Aishat Olabisi Ibrahim vs Shri H.G. Boricha, Intelligence ...
2003 Latest Caselaw 1206 Bom

JUDGMENT

A.S. Aguiar, J.

1. This appeal is from from the judgment and order dated 6th April 1999 passed by the Special Judge, Greater Mumbai, in NDPS Special Case No. 551 of 1996, convicting the accused for offence punishable under Sections 21, 28 read with Sections 23 and 29 of the NDPS Act, 1985 for possessing 5.5 kgs., of narcotic drug- heroin (Di-acetyl morphine) (brown sugar) attempting to export the same to a foreign destination and conspiring with third persons to commit the aforesaid offence. The accused has been sentenced to undergo R.I. for 11 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo further sentence of R.I. for a period of 6 months, on each count. The substantive sentences are directed to run concurrently.

2. The brief facts giving rise to the prosecution case are as follows: On the basis of specific information the officers of Narcotics Cell, Customs (Preventive), Mumbai, intercepted the accused at the customs counter, Departure Module II, Sahar International Airport, Mumbai, while she was in the process of boarding Kenyan Airways flight No. KQ-203/ETD scheduled at 4.30 a.m. On 6.9.1996. On being asked by the Narcotic Cell Officers of the Customs Department, the accused produced her passport, Ethiopian airlines ticket with baggage claim tags and foreign travel tax coupon, excess baggage coupon and a boarding pass. The information received was disclosed to the accused and she was informed of her right to be searched in the presence of a Gazetted Officer or Magistrate. She was also informed that Shri S.M. Dubey, a gazetted Officer, was present on the spot. The accused thereupon permitted the authorities to search her baggage which was done in the baggage examination hall, just behind the customs counter, where the accused identified three pieces of baggage, viz. Two black coloured canvass bags and one Soy No. 1 soft luggage bag as her checked in baggage. The baggage identification tags and the baggage claim tags on the air-ticket were found to tally. The locks with security stickers found on the said bags were opened with the help of keys in the possession of the accused. Nothing incriminating was recovered from the search of the black coloured canvass bags. However, in the Sony No. 1 soft luggage bag 40 pairs of footwear were found. On close examination the footwear were found to have been tampered and appeared unusually heavy. On opening the soles of the footwear 80 polythene packets filled with brown powder were found. On testing, the brown powder answered positive for heroin. The brown powder was collected in one polythene bag and was found to weigh 5.5 kgs. Three samples each weighing 5 gms., were duly drawn from the composite mixture of brown powder, and collected in separate poly-packets, sealed and further packed and sealed in separate paper envelopes with seal No. 3 of Superintendent of Customs (P), Mumbai. Balance quantity of the powder was packed and sealed in a separate carton. The 40 pairs of footwear, empty poly-bags used for packing the brown powder in the heals of the footwear were packed in Sony No. 1 soft luggage bag and the bag was locked with the original lock, sealed and labelled. The keys in triplicate of the said lock were packed and sealed in a separate envelope. The carton containing the contraband, samples, Sony No. 1 soft luggage bag and envelope containing its keys were seized under a panchanama drawn on the spot. The accused was taken by the Officers of the Customs to NCCP office, where she was examined and her statement was recorded under Section 67 of the NDPS Act on the same day i.e. 6.7.96 wherein she is alleged to have revealed the details of how she was drawn in to drug trafficking.

3. She is alleged to have disclosed that she and her sister Olaide Temidayo Jokogbola had earlier come to Bombay on 28.7.96 and stayed at Gulf Hotel, Colaba, Mumbai,where her sister handed over to her two bags containing the shoes, dupattas and ladies-wears and informed her that drugs were concealed in the shoes. All her expenses were borne by her sister and she carried the said bags to Nigeria on 9.8.96. The success of this mission hired her into the enterprise. She came to Bombay again on 21.8.96 and joined her sister Olaide at Gulf Hotel, Colaba, Mumbai, where she was introduced to one Nigerian named Museba by her sister as the person making arrangements for procuring drugs in Mumbai. She disclosed to the Hotel Manager that Olaide had left Mumbai on 3.9.96 and at that point she made an entry in the guest register in her name. The accused further disclosed that on the evening of 5.9.96 Museba handed over to her one bag containing 40 pairs of footwear which were used for concealing the heroin. The aforesaid statement was recorded by P.W.4 Bichu.

