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