I ' .. , IN THE, _HIGH COURT OF TANZANIA AT ARUSHA APPELLATE JURISDICTION HIGl COURT CRii"iINAL APPEAL NO. 22 OF 1990 (Original Criminal Case No. 385 of :1989 of the District Court of Arsha District at Arusha: --~~F?Rl Po Co WAMBURA, Esq.' District Magistrate DIRECTOR OF PUBLIC PROSECUTIONS o••····••ooo••····APPELLANT :-,, {Original Prosecutor) versus , , HAI"iSRAJ SHARIY4. 0 0 0 ·, 6 0 ... 0 0. 0 .'· ••• 0 • ..... 0 •• 0 •.o. 0. 0 •• oRESPONDENT ( Original Ace used) JUDGMENT J ' The respondel1,'t Hamsraj Shariya was prosecuted in the District Court of ,·,rusha for the offence of being in. possession of what is referred to in the charge sheet as 11 a gear box Mouri tain 11 Cor was it a gear box mounting?) Number 6B26 valued at T.shillings 700,000/=, which was suspected to have been stolen or unlawfully obtained. The District Court acquitted'him. The Director of ', Public Posecutions felt dissatisfied by the acquittal and appealed to this court. In his petition, of appeal the D~P.P. raised three grounds .. In th'2 first ground ;it was 'complained that the trial magistrate erred in ·holding that as the respondent; was not arrested in the course of a ,journey,,_a conviction could not be entered under section 312 (l) of the Penal,Code. In the second ground it is said that the trial magistrate erred in fact in believing the respondent's story after holding that the latter had failed to account for the property to the police who arrested him. Finally, the D.P.,P. complained that,. in the alternative, the trial magistrate erred in failing to hold that the responderit's defence was clearly an after thought. BGfore I deal with these srounds of appeal, let me give some:? brief facts of the case wnich was before the trial court. A P.C. Elias (P.Wa2) heard from his friend Kapufi that a transport firm known as Sai T.ra1-wport are suspected to have stolen a genr box from 'Ujenzi (a governrrent, depa.ttm~n<:l. PJllowing • ■ o ■ o••••••/2

2 Following from this story·the police who included PoCo Elias, an Inspector Chiwango and a Sergeant Bajuni went to Sai Transport where they met the respondent who is said to be a Dirii,ctor · of the firm as well as ·a garage foreman. They asked the respondent to show them a gear box that had been stolen from Uj en2e1.i.- The r1:spondent, according to P oC. Elias, "failed to show us thG gec.1r box that we wanted" o The police asked the-responden~ to take them to the office whre,according- to the respondent, there was a gear box which the • I . firm had borrowed from another firm known as Malwa 's Transport Limited. The gear box had a number 682,:j, But he did not then have the n8ccssary documents to prove it had been borrowed from the saio Malwa's Trnnsporta The documents were with their accountant who, a~purently, was not then available. The gear box was seized and the respondent was prosecuted as said earlier in this judgment. I During the Jrial · ihere· was no evidence that any gear box had ~ gone missing from Ujenzi and Kapufi who had triggered the search at Sai Transport which led to the prosecution of the respondent, did not give ev_idence. 'Since ·xapufi was not called to testify at the frial, P .ca Elias'· ev:iid"ence that a Qear box had been stolen from Ujenzi was sheer hear say, ndt to be relied on in proof of the prosecution casej_-: · In effect r the basis for police suspicion, that the gear box was stolen or unlawfully obtained was

lacking. Indeed, subsequent to being charged in court, the respondent found and produced-at the trial a letter from Malwa's Transport - Eh. D.l dat°ed 5/3/89 in which it was stated that 1 second ha.nd gear box of Is 1:.zu 10 .ton lorry had been loaned to Sai Transport Limitedo i In the course of his j ;.dgment the trial District Magistrate said 'chat since the respond?nt was found at his place of work and the 9ear box was not found on him while in the course of a journt~Y, a c:=harge under se-;tion 312 (1) of the Penal Code could not stun.ct• Mro MirambQ, lE. ar:ned Counsel, who had appeared for -the lf2Sponc1ent at the t;cic.: and also at the appeal, had cited the cas,s such as PATRICK ,., Ro (1971) H.C.D. 313 which said that se:C-:::ion 312 of the Fe.al Code is highly technical and applL.:d only to cases wh E;:.:.a possession of the suspected property was .J..~~-- generis wi tt, conveying.

