Shilungu v Republic (Criminal Revision 3 of 1981) [1981] TZHC 2464 (6 February 1981)

.138 TANZANIA LAW REPORTS [1982] TLR KANZAGA SHILUNGU v. REPUBLIC [HIGH COURT OF TANZANIA AT MWANZA (Rubama, J.)] ( CRIMINAL REVISION 3 OF 1981 Evidence — ‘ Moshi ’ possession — Republic must prove that the substance con tained more than one per centum by weight of absolute alcohol — ‘ Moshi ’ (Manufacture and Distillation) Act, 1966. The accused was charged with and convicted of being in unlawful possession of ‘ Moshi ’ . There was no evidence on record establishing that what was found in possession of the accused was indeed ‘ Moshi ’ ’ . On revision: Held: (i) on a charge of possession of ‘ Moshi ’ under the Moshi (Manufacture and Distillation) Act_, 1966, the prosecution must prove that the substance con tained more than one per centum by weight of absolute alcohpl, and spirits, por table or otherwise, manufactured by distillation of moshi. Conviction quashed. No case referred to. Editorial Note: The definition of ‘ Moshi ’ was amended in 1981 by the Written Laws (Miscellaneous Amendment) (No. 2) Act, 1981; (Act No. 22), Schedule, to. read: Moshi means any spirits, notwithstanding the names by which they are known, which are distilled otherwise than in accordance with the term of licence issued under section 19 of this Act, and includes spirits commonly known as Moshi, machozi ya simba, gongo and umeme; Spirits means any intoxicating liquor in the nature of an abscess or abstract from any substance by distillation, and includes any . liquor-mixed with spirits. 6 February, 1981. RUBAMA, J.: The accused was charged with and con victed of being in unlawful possession of Moshi c/s 30 of the Moshi (Manufacture and Distillation) Act. He was fined shs. 1,000/- or suffer 6 months imprisonment in default. I called this case file for inspection to ensure whether or not the liquid or local brew the accused is alleged to have been found in possession of was actually ‘ Moshi ’ . As it traced out, there is no evidence on record establishing that what was found in possession of the accused was indeed ‘ Moshi ’ . The Moshi (Manufacture

D.P.P. ii:· ARBOGAST RUGAIMUKAMU .(RUBAM�. J.) 139 and Distillation) Act, 1966 provides the definition of moshi. It is: ·Moshi' means the distilled liquor commonly known as moshi, nipa or piwa· and containing more than one per centum by weight of absolute alcohol, and spirits, portable or otherwise, manufactured by distillation of moshi; but does not include any portable spirit manufactured by a distiller under a licence granted under section 19. The Republic led no evidence to show th�t what was called 'moshi' had con� tained 'more than one per centum by weight of absolute alcohol, and spirits, potable or otherwise, n,anufactured by distilh,1.tion of moshi.· The need _to establish this is .-at no stage dispensed with by proof that the said liquid called moshi smelt like moshi or that when taken or consumed one temporarily says goodby� to his good senses. As the required basic evidence was not led, the accused should not ·ha�e been found �uilty of the offence as charged. I accordingly quash the ..con- viction and set aside the sentence. The accused is now serving a prison sentence as he could not pay the fine of shs. l,000/-. I order that he be set free at once unless otherwise legally held on .another matter. Conviction quashed. "\