• Court said no one saw the man sell the substance to anyone or for what price, hence, he could not be accused of trafficking.
• The trafficking charge overturned, he was freed..
Image: EMOJONG OSERE
A man holding but not trafficking Sh3,000 heroin has been freed because police did not prove he was selling.
The court overturned the charge, substituting a lesson one and said he had bee n in jail long enough.
Farid Jamal Shebwana is a free man due to sloppy police work .
He had been arrested in November 2017 in Lamu when he was found with 15 sachets of heroin with a street value of Sh3,000. Police said he was selling. The prosecution said that was in violation of Section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act of 1994.
In his defence, he said he lived hand to mouth as a fisherman, and he was arrested in the bush when he answered a call of nature. He said no drug was found on him.
The local magistrates’ court convicted him, ordering him to pay a fine of Sh1 million, or spend five years in prison plus 20 years for trafficking in narcotics.
The man then appealed at the High Court, which dismissed his appeal in March 2021l
He appealed to the Court of Appeal, arguing the value of the drugs found were not properly valued, that the punishment of Sh1 million and five years, plus 20 years for trafficking 15 sachets of heroin worth only Sh3.000 was excessive and illegal.
At the virtual hearing of the case in February 2023, the prosecution conceded that the parent law relied on was not properly applied with respect to weighing and valuation of the drug substance recovered.
The appellate court faulted the magistrate for sentencing the accused without the substance being properly valued and weighed.
“…. since a court will not be able to sentence an accused person under Section 4(a) of the Narcotics and Psychotropic Substances (Control) Act without evidence of the weight and value of the seized narcotic drug or psychotropic substance, the requirements of Section 4 would not have been proved beyond reasonable doubt... At the very least, the sentence imposed in the absence of such evidence will not be lawful,” the judgment read.
The court also dismissed the charge of trafficking because the prosecution and the police did not say the man sold the drugs to whom and at what price, adding that those were crucial components to prove the offence.
“No evidence was adduced as to who, when or where the appellant was selling the seized drugs to, and at what price. On the contrary, PW1 admitted they did not see the appellant selling the drugs. The conviction for the offence of trafficking was therefore not safe.”
However, it found evidence was available to show the drugs were recovered from him, hence, substituted the offence of trafficking with that of possession, punishable with the time already served.
“We [..] set aside the conviction of the Appellant for the offence of trafficking in narcotics drugs […] and substitute it with a conviction for the offence of possession....”
“We also set aside the fine of Sh1 million and in default five years imprisonment, and the additional imprisonment for 20 years for trafficking in narcotic drugs. We substitute a sentence of time served... The Appellant shall therefore be set free forthwith unless otherwise lawfully held,” the judgment dated July 7 read.