B.L. Hansaria, J.
1. Poison kills a man; opium kills a race, a civilization, are that too imperceptibly so far as the victims are concerned. It is because of this that every enlightened Government has been showing its concern with the menace of opium consumption, which, however, is kept intact by the operators of the underworld, who for the sake of their fabulous profit persist in indulging in this social crime and smuggle the commodity in such a way that only strict vigilance can save the society. The present is one such case.
2. Herein two innocuous looking crates (boxes) had been taken delivery of on 22.8.72 from the office of M/s. Bharat Roadways Corporation, Jorhat when the excise staff caught Padmeswar Barua, one of the petitioners before this Court, and one Badan in front of the office. One Dimbeswar was also taken care of, so were the two crates, on opening which it was found that each had 51 packets each containing 500 grams of opium. So, the total haul was of 51 Kg. The next day, a search was conducted in the house of Padmeswar where 160 grams of opium was recovered in a half-burnt condition in the oven of the kitchen. Subsequently, a prosecution was launched against the aforesaid Padmeswar, Dimbeswar and Madoi, wife of Padmeswar. On conclusion of the trial. Padmeswar was found guilty under Sections 5(a) and 6 of the Assam Opium Prohibition Act, 1447, for short the (Assam) Act, Dimbeswar Under Sections (1) and 10 of the Act, and Madoi Under Section 5(a). Padmeswar was sentenced for the offence Under Section 5(a) for a term of 3 years and to pay a line of Rs. 1,000.00. in default to suffer another term of imprisonment for 6 months. For the offence Under Section 6 of the Act, he was sentenced to undergo. R.I. for two years and to pay a fine of Rs. 1,000.00, in default of payment of fine, a further term of six months. Dimbeswar was awarded a sentence of R.I. for three years and a fine of Rs. 1,000.00. in default R.I. for six months more. As to Madoi, keeping in view the fact that she is a housewife and has minor children. R.I. for one month and a fine of Rs. 500.00, in default of payment of fine, R.I. for three months more, was inflicted as punishment. On appeal being preferred, the conviction under Section 6 of the Act in so far as Padmeswar was concerned was set aside. The petitioner (appellant) could get no other relief at the hand of the learned Sessions Judge. Padmeswar and his wife are before this Court in the present revision.
3. We may first take up the case of Madoi which lies within a narrow compass. A perusal of the impugned judgment shows-that she has been convicted under Section 5(a) of the Act because of recovery of 160 grams of opium in her kitchen. The independent witnesses to the seizure are PW 11 Mukheswar Kalita and PW 12 Nabin Tamuli. As per the evidence of PW 11 he was called by an excise constable to the house of Padmeswar when he had seen Madoi also. Subsequently, he entered the house and stood in the main room while the excise staff entered in the kitchen and when they came out, an excise constable was seen holding a 'Topla' (a packet) which contained some black substance which was said to be opium. He was informed that the packet was found inside the fire-place in the kitchen. It is apparent from this that PW 11 had himself not seen the recovery. PW 12 another search witness admitted that he remained in the vehicle which had taken the excise staff to the house of Padmeswar and he had not entered the house. He was, however, informed later that a packet containing opium was recovered from that house.
4. This being the evidence of the aforesaid two witnesses, it cannot be held conclusively on the strength of their statements that 160 grams of opium was found in the possession of Madoi. The learned Public Prosecutor himself felt the weakness of case in this regard. The conviction of Madoi, therefore, cannot be sustained and is set aside.
5. This takes us to the hero of the case. He is Padmeswar. The evidence against him is that it was he who had given the two boxes for booking to PW 2 Sheikh Jalal who was a salesman of Anokha store, Dharamtala Street, Calcutta. The boxes subsequently recovered by the excise staff have been identified by PW 2 as those which had been given to him by Padmeswar at Calcutta on 1.8.72. These boxes were booked by PW 2 through M/s. Bharat Roadways and this has been testified by PW 3 Motilal Chatterjee, a booking clerk of that Company. It. may be stated that when the boxes were given to PW 2 Sheikh Jalal, it was represented by Padmeswar that they had contained books. The further evidence of PW 2 is that Padmeswar again went to that shop and collected the consignment papers on 20.8.72. According to the prosecution, Padmeswar had travelled to Calcutta on 18.8.72, and had come back on 21.8.72, whereafter he was apprehended, as already noted, on 22.8.72 in front of the office of M/s. Bharat Roadways. Jorhat.
