CRI/A/21/84

IN THE HIGH COURT OF LESOTHO

In the Appeal of

'NONYA NONYA Appellant

v

REX Respondent

JUDGMENT

Delivered by the Hon Mr. Justice J L Kheola on the 4th day of February, 1985

The appellant was convicted of dealing in 2267.5 kilograms of dagqa without a permit in contravention of section 3(a) of Dangerous Medicines Act No 21 of 1973 He was sentenced to three years' imprisonment He appealed against conviction only

The appeal has already been allowed and what follow are my reasons It is common cause that on the 30th May, 198? one hundred and forty- five bags of dagga were found in a certain house at Mokunutlung in the district of Berea The crucial question is whether the Crown has proved beyond any reasonable doubt that the appellant was found in possession of the dagga in question

The story of the appellant is that the house in which the dagga was found belongs to his brother, Lechesa On this point he is supported by D.W. 2 who was acting chief of the area in 1970. He stated that he allocated the site to Lechesa in 1970 and handed in as an exhibit a Form C which confirms the allocation P W.1 is the present chief of the area but does not know to whom the site in question belongs because sometimes the appellant lives there and sometimes Lechesa lives there. He does not know who was living there at the relevant time when the daqga was found there. The appellant told the trial court that on the day the dagga was found he was working in his brick -yard which is not far from his brother's house He saw D.W 3's vehicle arrive at his brother's place and went to it He

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found D W 3 who was apparently looking for Lechesa He was still talking to him when a police van arrived and he was ordered to open the house. He protested that the house was net his but eventually complied with the police orders and opened the door The dagga was found, He denied any knowledge of it On this point he is supported by D.W.I and D.W 3

The evidence of the two police officers who found the dagga is not only conflicting but is also misleading. Second Lt. Kolobe (P.W 4) said that the appellant was outside the house when they arrived at the scene This is understandable because at that time he was still talking to D.W 3 On the other hand Sgt Ranthocna (P.W.3) says that when they arrived at the site the appellant was inside the house sitting on a chair and in the company of a woman who was walking about in the house. I am of the view that Sgt Ranthocha is not telling the truth. If he had found the appellant and a woman in the house in which he found the dagga why did he not charqe that woman as well or call her as a witness, The truth seems to be that there was no such woman and that the appellant was outside the house when the police arrived.

I have stated that the evidence of the police witnesses was intended to mislead the court because they insisted that the house belonged to the appellant and yet it was their first time to come to that place Even when they were shown the Form C which is proof of title to land they still refused to admit that the site belonged to Lechesa It seems to me that because they wanted to got a conviction they were prepared to deny things they obviously did not know

For the reasons I have stated above I come to the conclusion that the Crown has failed to prove that the appellant was found in possession of the dagga in question. The appellant's explanation is reasonably possibly true. I ordered that the appeal fee be refunded

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to the appellant.

JL. KHEOLA

27th May. 1935.

For Appellant Mr. Mofolo

For Crown Mr. Kabatsi