Puranmall Agarwalla v. The State of Orissa

_**Sit'll**_ _**Ram**_ _**Goel**_ " v. _**The Municipal**_ _**BoaP'd,**_ _**Kanpur**_ _**Bhagwali**_ _]._ _**August**_ _**z9.**_ •• ### ~~'~~ 1~62 SUBREME ([)OUR'.!! .-lRIEFck:J1S [1959] 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\! unable 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 pauper and he prose'cuted this appeal in _forma_ _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. _Appeal_ dismis~~d _._ --· ·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 " transport" 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 : - _Had,_ 'that possession of opium and transport of opium are,, two separate offences and the appellant could be convicted for ~ S.C.R. SUP!EME COURT REPORTS 1163 both the offences. Transport of opiu1n may, in. certain cases, _I958_ **include the element of possession,,a.nq in** other1 ca~es, **it** ma~ **not.** A person transporting opiull] through other agepc1es may not be _Puranmall_ **in p6ssession** **of** **it at 'the** **time** **it** ~as **transported.** **But 3..person** _**Agarwalla**_ transporting opium himself would b'e in possession of jt and v. would be guilty of berth offences. - _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 'vere · 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. CRIMINAL APPJilLUATE JuRrsmCTION: Criminal Appeal No. 69 of 1956. 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 December023, 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 appellant: _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_ _Imam_ _J._ 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. . 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 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 118 ##### 1164 SUPREME COURT REPjRTS ·' [1959] polic~. station, while Ol'l its way, and all· the trunks and beddings on it were unlo!J.ded, and the passengers _Puranmall_ of the bus were asked to fake their respective trunks Aga~~alla 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 _Imam·_ _J,_ 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 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 : "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: . "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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ' .. ##### r • 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 ###### \ . S.G.R. SUPlEME COURT REPORTS 1165 shall, on conviction before a Mii.gistrate, be punished _'95_ _[8 ]_ for each such offence [0] \vith imprisonment for a term _Puranmall_ which may extend to one year, or with fine which may _Agarwalla_ extend to one thousand rupees, or with both." v. This was the provision, in s. 9 before·its amenclment n, _Stats_ _[0]_ _1_ _Orissa_ ~y Act LII of 1957 which' provided t.hat on convic- _Imam_ _1._ 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 provisions of the Act or any other enactment relating to opium or to rules framed •under the Act, are two travent10n of the provrn10ns of the Opmfn Act y otlier enactment relating to opium, or rules where-a person transports opium and is ii;t·possession of • it at the time he was transpor:ing it, he hi\.s committed 1166 SUPREME COURT REPORTS [J.9593 ., # ' _r958_ two offences, viz.,. ·tl~ of transporting opium; and _Puranmall_ (2) of possessing opium. He can therefore be con, _**Agarwalla**_ victed for bo'th the offences. v. 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 _**Iniani**_ _].·_ 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 J;o - commence the' one· p.f!(er the expiration' of the other in could award for any one of such offences." ~ It is clear froni tliese provisions that where anythi 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. . 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, 1 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 a1 more severe punishment than the Court which tries him ' if! an offen'\Je falling within two or more separate definitions 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 ' . . ' ~ L · ' S.C.R. SUPREME COURT REPORTS . ll67 ## **t** I •' .. M. RAMAPPA #### _v._ S.ANGAPPA AND OTHERS (VENKATARAMA AIYAR, GAJENDRAGADKAR and A. K. SARKAR JJ.) ' Court which tries him cquld 'award for any one of _x95B_ such off(lnces.'. The maximum sentence which could _**Puranmall**_ have been µnpqsed upon ~the appellant for a1;1y one of _Agarwal/a_ the offences of.which he had been convicted was one v. 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), _1_ the sum total of these sentences should not exceed one _'"_ _0_ _"'_ _J._ 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 0 unt. 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 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.· 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. ,1 I .. _**August ar.**_ _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