Sylivery Paschal v Republic 1983 Tlr 130 (Hc)

SYLIVERY PASCHAL v REPUBLIC 1983 TLR 130 (HC)

Court High Court of Tanzania - Mwanza

Judge Mfalila J

February 20, 1980

CRIMINAL APPEAL 342 OF 1979

Flynote

Criminal Practice and Procedure-Being in unlawful possession of Part I Poison c/s 25(2), D Cap. 416 - Whether medical officer competent to identify drugs. 

Criminal Practice and Procedure - Charge of receiving-Necessity of proof of theft.

-Headnote

The appellant was convicted of two counts in the District Court of Ukerewe District. In the first count he was charged with and convicted of being in possession of Part poison contrary to section 25(2) of Cap. 416, and was sentenced to 12 months' imprisonment. In the second count he was charged with receiving stolen property contrary to section 311(1) of the Penal Code, Cap. 16, for which he was sentenced to 3 years' imprisonment. The present appeal is against sentence and conviction. The circumstances giving rise to the preferring of the charge are fully reproduced in the judgment below.

Held: 

(i) A conviction for the unlawful possession of Part I Poison cannot be sustained on the basis of an identification of labels of the drug by a medical officer who is neither qualified as a pharmacist nor empowered to determine the chemical components of the drug;

(ii) before a charge of receiving stolen property can be made, it is necessary for the prosecution first to prove the theft of the articles in question.

Case Information

Appeal allowed.

No case referred to.

F.S. Kinabo for the respondent.

[zJDz]Judgment

Mfalila, J.: The appellant was convicted of two counts in the District Court at Ukerewe. In count I he was charged with and convicted of being in possession of Part poison contrary to section 25 (2) of Cap. 416, and was sentenced to 12 months imprisonment. In count 2 he was charged with receiving stolen property contrary to section 311 (1) of the Penal Code, for which he was sentenced to 3 years' imprisonment.

With regard to count 1 the first obvious error is that the appellant was charged, tried and convicted under a repealed statute. The Pharmacy and Poisons Ordinance Cap. 416 under which the appellant was charged was repealed by the Pharmaceutical and poisons Act 1978 which came into force on 1st March 1979. This new Act carried higher sentences than those provided under the repealed statute. It was alleged in this count that when the appellant's house was searched, one bottle of Procaine penicillin was found and according to the District Medical Officer, this is a Part I poison.

With respect, the District Medical Officer is no pharmacist, hence he does not have the qualifications to analyse any drug into its chemical components to determine its identity. Indeed the only E way in which he could tell the identity of these drugs was by the labels on the containers. He declared himself unable to determine the identity of drugs in containers without labels. The first question is why should the court have wasted the time of this man to come and only read labels for them. If the prosecutor and the magistrate are F literate, as I presume they are, they could read the labels for themselves. The second question is what guarantee is there that the labels and the contents tallied? Lastly who gave the District Medical Officer the power to determine whether a certain drug is on Part I of the Poison List? Mr. Kinabo who appeared for the Republic supported the conviction on this count, but for the above reasons I do not share this view. The prosecutors as well as the Courts must make a serious effort to understand the legislation, otherwise they will never succeed in prosecuting offences under this Act. As the charge was not proved I allow the appeal in count, quash the conviction and set aside the sentence of 12 months' imprisonment.

With regard to the charge in count 1 & 2, I don't think there was any evidence showing that any of the items enumerated in this charge had been stolen from anywhere. Before going on to charge with receiving, it was necessary for the prosecution first to prove the I theft of the articles. This was not done, it was only left to be presumed. There is no room for such presumption for offence under section 311. Accordingly yet again I allow the appeal in Count 2, quash the conviction and set aside the sentence of 3 years' imprisonment. If he is not otherwise lawfully detained, he should be released from prison forthwith.

Appeal allowed.

1983 TLR p132

C