4. On the same day further statement of the accused was recorded by P.W.2 Albert wherein the accused revealed that her sister Olaide had procured a confirmed ticket of Kenyan Airways 30.8.96 but she was compelled to postpone her journey to 6.9.96 as Museba had not handed over the bag containing heroin till 5.9.96. The accused further stated that Olaide had given her a sum of Rs. 50,000/- for expenses and payment of hotel bills.

5. Efforts were made to trace and apprehend Museba but he was however, not found. After completing the enquiry necessary notes(exhibits 15 and 16) were prepared and the accused was placed under arrest at about 22.30 hours, after serving her with the arrest memo (Exhibit 17). She was produced before the Metropolitan Magistrate on 7.9.96 and was remanded to judicial custody till 20.9.96. On 20.9.96 the accused was produced before the Special Judge. The Special Judge on 20.9.96 called for an explanation (SIC) from Additional Chief Metropolitan Magistrate, 30th Court, Mumbai, regarding the nature of the custody of the accused. The explanation revealed that the accused was produced before the Additional Chief Metropolitan Magistrate, 30th Court, Mumbai, on 7.9.96 and remanded to judicial custody till 20.9.96. On 23.9.96 the accused filed retraction of her statements recorded under Section 67 of the NDPS Act.

6. On 1.11.1996 complaint (Exhibit 28) was lodged charges were framed by the Special Judge on 10.7.1998 for the offence punishable under Sections 21, 28 read with Sections 23 and 29 of the NDPS Act to which the accused pleaded not guilty and claimed to be tried.

7. Prosecution in all examined 7 witnesses in support of its case. No witnesses have been examined by the defence. However, the accused in her statement under Section 313 Cr.P.C., denied that she was carrying any contraband as alleged.

8. P.W. 1 H.G. Boricha, Intelligence Officer, Narcotic Cell (P) has stated that pursuant to the gist of information received from P.W. 3 Keith John Sanchis, which was typed out, he along with other officers of the Narcotic Cell intercepted the accused at the departure Module II of Sahar Airport and took search of her checked in baggage as well as other documents and recovered the contraband of brown powder totally weighing 5.5 kgs from 40 pairs for footwear in one of the baggages. P.W. 1 has stated that on the soles of the footwear being opened, poly-packets containing brown powder were recovered and tested with the aid of the field testing kit the test answered positive. The other formalities were completed and three samples were drawn which were sealed and packed in separate envelopes with the seal of Superintendent of Customs (P.W.3) under panchanama. In his cross-examination at page 57 para 56 P.W.1 Boricha has stated that field testing kit used to remain with Mr. Dubey. However no noting was made about the movement of the field testing kit. On 9.9.96 P.W.1 prepared test memo in triplicate. One envelope containing the sample was delivered by him to Dy. C.C. in sealed packet, vide exhibit 20. On the same day the carton, Article 2 and the bag were deposited with the Customs in a sealed condition vide deposit memo exhibit 22. On 28.10.1996 envelope (Article 4) in sealed condition was dispatched to the Central Revenue Control Laboratory (CRCL) at Delhi, vide memo Exhibit 26. The CRCL report is marked exhibit 28. The said letter of CRCL is dated 27.11.1996 and the test report is dated 20.3.1997.

9. It is the contention of the learned advocate for the accused that the samples obtained from the contraband seized at the air-port and the remaining bulk of drugs packed in carton were not sealed at the air-port by the Officers of the Narcotic cell. They were brought in a an unsealed condition to the office of the Narcotic cell where they were subsequently sealed. One sample was sent to the Dy. C.C. Who has his office in the same building, wherein the office of the Narcotic cell is situated. Another sample was sent to the Central Revenue Control Laboratory, Delhi by forwarding letter dated 28th October 1996, (the receipt of the sample shows that it was received on 27.11.1996). It is the contention of the learned advocate for the accused that the samples were not sealed immediately after seizure at the air-port. This is manifest from the evidence of the Investigating Officer, P.W.1, who in para 56 of his deposition has stated that he was not asked to take the sealing material to the Air-port and Mr. Sanchis had not given instructions to his colleagues in his presence about the sealing material. According to him the seal was with the superintendent, Mr. Dubey. It was the only seal available with the narcotic cell. No record was maintained about the custody of the seal and he had not recorded the statement of Mr. Dubey. The field testing kit used to remain with Mr. Dubey and no noting was made about the movement of the kit. In para 57 P.W. 1 has stated ...." Seizure report Ex. 19 is the only record of the production of the accused along with seized documents and articles before Mr. Sanchis. Seizure report - Ex. 19 was prepared after lodging the accused at Azad Maidan Police Station....". In para 65 P.W. 1 has stated "....Powder from every poly-packet recovered from the soles of the shoes was not tested with field testing kit. (Witness volunteers, powder from some of the poly packets was tested.). I had not felt it necessary to make any special marketing on such poly-packets from which the powder was tested. I had carried out the test. It had not felt it necessary to give details of the tests in the panchanama Ext.7". In para 6 of his evidence P.W.1 has stated "The said lady was informed that she had a right to be searched either in the presence of Gazetted Officer or Magistrate. She was told that Mr. Dubey in our team was Gazetted Officer available at the spot. She submitted in our presence.

