Omary Mussa and another v. Republic, Cr app no 120 of 2004 (unlawful possession of dangerous drugs)

               

IN THE COURT OF APPEAL OF TANZANIA

     AT TANGA

(CORAM:  MAKAME, J.A., MUNUO, J.A., And KAJI, J.A.)

CRIMINAL APPEAL NO. 120 OF 2004

OMARY MUSSA AND ANOTHER………………………..APPELLANT

AND

THE REPUBLIC……………………………….………..RESPONDENT

(Appeal from the Judgment and Decision of the High Court of Tanzania at Tanga)

(Longway, J.)

                                                                 

Dated the 25^th day of July, 2003

In

Criminal Appeal No. 134 of 2002

……………………………………

JUDGMENT OF THE COURT:

22 June 2006 22 October, 2007

MUNUO, J.A.:

The appellant was, in Muheza District Court Criminal Case No. 2 of 2000, convicted of the offence of unlawful possession of dangerous drugs c/s 12 (a) of the Drugs and Prevention of Illicit Traffic in Drugs Act, No. 9 of 1995 as amended by Act No. 9 of 1996 and Section 12 (d) of Act No. 31 of 1997 in that he was, jointly with others who are not parties to this appeal, found in unlawful possession of dangerous drugs, heroin hydrochloride or Dimorphine Hydrochloride, on the 7^th May, 2000 at about 21.00 hours at Majengo area within Muheza town.  The trial court sentenced the appellant to pay a fine of Sh. 300,000/= or in default, be imprisoned for ten years.  Aggrieved, the appellant unsuccessfully appealed to the High Court of Tanzania at Tanga in Criminal Appeal No. 134 of 2002.  Longway, J. upheld the conviction and enhanced the fine to Sh. 500,000/= or in default, serve ten years imprisonment.  Having lost the first appeal, the appellant lodged this second appeal jointly with one Omari Daudi who abandoned the appeal after paying Sh. 120,000/= fine pro rata to the period he suffered incaceration in prison.  That being the position we struck out the appeal of the 2^nd appellant, Omari Daudi under the provisions of Rule 3 (2) (a) of the Court of Appeal Rules, 1979.

The facts of this case are straight forward.  On the material night the appellant and other youths were spotted in a house, their rendevous, for smoking bhang.  An informer tipped three policemen who were on patrol so P.W.1 No. D3735 Clp Hussein, P.W.2 No. E6474 Detective Constable Alex and P.W.3 No. 6851 PC Moses, swooped the house.  Some of the youths managed to escape but the appellant and Omari Daudi were caught red-handed with drugs, a spoon for boiling the same on a candle and an injection.  The retrieved exhibits were tendered at the trial as Exhibit 1.  The government Chemist’s Report Ref. 95/X dated the 4^th August 2000, certified that the drugs weighed 0.165 grams.

The material drugs were heroin hydrochloride or Diamorphine Hydrochloride, listed under Part I Poisons.  The police also recovered 8 empty capsules of the same drug at the scene of crime.  The Government Chemist’s report, Exhibit P1, shows the 8 empty capsules were of the same drug, heroine hydrochloride.

                

In his sworn defence, the appellant claimed that he was arrested by the police on his way home from a wedding.  He denied involvement in the charged crime.  He lodged six grounds of appeal which he adopted at the hearing. 

                                 

In his six grounds of appeal, the appellant maintained that he was erroneously convicted on weak prosecution evidence so his guilt was not established beyond all reasonable doubt.  He faulted the credibility of the three policemen saying they could not have identified him during the night because it was dark.  Furthermore, he critized the courts below for failing to properly evaluate the evidence on record, causing him to suffer a conviction.  He thence prayed that the appeal be allowed.

The respondent Republic was represented by Ms Christina Maganga, learned State Attorney.  She fully supported the conviction and sentence and urged us to do the same in view of the strong evidence on record.  She further maintained that the appellant was caught red-handed with drugs, an injection, a spoon and a candle for concocting substances for youths, some of whom escaped arrest.  The report of the Government Chemist, Exhibit P1, certified that the drugs the appellant was found in unlawful possession of, were heroin hydrochloride which are listed under Part I Poisons.  The identification of the appellant was watertight considering that he was apprehended right at the scene of crime while in possession of the said drugs.  The conviction is supported by the evidence on record so the appeal is devoid of merit and it ought to be dismissed in its entirety, the learned State Attorney submitted.

The issue before us is whether the conviction is supported by the evidence adduced at the trial.

The ball started rolling when a law abiding citizen told the police on patrol that some youths were smoking bhang in a certain house at Majengo in Muheza town.  Three policemen went to the scene of crime and apprehended the appellant and another youth, the other suspects escaped arrest.  With the appellant in captivity, the police also recovered from the scene of crime, drugs and empty capsules which the Government Chemist’s report certified were heroin hydrochloride or Diamorphine Hydrochloride.  The report was tendered at the trial as Exhibit P1, along with the injection, spoon, candle, drugs and empty capsules sent to the Government Chemist for analysis.  More importantly, the three policemen caught the appellant red-handed with the drugs in the bhang smoking house so there was no possibility of mistaken identity, it being night time, notwithstanding.

In view of such glaring evidence against the appellant, the High Court rightly sustained the conviction.  The defence of the appellant being arrested on his way home from a wedding party was not probable in the circumstances.  We are, therefore, satisfied that the appeal is totally lacking in merit.

                       

We accordingly dismiss the appeal.

DATED at DAR ES SALAAM this 20^th day of September, 2007.

                                            L. M. MAKAME

JUSTICE OF APPEAL

   

E. N. MUNUO

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL      

        I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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