Puranmall Agarwalla Vs. The State of
Orissa [1958] INSC 66 (19 August 1958)
IMAM, SYED JAFFER SINHA, BHUVNESHWAR P.
CITATION: 1958 AIR 935 1959 SCR 1162
ACT:
Double Punishment-Person convicted of
transporting opium If can be convicted of being in possession of opium also-
Sentence-opium Act (1 of 1878) ss. 4 and 9-Code of Criminal Procedure, (V of
1890) s. 33-Indian Penal Code (XLV of 1860), s. 71.
HEADNOTE:
The appellant was caught while he was himself
transporting opium. He was convicted under s. 9(a) of the Opium Act for possession
" of opium and under s. 9(b) of the Act for " transport of opium and
was sentenced to undergo rigorous imprisonment for three months under each
count, the sentences to run consecutively. The appellant contended that "transport"
included " possession" and so the double punishment for possession
and transport was not warranted by law :
Held, that possession of opium and transport
of opium are two separate offences and the appellant could be convicted for
1163 both the offences. Transport of opium may, in certain cases, include the
element of possession, and in other cases, it may not. A person transporting
opium through other agencies may not be in possession of it at the time it was
transported. But a person transporting opium himself would be in possession of
it and would be guilty of both offences.
The sentence passed upon the appellant did
not contravene the provisions of S. 71 of the Indian Penal Code. Section 71
provides that where anything is an offence falling within two or more separate
definitions of the law, the offender shall not be punished with a more severe
punishment than that provided for any one of such offences. Though separate
sentences were passed against the appellant unders .9(a)and(b),the sum total of
these sentences did not exceed one year's imprisonment the maximum provided for
any of these offences.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 69 of 1956.
Appeal by special leave from the judgment and
order dated November 18, 1955, of the Orissa Hioh Court at Cuttack, in Criminal
Revision No. 20 of 1955 arising out of the Judgment and order dated December
23, 1954, of the Court of the Sessions Judge at Sambalpur in Criminal Appeal
No. 111(S) of 1954.
Tara Chand Mathur and K. L. Arora, for the
appellant.
N.S. Bindra and R. H. Dhebar for the
respondent.
1958. August 19. The Judgment of the Court
was delivered by IMAM J.-This appeal by special leave is limited to the
question' whether transport includes possession, and so the double punishment
for possession and transport is not warranted by law's stated in ground (xi) of
the petition for special leave.
On the facts found there can be no question
that the appellant went in a rickshaw from the Sambalpur Road Railway Station
to the State Transport Bus Stand with a trunk and a bedding in order to proceed
to a place called Bargarh. He bought a ticket for Bargarh and took his seat in
the bus after loading his trunk and bedding on top of it. On information
received by the Officer-in-charge of Sadar Police Station of Sambalpur, the bus
was detained near the 148 1164 police station, while on its way, and all the
trunks and beddings on it were unloaded, and the passengers of the bus were
asked to take their respective trunks and beddings.
The passengers took their trunks and
beddings. One trunk and a bedding, however, remained on the ground. The
appellant claimed the bedding to be his own, but denied the trunk to be his
property. The bedding and the trunk were brought to the thane and the trunk was
opened. The trunk contained opium weighing six seers and six and half chhataks.
On the facts found, the trunk was identified as that of the appellant, and
there can be no question that he was in possession of the opium. The only question
for consideration, having regard to the limited ground upon which special leave
was granted, is whether the appellant could also be punished for being in
possession of opium, as it is suggested that transport' includes I possession'.
The appellant was sentenced under s. 9 (a)
for possession' of opium and under s. 9(b) for 'transport' of opium, and
sentenced to undergo rigorous imprisonment for three months tinder each count,
the sentences to run consecutively.
Section 4 of the Opium Act, 1878 (Act 1 of
1878) reads as follows:
"Except as permitted by this Act, or by
any other enactment relating to opium for the time being in force, or by rules
framed under this Act or under any such enactment, no one shall- (a) possess
opium;
(b) transport opium;
....................................................
It is clear from the provisions of s. 4 that
no one shall possess opium or transport opium, except under the circumstances
mentioned in the section. Section 9 provides that:
" Any person who, in contravention of
this Act, or of rules made and notified under section 5 or section 8- (a)
possesses opium, or (b) transports opium
........................................................
