Africa-Press – Tanzania. THE Court of Appeal has set free a suspected drug dealer, Shaban Kindamba, who was sentenced to 30 years imprisonment for trafficking 11 bags containing cannabis sativa, commonly known as bhang, which are narcotic drugs, weighing 92.28 kilogrammes.
Justices Shaban Lila, Mary Levira and Ignas Kitusi ruled in favour of Kindamba, the appellant, after allowing his appeal he had lodged against findings of the High Court’s Corruption and Economic Crime Division.
“Consequently, we allow the appeal. We quash the conviction and set aside the sentence. We order the appellant’s immediate release unless he is being held for another lawful cause,” they declared.
The justices noted that the search at the appellant’s house was conducted without warrant and rejected the prosecution’s submissions that the search and seizure was under the Drugs Control and Enforcement Act (DCEA) and therefore a search warrant was not required.
“This is because sub sections (4) and (5) of section 32 of the DCEA, require that arrests and seizures be conducted in accordance with the law in force, specifically in this case, the Criminal Procedure Act (CPA), they said.
The justices said that since the general rule under the CPA is that search of a suspect shall be authorized by a search warrant unless it falls under the exceptions provided for under section 42 of the CPA, and since the instant case does not fall under any of the exceptions, the search was illegally conducted.
They concluded that the search conducted to the appellant’s house illegally at night without permission and proof that it was emergency and having been witnessed by a leader of a hamlet other than the one relevant in the case, raise doubt as to whether the drugs were indeed found at the appellant’s house.
“Therefore, the prosecution failed to prove that the appellant stored those drugs and thus failed to prove the case beyond reasonable doubt,” they said.
Giving more emphasis on the matter, the justices referred to some other jurisdictions such as South Africa, where search warrants are considered to be a safeguard to the constitutional right to dignity and privacy of a person.
In Tanzania, they said, the Police General Orders (PGO) shows the seriousness with which search warrants should be taken with 1© stating, “Under no circumstances may police officer enter private premises unless they either hold a warrant or are empowered to enter under specific authority contained in the various Jaws of Tanzania.
It was alleged that a search conducted by the police at the appellant’s house at Chumo village, Kilwa District on September 29, 2018 led to discovery of 92.28 kilograms of cannabis sativa commonly known as “bhang” stored in that house.
The essence of the matter is that the police went to Chumo village acting on a tip they had received from an unmentioned source that a person known as ShabanKindamba was dealing in bhang.
At Chumo village the police recruited the village Chairman who accompanied them to the house of the appellant. It was during the night. On arrival at the house, they knocked on the door and the appellant opened it and got out.
According to the evidence given by the police, the house in which the appellant lived had several rooms occupied by different people. The appellant was instructed to open the door to his bedroom for the police to conduct a search and he obeyed.
In that room, according to the prosecution’s testimony, a total of eleven parcels, two of them large, were found and each contained bhang. In addition, cash amounting to 1.3m/- was found and seized.
After that discovery, one police officer posted the seized bags of bhang and the money into a seizure certificate special for Narcotic drugs. The appellant was put under arrest and taken to the police station along with the eleven bags of the alleged contraband.
