, and shall be sufficient if it contains\ a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged." [Emphasis added] Being guided by the above provision, in our quick perusal of the charge under consideration, we observed that the particulars of the offence did not give reasonable information as to the nature of the offence with which the appellant was charged. For ease of reference, we find it apposite to reproduce part of it hereunder: "STATEMENT OF OFFENCE TRAFFICKING IN NARCOTIC DRUG: Contrary to section ISA (1) and (2) (c) ofthe Drug Control and EnforcementAct, [Cap. 95 RE 2019]. PARTICULARS OF OFFENCE MSHAMU OMARI TINDWA, on 21st day o f July 2021 at Tawi Village within Rufiji District in Coast Region was found trafficking 26.69 kHogrames o f narcotic drugs commonly known as Bhangi. "[Emphasis added]. We note that the term "trafficking" referred in the statement of the offence above, is defined under section 2 of the DCEA in the following terms: 8 "Trafficking" means importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution, by any person of narcotic drug or psychotropic substance any substance represented or held out by that person to be a narcotic drug or psychotropic substance or making of any offer. . . " Screening the particulars of the offence with which the appellant was charged in the light of the above interpretation, it is not hard to find that, the particulars of the offence are the replica of the statement of the offence. They only repeat that the appellant was found "trafficking"26.69 kilograms of narcotic drugs. The term "trafficking "was restated without any elaboration on how he trafficked. Thus, it was not certain whether the appellant was importing, exporting, buying, storing or possessing, to mention but a few, the alleged narcotic drugs. The aim of giving an accused person such explanation is to put him or her in a better position to prepare his defence. However, as we have just intimated, no explanation given in the particulars of the offence. As a result, the record of appeal speaks volume, the appellant was not able to prepare a meaningful defence. We say so because, in proving the charge, the prosecution brought witnesses who testified to the effect that they went 9 to the farm of the appellant to destroy 'bhangi' which he had cultivated having seized 2 sacks of 'bhangi' from his house. In his defence, among other things, the appellant was surprised on how he was charged with trafficking in narcotic drugs while he neither own a bicycle nor a motorcycle. It can be deduced from his response that, to him, "trafficking" involves a use of certain mode of transport to carry the alleged narcotic drugs from one point to another. In our considered view, had it been that the charge focused on, for instance, storing, possession or production of narcotic drugs or 'bhangi', he would come up with a different version of his defence. Circumstances of this case do not suggest that, the appellant was given sufficient information as to the nature of the offence of trafficking in narcotic drugs he was charged with, a fact which rendered the charge incurably defective. In Hamis Mohamed Mtou v. Republic (Criminal Appeal No. 228 of 2019) [2021] TZCA 478 (16th September 2021), when the Court was dealing with an akin issue, it had the following to say: "A charge lacking particulars o f the mode of trafficking is incurabiy defective and renders the trial a nullity." [Emphasis added]. 10 There is no gain saying that, the appellant's trial was a nullity as the particulars of the offence did not disclose the mode of trafficking intended by the prosecution. It is very unfortunate that the trial court overlooked this fact and proceeded with the trial which resulted into the appellant's conviction and sentence. As regards the chain of custody of exhibit PE2, we as well, agree with the parties that, the prosecution evidence from when it was seized to the time of tendering it before the court was broken. As highlighted by the learned Senior State Attorney, the said exhibit was tendered by PW1, the Government Chemist who as per the record examined it. Nonetheless, the record of appeal has it that, after examination, PW1 returned the said exhibit to PW3, a custodian of exhibits through PW2. The record of appeal does not show as to when and how that exhibit went back to the hands of PW1 who tendered it in court. According to Ms. Mchami, it is not clear that, indeed, the same exhibit allegedly seized from the house of the appellant, was the same tendered in court and admitted as exhibit PE2. We agree with her that, the evidence was not watertight to the extent of irresistibly pointing to the guilty of the appellant. We say so because the appellant was arrested during what was referred to as 'bhangi' operation at Kiboko Village, Rufiji which lasted for more than a 11 day as per the evidence of PW6, where the possibility of collecting 'bhangi' from other people and send it to the Government Chemist for examination could not be ruled out. Thus, the need of evidence showing how that exhibit moved from PW3 to PW1 before it was tendered. Certainly, in the circumstances, it cannot be said that the prosecution proved its case against the appellant beyond reasonable doubt. We find merit in the first ground of appeal. See: Julius Matama @ Babu @ Mzee Mzima v. Republic, Criminal Appeal No. 137 of 2015 [2015] TZCA (21 July 2025). It is established principle in criminal law that, in case of any reasonable doubt on the part of prosecution evidence, the same has to be resolved in favour of an accused person or appellant, as in the present case. Since exhibit PE2 was core in charging the appellant, mishandling of the same by prosecution witnesses created a reasonable doubt which had it been considered by the trial court, it ought to have been determined in favour of the appellant, but that was not the case. Considering what we have endeavoured to discuss above, we are satisfied and have no option except to agree with the parties that, the charge against the appellant was not proved beyond reasonable doubt. Consequently, we allow the appeal, quash conviction and set aside the appellant's sentence. We order immediate release of the appellant from prison unless he is lawfully held for other cause. DATED at DAR ES SALAAM this 17th of October, 2025 M. C. LEVIRA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered virtually this 20th day of October, 2025 in the presence of Mr. Mshamu Omary Tindwa, the Appellant and Ms. Gladness Mchami, learned Senior State Attorney for the Respondent/Republic and Ms. Nise Mwasalemba, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 13