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PETITIONER: PURANMALL AGARWALLA

       Vs.

RESPONDENT: THE STATE OF ORISSA

DATE OF JUDGMENT: 19/08/1958

BENCH: IMAM, SYED JAFFER BENCH: 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 posession  "  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.

JUDGMENT:

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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 thana 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  ........................................................

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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 therefor  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.

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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.