PALAKI DHANDAPANI PATRO Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted and sentenced as stated below by a Magistrate exercising second class powers at Russelkonda. He has been convicted under Section 9 (a), Opium Act, and sentenced to rigorous imprisonment for six months. He has been convicted under Section 47 (a), Bihar and Orissa Excise Act, and sentenced to rigorous imprisonment for four months. He has been sentenced to a fine of Rs. 105 under Section 9 (d), Opium Act. In default of payment of the fine, he has been ordered to undergo rigorous imprisonment for month. There is a direction that the sentences will run consecutively. Therefore, in all, the petitioner has been sentenced to rigorous imprisonment for a period of ten months plus a fine of Rs. 105.

(2.) The case against the petitioner was the following. On 22 April, 1943, at about 2 P. M., excise petty officer (P.W. 5) was watching Puruna Bazar Sahi in Russelkonda town. He found P.W. 4 talking to the petitioner in front of the latter's house. The excise petty officer sent his peon ahead to detain P.W. 4, inasmuch as the excise petty officer had some suspicion about the sale of contraband goods by the petitioner. The peon detained P.W. 4 till the excise petty officer came up. It was found that P.W. 4 was in possession of l tola 3 annas weight of opium. P.W. 4 said that he had purchased the opium from the petitioner. On seeing the excise petty officer, the petitioner closed his front door and bolted it from inside. The excise petty officer, guarded the house of the petitioner, and sent for the Sub- Inspector of Russelkonda Police Station. The Sub-Inspector came to the house of the petitioner and wanted to go inside. The petitioner did not open the front door which had to be broken open by the Sub-Inspector of Police. When another door was going to be broken open, the petitioner opened it. In the front room of the petitioner's house were found certain balances, a knife, some weights and opium of 1 anna weight. In the back room or kitchen of the petitioner were found a circular tin containing 40 tolas of opium, 11 more tolas of opium in 11 packets,of 1 tola each, and also 7 tolas of ganja in 7 packets. These contraband goods were seized by the police officer in the presence of search witnesses. The charges under the Opium Act related to the possession and sale of opium. The charge under the Bihar and Orissa Excise Act related to the possession of ganja. The case of the petitioner was that he had been falsely implicated because of enmity with the Excise Sub-Inspector (P.W. 6).

(3.) There was a suggestion that the contraband goods had been planted in the kitchen room of the petitioner. The trial Court as well as the Court of appeal accepted the prosecution case to be true and rejected the pleas raised in defence. Before us the most substantial point taken on behalf of the petitioner is that the trial was vitiated by a misjoinder of charges. It appears that the excise officer submitted two charge sheets against the petitioner, one under the Opium Act and the other under the Bihar and Orissa Excise Act. The learned trying Magistrate held that the series of acts were so connected together as to form one transaction, and, on this footing, he tried the petitioner for the offences under the Opium Act and the Bihar and Orissa Excise Act at one and the same trial. The contention raised before us is that Section 235, Criminal P. C, does not apply, and one trial for the different offences Of possessing ganja and opium was illegal. As has been repeatedly observed, the expression same transaction used in Section 235, Criminal P. C, is incapable of exact definition. The question whether the acts are so connected together as to form part of the same transaction has to be decided on the facts of each particular case. It is not possible to lay down any comprehensive formula of universal application. It has been generally accepted that the real and substantial test for determination of the question is "continuity of action and purpose." In similar circumstances, it was held in Emperor, V/s. Nga Lu Gale A. I. R. 1917 L. B. 5 that illegal possession of opium and illegal possession of cocaine for the purpose of carrying on the business of selling contraband formed part of one transaction and could be tried together. There is a case of our own High Court, Bali Sahu V/s. Emperor A.I.R. 1918 Pat. 250, where offences under the Bihar and Orissa Excise Act and the Opium Act were tried together. The full facts of that case do not appear from the report. It is clear, however, that one of the points urged in that case was that offences under the Bihar and Orissa Excise Act and the Opium Act should not have been tried together. This contention was not upheld, as it was held that the circumstances of the case fell well within Section 235, Criminal P. C. It appears that in that case there were two sales to the same person, and possession related to the residue of opium left after the sale. There must have been some other article besides opium for the application of Section 47 (a), Bihar and Orissa Excise Act. In the particular case under our consideration, the petitioner, who has a grocery shop, was obviously keeping the contraband goods, opium and ganja, for purposes of illicit sale. Judged by the standard of continuity of action and purpose, the possession of contraband goods for the purpose of illicit sale would be one transaction. We are, therefore, unable to hold that the trial of the petitioner for offences under the Opium Act and the Bihar and Orissa Excise Act was illegal, in the circumstances of the present case.