Mtaka Robert Mrongo vs Republic (HC Criminal Appeal No. 37 of 2000) [2000] TZHC 378 (15 November 2000)

• IN TT IG1 COURT OF. TNZANIA. I'T ANZA AFFLLTE JJRI8DICTICN HIGH CöUR CRIMINAL APPEAL NO7 OF 2000 (Original 'rimina1 Case No.1,023 of 1998 • of the Distrdt Court of Mwanza Ditict at Mwanza0 Bfor.e :R B. Maangé, Esq0 District Magistrate)0 .• •MTAKA ROBFRT MRONGO OOOOOOOOOOAFFELLANT • (Original ccused) VERSUS• THE REIUBLIC RESPONDENT. (Original Prosecuor.) J U D G M L N T IOSO 9 JTJDGEO ., The appellant was cbniëtd by the District Court of Nwanza for unlawful possession of cannabis, popularly known as bhang0 ti e ias sentenced bo twenty years imprisonment. !grieved by the conviction and sentence he has appealed to this Court. The charge was made under section 16(a) of the Drugs and Prevention of Illiit Traffic in Drugs ActNo 0 9 of 1995 If the choice to charge the appellant under that section was deliberate it would inean that, the appellant was before the wrong court0 Act No09 of 996 9 ..thais the Laws Revision (Miscellaneous Amenaments) Act, amertded ct N0 09 of 1995 in iarious areas among which was the..de-firition of the term tCourtt in respect of different offence.s:y.,CourtL in respect of offen.ces unaer section12(d) of the Pctmeans the subordinate court, whereas the same term 'court T in respect of offences under sections 16, 17, 18 9 20, 21 9 22 and 2 of the Act means the High Court0 So, if the framers of the charge made a deliberate choice to charge the

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• 2 - appellant under sction'6(a) of'the Act not only would the appellant have' to be"tried:by the High Court 9 he would also be liable to a much'stiff'ersentence than if he were charged and convicted bsforO the subordinate Court0 The sentence under section 16(a) of Act, No09 of 1995, as amended by Act No09 of 1996, is a fine ,of, ten million shillirgs Or life imprisonment, whereas the sentence under section 12(d) (before a subordinate court) is a fine of Shillins One million or a term of imprisonment not exceeding twenty years. - Since the charge was framed in Noveinber,1998 it must be assumed (in the absence of any clear indicationo the contrary) that the choice to charge the appellanf under section 16(a) of the kct was "intended,but the appellant was taken to the wrong court0 I "commCnted in a previous judgment of this court my'dif'ficulty to'unerstand why Parliament decided to provide considerably diffr'ent sentences for exactly' the same offence but the determining factor being only the cOurt before which a person is chargedr Be that as it may0 Suffice is here to say that the appellant appears to have been prosecuted, tried, convicted and sentenced in the wrong court, considering the section under which he was charged0 If it is assumed, without accepting, that the section under which the was inadvertently ited'wrongly and that it'•'as in fact itënded to charge him under seOt'ion 12(d) of the ct (before the Distric,t Court). the important question to 'Oonsider is whether the offence charged 'was p,roved to th ''equiredstandard,. r

'I accept, as the loier court did, that the appellant was aestèd by the : pO lj and fbud in pssession of 32 rolls of a substaT'rice ich the police believed was bhang0 But ,ras that suhtance really bhang (cannao1s) There is. shedof.eVidence apart from the mere thinking of the arresting poliée that those rolls were cannabis0 I ask myself 9 doesaTSubstance become a dangous'dg, say cannabis, by the mere saying so by the po]ie? .Des not the policeman have to give some evidence to that he knows cannabis by looking, at it or smelling it or tasting it and explain how he:acquired such knowledge or familiarity before the burden (on a balance of probabilities) shifts onto the accused to show tha b the substance found in his possession is not that which the police say it is? I think all this, and more perhaps, is necessary if a prosecution under the A.ct is not to become a farce0 On the facts of the case as given by the two police witnesses it cannot be said that the guilt of the appellant was demonstrated beyond a reasonable doubt What can be said is that the appellant was found in possession of a uhstance which the police thought miht be cannabis0 And that was not enough to make a court of law convict the appellant for the offence charged0 The learned State Attorney for the Respondent Republic, for different reasons,.did not support the conviction I allow this appeal by quashing the conviction and setting aside the aentence. The appellant is to be

_L set free forthwith miess he is held for some other lawful cuse It Is ô oi'dered V. • V L J0A FOSO • JuDGE • V

• / V At Mai z•, V • V • 15/11/2000.. V V V • Mr Feleshi, S.A. fdr the Respondent V • VV Republic0 V V V: . • Appellant - ahsent