Daud Edward Shija vs Republic (Criminal Appeal No. 28133 of 2025) [2026] TZHC 3129 (9 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF TABORA AT TABORA CRIMINAL APPEAL NO. 2 8133 OF 2025 (Originating from decision of the District Court of Tabora, at Tabora in Criminal Case No. 5097 of 2025) DAUD EDWARD SHIJA … ……..………..….… ………… APPELLANT VERSUS REPUBLIC.………………….……..………………………..RESPONDENT JUDGMENT 5 th & 9 th June , 2026 MPAZE, J.: This is an appeal against the judgment of the District Court of Tabora , at Tabora in Criminal Case No. 5097 of 2025 whereby the a ppellant, Daud Edward Shija, was charged with and convicted for the offence of T rafficking in narcotic drugs contrary to Section 15A (1) and (2)(c) of the Drugs Control and Enforcement Act, Cap 95 R.E 2019 as amended by the Written Laws (Miscellaneous Amen dments) (No. 5) Act, 2021.

2 Upon conviction, the a ppellant was sentenced to serve thirty (30) years imprisonment. Aggrieved by both conviction and sentence, he preferred this appeal. The Appellant raised six grounds of appeal as follows;

1. That, PW2 did not read the certificate of seizure to the accused person before to be signed with their number.
2. That, PW1 did not establish his expertise before testifying he failed to describe his proffessional background and expertise before testifying rendering the credib ility of his testimony doubtful. Refer the case of BASHIRU RASHID OMAR V.The DPP - Criminal Appeal No.309/2017.
3. That, the Learned Trial Magistrate erred in law for failure to evaluate the defence evidence of the appellant on its own merit.
4. That, the Learned Trial Magistrate erred in predicating the conviction under section 331 (1) of the Criminal Procedure Act Cap 20 R.E 2023.
5. That, the Learned Trial Magistrate erred in law for believing the weight of narcotic drugs to wit 25.08 kgs while the exhibit was not taken to WMA as required by law.
6. That, the case against the appellant was not proved by the prosecution side beyond reasonable doubt . Before delving into the grounds of appeal, the record shows that on 8 th June, 2025 officers from the Drug Control and Enforcement Authority (DCEA) were on routine patrol within Tabora Municipality when they

3 received information to the effect that a certain person was engaged in trafficking of narcotic drugs. Acting upon the said information, PW2 proceeded to the area and secured the assistance of an independent witness, PW5. Together with an informant, they proceeded to the appellant’s residence, the informant having led them to the said house before leaving the scene to safeguard his identity. Upon arrival, PW2 knocked on the door, which was opened by the appellant. The officers introduced themselves and disclosed the purpose of their visit. Prior to commencing the search, both the officers and the appellant were subjected to a personal search, and n o incriminating items were recovered from any of them. The a ppellant was then directed to lead the officers into the house, whereupon a search was conducted in his room and two sulphate bags containing dry leaves suspected to be cannabis sativa (bhangi) we re allegedly recovered. A Certificate of Seizure was prepared and signed by PW2, PW5, and the a ppellant. The a ppellant and the exhibits were then taken into custody and handed over to PW3, who maintained custody before forwarding them to the Government Che mist for analysis.

4 PW1 received the exhibits, conducted forensic examination, and concluded that the dry leaves were cannabis sativa. PW4 testified in his capacity as the investigating officer, outlining the investigative steps undertaken, including the c ompilation of the case file and related procedural actions. PW5, who served as an independent witness, stated that he accompanied the DCEA officers to the appellant’s residence, witnessed the search and recovery of the exhibits, and was present during the preparation of the Certificate of Seizure, which he duly signed in confirmation of what had been recorded therein . The a ppellant, in his defence, denied committing the offence. He testified that officers broke into his house at night, arrested him, and pl anted the exhibits. He further alleged that he was beaten and forced to thumbprint documents he did not understand. The trial court, after evaluating the entire evidence, found that the prosecution had proved the case beyond reasonable doubt. The a ppellant was convicted and sentenced to thirty years imprisonment. When the appeal came for hearing, the appellant appeared in person without legal representation and opted to adopt his grounds of appeal as

