By Faustine Kapama-Judiciary
THE Court of Appeal has ordered the release from
prison businessman Ayubu Kiboko and his wife Pilly Kiboko who were sentenced to
20 years’ imprisonment for trafficking in 251.25 grammes of heroin
hydrochloride, which are narcotic drugs.
Justices Gerald Ndika, Ignas Kitusi and Sam
Rumanyika ruled in favour of the couple, the appellants, after allowing the
appeal the two had lodged to oppose findings of the High Court’s Corruption and
Economic Crime Division in Dar es Salaam.
“We allow the appeal and proceed to quash the
convictions and set aside the sentences against the appellants. Accordingly, we
order that the appellants, Ayubu Mfaume Kiboko and Pilly Mohamed Kiboko, be
released from prison unless they are held there for any other lawful cause,”
they declared.
The justices granted one ground of appeal among seven
the appellants had advanced, which challenged the decision of the High Court
with effects that the search into their home which was conducted by a team of
police officers from the Drug Control and Enforcement Authority (DCEA) was
illegal.
“We are constrained to expunge the illegally
obtained evidence, which, apart from the alleged prohibited substance and the
certificate of seizure, included the other seized substances and the three
motor vehicles,” they ruled.
The justices pointed out that the remaining evidence
on record after discounting such evidence, including the seized alleged drugs,
was too thin on its own to support the charge the appellants faced.
They said that the police powers of search and seizure
are governed by section 38 of the Criminal Procedure Act (CPA) with Subsection
(1) empowering police officer in charge of a police station ("OCS")
to search or to issue a written authority to any police officer under him to
carry out the search.
According to the justices, Subsection (2) comes in
force when a search is executed upon a written authority and police officer who
executes the search is required to report, as soon as practicable, the issue of
the authority the grounds on which it was issued and the result of the search
to a magistrate.
“This binding obligation is followed up by another
imperious requirement under subsection (3) imposed on the officer in charge of
the search, upon seizure of a thing, to issue a receipt acknowledging the (such)
seizure, bearing the signature of the owner or occupier of the premises or relative,”
they said.
The justices pointed out further that apart from
section 38 of the CPA, sections 40 and 42 (1) (a) and (b) of the Act also
regulate the conduct of searches, as section 40 provides that a search warrant
may be issued and executed on any day and may be executed between the hours of
sunrise and sunset.
However, the court may, upon application by a police
officer or other person to whom it is addressed, permit him to execute it at
any hour. Section 42 (1) (a) and (b) creates an exception to the overall
requirement under section 38 (1) by providing for searches and seizures in
cases of emergency.
In the case at hand, having revisited the evidence
tendered during the trial, the justices noted that the police officer who lead
the search team was not an OCS and had no requisite written authority (search
order) from an OCS to carry out the search.
Furthermore, they said, the evidence does not
suggest that the impugned search was executed as an emergency undertaking in
terms of section 42 (1) of the CPA dispensing the requirement for a search
order or warrant.
“We think that this is a classic case where police
officers, believing that they were unshackled by the law and that they had a
free hand, went ahead, entered into and searched suspects' home brazenly
violating the law,” the justices said.
In the trial, Kiboko and his wife Pilly were charged
with trafficking in narcotic drugs. It was alleged that on May 23, 2018 at
Tegeta-Nyuki in Kinondoni District in Dar es Salaam, the couple trafficked in
heroin hydrochloride, which are narcotic drugs, weighing 251.25 grammes.
Hakuna maoni:
Chapisha Maoni