3 That is no longer the legal position. In 19'71 section 312 was nrncnc1ec1 so that what previously used to be section 312 became subsection (1) (a) of the section and a subsection (1) (b) was added. Undr paragraph (b) of subsection (1) it is not necessary that ··t!-ie suspected property should be conveyed in the course of a journey.· As late Biron, Jo said in DAUDI MCHANAKUTWA Vo R. (1980) · T.0L 0 t .• 317' ·at page 3 72 - "There is no question of possession be?ing .).u.:3_e1~·generi.s with conveying". So, the legal statement i~·caSes prio~·to 19~1, like tn the case of REGINA v. MSENGI S/0 . ABD~L.~L.A.j;.-which · enuniated that possession must be ejusdem gene.~is with conveying, is not longer correct. Th0 trial magistrate also referred to the following cases

H.CaD. 303 and ALL.j ~AMI-I.OHAN v. Ro -(1968) H.C.Do 430_. as authority 
,; 
thD.t u. conviction under s. 312 of the Penal Code cannot stand 
·unless ther~ has been compliance with section 24 of the Criminal 
Procc.'ure C0de, cap~ 20. 
Section 24 of the repealed Criminal- Procedure Code, 
Cap. 20 read:- 
"Any p~lice officer may stop, ·search and detain 
any ves~el, ~oat, ai~craft or vehicle in or 
I ·,· . 
upon which there sha],l be reason to suspect 
that anythint stolen or uplwwfully obtained 
. I . , 
may b~ found : and ·also -~ny person who may be 
reasonably s~spected or, having in his possession 
or conveyins:! in any madn~r :anything stolen or 
unlaw_fuily c•t.Jtained 
11 
• • 
The key words under thi-s section a 
1 
re "stop, search and detain",, 
Th.::sc words imp~rted th,? meani_ng that the suspect must be in 
./ 
th~ course of a jcurney, hence alt,o the reference to the 
, '. 
means of transportation such as a vessel, boat, aircraft or 
vehicl<::. The courts e..xp1~c."'S's-ed-io..tens..e dissatisfaction with 
both that s-~cticn and s·ection 31;? of the Penal Code for 
being too t~ch~ical. 
hs I mentioned ••••• a/4

4 
As I m~ntioned earlier, section 312 was amended in 1971 
and •in 1930 (Act No. 14 of 1980) to give it the present shape. 
Section 24 of 'the Criminal Procedure Code now appears in the 
. c;imino.l ·Procedure J.ct, 1985 also in quite a different shape as 
s·ection -25. Under section 25 of the Criminal Procedure Act, 
19~5 any police officer now "may do any or all of the :f£ollowing 
things namely~ stop, search and detain" (my· underlining for 
- emphasi-s) • Here it means, in my view that it is no longer 
always·: n-ecess,.fry that the suspect should be in the course of a 
journey nor is it always necessary that he should be conveying. 
l~ wiii be quite in order for a police officer to be acting 
. ~ ' ·" . . . 
u~der ·section 25 Ci) i~) ~f-th~ Criminal Procedure Act, 1985 to 
. .," . 
vis.it prgmises· and search ai{d ·detain a person found in possession 
I . 
of property reasonably suspected _to have been stolen or 
unlawfully obtained. I hold, therefor~, that the trial district 
magistrat1:: erred when he found t,hat the charge would fail merely 
because the police did ~ot find the respondent.. in the course of a 
journdy or that the respondent was no_t then conveying the 
gear ·box .. 
. ........ 
H;__,ving said .. all that, I think however that groi.mds 2 and 3 
of the p,Yi:ition of appeal have no merit. First,. the prosecuticn 
. . '. 
fail..:..d to show in evidence the basis for police. suspicions 
against th0 r2s·pondent in his personal capacity or even as a 
repr.::s;::'.?nt::i.ti ve of· Sai Transporte,rs 1'imi ted. Secondly, the 
' 
respondent did not in law have the obligation of giving the 
policG 2. reasonabl~ expl'anation ·that the gear box was not stolen ltt 
or unluwfully· obtained o That duty he owad to the court. The 
trial court accepted the explan,1tion as probably true, which was 
! 
enough to earn him an ,,cquj.,ttal. The respondent had indicated 
right from start that he was looking for documents relating to 
. . . \ . . 
the gear box. _So, wheri' he latEir produced the letter from 
Malwa 1 s tro.nsport Limih=jl it cc,uld not t'leces~arily be an 
after thought. In any c.ase, i.f the prosecution doubted the 
authenticity of the·letter they c.ouid have asked leave from 
court to seek to discred;i t it. 
The appeal is ·dismis-sed. 
At J\rusha: 
6/11/90. 
Mr. Mirnmbo for.appellant 
Mr. Lundu for Respondent. 
(Jo Ao Mroso) 
JUDGE