5 his submissions. The Respondent / Republic was represented by Ms. Oresta Kemilembe, learned State Attorney, who opposed the appeal. With regard to the first ground of appeal, Ms. Oresta submitted that the appellant faulted PW2 for allegedly failing to read the Certificate of Seizure before it was signed. She conte nded that section 51 of the Drugs Control and Enforcement Act does not impose any legal obligation requiring that a Certificate of Seizure be read aloud prior to execution by the parties concerned. She further pointed out that, in any event, the record of proceedings reveals that PW2 did in fact read the contents of the Certificate of Seizure to the appellant and the independent witness before they appended their signatures. On that basis, she maintained that the complaint lacked merit and ought to be dism issed. Turning to the second ground of appeal, the State Attorney addressed the appellant’s challenge to the credibility and expertise of PW1, premised on the allegation that he did not properly disclose his professional background. She submitted that this assertion is contradicted by the record, which clearly shows that PW1 testified that he holds a Bachelor of Science in Chemistry from the University of Dar es Salaam, obtained in

6 2014, and that he was employed by the Government Chemist Laboratory Authorit y in 2015. She further submitted that PW1 was duly gazetted under Government Notice No. 28 of 2018 as a Government Analyst and had accumulated over ten years of professional experience. In those circumstances, it was argued that his qualifications and com petence as an expert witness were sufficiently established. In support of this position, reliance was placed on the principles governing expert testimony as articulated in Shida Manyama @ Salima Mabuba v. R , Criminal Appeal No. 285 of 2012 (CAT), where the Court underscored that expert evidence is admissible where the witness possesses specialised knowledge, skill, training, or experience relevant to the subject matter. The decision in Bashiru Rashid Omar v. The DPP , (Supra) cited by the appellant, was disti nguished on the basis that in the present matter PW1 clearly demonstrated both academic qualifications and practical forensic experience, rendering his opinion reliable and properly grounded. As regards the third ground, Ms. Oresta responded to the allegation that the trial court failed to evaluate the appellant’s defence. She

7 submitted that a careful reading of the judgment shows that the trial court did in fact consider the defence evidence a longside that of the prosecution, before rejecting it for want of merit. She further added that, being a first appellate court, this c ourt is enjoined to re - examine the entire record and reach its own independent conclusions, as affirmed in Jaffari Mussa v. DPP , Criminal Appeal No. 234 of 2019 (CAT). Consequently, even assuming any omission existed at trial level, the appellate court is empowered to cure it through a fresh evaluation of the evidence. In addressing the fourth ground, the State Attorney resp onded to the complaint premised on section 331(1) of the Criminal Procedure Act , [Cap 20 R.E 2023] . She submitted that the allegation was misplaced as the trial judgment fully complied with the statutory requirements of a valid judgment. She emphasized th at the judgment contained the issues for determination, evaluation of evidence, clear reasons for the decision, and was duly signed and dated by the trial magistrate. Accordingly, it was her submission that no procedural or legal defect was demonstrated to vitiate the conviction.

8 On the fifth ground, she responded to the contention that the prosecution erred by failing to take the narcotic substances to the Weights and Measures Agency (WMA) for weighing. She submitted that such a requirement is not imposed by law. According to her, the statutory framework governing narcotic drug cases vests the responsibility of receiving, analysing, and determining the nature and weight of suspected narcotic substances in the Government Chemist. She further relied on Watso n Daniel Mwakasege v. R , Criminal Appeal No. 666 of 2020 (CAT), where the Court affirmed that the mandate to weigh narcotic drugs rests exclusively with the Government Chemist and not any other institution such as WMA. On that basis, she maintained that th e ground was misconceived. With respect to the sixth ground of appeal, she submitted that the prosecution evidence overwhelmingly established the appellant’s guilt beyond reasonable doubt. She elaborated that PW2 testified that acting on information from a n informant, he proceeded together with other officers and an independent witness, PW5, to the appellant’s residence, where a lawful search was conducted after proper identification and mutual search of all officers and the appellant. She further stated th at

9 PW2 recovered two sulphate bags containing dry leaves suspected to be cannabis sativa from the appellant’s room. She added that PW5, as an independent witness, corroborated PW2’s account by confirming that he accompanied the officers, witnessed the enti re search process, and saw the recovery of the exhibits from the appellant’s room. It was further submitted that PW2 prepared a Certificate of Seizure, which was duly signed by the appellant, PW2, and PW5, and was admitted in evidence as Exhibit P4 without objection. In reinforcing this argument, reliance was placed on Nabibakhshpirb Nabibakhsh Pirbakhsh Bibarde & Another v. R , Criminal Appeal No. 663 of 2020 [2023] TZCA 17269 (19 May 2023), where the Court held that a duly signed Certificate of Seizure con stitutes strong evidential material confirming both recovery and acknowledgment of seized items. She also invoked the principle that failure to object to the production of an exhibit amounts to acceptance of its contents. Additionally, she submitted that t he chain of custody remained intact throughout the handling of the exhibits. According to her, PW2 handed over the exhibits to PW3 after seizure, who preserved them under secure custody before transporting them to the Government Chemist.