6. The attack on Padmeswar's conviction by Shri Barua is on the ground that the evidence regarding Padmeswar's going to Calcutta on 18.8.72 and his return on 21.8.72 is far from satisfactory. In so far as the sojourn at Calcutta is concerned, the same has been deposed by PW 8 Haramohan Bardoloi and PW 9 Chiraranjan Dutta. According to PW 8 who is an officer of the Indian Airlines Corporation, a ticket was issued in the name of one Paresh Barua by Flight No. 212 from Jorhat to Calcutta. He exhibited the reservation chart showing this. Initially, the ticket was booked by some other person, but on the same being cancelled it was given to Paresh Barua. PW 9, a S.I. of Police, has deposed that on 18.8.2 he was posted as the Security Officer at Jorhat Airport and had travelled to the Airport from the Jorhat City Office by the I.A.C. bus in which Padmeswar had also gone. Just before the bus started for the airport a man wearing 'dhoti' was seen with a suitcase which was handed over to this appellant. There was thus nothing so far to take particular note of Padmeswar. But when at the checking booth, PW 8 again came across Padmeswar and when the aforesaid suitcase was checked up it was found that it had contained a large number of Rs. 100/- and Rs. 10/- currency notes. The petitioner then gave his name as P. Barua. This is how he remembere3 the appellant and about his visit to Jorhat with a suitcase full of currency notes.
7. The aforesaid evidence sounds natural and PW 8 had particular reason to remember Padmeswar because of his suitcase full of currency notes. The mere fact that the booking was in the name of Paresh Barua is not enough to hold that Padmeswar Barua had not travelled against that ticket. In so far as coming back on 21st is concerned, the prosecution case is that the return journey was in the assumed name of K.P. Barua. Whether this is a mere presumption as submitted by Shri P.G. Barua I do not propose to say anything. It is, however, evident that Padmeswar must have come back from Calcutta by 22nd Aug. 1972 to Jorhat where, in fact, he was found present in flesh and blood and was apprehended by the excise staff. Whether he came back on 21st in the assumed name of K.P. Barua or some other name has no relevance when his coming back by 22nd Aug. cannot be doubted at all.
8. This is all which, really needs to be noted in so far as factual aspect of conviction is concerned. This apart, only a passing grievance is made by Shri Barua to some evidence of PW 2 that he had identified Padmeswar to the excise staff who had interrogated him with reference to a photo of Padmeswar shown to him. It is stated that this particular evidence is inadmissible as the excise staff have to be regarded as police officer which would attract the ban of Section 162, Criminal P.C. The present is not a fit occasion to traverse the entire ground as to whether excise officials would be police officers. Reference may only be made to Bal Kishan v. State of Maharashtra : 1980CriLJ1424 , where all the previous important decisionson this point have been noted and it has been stated that the primary test for determining whether an officer is a police officer is to see if the concerned officer has been invested with all the powers exercisable by an Officer in charge of a Police Station, including the power to initiate prosecution by submitting charge-sheet. Shri Barua refers to Section 26 of the Act and states that it has given power to the State Government to invest any officer of the Excise Department specified in the section with the power of an Officer in charge of Police Station. This is merely an enabling provision. Nothing has been brought to my notice if any order has been issued under this section. As otherwise the Excise Officers do not exercise all the powers of an Officer-in-charge of a police station, they cannot be held to be police officers. In any case, what PW 2 deposed in the Court about identification cannot be held to be barred by Section 162, Cr.P.C. On top of all, the excise officers themselves could have well apprised the Court about this aspect. No infirmity can be read in the conviction of the petitioner No. 1 on this ground.
9. Faced with this situation, Shri Barua raises a constitutional point and the same is that the entire trial was void inasmuch as the relevant section, namely, Section 5(a) of the Assam Act had stood repealed by the Opium Laws '(Amendment) Act 1957', a Central enactment by which some provisions, inter alia, of the Opium Act, 1878, were amended. Before proceeding further in this direction, it may be pointed out that in Prem Chand v. State AIR 1960 Assam 37 : 1960 Cri LJ 317, which had examined and upheld the validity of the Assam Opium Act had, however, not done so after reference to the Central Amendment of 1957, to which indeed Court's attention was not drawn. The amendment with which we are concerned hoi Section 9 of the Opium Act, 1878. Before this. Amendment, the punishment visualised by Section 9 of the Opium Act was one year or fine which may extend to Rs. 1000/-, or with both, which was substituted by a sentence which could extend to three years, with or without fine. As against this, Section 5(a) of the Assam Act has stated that the punishment could extend to 6 years and with fine which may extend to Rs. 5,000/-.
