IMPORTANT POINTS
Merely because the procedure of the Army Act and the Rules were not followed the conviction recorded by the ordinary criminal court will not be vitiated or illegal more particularly when the competent militany authority did not exercise the discretion and decided in which court the proceeding shall be instituted.
2. In prosecution under section 5(a) of the Assam Opium Prohibition Act, 1947 and under section 4 of Assam Gonja and Bhang Prohibition Act. 1958, to bring home the charges, the prosecution must prove that the accused persons had knowledge of the existence of the ganja and opium and it must be conscious possession making some kind of control.

JUDGMENT

S. N. Phukan, J. -On 1.2.1975 a police party headed by the Sub-Divisional Police Officer, Dhemaji accompanied by the Officer-in-Charge of the Dhemaji P.S. along with other police personnel searched the shop-cum-residence of accused Chandrama Singh, Jiadhal Tingharia of Dhemaji. The search was conducted on the strength of a search warrant issued by the Sub-Divisional Magistrate, Dhemaji, on the basis of a secret information received by the police. It is alleged that during the search 3 Kgs. of contraband opium and also 40 Kgs. of ganja were recovered from the possession of accused Chandrama Singh and Jagadish Prasad Misra. The contraband articles were seized, accused persons were arrested and sample of the seized opium was sent to the Chemical Analist, Government of Assam, Forensic Science Laboratory, Gauhati. From the evidence on record, I find that at the time of conducting the search, the father of the accused Chandrama Singh was present in the house and he died on the snot. Police submitted charge sheet under section Sea) of the Assam Opium Prohibition Act, 1947 and under section 4 of Assam Ganja and Bhang Prohibition Act, 1958 and two separate cases were registered against both the accused persons being Case No. G.R. 52/1975 and G.R. No. 53/1975 respectively. The learned trial Court disposed of both the cases by a common judgment and order dated 11.6.1979 and found both the accused persons guilty under the aforesaid sections of both the Acts, convicted them accordingly and sentenced them to rigorous imprisonment of one year and fine of Rs. 1,000/- under section (5a) of the Assam Opium Prohibition Act and also sentenced them each to undergo rigorous imprisonment for 6 months and fine of Rs. 500/- under section 4 of the Assam Ganja and Bhang Prohibition Act. The convictions and sentences were affirmed by the learned Sessions Judge in Criminal Appeal No. 20(3) 1979 by judgment and order dated 5.5.1980. Hence, the present petition.

2. Mr. Bhattacharjee submits that the judgment and order of the learned lower appellate Court is liable to be set aside in respect of the accused Jagadish who at the relevant time was serving in the Artilery Department of the Armed Forces for noncompliance of rule 3 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, 1952, for short, 'the Rules' as the said rule is mandatory. The learned Public Prosecutor, Assam submits that this point was not urged before the learned lower Appellate Court and that Part this being a question of jurisdiction cannot be urged at this stage.

3. To appreciate this point, it is relevant to consider sections 125 and 126 of the Army Act, 1950 and also rules 3 and 4 of the aforesaid Rules framed thereunder. The provisions of the said sections and rules are quoted below:

"125. Choice between criminal court and court-martial-When a criminal court and a court-martial have each jurisdiction in respect of an offence, it shall be in the discretion of the officer commanding the army, army corps, division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which court the proceedings shall be instituted, and if that officer decides that they should be instituted before a court- martial to direct that the accused person shall be detained in military custody.

126. Power of criminal court to require delivery of offender-(1) When a criminal court having jurisdiction is of opinion that proceedings shall be instituted before itself in respect of any alleged offence, it may, by written notice, require the officer referred to in section 125 at his option, either to deliver over the offender to the nearest Magistrate to be proceeded against according to law, or to postpone proceedings pending a reference to the Central Government.

(2) In every such case the said officer shall either deliver over the offender in compliance with the requisition or shall forthwith refer the question as to the