Simba v. R., Crim. App. 748-D-70; 3/2/71; Makame J.

 

Simba v. R., Crim. App. 748-D-70; 3/2/71; Makame J.

The appellant was convicted of being in possession of bicycle suspected to have been stolen contrary to Section 312 of the Penal Code. The appellant who said that he was riding from Dar es Salaam to Morogoro approached a cell leader in a village near Chalinze and asked for sleeping accommodation overnight. The cell leader was suspicious of the appellant’s possession of a bicycle and asked him for proof that the bicycle was legitimately his. The appellant failed to furnish him with such proof, whereupon he was taken to Chalinze and handed over to a special constable who took him to the Police Station where he was held. He said he had bought the bicycle out of savings and had obtained a receipt which he had lost. He also gave a number of the bicycle frame during the trial which was not the same as the actual number on the bicycle.

Held: (1) “The learned State Attorney on behalf of the Republic did not wish to support the conviction merely on the technical ground that the appellant was not detained under Section 24 of the Criminal Procedure Code as required by

section 312 of the Penal Code. With respect I very regrettably have to agree with him. I think it is invidious and preposterous that the appellant should escape the consequences of his crime because of this restrictive technicality which very glaringly has no parity with justice. I think the ridiculously technical section 312 is bad law incompatible with the broad spirit in which the law should be employed.” “Many judges have expressed dissatisfaction with section 312. I wish particularly to associate myself with the sentiments expressed by my brother Saudi in Charles Mumba v. The Republic, Dar es Salaam Crim. App. 176 of 1967. Something in wanting when technical objections are allowed to defeat substantial justice.” (2) Appeal against conviction and sentence allowed.