Dharnidhar Jha and Rakesh Kumar JJ.

1. The solitary appellant was tried by the learned Special Judge (N.D.P.S. Act), Katihar in G.R. Case No. 31 of 2003 for a charge under Section 20(b)(i) of the N.D.P.S. Act and was found guilty by judgement dated 24.4.2007 and after being heard on sentence on 25.4.2007 was directed to suffer rigorous imprisonment for 14 years as also to pay a fine of Rs. 1,00,000/-. In default of paying the fine the appellant was to suffer, as per the direction of the learned Trial Judge, further period of rigorous imprisonment for lour years.

2. The facts of the case lie in a very narrow compass. The railways officials found that the passenger travelling on berth No. 41 of 2423 DN Rajdhani Express running in between Gauhati and New Delhi was having a ticket in a fake name, namely, S. Das. The intimation was forwarded to the control room and from there to the Katihar Junction where the train was intervened by the informant, P.W. 2 Shiv Prasad Dwivedi, Chief Ticket Inspector, R.P.F. constable Kuber Singh (P.W. 3) and R.P.F. Sub-Inspector Bri] Bihari Ram (P.W. 5). The man was found to be the appellant and he was also allegedly found in possession of a plastic bag and an attache case. On search of the attache case two packets containing about 23.7 Kgs. of ganja were recovered in presence of witnesses P.W. 1, Sub-lnspector and P.W. 6, Constable Hari Kishore of the R.P.F. and accordingly R.P.F. personnel prepared seizure memo Ext.-1.

3. For, the appellant was travelling in a fake name, he was detained for committing offence under Section 142 of the Railways Act and after having recovered the narcotic substance the R.P.F. personnel felt that it could be a fit case for being investigated into by the G.R.P.S. and as such the appellant alongwith the seized article was produced before the G.R.P.S. with a written report Ext.-4 and accordingly, the F.I.R. Ext.-3 was drawn up. The police also prepared seizure memo on the 21st of March, 2003 on production of the seized substance.

4. There is no doubt in it as may appear from Ext.-9, the report on the chemical analysis submitted by the Forensic Science Laboratory, Patna that the sampled substance was found to be ganja. This report Ext.-9 is dated 23.3.2006.

5. We have heard Sri Akhileshwar Prasad Singh, learned counsel appearing for the appellant and Sri Ashwini Kumar Sinha, learned A.P.P. for the State. The learned counsel appearing for the appellant has set up various attacks against the findings recorded by the learned Trial Judge while convicting the appellant, but one of the most important out of them was that the provision of Section 52 of the N.D.P.S. Act was not complied with which vitiated the very trial and as such the order of conviction passed against the appellant. In support of the contention a Division Bench decision of this Court reported in 2002(4) PLJR 787, Ashok Kumar Pal V/s. State of Bihar was placed before us in addition to Supreme Court decision rendered in Mohinder Kr. V/s. State, Panaji, Goa, reported in (1998)8 SCC 655. The decision of Mohinder Kumar has been placed before us to submit that compliance with the provisions of Sections 52 and 57 of the N.D.P.S. Act was a mandate and the very non-compliance, as such, vitiates the very trial and as such vitiates the judgment. The same finding appears recorded by the Division Bench of this Court in the case of Ashok Kumar Pal (supra) also when it was observed by their Lordships as may appear from the perusal of paragraphs 15 to 17 that if there was any serious loopholes in the seizure or packaging then benefit thereof must accrue to the accused. It was contended besides the above that the identity of the accused during the course of trial appears doubtful and that the procedure followed for search and seizure and investigation was not approved by law.

6. We must point out at the very outset that the seizure was made by Brij Bihari Ram, an officer in the rank of Sub- Inspector of R.P.F. and if o