10. It is contended by learned advocate for the appellant that Mr. Dubey has not been examined and therefore there is no corroboration that the accused was searched in the presence of a gazetted officer. Further Mr. Dubey has not been examined to prove that the seal was with him. It is contended that Mr. Dubey could not be carrying the seal with him because there was no other seizure to be effected on that day and that he was already at the air-port prior to the raiding party visiting the air-port. None of the members of the raiding party had taken the seal to the air-port which is always kept at the office. It was only when there was definite information and the seizure had to be effected that the raiding party would take the seal from the office to the spot. There is no mention made whether Mr. Dubey was at the office when the information regarding carrying of narcotic drugs by accused was recorded in Exhibit 6. Similarly the field testing kit is always carried by the raiding party when there is definite information and the raiding party visits the spot for effecting seizure. In this case, none of the officers of the raiding party has deposed that they had carried the field testing kit along with them to the air-port for effecting seizure of the contraband drugs pursuant to the information received and recorded in memo exhibit 6.

11. The contention of the learned advocate for the appellant that the fact that neither the testing of the drugs seized, nor sealing of the samples of drugs seized was done at the air-port is further strengthened by the fact that the sample was not sent immediately to the office of the Dy. C.C. which is in the same building as that of the Customs Narcotic cell but sent only three days later i.e. on 9th September, 1996. It is contended that had the samples been sealed at the airport the Narcotic cell would have submitted the sample to the Dy. C.C. On the same day i.e. 6th September 1996 after they returned from the air-port or atleast on the next day. The fact that the sample was sent on 9th September 1996 strengthen the defence case that the sample packets were not sealed at the air-port but at the office subsequently on 9th September 1996.

12. The aforesaid facts as appearing from the deposition of P.W.1 crate a serious doubts as to whether the material seized from the accused at the airport was the same material sent to Dy. C.C., and CRCL and the possibility of tampering and / or planting of the said drugs cannot be ruled out.

13. Another challenge to the prosecution case is the evidence of panch Saraiya P.W. 5 who is alleged to have witnesses the seizure, testing and sealing of the contraband recovered from the accused at the airport. P.W. 5, panch Saraiya is working as a traffic assistant with Keniyan airways. He was on duty at the relevant time along with his colleague Koutinho, who acted as a co-panch, and has not been examined. In his deposition recorded on 7.12.1998 at exhibit 37 P.W. 5 has stated in para 3 and 4 as follows:

"3. One African lady arrived at the customs counter in our presence. She produced her passport and travel documents. The accd. sitting in the deck is the same lady. Custom officers asked the accd. as to the number of baggages checked-in.

4. She was told that she would be required to identify her checked-in-baggage. The accd. was then taken to bagg-exam-hall. I do not recollect the later events...".

The matter was thereafter adjourned to the second session as it was time for recess. After the recess the prosecution sought time and at the instance of the witness the mater was adjourned to 11.12.98. However, the matter did not came up on 11.12.98 but was taken up only on 23.12.1998, when panch Saraiya was again examined,when the said panch has deposed to the facts as stated in the panchanama exhibit 7. Examination continued on 14th January 99 and again on 18th January 1999 when it was concluded.

