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Adija Juma v. R. Crim. Rev. 2-A-70, 15/1/70, Platt J.



Adija Juma v. R. Crim. Rev. 2-A-70, 15/1/70, Platt J.

The accused was convicted under section 65 of the Intoxicating Liquors Act (No. 28 of 1968) of being found in unlawful possession of a bottle of Moshi.

            Held: “Although the accused admitted unlawful possession of the moshi, she did not admit the ingredients of a charge under section 65 of Act No. 28, which concerns the illegal sale or manufacture of the intoxicating liquors concerned in that Act. It is to be further noted that Act No. 28 specially provides in section 2 that Moshi is not one of the liquors covered by that Act. The charge was therefore entirely misconceived; because manufacture and sale does not cover mere unlawful possession, and the Act has nothing to do with Moshi. The proper provision of law on which the charge should have been based was section 30 of the Moshi (Manufacture and Distillation) Act (No. 62 of 1966), and the question which arises is whether a conviction can be substituted under section 30. On the one hand, the particulars of the charge and the accused’s admissions referred to unlawful possession of Moshi. Hence to substitute a conviction under section 30 would not, in one sense, affect the accused as far as she understood the charge. But on the other hand, the difficulty is that section 30 provides for a more serious offence in terms of the punishment which may be awarded, than that in section 65 of the act No. 28 of 1968. It is generally against principle for a more serious charge to be substituted for a lesser charge, unless there are specific provisions allowing such substitution. The broad principles applicable t that type of case were reviewed by Sir Ralph Windham in R. v. INDO PRASAD JAMIETRAM DAVE (Cr. Rev. No. 40 of 1963 published in the Law Report Supplement to the Gazettee (No. 1 of 1964) dated 21st February 1964), and at page 14 of the Supplement the learned Chief Justice (as he then was ) noted that, in the case before, him, no injustice could accrued to the accused, because the new charge to be substituted would be one for a lesser offence than the charge wrongly charged. It seems to me that it would be wrong to allow the substitution of a greater offence in case there might be injustice to the accused, and that the principle should be adhered to, that an accused should known the real charge brought against him. Accordingly by virtue of my revisional powers, I quash the conviction and set aside the sentence.”

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