10. Shri Burua has built his argument of repeal principally by referring to Article 254 of the Constitution. Clause (I) of this Article which has laid down a general rule reads as below in so far as it is material:
254. Inconsistency between laws made by Parliamant and laws made by the Legislatures of States - (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact,...then, subject to the provisions of Clause (2), the law made by Parliament...shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
Clause (2) of this Article which is an exception to Clause (1) saves even the repugnant State law, if the law made by the State Legislature had been reserved for consideration of the President and had received his assent. Proviso to Clause (2) has, however, added a qualification which states that nothing in this clause shall prevent Parliament from adding to, amending, varying or repealing the law made by State Legislature.
11. Relying on the aforesaid provision, Shri Barua contends that as the Parliament had enacted the aforesaid amendment on a subject matter enumerated in the Concurrent List, the Assam Act, though it had received the assent of the Governor General when it was enacted in (1947) would stand repealed to the extent of repugnancy - repugnancy being confined to Section 5(a) of the Act.
12. This submission cannot however, be accepted because the expression 'Legislature of a State' occurring in this Article clearly indicates that the enactment dealt with by this provision refers to post-constitutional laws. Reference may be made in this connection to Soma Singh v. State of Pepsu AIR 1954 SC 311 which had dealt with a similar expression once finding place in Article 286(3) of the Constitution. A similar view was expressed in Khimji Poonja & Co. v. Raman Lal & Co. AIR I960 Bom. 532. Reference may usefully be made to Rama Chandra v. President, District Board AIR 1931 Orissa 1 : 51 Cri LJ 1580, a Special Bench decision of this (?) Court, which had dealt with this aspect with reference to Section 107(1) of the Government of India Act. 1935. which provision is in pari materia with Article 251(1) of the Constitution. It was pointed out in this decision that the expression 'Provincial law' within the meaning of Section 107(1) would refer to those laws only, which were made by the Provincial Legislatures constituted under the 1935 Act; and the statutes passed before the commencement of that Act would be 'existing laws'.
13. As the Assam Act was enacted in 1947, I am satisfied that by virtue of what has been stated in Article 254 of the Constitution, no provision of this Act can be declared as void, even if the same be repugnant to any law made by the Parliament, inasmuch as the Assam Act cannot be said to be an enactment made by, the Legislature of a State, and has to be regarded as an existing law. There is no doubt that Article 254 does not deal with the clash between an existing law and a Central law.
14. This, however, is not the end of the controversy. Shri Barua presses into service Article 372 of the Constitution which has provided for continuance of existing laws. These laws are however 'subject to other provisions of this Constitution' and are to continue 'until altered or repealed or amended by a competent Legislature or other competent authority'. In so far as the rider that the existing laws are 'subject to other provisions of the Constitution' we may refer to South India Corporation v. Secy. Board of Revenue : 4SCR280 , which has stated that the word 'other' in the aforesaid expression can apply to provisions other than those dealing with legislative competence, that is, even if the law in question may or may not be within the legislative competence of the appropriate authority under the Constitution the law would still prevail if it be not against the provisions of the Constitution. The Article thus posits the continuance of the pre-existing law made by the competent authority notwithstanding the repeal of the enactments mentioned in Article 395. Of course, as clearly mentioned in Article 372 the existing law continues in forte until altered or repealed or amended by a competent Legislature. If, therefore, a subject matter falls in the Concurrent List of the Constitution and the Parliament makes a law on it, and if any of its provision be repugnant to the existing law, the same can stand impliedly repealed, if not done so expressly. See A.K. Jain v. Union of India : 1970CriLJ367 which was followed in S.K.G. Sugar Ltd v. State of Bihar : 1SCR312 . The law-making power given by Article 246(2) would otherwise be rendered lame to a great extent. The learned Advocate General agreed with this proposition. It may be pointed out that the law-making power of the Parliament with respect to any of the matters enumerated in the Concurrent List, has not been restricted in any way by what is mentioned in Article 254 which rather deals with the restrictions in this regard on the power of a State Legislature.
15. This apart, in case there be repugnancy between an existing law, and a post-Constitutional law, such repugnancy has to be resolved in accordance with the general principles relating to construction of statute - one of the rules in this connection being that a later law, if the provisions in it are so inconsistent with an earlier one, must be deemed to have abrogated the earlier one. See Maxwell's Interpretation of Statute, 12th Edn. P. 193 and Craies on Statute Law, 5th Edn. P. 343.
