SHIVA PRASAD MARWARI Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted under Section 47(a), Bihar and Orissa Excise Act, 1915, and sentenced to two months rigorous imprisonment and to pay a fine of Rs. 45. The offence he is alleged to have committed is possession of ganja weighing three annas on 3l October, 1941. So far as it is material, Section 47(a) provides: If any person, in contravention of this Act, or of any rule, notification or order made, issued or given, or license, permit or pass granted, under this Act, possesses any excisable article.

(2.) He shall be liable to imprisonment for a term which may extend to six months, or to fine which may extend to one thousand rupees, or to both. Excisable article is defined in Section 2(6) as any liquor or intoxicating drugs as defined by or under this Act. Under the definition of intoxicating drug in Section 2(13) is included ganja and every preparation of the hemp plant. Section 19 prohibits an unlicensed person having in his possession any Iquantity of any excisable article in excess1 of such quantity as the Board has, under Section 5, declared to be the limit of a retail sale, except under a permit granted by the Collector in that behalf. Sub-section (4) provides:. Notwithstanding anything contained in the foregoing sub-section, the Local Government, may, by notification, prohibit the possession by any person or class of persons, either in the Province of Bihar and Orissa or in any Specified local area, of any excisable article, either absolutely or subject to such conditions as it may prescribe.

(3.) This sub-se6tion was repealed by the Bihar Excise Amendment Act of 1940 and a new sub-section was substituted in its place. The only differences between the old and the new sub-sections are that for the words "Local Government" the words "Provincial Government" have been substituted; for the words "Province of Bihar and Orissa" the words "Province of Bihar" have been substituted, and for the words "any excisable article" the words "any intoxicant" have been substituted. As intoxicants include drugs which are dangerous drugs doubt arose Jas to the validity of the amending Act as dangerous drugs is a subject occurring in the concurrent list of the Government of India Act and the Act of 1940 had not received the sanction of the Governor-General. To remedy this defect the Bihar Excise Supplementary Act, 1941, was passed. This Act declared that the provisions of the amending Act of 1940 shall apply to every intoxicating drug as defined in the Act of 1915 although such drug may also be a dangerous drug. On 10th December 1940, the Provincial Government purporting to act in exercise of the powers conferred by Sub-section (4) of Section 19, Excise Act of 1915 (as amended by the Act of 1940, prohibited possession by any person, in certain areas specified in the schedule to the notification, of ganja.