PURANMALL AGARWALLA versus THE STATE OF ORISSA

IMAM J.-This appeal by ~pecial leave is limited ta the question' whether transport includes possession, and so ehe double punishment for possession and transpol't is not W!l-rranted by law' a,s stated in ground .(;x:i) of .the petition for special leave. .

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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 Bu~ Sta wit}\ a trunk and a bed.ding in ord\lr to proceed t place called Bargarh. He pought ,a ticket , fpr

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argarh. and took his seat in the bus after lo.ading hi~ trunk and bedding on tqp of it. Op i;nformation received by the Officer-in-charge pf ~adar Poli.Ge Sta,tion of Sambalpur, ~h!'l bu~ was detain!J~ nea): the polic~. station, while its way, and all· the trunks and beddings on it were unlo!J.ded, and the passengers of the bus were asked to fake their respective trunks and' 9eddip.gs. · The passengi:rs took th~ir trm;i.ks and beddmgs. One trunk and a b~ddmg, ha.wever, remained on Tue ground. Tl\4" 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 weigliing 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 pnly question fQr consideratioq, having regard to the limited ground upon which special leave was granted, is whether the appellant could also punished for being in possession of opium,_ as it is su11gested that • transpoi;t ' includes ' possession'.

pp. 1163–1164

The appellant was sentenced under s. 9 (a) ·for 'po~session' of 9pium and under. s. '9(bJ for 'ti:ll>nspott' of opium, and s.entenced to undergo rigorous .imprisonment for three months under' each count, 'the sentences to run conseoutively.

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Section 4 of the Opium Act, 1878 (Act I of 1878) reads as follows : ·

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"Except as p,ermitted by this Act, or by any other enactment relating j;o 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 -0pi um ;

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-.

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................................... ........................... . 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 !l provides that: .

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"Any person who, in contravention of th\~t, or of rules made and notified ·under section 5 or tion 8-· ' · (a) possesses opium, br ' (b) trlmspo~ts bpium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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\ . S.G.R. SUPlEME COURT REPORTS 1165 shall, on conviction before a Mii.gistrate, be punished for each such offence \vith 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 amenclment ~y Act LII of 1957 which' provided t.hat on convict10n before a Magistrate, a person convicted of any of the offences mentioned in s. 9 shall be punishab1e for each ·such offence with imptisoninent 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 committe~ previou,ll''to it. The provisions of the Opium. Act make it·clea'r that possession of opium and transport -of ·opium contrary to the provisions of the Act or any other enactment relating to opium or to rules framed •under the Act, are two sEJparate offences. Mere possession of opium may not, on the proved·iacts of a 'Particular case, involve any question of transporting it. 'rransport of opium may, in certain circumstances, include the element of possession, while in other cases;'it may 'not. A person mri.y transport opium throug11 "9"arious agencies and yet not be i,n possession of it ·at the time it was transportl\d. Ori· 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 A:ct, ' transport·' means ' to remove from one place to another ~thin the same State'. A person may remove opium 11-nd 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 reqioving it he is not in possession of the opium. The. intention of the Legislature appears to have been that neither possession of.<{ oium nor transporting of opium ermissi~le, if such poss?s~ion or transpor~ing was travent10n of the provrn10ns of the Opmfn Act

p. 1165

y otlier enactment relating to opium, or rules framed under the Opium Act. It.seems.therefore that where-a person transports opium and is ii;t·possession of it at the time he was transpor:ing it, he hi\.s committed two offences, viz.,. ·tl~ of transporting opium; and (2) of possessing opium. He can therefore be ' con, victed for bo'th the offences.

pp. 1165–1166

As to the·sentence which can be imposed, reference to s. 35 of the Code of Criminal Procedure anc3. s. 71 of the 1ndjan Penal-Code is necessary., Section. 35 of the Code.of .Criminal Procedure provides that where a person is convicted at OJ;te tri~l of two or more offences, the Court.may., subject to ·the 'pro,yisions -0£ s. 71 of the Indian,Pen'al Code, sentence.him, for·such offences, to the several punishmimts prescribed therefor which suo.h Oour.t is competent to infiiqt; JJ11ch punishmei;its, when consisting of imprisonment · commence the' one· p.f!(er the expiration' of the other in such order as the. Go1,1rt may direct, unless , the Court directs that suc:\1 punishm'ent 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 sh<1-ll 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: ,

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"Where anything ~hicli is an offence is .made np of ·parts, any of which parts is itself an offence, the offender shall.not be punished:w.ith the punishme!J.t .. of more than one. of sucli his offences, unless .it .be so expressly provided. .

p. 1166

Where anything is an offen9e fallihg within two or more separate definitions of any faw in force for the time being by which offences are defined or 'Punished; or

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where several acts, of which one or more .than one would by itself or themselves constitute an offence, constitute, when combined, a different-offence, .

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the offender shall not be punished with a1 more severe punishment than the Court which tries him could award for any one of such offences." ~ It is clear froni tliese provisions that where anythi if! an offen'\Je falling within two or more separate defini-

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tions of any law in force· for the time being by which ·• offences are defim;id or punished, the •offender .shall not be punished with a more Se'(ere punishment than the Court which tries him cquld 'award for any one of such off(lnces.'. The maximum sentence which could have been µnpqsed upon ~the appellant for a1;1y one of the offences of.which he had been convicted was one year's•iniprisonmenp. ln 'other words, even if separate -sentences were passed under.a .. 9, sub-ss. (a) an\l (b), the sum total of these sentences should not exceed one year's imprisonment. In the present 0;:1se, t.he sentence imposed upon.the appellant has been in all 6 months, 3 months' imprisonment under each c unt. It wol.lld appear; therefore, that the sentence passed upon the appellant did not c6ntrav~ne the provisions of 71 of thf) Indiaµ Penal Code. In our opinio'n, the appellant .was rightly.convicted under s. 9.(a) and (b) of the Opium Act, and· there has Been no illegality in the sentence' imposed upon him.·

pp. 1166–1167

It \Vas ~trsmgly urged on behalf of the appella;nt that there might be a redhction .in the. sentence. Instead of a sentence of imprisonment being imposed, the- appellant may be sentenced to a substantial fine. In our qpinion, offences against the Opium Act are serious ones, and we cannot accede to the re'quest ma.de. 4 sentence of 6 months' imprisonment cannot be considered as unduly severe.

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The ai;>pe,al is accordingly dismissed.

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..

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.. M. RAMAPPA

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v.

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S.ANGAPPA AND OTHERS (VENKATARAMA AIYAR, GAJENDRAGADKAR and

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A. K. SARKAR JJ.) ' lion Dispute-Disqualification for being chosen me.,;ber

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Assembly-Hereditary.village office-Whether office of pro-

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under the Government-Mysore Villaf..e Offices Act, 1~08 (Mysore 4 of 199~), ss. q, 7, 8-Rep~esei:tatjon of People Act, 195~ (43 of 1951): s. 106(1)(c)-Constitufion of Jndia, Art. 191,

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Tlie ~omination papers three candisJates Jar election as members of the State l\.Ssembly were rejected by the Returning

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