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Gujar Singh Mangal Singh Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn No. 1428 of 1956
Judge
Reported inAIR1958P& H77; 1958CriLJ418
ActsOpium Act, 1878 - Sections 3 and 9
AppellantGujar Singh Mangal Singh
RespondentThe State
Appellant Advocate G.C. Sharma, Adv.
Respondent Advocate R.P. Khosla, Adv. for Adv. General
DispositionRevision allowed
Excerpt:
.....single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the..........the state v.sohan lal. air. 1956 punj 159 (a), in which itwas held that the possession of husk of poppyheads called bhuki was no offence, although thiscase was decided on the basis that the possessionof poppy heads in excess of two seers was unlaw-ful. it seems that in fact the amendment of therule which was introduced in 1955 was not broughtto the notice of the learned judges, but at thesame time it is quite clear that if it had been,the case of the accused would have been evenstronger, and the learned judges dissented froma decision of the nagpur high court in whichit was held that the shells of poppy heads possessed in some measure the active properties ofopium and could be used as an intoxicant andtherefore came within the definition of 'opium'.the amendment of the rule by which.....
Judgment:
ORDER

Falshaw, J.

1. Gujar Singh petitioner was convicted by a Magistrate at Tarn Taran under Section 9 of the Opium Act and sentenced to three months'rigorous imprisonment, his appeal being dismissed by the Sessions Judge at Amritsar.

2. The case against the petitioner was that he was found in possession of five seers of what are prescribed as opium extracted poppy heads at his house. He denied the alleged recovery, but this was held to be proved against him, and the argument put forward in revision is that under the law as it stands the possession of opium extracted poppy heads is not an offence. In the relevant rule framed under the Excise Act it appears that the only opium poppy heads which amount to opium within the definition 'opium impregnated' poppy heads, and at the time when the present offence was committed the lawful possession of these poppy heads was limited to one seer.

3. My attention has been drawn to the decision of Kapur and DuJat JJ. in The State v.Sohan Lal. AIR. 1956 Punj 159 (A), in which itwas held that the possession of husk of poppyheads called bhuki was no offence, although thiscase was decided on the basis that the possessionof poppy heads in excess of two seers was unlaw-ful. It seems that in fact the amendment of therule which was introduced in 1955 was not broughtto the notice of the learned Judges, but at thesame time it is quite clear that if It had been,the case of the accused would have been evenstronger, and the learned Judges dissented froma decision of the Nagpur High Court in whichit was held that the shells of poppy heads possessed in some measure the active properties ofopium and could be used as an intoxicant andtherefore came within the definition of 'opium'.The amendment of the rule by which only thepossession of opium impregnated poppy heads islimited makes it quite clear that the possessionof poppy heads from which the opium has alreadybeen extracted cannot possibly be intended to beunlawful. I accordingly accept the revision petition and set aside the conviction and the sentence of the petitioner whose bail bond will accordingly be cancelled.


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