The applicability of the Narcotic Drugs and Psychotropic Substances Act is determined by the date of occurrence in relation to the notification date of the Act for the specific substance in question.

I.P.Singh, J.

1. The sole appellant has been convicted under section 20 (b) (1) of the Narcotic Drugs and Psychotropic Substances Act (in short the Act) and has been sentenced to undergo rigorous imprisonment for five years and fine of Rs. 10,000/-. In default of fine to undergo rigorous imprisonment for six months.

2. The prosecution case, in short, is that the informant A.S.I, alongwith other police constables were on patrolling duty and while they were checking the vehicles the informant checked the bus no. B.P.W. 6621 and found the appellant sitting at seat no. 26 and had kept a brief case/ V.I.P near him. It has been further alleged that on suspicion the informant opened the brief case in presence of two independent witnesses and about 2 K.G. of Ganja was recovered from the brief case belonging to the appellant, Sugan Lal and for which the appellant did not show any legal paper. It has been further alleged that thereafter on the basis of the self statement of the informant this case registered under section 47A of the Excise Act and after investigation the police submitted charge sheet under section 47A of the Excise Act but the charge has been framed under section 20(b)(1) of the Act. Thereafter on the basis of the charge sheet submitted by the police cognizance was taken and thereafter the trial concluded with the result as indicated above. Hence this appeal.

3. The appellant pleaded not guilty.

4. The prosecution in order to prove its case has examined only one witness, namely, Ram Eqbal Singh who is the informant of this case. According to him on 11.8.1987 he alongwith other constables constituted a raiding party and thereafter they checked the Bus No. B.P.W. 6621, namely, Jairam Coach at about 8.30 P.M. and during the said raid the appellant was found sitting at seat no.26 and had kept a V.I.P. brief case and after opening the same in presence of two independent witnesses four packets of Ganja about 2 Kg. was recovered from the said brief case in possession of the appellant and a seizure list was prepared and he himself prepared the seizure list and the copy of the said seizure list was handed over to the appellant who put his signature over it. He has further stated that he arrested the appellant on the spot and on the basis of his written F.I.R. this case was registered. He also investigated the case.

5. Learned counsel appearing on behalf of the appellant has submitted that this case is not attracted under the aforesaid Act since it was a case for the alleged recovery of 2 Kg. of Ganja from the possession of the appellant on 11.8.1987 when this Act was not applicable in respect of recovery of Ganja. It has been further submitted that it was made applicable vide notification issued by the Central Government on 13.12.1989. From the record it appears that this occurrence took place on 11.8.1987 whereas at the relevant time the Bihar Excise Act was enforced for the alleged recovery of Ganja. In this case cognizance was also taken under section 47A of the Excise Act on 8.10.1987 and charge sheet was also submitted under section 47 A of the Excise Act. It has been further submitted that the maximum sentence under this section of Excise Act is only three months and if the appellant would have been convicted under section 47A of the Excise Act the sentence would have been imposed only for three months on him. It has been further submitted that the appellant has remained in jail for more than 3 1/2 months. Further it has been submitted that even the mandatory provision of section 42 of the Act has not been complied with. The Article which was seized was not sent for test and the seizure list witnesses were not examined. Learned counsel has also relied on a decision reported in 1998 (3) Cr. L.J. 2654 (Bharat Kumar Bhikhabhai Joshi V/s. The State of Gujrat) in which Ganja was recovered on 2.10.1987 and the accused was sentenced under section 20(b)(1) of the Act, the court held that possession of Ganja was not an offe