Ezekiel Ephraim vs No. C. 6207 CPL Miraji (PC Criminal Appeal No. 3 of 1999) [1999] TZHC 208 (10 November 1999)

KAJI, J. IN THE HIGH COURT OF TANZANIA AT MTWARA (PC) CRIMINAL APPEAL N0 •. 3 OF 1999 (From the decision of Lindi District Court in Criminal Appeal No. 4o/98) EZEKIEL EPHRAIMo•••••••••••APPELLANT ersus: NO. C.62O7 CPL MIRAJI •••••• RESPONDENT JUDGMENT This is a second appeal. On 28.4.98 the appellant EZEKIEL EPHRAIM was charged c/ s 311 ( 1) of the Penal Co de Cap 16. This was be fore Lindi Primary Court at Mingoyo. He was jointly charged with ZUHURA d/o SEIF who was later acquitted. The appellant was alleged to have been found in possession of a binocular commonly used bi soldiers in air patrol which was suspected to have been stolen or unlawfully acquired. It was estimated to be valued at shs. 300,000/-. The appellant adm:Ltted to have been found in possession of the said binocular. However he said he had been given the same as a gift by a hunter called Tom Main. He said he was issued with a receipt which he suspected the ovmer or attendant of the Guest House where he had ieft his hand bag to have stolen it. He said the said binocular is not restricted to military use but that it is also used by fishermen. The trial Court was not satisfied with his explanation. It convicted him c/s 311(1) of the Penal Code Cap 16 and sentenced him to 5 years imprisonment under the Minimum Sentences Act, 1972. The said binocular was forfeited by the government. The appellant was aggrieved. He appealed before the first appellate Court which dismissed his appeal for want of merits. Hence this appeal In his grounds of appeal he insisted 011 his innocence. I have carefully perused the appellant's grounds of appeal. There is no dispute that the appellant was found in possession of the said binocular. By its nature as described by the prosecution \vitnesses, there was every reason to suspect the same to have been stolen or unlawfully acquired. The appellant could not give a satisfactory explanation that he had really been given by a Mr Tom Main as a gift. He could not call the said Tom as his witness nor did he tell the Court as ••• /2 ••••

2 to why he did not wish the said Tom to be his witness. There was no evidence that he had a receipt from the said Tom and that the said receipt was stolen at the Guest House where he had left his handbag as a pledge. Under those circumstances the trial Court was entitled to come to the conclusion that the said binocular was either stolen or aquired unlawfully• But the offence of being found in possession of property suspected to have been stolen or unlawfully acquired does not fall under s. 311(1) of the Penal Code Cap 16. s. 311(1) PC deals with receiving or retaining stolen property. It must be proved that the said property was stolen, taken, extorted, obtained or disposed of feloniou~ly. There was no such evidence in this case. Therefore the proper provision of the. law should have beens. 312(1)tb) of the Penal Code Cap 16. That provision deals with a situation where a person is found in possession of or having control over any property which may, having regard to all the circumstances, be reasonably suspected of having been stolen or otherwise unlawfully aquired. In a proper case of this nature, tried by a cbmpetent Court, this Court as an appellate Court would quash the conviction of receiving or retaining stolen property c/s 311(1) PoC. and probably substitute with that of being found in possession of property suspected to have been stolen or unlawfully acquired c/s 312(1)(b) P.C. But in the present case this Court cannot do so. Doing so would be illegal. This Court can only do legally what the trial Court had jurisdiction to do. Going through a list of offences under the Penal Code whi£h Primary Courts have jurisdiction to try, there is nothing indicating that Primary Courts have jurisdiction to try the offence of being in possession of property suspected to have been stolen or unlawfully acquired c/s 312(1)(b). (See The First schedule to the Magistrates Courts Act No8 2 of 1984). That is why I said quashing the conviction of receiving or retaining stolen property c/s 311(1) PoC. and substituting it with that of being found in possession of property suspected to have been stolen or unlawfully acquired c/s 312 (1) (b) P.C. would be illegal. In view of this, under s. 29 of the Magistrates Courts Act, 1984 I do hereby quash the conviction and set aside the sentence and the forfeiture order. 'According to the circumstances surrounding this case, it will not be in the interest of justice if this case is ordered to be heard DE NOVO by a ••• /3 •••

3 Court with competent jurisdiction. This is so because the Maximum Sentence under s. 312('l)(b)·P.C. is 3 years imprisonment. There is nothing indicating that that offence is covered by the Minimum Sentences Act, 1972. The appellant has already served 17 months. There is nothing indicating that if the case is ordered to be heard DE NOVO, a:hd the appellant is convicted, he would be sentenced to a sentence higher than what he has so far served. However the binocular will remain in the hands of the Police as fotirid. property, and will be dealt with according to the procedUl'e concerning found property. It would appear it is not covered by So 312 A P.c. Appellant is to be released forthwith from prison unless lawfully held inconnection with another case or cases. Appeal allowed. JUDGE 10.11.99 Court: Judgment has been delivered in the presence of Mr. Masaju learned State Attorney and in the absence of the appellant who B/C: /j / t / f / -· ·--.. s. N. KAJI JUDGE 10.11.99