AISHAT OLABISI IBRAHIM Vs. H G BORICHA

JUDGEMENT

(1.) ORAL Judgment: this appeal is 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 Sony 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 Weight 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 labeled. 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 Jokigbola had earlier come to Bombay on 28. 7. 96 and stayed at Gulf Hotel, Golaba, 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 lured 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.