10 PW1 received the e xhibits, conducted forensic analysis, and returned them to PW3, who maintained custody until their production in court. It was therefore her position that at no stage was the integrity of the exhibits compromised. In conclusion, she urged the c ourt to find that the prosecution discharged its burden of proof beyond reasonable doubt and to dismiss the appeal in its entirety. In re joinder , the appellant maintained that he never committed the offence and contended that the case against him was fabricated. He pr ayed that the appeal be allowed and that he be acquitted. Following the submissions made by both parties, I find it appropriate, at this juncture, to first determine the legality of the search conducted at the appellant’s residence. This issue is pivotal b ecause the entire prosecution case rests upon the recovery of the alleged narcotic drugs from the appellant's house. Consequently, the validity of the prosecution evidence is inextricably linked to the legality of the search that led to the recovery of tho se exhibits.

11 If it is established that the search was conducted contrary to the law, the evidential value of the recovered exhibits and all consequential evidence flowing therefrom would be seriously undermined. Conversely, if the search is found to have been conducted in accordance with the law, the foundation of the prosecution case would remain intact, thereby necessitating consideration of the remaining issues raised in the appeal. Accordingly, the legality of the search constitutes the starting point in the determination of this appeal. The evidence of PW2, corroborated by PW5, shows that upon receiving information from an informer, the DCEA officers proceeded to the appellant's residence during the night and conducted a search which allegedly led to t he recovery of two sulphate bags containing dry leaves later confirmed to be cannabis sativa. However, a careful scrutiny of the record reveals that the search was conducted without a search warrant. The law relating to searches is not left to the discreti on of arresting or investigating officers. Section 39 (1) of the Criminal Procedure Act, [ Cap.20 , R.E.202 3] , provides the general legal framework requiring searches of premises to be conducted pursuant to lawful authority.

12 Equally, Police General Orders (PGO) No. 226 emphasize the necessity of obtaining a search warrant before entering and searching private premises except in circumstances where obtaining such warrant is impracticable or where the law expressly permits otherwise. In such exceptional circu mstances, the searching officer is expected to disclose and justify the reasons which rendered the obtaining of a search warrant impracticable. See Ernest Jackson @ Mwand ikaupesi & Another vs Republic (Criminal Application No.46/01 of 2021) [2023] TZCA 17472 (7 August 2023) Similarly, section 43 of the CPA empowers authorized officers to conduct searches without a warrant in limited circumstances where there are reasonable grounds to believe that delay occasioned by obtaining a warrant would defeat the purpose of the search. The section does not confer a blanket power to dispense with search warrants. Rather, it requires the existence of circumstances justifying such depart ure from the ordinary procedure. In addition, sections 33 and 51 of the Drugs Control and Enforcement Act [Cap. 95 R.E. 2022] confer upon officers of the Drug Control and Enforcement Authority (DCEA) powers to conduct searches, seize suspected narcotic dru gs, arrest suspects, and investigate offences

13 under the Act. However, those powers are not absolute and are not exercised in isolation from the procedural safeguards established under the Criminal Procedure Act, [Cap. 20 R.E. 2022]. A careful reading of section 33(2) of the Drugs Control and Enforcement Act reveals that, unless otherwise expressly provided, DCEA officers are required to exercise such powers in the same manner as police officers exercising corresponding powers under the Criminal Procedure Act. Consequently, the statutory requirements governing searches under the CPA remain applicable to searches conducted by DCEA officers. It follows, therefore, that before entering and searching private premises, DCEA officers are generally required to obt ain a search warrant from a competent authority, unless the circumstances of the case bring the search within one of the recognized exceptions provided by law. Such exceptions must be clearly established by evidence demonstrating that obtaining a search wa rrant was impracticable or that the situation was so urgent as to justify immediate action without prior judicial authorization. In the present case, the prosecution evidence discloses that the officers acted upon information received from an informer and proceeded directly to the appellant’s residence where the search was conducted.

