Important Points
1. Where search was being con-ducted by police in a regular course of duty and contraband ganja was recovered by chance in a baggage which accused was carrying in train provisions of Sections 41 and 42 and Section 50 NDPS Act were not attracted.
2. Provisions of Sections 52, 55 and 57 NDPS Act are directory and in absence of prejudice shown for alleged non compliance of these provisions, conviction could not be interfered.

JUDGMENT AND ORDER

P.G. Aggarwal, J. — The appellant Sri Gaur Moni Singha is a constable in the Central Military Police and he was tried by the Court of the Special Judge, Barpeta in Special (N.D.P.S.) Case No. 1/94 and on conclusion of the trial vide impugned judgment dated 12.6.1995 the accused appellant was convicted under Section 20 (b)(i) of the NDPS Act (for short the Act) and he was sentenced to rigorous imprisonment for five years and to pay

a fine of Rs. 10,000/- in default further imprisonment for three months. Hence the present appeal.

2. The prosecution case in brief, is that in between the night of 8th and 9th February, 1994 while the GRPF personnel were making a regular search/checking of the railway bogies, the accused person was travelling in the Kunchanjanga Express and they asked the accused to allow search of his baggages, the accused resisted the same for giving privilege for being a military personnel whereupon the accused was forced to detained at Barpeta Road railway platform along the baggages. There were three pieces of baggage, which included one trunk, one aristocrat suitcase and one carry bag. On opening of the baggages 20 kgs of ganja were found in the steel trunk and 20 kgs were found in the aristocrat suitcase and another 2 kgs were found in the carry bag. The contraband ganja along with the railway tickets, identity cards and blue book were seized by seizure lists 2 and 3. Samples of the seized articles were sent to the Forensic Science Laboratory, Assam who submitted the report Ext.5 to the effect that the sample gave positive test, for cannabis (ganja).

3. During trial, prosecution examined as many as four witnesses. In the present case, report of the Forensic Science Laboratory, Ext.5 has not been challenged and it is not disputed that the seized article is contraband ganja. The prosecution witnesses have deposed that the accused was travelling in the Kanchanjanga Express and he was detrained at Barpeta Road railway platform and was searched. The fact that he was apprehended at Barpeta Road Railway station at the midnight of 8.2.1994 and 9.2.1994 and his railway ticket, identity card and blue book etc., were seized, is admitted by the accused in his statement under Section 313 Cr.P.C. as regards the seizure of three baggages, the prosecution witnesses have categorically stated that the accused was carrying three baggages and on being asked, he identified his baggages and when he was asked to get down from the train he did so by carrying those three baggages. The accused person had denied that the steel trunk and the briefcase belonged to him. So far the carry bag is concerned he admits the same.

4. PW-1 is Chakra Deka who was the in-charge of the Barpeta Road GRP Station. He has deposed that the excise constable Biswajit Nath, PW 4 who was with him on the checking duty at that time entered into the compartment of Kanchanjanga Express and saw the accused sitting therein. The accused person is known to the said constable from before and he suspected after weighing the steel trunk etc. and when he wanted to check the same, the accused claimed that he cannot check the luggage as it belonged to a military personnel and the constable has to take prior permission from the Commandant of the Military Police. PW 4 reported the matter to PW 1 whereupon the accused was forcibly detrained at the said railway station along with his baggages. The evidence of PW 1 has been fully supported by the two constables Biswajit Nath PW 4 and Madan Ch. Roy PW 3. Bhulan Roy PW 2 is a railway potter who helped unloading the baggages from the train. The baggages were opened at the railway platform itself and it contained ganja.

5. There is no dispute at the Bar that the initial burden is on the prosecution to establish that the accused was in conscious possession of the contraband articles but once the possession is established, in view of the provisions of Sections 35 and 54 of the NDPS Act, the burden is placed