1165 shall, on conviction before a
Magistrate, be punished for each such offence with imprisonment for a term
which may extend to one year, or with fine which may extend to one thousand
rupees, or with both." This was the provision in s. 9 before its amendment
by Act 111 of 1957 which provided that on conviction before a Magistrate, a
person convicted of any of the offences mentioned in s. 9 shall be punishable
for each such offence with imprisonment which may extend to three years, with
or without fine. We are, however, not concerned in this particular case with
the punishment provided by the amendment, as the offence was committed previous
to it. The provisions of the Opium Act make it clear that possession of opium
and transport of opium contrary to the provisions of the Act or any other
enactment relating to opitum or to rules framed under the Act, are two separate
offences. Mere possession of opium may not, on the proved facts of a particular
case, involve any question of transporting it.
Transport of opium may, in certain
circumstances, include the element of possession, while in other cases, it may
not.
A person may transport opium through various
agencies and yet not be in possession of it at the time it was trans- ported.
On the other hand, a person may transport opium and yet be in possession of it.
In the latter case, such a person would be guilty both of transporting opium
and being in possession of it. Under the Act, 'transport' means to remove from
one place to another within the,-same State'. A person may remove opium and be
in possession of it while removing it, and he can also remove, it from one
place to another within the same State in circumstances when while removing it
he is not in possession of the opium. The intention of the Legislature appears
to have been that neither possession of doium nor transporting of opium was
permissible, if such possession or transporting was in contravention of the
provisions of the Opium Act or any other enactment relating to opium, or rules
framed under the Opium Act. It seems therefore that where a person transports
opium and is in possession of it at the time he was transporting it, he has
committed 1166 two offences, viz., (1) of transporting opium; and (2) of
possessing opium. He can therefore be convicted for both the offences.
As to the sentence which can be imposed, reference
to s. 35 of the Code of Criminal Procedure and s. 71 of the Indian Penal Code
is necessary. Section 35 of the Code of Criminal Procedure provides that where
a person is convicted at one trial of two or more offences, the Court may,
subject to the provisions of s. 71 of the Indian Penal Code, sentence him, for
such offences, to the several punishments prescribed there for which such Court
is competent to inflict ; such punishments, when consisting of imprisonment to
commence the one after the expiration of the other in such order as the Court
may direct, unless the Court directs that such punishment shall run
concurrently. Section 35 therefore permits the passing of separate sentences
for different offences and for them to run consecutively unless the Court
directs that they shall run concurrently. This, however, is subject to the
provisions of s. 71 of the Indian Penal Code.
Section 71 of the Indian Penal Code provides:
" Where anything which is an offence is
made up of parts, any of which parts is itself an offence, the offender shall
not be punished with the punishment of more than one of such his offences,
unless it be so expressly provided.
Where anything is an offence falling within
two or more separate definitions of any law in force for the time being by
which offences are defined or punished, or where several acts, of which one or
more than one would by itself or themselves constitute an offence, constitute,
when combined, a different offence, the offender shall not be punished with a
more severe punishment than the Court which tries him could award for any one
of such offences." It is clear from these provisions that where anything
is an offence falling within two or more separate definitions of any law in
force for the time being by which offences are defined or punished, the
offender shall not be punished with a more severe punishment than the 1167
Court which tries him could award for any one of such offences. The maximum
sentence which could have been imposed upon the appellant for any one of the
offences of which he had been convicted was one year's imprisonment. In other
words, even if separate sentences were passed under s. 9, sub-ss. (a) and (b),
the sum total of these sentences should not exceed one year's imprisonment. In
the present case, the sentence imposed upon the appellant has been in all 6
months, 3 months' imprisonment under each count. It would appear, therefore,
that the sentence passed upon the appellant did not contravene the provisions
of s. 71 of the Indian Penal Code. In our opinion, the appellant -,-%,as
rightly convicted under s. 9 (a) and (b) of the Opium Act, and there has been
no illegality in the sentence imposed upon him.
It was strongly urged on behalf of the
appellant that there might be a reduction in the sentence. Instead of a
sentence of imprisonment being imposed, the appellant may be sentenced to a
substantial fine. In our opinion, offences against the Opium Act are serious
ones, and we cannot accede to the request made. A sentence of 6 months'
imprisonment cannot be considered as unduly severe.
The appeal is accordingly dismissed.
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