LAWS(J&K)-1961-8-1

STATE Vs. SANGAT SINGH

Decided On August 16, 1961
STATE Appellant
V/S
SANGAT SINGH Respondents

JUDGEMENT

(1.) THIS is an appeal against an order passed by the Sub Judge, Magistrate 1st Class, Jammu acquitting the respondent on a charge under Section 48 of the Excise Act.

(2.) THE prosecution case was that Hukam Chand Excise Inspector raided the house of the respondent Sangat Singh in bazar Babarian Jammu on 10. 1. 1958. On search of the house of the accused one locked dabba made of tin and one locked trunk were recovered. These articles were broken and one seer and five chattaks of contraband opium were recovered from both these articles. A challan was presented against the respondent under Section 48 or the Excise Act and the respondent was charged under that section. After both the parties had adduced their evidence, the defence took a preliminary point before the trial magistrate which was to the effect that as the offence alleged was covered not by the Excise Act but by the Opium Act, therefore, the charge must fail. The magistrate accepted the contention of the accused and acquitted him.

(3.) IT appears that previously possession of opium was punishable under the Excise Act but when the Opium Act (Act. No. 13 of 1857) was extended to the State of J. and K. the corresponding laws were repealed. During the course of the arguments in this Court, however, the Advocate General conceded that the stand taken by the prosecution in the court below was wrong, and in fact the Opium Act of 1857 which was extended to the State did not contain any provision making possession of the contraband opium punishable. The Advocate General, therefore, argued that in view of this fact Section 48 (a) of the Excise Act which made possession of contraband opium punishable could not be said to have been repealed by Section 5 of the Opium Act of 1857, (sic) because this would not be a corresponding law within the meaning of Section 5 of the Opium Act. (sic) The position taken by the Advocate General has not been controverted by learned Counsel for the respondent. We have gone through the Opium Act of 1857 and we find that under that Act it is only the cultivation of opium that has been made penal but not the possession of opium. It is, therefore, clear to us that as Section 5 of the Opium Act of 1857 (sic) did not in terms repeal Section 48 (a) of the Excise Act so far as opium is concerned, Section 48 (a) of the Excise Act continued to be good law and if the offence against the respondent was proved he could be convicted under Section 48 of the Excise Act. It is also not disputed that opium is an intoxicating drug within the meaning of Section 48 (a) of the Excise Act. It is, therefore, manifest that the learned magistrate took an erroneous view of law in acquitting the respondent under Section 48 (a) of the Excise Act and in thinking that this Section had teen repealed by the Opium Act of 1857.