PURANMALL AGARWALLA versus THE STATE OF ORISSA

Sit'll Ram Goel

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v. The Municipal BoaP'd, Kanpur

Bhagwali ].

1~62

SUBREME ([)OUR'.!! .-lRIEFck:J1S

[1959]

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Act; he miglit possibl5' }).ave got'some .relief from the· Gourt. He however chose to· wait. Jtill the I decision of the State,Government on his appeal a'nd :overstepped the limit of time to his·owrt detriment. Wear\! un able to come to any other conclusion th'an tqe one r~ached above and the appeal mu§t, therefore, stand dismissed ; but in the peculiar circumstances of the case we make no order ;i.s to.costs:

The appellant was- giv.en leave to proceed as a this appeal in forma pauper and he prose'cuted pauperis. .H& has fa~led.in the appeal and we do order that he ·shall pay the .court-fee which would have been pa.id by him if'he had not been permitted to appeal as a;-pauper. 'The Registrar shall send to the Attorney. General for India a memor.a.ntlum of the court-fees payable by him a;s required by Or. XIV, r. 12, of the Supreme Court Rules.

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Appeal dismis~~d .

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August z9.

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·PURANM:ALL AGARWA~LA: 1J. 'l'HE ST.ATE OF ORISSA (B. P. S!NHA and JAFER IMAM J-J:)

Double PU1iishmmt-Perso" convicted of transportili.g ojnum- If'ca1t be convicted of being it< possession of opiwn also-Sente1'ce- Opium Act (I of r878), ss. 4 and 9.l-Code of Criminal Procedure, (I( of r,llg,o), s. 35-fodian Pe1ial Code (X'LV of r86o), s. ';I,

The appellant was caught while he was himsel> transporting OJlium. I;Ie was convicted undet,s. 9(a) of the Opium Act for "possession" of opium and under;;. 9(1>) of the Aat for " trans port" of opium and was sentenced to µndergo rigorous imprison ment for three months under each Count, the sentences run oonsecutiV'ely'. The appellant contended that "transpo " included ''possession" and so the double punishment for posse sfon and transpott was riot warranted by law :

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Had, 'that possession of opium and transport of opium are two separate offences and the appellant could be convicted for

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SUP!EME COURT REPORTS

1163

both the offences. Transport of opiu1n may, in. certain cases, include the element of possession,,a.nq in other1 ca~es, it ma~ not. A person transporting opiull] through other agepc1es may not be in p6ssession of it at 'the time it ~as transported. But 3..person transporting opium himself would b'e in possession of jt and would be guilty of berth offences.

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I958

Puranmall Agarwalla v. The State of OriJsa

The se~tence p~~sed upon the appellant did not contraxene the provisions 6f s. 7r' of the ·lQdian Penal Code. Section 7r provides that where anything· is an offence falling within two or more separate definjtions of, the Jaw, the offender shall not be punished with a more,severe punishment than tJiat provided for any one of' such· offences. Though "separate sentences passed' against the appellant under s. 9(a) and (b), the sum total of these sententes did not exceed one year's imprisonment the maximum provided .for any of these offences.

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CRIMINAL APPJilLUATE

Appeal No. 69 of 1956.

JuRrsmCTION: Criminal

Appeal by SP.ecial leav:e from the judgment and order dated November 18, 1955, of the Orissa High Ceurt at Cutta:ck, in ·criminal Revision No. 20 of 1955 arising out.o~-the Judgnwnt an~ order dated Decem ber023, 1954, ,of the Court of the. Se~sions Judge at .811-mbalpur in Criminal Appeal No,'lll(S)'of 1954. . ' :Fara Chand Mathur and K. L. Arora;. for the appel-

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lant:

N. S. Bindra and R. H. Dhebar, for the :cespondent. 1958 .. August '19. The Judgment of the Court·

was delivered by'

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 place called Bargarh. He pought ,a ticket , fpr t 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

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Imam J.

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[1959]

1164

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Imam· J,

Puranmall Aga~~alla

polic~. station, while Ol'l 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 Th• stat• of o.ssso 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 'identi fied 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 l;>e punished for being in possession of opium,_ as it is su11gested that • transpoi;t ' includes ' possession'.

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

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 ; ,, ................................... ' ........................... . 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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SUPlEME COURT REPORTS

1165

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Imam 1.

'95 Puranmall Agarwalla v.

shall, on conviction before a Mii.gistrate, be punished for each such offence 0 \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 n, Stats 01 Orissa ~y Act LII of 1957 which' provided t.hat on convic- t10n 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 pro- visions 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 'rransport of opium may, question of transporting it. in certain circumstances, the element of include 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 trans- portl\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 transport- ing 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 y otlier enactment relating to opium, or rules It.seems.therefore that

framed under the Opium Act. where-a person transports opium and is ii;t·possession of • it at the time he was transpor:ing it, he hi\.s committed

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SUPREME COURT REPORTS

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r958 Puranmall

Agarwalla v.

two offences, viz.,. ·tl~ of transporting opium; and (2) of possessing opium. He can therefore be con, victed for bo'th the offences.

Iniani ].·

As to the·sentence which can be imposed, reference The Stat• of Orissa 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 there for which suo.h Oour.t is competent to infiiqt; JJ11ch punishmei;its, when consisting of imprisonment J;o · 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: "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.

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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 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

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Puranmall Agarwal/a v.

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 The State of Orissa -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 c0unt. It wol.lld appear; therefore, that the sentence passed upon the appellant did not c6ntrav~ne the provisions of /l. 71 of thf) Indiaµ Penal Code. In our opinio'n, the appel- lant .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.·

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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.

The ai;>pe,al is accordingly dismissed.

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M. RAMAPPA v. S.ANGAPPA AND OTHERS (VENKATARAMA AIYAR, GAJENDRAGADKAR and A. K. SARKAR JJ.) '

August ar.

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lion Dispute-Disqualification for being chosen as me.,;ber bf. ate Assembly-Hereditary.village office-Whether office of pro under the Government-Mysore Villaf..e Offices Act, 1~08 (Mysore 4 of 199~), ss. q, 7, 8-Rep~esei:tatjon of (he People Act, 195~ (43 of 1951): s. 106(1)(c)-Constitufion of Jndia, Art. 191,

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

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