14 However, no evidence was adduced to show that a search warrant had been obtained, nor was any explanation offered as to why it was impracticable to secure one before undertakin g the search. In the absence of such evidence, the legality of the search becomes a matter of serious concern, particularly considering that the alleged narcotic drugs constituting the basis of the charge were recovered solely as a result of that search. In the present case, PW2 merely stated that they received information from an informer and proceeded to the appellant's house. Neither PW2 nor any other prosecution witness explained why a search warrant was not obtained. No evidence was led to show that t here existed urgency, imminent removal of exhibits, danger of destruction of evidence, or any other circumstance that rendered it impracticable to secure a warrant before conducting the search. The prosecution therefore failed to bring itself within the ex ception contemplated under section 33 of the Drugs Control and Enforcement Act. Another aspect which raises concern regarding the propriety of the search relates to the manner in which the independent witness was secured. The evidence of PW2 and PW5 shows that the information

15 concerning the alleged trafficking of narcotic drugs was received while the DCEA officers were in the Mambali area of Nzega. Upon receiving that information, PW2 secured PW5, a resident of Mambali Village, to accompany the officers as an independent witness during the intended search. The search, however, was subsequently conducted at Igosha area within Tabora Municipality, a location different from that of the independent witness. The record is silent as to why an independent witness w as not obtained from the locality where the search was to be carried out or why it was considered necessary to involve a person from another area. No evidence was adduced to demonstrate that there was any difficulty or impracticability in securing a witnes s from the vicinity of the appellant's residence. The importance of an independent witness in a search operation has been emphasized by the courts. In the case of Shabani Said Kindamba v . R (Criminal Appeal No. 390 of 2019) [2021] TZCA 221 (2 June 2021) the Court articulated that; ‘ The third point we have given consideration, is the credibility of PW3. We have picked PW3 not randomly, but for a reason. We a reinclined to take it as logical that an independent witness to a

16 search must be credible, or the whole exercise would be rendered suspect. In Malik Hassani Suleiman v, S.M.Z [2005] T.L.R 236 while applying the Criminal Procedure Decree Cap 14 of Zanzibar, the Court held that a witness to a search must be a respectable person of that locality. That pe rson's credibility is critical, in our view …’ The rationale behind the requirement is self - evident. An independent witness is intended to provide assurance that the search was conducted fairly, transparently, and free from manipulation. Although the law do es not invariably require that such witness must come from the immediate neighbourhood of the premises searched, where a witness is obtained from a different village, it becomes incumbent upon the prosecution to explain why no suitable witness could be sec ured from the locality where the search was conducted. In the present case, no such explanation was forthcoming. The unexplained decision to involve PW5, a resident of Mambali Village in Nzega District, as an independent witness in a search conducted at Igosha within Tabora Municipality, substantially weakens the procedural safeguards intended by the law.

17 This omission leaves an unanswered question regarding the transparency and regularity of the search exercise and further casts doubt on the propriety of the manner in which the search was conducted. The cumul ative effect of these irregularities is that the search cannot be said to have been conducted in accordance with the law. The prosecution failed to demonstrate compliance with the requirements governing searches of private premises and failed to justify it s departure from the ordinary requirement of obtaining a search warrant. The alleged narcotic drugs constituted the foundation upon which the entire prosecution case rested. Their recovery was the basis for the Certificate of Seizure (Exhibit P4), the forw arding of samples to the Government Chemist through DCEA Form 001 (Exhibit P1), the Government Chemist's Report (Exhibit P3), and all subsequent evidence relating thereto. Guided by established principles that evidence obtained through an unlawful search i s inadmissible and incapable of sustaining a conviction, I am constrained to hold that the alleged narcotic drugs recovered from the appellant's residence were obtained through an unlawful search and therefore ought to be expunged from the record.

18 Once the primary evidence is excluded, all derivative evidence founded upon that recovery, including the Certificate of Seizure, the Government Chemist's Report, the chain of custody evidence, and all oral testimony relating to the recovered exhibits, equally loses its evidential value. With the exclusion of that evidence, no lawful and admissible evidence remains linking the appellant to the offence of trafficking in narcotic drugs. Consequently, the conviction cannot stand. In the event, I find merit in the appeal. The appeal is hereby allowed. The conviction is quashed and the sentence of thirty (30) years imprisonment imposed upon the appellant is set aside. The appellant shall be released forthwith unless he is otherwise lawfully held on some other lawful cause. It is so ordered. Dated at Tabora this 9 th Day of June, 2026. M.B Mpaze Judge

19 Court : Judgment delivered this 9 th day of June, 2026 in the presence of Appellant and Mr. Nurudin Mmary Learned State Attorney for the Republic/ Respondent. M.B.Mpaze Judge 9/6/2025