| Published By: | LYDIA CHURI |
|---|
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 Dr. 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.
