Mathayo s/o Tibasalila v Republic 1983 Tlr 87 (Hc)

MATHAYO s/o TIBASALILA v REPUBLIC 1983 TLR 87 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

October 29, 1982

CRIMINAL APPEAL 86 OF 1982

Flynote

Criminal Law - Being in unlawful possession of "Moshi" - Requirement of proof -Moshi B Manufacture and Distillation Act 1966, and Written Laws (Miscellaneous Amendments) (No. 22) 1981.

-Headnote

The appellant was convicted of being in unlawful possession of "Moshi". An experienced expert established by smell that the substance which was in possession of appellant was C a spirit, commonly know as "moshi".

Held: 

(i) Moshi can be identified either by sight, smell, taste or appearance, 

(ii) once it is shown that a person is in possession of moshi, the burden shifts on the accused to show that the possession is lawful,

Case Information

Appeal dismissed.

No case referred to.

[zJDz]Judgment

Katiti, J.: As the sun of 31/1/1982 was hurriedly giving place to the evening, PW1 Marco and PW3 Sita Maganga were undisputably on duty at Ngudu Pombe Shop. The evidence by PW1 and PW3 was to the effect, that as an unusual assembly gathered near the National Housing quarters, and thereby provoked the curiosity of PW1 and PW3, the same witnesses went to the scene, only to see the appellant with a plastic container, which the appellant left behind a certain house, and took to his heels. PW1 and PW3 seized the said container and anxiously looked for the appellant, whom they finally arrested at the pombe shop, and hence the prosecution on allegations of possession of Moshi unlawfully and the conviction, that the appellant is now challenging.

The factual experiences of PW1 and PW3, up to seizure of the container are obviously not subject to contention in these proceedings. What is in dispute, and therefore calls for adjudication, is first, whether the appellant was in possession of the container and therefore the contents, and secondly whether, the contents were identified as the prescribed Moshi. The trial magistrate did answer the first question positively, after I rejecting the appellants' alibi, that, he was not at the scene. After considering the appellant's complaint on this aspect, I am A satisfied that not even a slight temptation to suspect the evidence on the same, has been imported in me. PW1 and PW3 knew the appellant before the event, and I cannot see how mistaken identification could have arisen in such broad day light, nor did the B appellant allege malice as a possible motivating factor, driving the said witnesses to tell lies. I believe therefore as did the trial court, that, the appellant had been in possession of the container before its seizure.

The prosecution witnesses PW1 and PW3 did tell the court, that, the contents of the container were nothing else, but moshi. Of course, of assistance was the appellant, who in his defence unflinchingly agreed, though denying possession that, the contents were Moshi in the following manner:

"I know that, there was pombe ya moshi, when it was opened at the police Station..." D

I certainly do not extract comfort, nor inspiration, from what the appellant said as that, was no substitute, for the burden, that lies on the prosecution to prove, the case beyond reasonable doubt. Thus, the contents must have been proved, or identified as moshi, beyond reasonable doubt. E

Did the prosecution achieve this? Before delving into this, we must first know what moshi under the relevant law, is. The moshi, whose unlicensed possession is criminalised, is no longer a laboratorial per centum by weight of absolute alcohol matter. The law on F this aspect, has emerged from the laboratory, and retreated to practical realities, that match the circumstances prevailing. Now the moshi whose unlicensed possession is criminalised, is any spirits - which by whatever names they are known, is distilled without licence under section 19 of the Moshi Manufacture and Distillation Act 1966, and this G includes spirits commonly known as "moshi, machozi ya simba, gongo and umeme" -see Written Laws (Miscellaneous Amendments) (No.22) Act 1981, amending section 2 of the Moshi Manufacture and Distillation Act 1966.

The prosecution had therefore to prove that, the contents that, the appellant was in possession of was spirit commonly known as either moshi, machozi ya simba, gongo or umeme. Such a proof could be done by an officer or officers, who by virtue of their experiences, are qualified to identify the liquor, either by sight, smell, or even by taste, or appearance. And it is the wish to the relevant law, that once possession of moshi, or I moshi in its other equivalent names has been established, the burden of proving that such possession was lawful, shifts to the accused - see section 36 of the same applicable statute.

In this case PW1, did show how big his font of experience in moshi cases was, and did demonstrate how the smell of the same was, apart from other characteristics. I would accordingly buy his experience and accept that the contents were moshi, as above defined. The appellant was therefore in possession of the same and as there is no evidence that he was licenced, the conviction was in my view inevitable. As the sentence was not excessive, I do not propose to interfere with the same. The appeal is dismissed.

Appeal dismissed.

1983 TLR p89

D