Ackson Sanga vs Republic (Criminal Appeal No. 105 of 1997) [1998] TZHC 2402 (26 June 1998)

MOSHI, J • . _: IN 'IHE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NOo 105 OF 1997 (From the decision of the District Court of Mbeya at Mbeya in Crimini ·case Noo578 of 1996 Before: S.M. Rumanyika - Resident Magistrate) .A CKSON SANGA APPELIANT Versus ·JUDGMENT. The district cout't of Mbeya sentenced ,the appell~~'- Ackison Sanga, to four years im~~isonmerit consequent upon.a conviction of Unlawful possession . '·. . .... : . . of bhang, contrary to section -2(b)· of the -Cultiva_tion. pf No:xious Plants (Pr;hibition) .. Ordinance, Cap·. 134,· as amended by Act No. 4 of 1991. He felt dissatisfied ·with the 'con·viction and sentence, hence this appeal which was, itli the consent of th .appeilat;, h_eard. in his absence, but in the presence of the iearned state ttorney for the Republic, Mr. Boniface, who declined to support the· conviction of the €ippellant _. On 10.8.-96 at about 11.00. AM two policemen attached to Uyole police· post, CPL Razaro 'pw1 and PC Joseph PW2, were on patrol duty in Uyole area. They came . ~ . across ·a group of persons who were. gambling. The appellant was among them. On seein·g the two policemen the group scatter.ad, but the appellant fell· into a pit and was held., PW1 and PW2 searched him and. found him with 0.25 gm of something ·apped in a .khaki paper· they called· bhang (Ext P1). The appellant denied to have been found in possession of any such a·thing. There was a legal irregularily which obtained in. the arraigment of the appellant. The appellant was arraigned on a repealed lw. Cap. 134 of the laws is ,o more. It was repealed and replaced by the J)rugs and Prevention of . .... Illicit.Traffic and Drugs Act No. ·9 of 1995 which.ce into option on 1.8.96 by G.N. No. 150 of 19960 I however agree with the learned state attorney that ,,,. • •••••• / 2

• 2 - the appellant was not in any way prejudiced on account of that irregularity for the offence charged was re-enacted by the new law~. The irregularity, therefore, did no.t occasion a. failure f justice, and it is curable under section 388 of the Crirninl Procedure Act 1·985. On the evidence, I am satisfied, as was the trial court; that Ext P1 was found in possessin of. the appellant. Bμt the one issue upon which this ··· .. ~ ..... ' . .. .... , ' . appeal must succeed or fail is whether the evidence ·sufficiently established that it was in fact bhang. That was an essential ingredient of the offence charged, and the burden was on the prosecution to demonstrate to the required ' . extent that 't-ihat wa:!3- found- with the. appellant was, in fact, bhang • .. :_ . .,_ ··;. ·· · .. _The identity of the stuff found with· the appellant .was purportedly mad? . . . . . .. ' .out by PW1 and PW2. B~~ 'ths~ witnesss did not say, and were. not led to say, how, or by what means, they could idntify bhang. They, .did not evE,'?n profess .xpertise at, or experience in, handtg such matters. Theirs were merely bare assertions that what was found with the appeliant was bhang. I would, with respect, agree with the learned state attorney that tpi:S identification evidence was insufficient for purposes of identifying bha,ng. It fs unhappily noted that the learned trial magistrate did not at all touch on the matter of identification. He did not pause to address his_mind to this crucial issue of identification, let alone pronounce on it. He took that issue for , .... ,granted. The result is that the convict.ion of the appellant cannot be upheld • . ·: :. It must be quashed. I accordingly allow the appeal, quash the conyiction, set aside the sentence, and hereby order the immediate release of- the appellant from prison. AT MBEYAo 26 June 1998. ;,,;: ''½-. .., , For Appellant: Absent. ·· .,,-~ / /1/ For Republic: Mrs.· Makuru,,gg:(. ✓---------- ·1 ··\ ) / \ (· /Ci ,. c. ~~ :::e_~i B.P. MOSHI 'JUDGEo '