14. Learned advocate Mr. Saldana points out that there is a discrepancy in the evidence of PW 5, relating to the description of the contraband. In para 9 PW 5 has stated : "Heels of the footwear were opened. One poly-packet containing white powder was recovered from each of the heal". In para 13 (on the same day) he has stated: "Envelope -Article 5 is opened. It is found to contain one heat-sealed transparent poly-bag filled with lumps of coffee coloured substance. It is part of the contraband recovered". In his evidence recorded on 14.1.99 para 18 he has stated "Carton-Article 1 is opened. It is found to contain one transparent heat-sealed poly-bag filled with lumps of brown substance. It is the same contraband which was collected from the heals of the footwear recovered from the checked-in baggage of the accd. In para 15 of his evidence PW. 5 has stated "All bags were not emptied. All the details are recorded in the panchanama". However, in para 26 at page 143 of his evidence recorded on 18.1.99 he has stated "All the powder recovered from the heels of footwear -Article 2A was collected in one poly-bag. My present deposition is correct". It seems strange that P.W. 5 who could not recollect the facts pertaining to the panchanama of recovery of contraband, on the first day of recording of his evidence, could on subsequent days depose to all facts and thus corroborate the facts stated in the panchanama. Thus would clearly imply that P.W.1 was tutored. His evidence therefore, it is submitted, does not prove the facts recorded in the panchanama.

15. A further submission made on behalf of the accused is that the statement dated 6.9.96 and further statement recorded subsequently on the same day under Section 67 of the NDPS Act have been retracted by the accused as not being voluntary but having been extracted from her under pressure, by force and coercion. In the course of the retraction the accused has stated that no contraband drugs were recovered from her or at her instance and that she has been falsely implicated in the present case. The said retraction was made before the Court of the learned Special Judge taking NDPS matters on 23rd September 96. The retraction application itself is dated 20th September 96. It must be stated that the said retraction has not been exhibited in this case but a reference to it has been made in the judgment of the learned Special Judge at page 193 in para 5.

16. It is further contended that the statement of the accused recorded under Section 67 of the NDPS Act are not in the hand-writing of the Officer concerned. The statement was recorded by P.W. 4 Bichu and the further statement was recorded by P.W. 2 Albert. The said officers have scribed the said statements and the accused has made her endorsement at the foot of the said writing. The last part of the writing is scribed by the accused. There is also an endorsement on both the statements by one L.U. Menon, a lady Police Officer who states that she was present throughout the recording of the statements. However she has not been examined. Thus it is contended by the learned advocate for the accused that the prosecution has not proved that the substance recovered at the airport was contraband drug as no test for drugs was carried out at the spot on account of the absence of any field testing kit with the raiding party.

17. It is the further contention of the accused that the samples sent for testing to the Dy. C.C., and CRCL., in respect of which the Test reports showed positive for heroin are not the sample of substance recovered from the accused at the airport since the samples allegedly taken of the substance recovered from the accused at the airport were not sealed, as required under the provisions and the rules. It is argued that is clear from the fact that there is no proof that the seal was taken to the airport by the raiding party or made available to the raiding party by Mr. Dubey, who allegedly was in charge of the seal.

18. Lastly, it is contended that the evidence of panch Saraiya P.W.5 is inherently weak in view of the admissions made by him on the first day of recording of his evidence that could not remember any of the events after the accused was brought to the baggage examination hall for identifying the baggage.

19. On the other hand learned Public Prosecutor on behalf of respondent - Customs Narcotic Cell, has contended that the prosecution has proved its case beyond reasonable doubt since the raid was carried out was pursuant to the information received by Superintendent P.W.3 Keith John Sanchis of the likelihood of smuggling of drugs by the accused, which information was passed on to P.W.1 and the raiding party. The information was recorded in memo - exhibit 6. It is contended that pursuant to the said memo the raiding party consisting of P.W. 1, P.W.4 and other officers of the Customs Department, Narcotic Cell, went to the Sahar International Airport and accosted the accused at the Customs clearance counter, confronted her with the information that they had received and asked her to permit them to check and search her baggage which she willingly agreed to. The accused was taken to the baggage examination room where her baggage had been checked in. The locks of the baggages were opened with the keys obtained from the custody of the accused. One of the bags containing 40 pairs of footwear, were found to be suspicious. On opening the heels of one of the shoe it was found to contain white powder. The said powder was tested with the aid of field testing kit and on confirmation of the same, the heels of all the shoes were opened and 80 poly-packets containing white powder were emptied and collected in one plastic bag. Three samples of this powder were taken and separately packed and sealed with the seal of the Customs which the raiding party carried with them. Immediately thereafter the statement of the accused under Section 67 of NDPS Act was recorded by P.W. Bichu which is a very detailed and revealing statement. The further statement as recorded on the same day by P.W. 2 Albert. Thus it is contended that these detailed statements clearly indicate that the accused was aware that she was transporting and carrying the contraband drug. The reference by her to the previous incident where she was instrumental in transporting drugs to Lagos as well as reference to one Museba, a drug supplier in Bombay, clearly indicates that the accused was fully aware that she was a party to the conspiracy to smuggle contraband drugs out of Bombay to a foreign destination. Further it is submitted that the said statements gives full details about the manner in which the transactions were carried out at the instance of her sister, which goes to show that this statement could not have been fabricated by the concerned officers who have recorded the statements of the accused. It is contended by the learned Public Prosecutor that the so-called retraction is not effective as the statements have not been retracted at the earliest opportunity but after a delay of 17 days. The accused was produced before the Metropolitan Magistrate on the very next day of her arrest i.e. 7th September 1996 but she did not retract her statement on that day. On that day she was remanded to Judicial custody and thereafter produced before the Special Judge on 20th September, 1996. However, on that day also she did not retract her statements. Her statement was retracted only on 23rd September 1996, as can be seen from the retraction statement which is in the remand papers.