16. This takes us to the important aspect in the constitutional battle. The same is whether there is any repugnancy between the Assam Act and the Central Act. To answer this question, we may have a bird's-eye view of the two enactments and the underlying purpose behind them. The Central Act referred to above is the Opium Act of 1878. Reference to Sections 4, 5, 8 and 9 of this Act would show that it did not totally. prohibit possession, transport, import and export or sale of opium. Despite this Act being in' the statute book from 1878, a necessity was felt by the Assam Legislature to amend that Act as early as in 1932 and a Bill was piloted whose Statements of Objects and Reasons stated, inter alia, as below-
It has long been felt that the penalties imposed under the Opium Act (I of 187K) are too lenient and require reconsideration.... So long as the maximum term of punishment in default of fine remains at three weeks this result cannot be achieved.
Finally. experience following the introduction of the opium restriction in this Province has shown that certain of the sections under the Opium Act are defective in that they hamper the powers of the preventive officers unduly and to a greater extent than under the Excise Act or the Dangerous Drugs Act.
The Legislature subsequently felt in 1947 that amendments brought about by the Assam Act, I of 1933 were not enough and so an independent Bill was put up in the Assembly with the following Statements of Objects and Reasons:
With a view to stamp out opium addiction from the province, limit its use to medicinal purposes and to eliminate its injurious effects on the populace, the Government of Assam launched, at considerable sacrifice of provincial revenues, a campaign, in 1939, for total prohibition in two sub-divisions and for accelerated reduction of ration in other areas. The policy pursued hitherto has resulted in restricting the use of excise opium to medicinal purposes only but, owing to the increased activities of the smugglers brought about by a variety of reasons during the period of hostilities, addiction to opium obtained from illicit sources is rampant. While government have lost the revenue without achieving the goal of total prohibition the smugglers have flourished both at the expense of Government and the addicts.
To cope with their unfortunate situation and to achieve the goal of total prohibition a stricter control over the smuggling and consumption of opium is imperative with the support of non-official elements. The object of the Bill is, therefore, to secure a greater and more efficient control over the smuggling and consumption of opium in co operation with non-officials with a view to Eradicate the evil of opium addiction in the interest of the addicts and general well-being of the country.
17. Further, the Assam Act punishes abetment; provides for security from, and externment of, habitual offenders; enlists non-official support - all of which are missing in the Central Act. There is thus sufficient force in the contention of the learned Senior Government Advocate that the two Acts in question, namely, the Opium Act, 1878 and the Assam Act, 1947 are not totally inconsistent in the sense that the Assam Act operates on a wider field than that carved out by the Central Act. At this stage, we may inform ourselves as to when an enactment can be regarded as repugnant to the other. The decision which may first be noted is Megh Raj v. Allah Rakhia AIR 1942 FC 27, which has held that where the paramount law does not purport to be exhaustive or unqualified, but itself permits or recognises other laws to qualify or restrict the general provisions, another law doing so cannot be regarded as repugnant to the paramount law. As in the present case the Central Act cannot be said to be all pervading, or taking cafe of all situations relating to prohibition of consumption etc., there is sufficient force in the contention of the other side that the two Acts may not be regarded as repugnant. What has been stated in this connection in Zawrbhai v. State of Bombay : 1SCR799 and T. Barai v. Henri A.H. Hoe : 1983CriLJ164 is that the paramount law must be a comprehensive Code covering the entire field. In Deepchand v. State of I.P. : AIR1959SC648 , one of the three principles mentioned in this connection is also whether the Parliament intended to lay down an exhaustive Code in respect of m a subject matter. As already noted, it cannot be said that the Central Act was meant to be all embracing.
18. Even if it is conceded that by virtue of 1957 Amendment to the Central Act, Section 5(a) of the Assam Act had stood repealed inasmuch as the later law prescribed a different punishment, as were the positions in Zaverbhai and T. Barai. the trial cannot be held to have been rendered void inasmuch as the 1957 Amendment had reduced the punishment and had not enhanced it. It is not the contention of Shri Barua, as it cannot be, that the Court which had tried the petitioner would have had no jurisdiction if the Central Act were to hold the field. If the learned Judicial Magistrate who took up the trial could have done so if the maximum punishment were to be six years, it is apparent that he could have done so if the maximum punishment be read as three years. The repeal of Section 5(a) of the Assam-Act, even if conceded, has thus no effect on the jurisdiction of the trial Court.
19. The sentence in the present case being three years and a fine of Rs. 1000 -in so far as the petitioner Padmeswar is concerned, the same is not beyond what has found place in the Central Act after its amendment in 1957. As the offence in the present case related to importation of as huge a quantity as 51 Kg. of opium, the award of maximum sentence, which is three years even under the Central law. as amended, cannot be regarded as either illegal or beyond reasonable proportion. The 1957 Amendment also permits imposition of fine and the same being a sum of Rs. 1000 - in the present case, was within the competence of the Court.
20. The result is that the petition is dismissed in so far as Padmeswar is concerned, but is allowed qua Madoi.