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Nyani v. R., Crim. App. 332-D-70; 28/5/70; Georges, C.J.

 


Nyani v. R., Crim. App. 332-D-70; 28/5/70; Georges, C.J.

The appellant was charged with being in unlawful possession of gemstones c/s “3 Cap. 123 of Act 1967.” The Act was wrongly cited. It is Act 11 of 1967. The appellant’s defence was that the Area Commissioner knew all about his mining activities and that he had almost a year before reported to that official his discovery on his shamba of a patch which yielded gemstones. According to his story the Area Commissioner had given him implements to help in digging and had once allowed him the use of a Government vehicle. There was no evidence to show that the appellant was an “authorised miner” or a “licenced dealer” under the Act.

            Held: (1) “I do not think the wrong citation has caused any miscarriage of justice and it is quite clearly curable under s. 346 of the Criminal Procedure Code. (2) “In the circumstances his conviction was inevitable and cannot be disturbed.” (3) “Area Commissioners cannot authorize persons to break the law. If what the appellant alleged could be established the Area Commissioner may well have been charged for aiding and abetting.” (4) “The sentence of 18 months imprisonment is severe for a first offender and indicates that the trial magistrate did not accept the appellant’s story. It is not, however, so severe as to be said to err in principle.” (5) Appeal dismissed.

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