20. It is contended by the learned Public Prosecutor that the test reports of Dy. CC and CRCL conclusively prove that the substance recovered from the accused was heroin (Di-acetyl morphine). However, no explanation has been given by the accused regarding the recovery of the said contraband from her possession. The burden is on the accused to have given satisfactory explanation to show how she came in possession of this contraband. Reference is made to the finding of the learned Special Judge in para 48, which reads as follows:

"48. PW 1 Boricha deposed that the envelope containing the sample, Article 3, was delivered by him in sealed condition with seals intact to the Dy.CC, Ex.21, confirms the said fact. PW 1-Boricha also deposed that the envelope, Article 4 in sealed condition with seals intact was dispatched to CRCL under letter, Ex. 26, by insured post. The report of the CRCL, Ex. 27, confirms the said fact. The reports of the chemical analysis, Exs. 21 & 27, reveal that the samples were of heroin, diacetyl morphine. It is nowhere seen on the record that the seals on the envelopes, Articles 3 & 4, were found tampered with. No marks of such tampering are visible on the envelopes, Articles 3 & 4. In the result, there can be no hesitation to hold that the contraband, Article 1A, from which the samples were drawn and analysed, was heroin, diacetyl morphine."

Thus, it seems that the learned Judge having found no evidence of tampering with the seals, had no reason to hold that the samples did not contain heroin i.e. diacetyl morphine.

21. The crux of the defence case that the packed samples of substance seized from the accused at the airport were tampered with and therefore the substance sent for chemical analysis to the two laboratories is not the same substance which was seized from the accused at the airport since those samples were not sealed at the airport but sealed subsequently in the office of the Customs Narcotic cell.

22. Several pieces of evidence and circumstances have been brought on record which make the defence case probable. Firstly Prosecution has not proved conclusively that the sample packets were sealed at the time of seizure of the substance at the airport under panchanama, exhibit 7. The defence case is that the samples were sealed at the office of the Narcotic cell and not at the airport at the time of seizure and therefore there was no question of seals being tampered with when the samples were sent to the laboratories concerned. It is the case of the prosecution that the sealing was done at the airport under panchanama and therefore it was incumbent upon the prosecution to have conclusively proved that the field testing kit and the seals were available to the raiding party at the time of conducting the panchanama of seizure. Superintendent Dubey who is alleged to have been with the raiding party has not been examined. The raiding party headed by Boricha P.W.1 had gone to the Airport from the office of the Narcotic cell at Mumbai. P.W.1 Boricha has not stated that they had taken the seal or sealing material and field testing kit along with them. Therefore there is cause for doubt as to whether the sealing of the samples was in fact carried out at the airport as stated in the panchanama, exhibit 7 at the office of Narcotic Cell. P.W.5 panch Saraiya's evidence does not inspire confidence as he had on the first day of recording of his testimony stated that he did not remember any of the events that took place after the accused was brought to the baggage examination hall. His detailed deposition of the subsequent events on subsequent dates therefore appears to be the result of tutoring.

23. The learned Public Prosecutor has referred to the Apex Court decision in 2002 S.C.C. 806, Khet Singh v. Union of India herein the court held as follows:

"In the present case, the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article while they were traveling in a truck, but the same was done only at the Office of the Customs Department where the accused persons were very much present throughout and there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, the appellant has rightly been found to be in possession of the opium. There is no reason to interfere with the conviction and sentence entered against the appellant."

