Hamisi Ally v. R., Crim. App. 728-M-69; 17/12/69, Bramble J.

Hamisi Ally v. R., Crim. App. 728-M-69; 17/12/69, Bramble J.

The two appellants were jointly charged with unlawful possession of local liquor known as Moshi c/o 30 of Act No. 62 of 1966. the evidence was that the first appellant was found holding a bottle of Moshi. The only evidence as to what was contained in the bottle was that of P.W. 2 who said – “I knew it was Moshi because I tested it by smelling. I have seen and smelt Moshi many times.”

            Held: “The definition of Moshi for the purpose of the Act is- “The distilled liquor commonly known as Moshi, nipa or piwa and containing more than one pr centum by weight of absolute alcohol and spirits, potable or otherwise, manufactured by distillation of moshi; but does not include any potable spirit manufactured by a distiller under a licence granted under section 19.” From the above definition the basic test would be whether the substance is distilled liquor and whether it contains more than one per centum by weight of alcohol. It would be quite possible for a layman to say that a particular liquid is distilled liquor and that it was manufactured from a particular substance the court would be entitled to consider the nature of his experience in assessing the weight of his evidence. I do not, however believe that the bare statement that he has smelt moshi may times is sufficient evidence of such experience as to give much weight to the evidence of the witness. In addition, it is clear that possession of all moshi is not an offence. In order to commit an offence a person must be found in possession of distilled moshi which ‘contains more than one per centum of absolute alcohol and spirits.’ The exact percentage of alcohol must be proved and this could not be done by smell. I do not think that the court

could accept a guess from a qualified chemist as conclusive evidence since the fact that it is a guess will room for doubt. More so the guess of the layman. Reference was made to the decision in the case of Jumanne Juma v. R. (1968) H.L.D. No. 304 in which Seaton, J. held: - “The prosecution bears the burden of showing that the substance found is in fact moshi. Attached to every Police Station in the country were usually one or two officers who, by virtue of this experience are qualified to identify this liquor by sight and smell, if not by taste. They should so state when called upon to give evidence for the prosecution.” This was a case under the old law where possession of any moshi was an offence. Under the Local Liquor (Moshi) Order 1941 possession of moshi was prohibited. This order was revoked by the Act 62/66. While the observation above was proper under the old law, the specifying of the percentage of alcohol under the present act requires more exact proof. There was no evidence that the liquid found was moshi for the purposes of the Act and I allow the appeals.