Sita Rem Goel
N\ Vv. The Murtictpal Board, Kanpur
Bhagwati f.
August 39.
1362 SURREME COURT nudes £1959]
Act, he might possibly have got’ some relief from thé- Court. He however chose to’ wait. 'till the !decision of the State:Government on his appeal and ‘overstepped the Iimit of time to his‘own' detriment. We are unable to come to any other conclusion than the one reached above and the appeal must, therefore, stand dismissed; but in the peculiar circumstances of the case we make no order as to-costs-
The appellant was- given leave to proceed as a ; pauper and he prosecuted this appeal in forma pauperis. He has failed.in the appeal and we do order that he shall pay the court-fee which would have been paid by him ifthe had not been permitted to appeal as a-pauper. ‘The Registrar shall send to the Attorney- General for India a memorandum of the court-fees payable by him as required by Or. XIV, r.12, of the Supreme Court Rules.
Appeal dismissed. »
-PURANMALL AGARWALLA b. THE STATE OF ORISSA as (B. P. Sera and JAFER Imam JV.)
Double Punishment—Person convicted of transportidg optum— If-can be convicted of being in possession of opitem also—Sentence—— J Opium Act (I of 1878), ss. 4 and ot-Code of Criminal Procedure, ; (V of 1890), s. 35—Indian Penal Code (XLV of 1860), s. 7I-
The appellant was caught while he was himself transporting opium. He was convicted under s. g(a) of the Opium Act for “possession ” of opium and under 5. o(b) of the Act for “ transport” of opium and was sentenced to undergo rigorous imprisonment for three months under each count, the senténces run consecutively. The appellant contended that “transpo included “ possession ” and so the double punishment for posse sion and transport was rot warranted by Jaw :
Held, that possession of opium and transport of opium are a two separate offences and the appellant could be convicted for
S.C.R. SUPREME COURT REPORTS 1163 both the offences. Transport of opitm may, in cértain cases, 1958 include the element of possession, and in other, cases, it may not. A person transporting opium through other agencies may not be Puranmall in possession of it at the time it was transported. But a.person Agarwalla transporting opium himself would be in possession of jt and v.
would be guilty of both offences. The State of Orissa
The sentence passed upon the appellant did not contravene 5 the provisions 6f s. 7x of thé -Indian Penal Code. Section 71 provides that where anything’is an offence falling within two or more separate definitions ofthe law, the offender shall not be } punished with a more,severe punishment than that provided for any one of such offences. Though ‘separate sentences weré ’ passed against the appellant under s. 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.
_CrImMInaL APpPBLLAtTE JURISDICTION: Criminal Appeal No. 69 of 1956.
Appeal by special leave from the judgment and order dated November 18, 1955, of the Orissa High
“ Court at Cuttack, in ‘Criminal Revision No. 20 of 1955 arising out, of. the J udgment and order dated Decem- ber’23, 1954, of the Court of the Sessions Judgé at Sambalpur i in Criminal Appeal No,‘111(8) of 1954.
Tara Chand Mathur and K. £. Arora, for the appellant:
N.S. Bindra and BR. H. Dhebar, for the respondent.
1958. .August'19. The Judgment of the Court al was delivered by
Imam J.—This appeal by special leave is limited to Imam J. the quéstion ‘whether transport includes possession, and so the double punishment for possession and transport is not warranted by law’ as 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 e Stang with a trunk and a bedding in order to proceed place called Bargarh. He bought ,a ticket ,for argarh and took his seat in the bus after loading ‘his trunk and bedding on top of it. On information a received by the Officer-in-charge of Sadar Polige Sta- e.
tion of Sambalpur, the bugs was detained near the 148 e
Puranmall Agarwalte
*t
1164 SUPREME COURT a [1959]
police station, while om 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 béddings. The passenggrs took their trunks and
The State of Orissa beddings. One trunk and a bedding, hawever,
Imam J.
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 ‘idéntified 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 ‘ possession’.
The appellant was sentenced under s. 9 (a) ‘for ‘ possession.” of opium and urider s. ‘9(b) for ‘ transport’ of opium, and sentenced to undergo rigorous imprisonment for three months under’ each counf,’the sentences to run conseoutively. Section 4 of the Opium Act, 1878 (Act I of 1878) reads as fallows:
“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: thismAct;, or of rules made and notified-under section 5 or tion 8—- '
" (a) possesses opium, br
(b) transports opium eee eee eee eee ee eee See eee eee eee eee Tere rerrrr erry | if FR ay 8.C.R. SUPREME COURT REPORTS 1165 shall, on conviction before a Magistrate, be punished 1958 for each such offence-with imprisonment for aterm 2.7 ait which may extend to one year, or with fine which may 4 gerodlta extend to one thousand rupees, or with both.” This was the provision_in s. 9 before’its amendment ** State of Orissa by Act LIT of 1957 which provided that onconvic- ,77 . . tion before a Magistr ate, a person convicted of any of the offences méntioned in s. 9 shall be punishable for ~ each ‘such offence with imprisonment which may extend to three years, with or without fine. Weare, 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 opium or to rules framed :under the Act, are two “ séparate offences. Mere possession of opium may not, on the proved:-facts of a particular case, involve any question of transporting it. Transport of oplum may, in certain circumstances, include the element of possession, while in other cases, it may ‘hot. A person m&y transport opium through various agencies and yet not be in possession of it'at the time it was transported, On the other hand, @ person ‘may transport: opium and yet bein 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 samé 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. oium nor transporting of opium wasPermissible, if such possession or transporting was Yf 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 SUPREME COURT REPORTS [1959}
1958 two offences, viz., (1y of transporting opium; and Puranman (2) Of possessing opium. He can theréfore be con. Agarwalla Victed for both the offences.
v. As to the sentence which can be imposed, reference The State of Orissato s. 85 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, Pen‘’al 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 fo commence the one after the expiration’ of the other in. such order as the, Gourt may direct, unless :the Court directs that such punishment shall run condurrently. Section 35 therefore permits.the passing of separate sentences for different offences and for them torun consecutively unless the,Court directs that they shall run concurrently. This, however, is subject to ¢he 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 , 4 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 anyth» ig an offenve falling within two or moreseparate defini. tions 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
Imam Je
S.C.R. SUPREME COURT REPORTS. 1167
Court which tries him could ‘award for any one of such offences. The maximum sentence which could have been impgsed upon ‘the appellant for any one of the offences of.which he had been convicted was one ear’s*imprisonment. In other words, even if separate The State of Orissa ?
sentences were passed under.s. 9, sub-ss. (a) and (b), the sum total of these sentences should not éxceed 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 séntence passed upon the appellant did not contravene the provisions of s. 71 of the Indian Penal Code. In our opinion, the appellant was rightly.convicted under s. 9 (a) and (b) of the Opium Act, and: there has been no illegality in thé 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 tinduly severe.
The appeal is accordingly dismissed. °
‘ + j ; - M. RAMAPPA | . vw SANGAPPA AND OTHERS
(VENKATARAMA Alvar, GAJENDRAGADKAR and ' A. K. Sankar JJ.) ' tion Dispute—Disqualification for being chosen as member of Mate Assembly—Hereditary, village office—Whether office of pro- under the Government— Mysore Village Offices Act, 1908 (Mysore
4. of 1908), ss. 6, 7, 8—Representation of the People Act, 195% (43 of r95r), s. L00(r}(c)—Constitution of India, Art. rz,
The nomination papers of threé candidates for election as merfibers of the State Assembly were rejected by the Returning
Puranmall Agarwalia v
Imam J,
August ar.