24. The reliance placed by the Prosecution on the above decision of the Supreme Court is of no help to the prosecution. It is the prosecution case that the sealing of the samples packets was done at the airport where the contraband was seized. However, there is serious doubt, in view of the various circumstances brought on record, that the sealing was done at the airport. It is possible that the raiding party could have tampered with the samples and thereafter sealed the same at their office and sent the tampered samples duly sealed at their office to the laboratories concerned. The finding of the said laboratories that the substance tested is heroin (Di-acetyl morphine) therefore by itself does not conclusively prove that the accused was found in possession of contraband drugs.

25. It is further seen that the accused has retracted her statement under Section 67 on the ground that the same is not voluntary but under force and coercion. The contention of the learned Public Prosecutor is that the retraction, being belated, is ineffective as the retraction has not been done at the earliest available opportunity. In support of his case he has referred to the case of A.K. Mehboob v. Intelligence Officer, Narcotics Control Bureau, , the gist of which is that the retraction must be at the earliest possible opportunity and not as a second thought.

26. In the present case it is also pointed out that the accused had made the statement on 6.9.96 but has retracted the same only on 23.9.96. The accused did not retract the statement when she was produced before the Magistrate on 7.9.96 nor did she retract the statement on 20.9.96 when she was produced before the Special Judge but only did so on 23.9.96. The accused has not complained of any force or coercion or assault on her either to the Magistrate when she was produced for remand on 7.9.96 nor when she was produced before the Special Judge on 20.9.96. However, the record of the proceedings before the Special Judge on 20.9.96 reveals that the Special Judge on asking the accused whether she has any complaint against the Investigating Officer during her custody or whether she had made any grievance before the Additional Chief Metropolitan Magistrate the accused stated that she was for the first time produced in Court before the Special Judge. The learned Special Judge in his said order dated 20.9.1996 observed that the Additional Chief Metropolitan Magistrate had not indicated whether the accused was produced before him and whether the order of remand was in the presence of the accused,and in view thereof the learned Special Judge called for an explanation from the learned Additional Chief Metropolitan Magistrate taking remands on 7.9.96. In his report dated 24.9.1996 the learned Additional Chief Metropolitan Magistrate admitted that the remand order did not disclose whether the accused was produced before him at that time. However, he made a categorical statement that the accused was produced before him while passing the order granting judicial custody till 20.9.1996. By way of an explanation he further stated that unless the accused are produced along with the remand report by the concerned officers he would not pass orders on the remand applications. To say the least, the explanation of the learned Additional Chief Metropolitan Magistrate does not inspire confidence. It is more in the nature of a justification of a vague routine order. Even if the accused had been produced before the said Magistrate on that day i.e. 7.6.96 it is difficult to accept that the accused had an opportunity to make any complaint to the Magistrate of any ill-treatment or coercion. On 20.9.96 when the accused was produced before the Special Judge she had prepared and submitted her retraction statement before the Special Judge, who however, passed no orders on that day but only passed the order on 23.9.96. It is thus seen that at the earliest available opportunity the accused has retracted her statement and her statement cannot therefore be used for implicating her in the offence.

27. The NDPS Act being an act dealing with very serious offences of possessing, transporting and trafficking in drugs and dangerous substances stipulates severe punishment and penalties on the accused if found guilty. The minimum punishment for possessing contraband drugs is a fine of Rs. 1 lakh and 10 years imprisonment in jail. The investigation and prosecution for the offence involve highly technical procedures and call for strict compliance of the various provisions and rules to ensure that the seizure of the drugs is carried out legally so as to leave no room for doubt as to the implication of the accused. The standard of proof required to prove the commission of the offence is therefore very high. Clearly the prosecution case suffers from infirmities. The evidence brought on record leaves room for doubt whether the accused was found in possession of heroin. The accused must therefore be given the benefit of doubt and acquitted of the offence with which she is charged.

28. In the result the appeal is allowed the accused is acquitted of the offence under Sections 21, 28 r.w. 23 and Section 29 of the NDPS Act, 1985. Accused Ms. Aishat Olabisi Ibrahim be released from jail forthwith if not required in any other case.

29. The documents and articles seized from her at the time of arrest be returned to her forthwith.