EMPEROR Vs. NEMU SINGH

JUDGEMENT

(1.) The respondent and three others were charged before the Sub-divisional Magistrate of Barh with having committed offences against Bihar; and Orissa Act 2 of 1928 which is entitled the Bihar and Orissa Opium Smoking Act of 1928. The charge against the respondent was that he was in possession of 1-1/4 tolas of prepared opium and of pipes for using prepared opium. He was also charged with having permitted his premises to be used by the three persons who were accused with him and who were unauthorized smokers. These two charges were stated to be under Section 6 and Section 7 of the Act, respectively. The three persons tried along with the respondent were charged under Section 6 of the Act with smoking prepared opium on the premises of the respondent. The learned Magistrate acquitted all the accused of all the charges. The Local Government has appealed against the order of acquittal passed in favour of the respondent only. The object of the Act, as stated in the preamble, is to regulate the smoking of opium in the province of Bihar and Orissa. Section 3 requires the Local Government to cause a register to be prepared of all persons who are not under the age of 25 years and who are in the habit of smoking opium. Section 4 provides that any person may apply to be registered in the form and manner to be prescribed by the proper authority. By Section 2 of the Act a person whose name has been entered in the register is designated a registered smoker, and Section 5 provides that a registered smoker shall, subject to the prescribed conditions and restrictions, be entitled, notwithstanding anything to the contrary contained in any other enactment or in any rules made under such enactment, to manufacture, possess or smoke prepared opium.

(2.) By Section 6 of the Act it is provided that any person other than a registered smoker, who smokes, uses, manufactures or has in his possession any prepared opium or any pipes, utensils or apparatus used in connexion with the manufacture or smoking of prepared opium, shall, on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees, or both. Section 7 provides that any person who, being the occupier of any premises, permits those premises to be used by any unauthorized persons for manufacturing or smoking prepared opium, or who is concerned in the management of any premises used for any such purpose or sells or otherwise deals in prepared opium shall, on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. It will be noticed, therefore, that by 8s. 6 and 7 of the Act the Legislature clearly creates two offences. It does not, however, purport to create any offence by Section 5 of the Act. This difference between Section 5 on the one hand and Secs.6 and 7 on the other is still more clearly illustrated by the subsequent provisions of the Act. By Section 8 it is provided that a Magistrate who imposes a fine under Section 6 or Section 7 may direct the offender to be imprisoned in default of the payment of the fine for a term which may extend to six months and that such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced. Section 9 authorizes the confiscation of prepared opium in the case of a conviction under Section 6. Section 11, which relates to the trial of offences under the Act, provides: No offences punishable under Secs.6 and 7 shall be tried by any Court inferior to that of a Magistrate of the Second Glass.

(3.) This section also therefore neither provides for nor contemplates a trial of anything that may be done or not done under Section 5 of the Act. Section 12, however, authorizes the Local Government to make rules for the purposes of carrying into effect the provisions of the Act, and, without prejudice to the generality of this provision, it empowers the Local Government to make rules to regulate or provide for the authority by whom and the manner in which the register of smokers has to be prepared, the form and contents of the register, the form of application and the manner in which such applications shall be submitted, and, lastly, the conditions and restrictions subject to which a registered smoker may manufacture, possess or smoke prepared opium. It is noticeable that the Act does not provide for any penalty for the breach of the conditions and the restrictions referred to in the last mentioned provision of Section 12, namely the conditions and restrictions subject to which a registered smoker may manufacture, possess or smoke prepared opium.