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R. v. Shabani Masudi, Crim. App. 638-M-69, 26/11/69, Seaton J.



R. v. Shabani Masudi, Crim. App. 638-M-69, 26/11/69, Seaton J.

This is an appeal by the Republic against an acquittal. The respondent was charged with being in possession of uncustomed goods c/s 147(d) (iii) of the east African Customs Management Act, which provides as follows. - “Any person who acquires, has in his possession keeps or conceals or produces to be kept or concealed any goods which he knows or ought reasonably to have known to be …. Uncustomed goods; shall be guilty of an offence against this Act.” The undisputed facts were that he respondent bought a bale of second –hand clothing value at Shs. 4,464/- in BujumburaBurundi Republic, and transported it by bus to Kasulu Minor Settlement, Kigoma Region. There the goods were seized by Police Officers from on top of a bus where the respondent had loaded them with a view to transporting them to Uvinza. When questioned by the Police, the respondent produced 5 sales invoices for the goods but admitted that he had paid no customs duty on them. On these facts, the trial Magistrate held that the prosecution had proved the respondent’s possession of the goods and also that they were uncustomed. But he was of the view that there was no evidence before the Court showing that the respondent knew or ought reasonably to have known that the goods were uncustomed. As the burden was upon the prosecution to prove such knowledge, the Magistrate held that the appellant was entitled to be acquitted. Learned State Attorney has objected to the Magistrate’s ruling that the burden lay upon the prosecution to prove knowledge. He concedes that under an earlier version of this section, since repealed, the onus lay upon the prosecution, vide: Nizer Mangari v. Ugandas, (1964) E. A. 507. However he argues that under the new section this is no longer true, citing s. 167 of the Act in support, and also Ali Ahmed Saleh Amgara v. R., (1959) E.A. 654. He points out that the present S. 147 (d) (iii) of the Act replaced an earlier sub-section which was in the following terms:

            Held: “It seems to me that for a prosecution to succeed under S. 147 (d) (iii), there must be evidence either that the accused knew that the goods were uncustomed or that a reasonable man, in a situation such as the accused, would know that the goods were uncustomed. In the present case, the respondent is, according to

the charge sheet, a businessman. He bought a considerable quantity of clothing, presumably for resale. At his trial, he made an unsworn statement in which he neither admitted nor denied knowledge that the goods were subject to customs duty. I would concede that the onus lay on the prosecution to prove its case in this as in every other case. But it seems to me that the words “knows or ought reasonably to have known” import an obligation on the accused to give some kind of explanation when the prosecution have proved his possession of uncustomed goods. In this case there was no explanation at all. I would accordingly disagree, with respect, with the trial Magistrate’s finding and hold that upon the evidence it was established affirmatively that the respondent was guilty of the offence charged. The appeal is accordingly allowed. The case will be sent back to the trial court with instructions to record a conviction and sentence accordingly.”

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