(1) The only question that arises for determination in this revision is whether Bhagwan Dass can be separately tried under Section 9 of the Opium Act (Act I of 1878) for two recoveries of illicit opium from his possession on the same day in pursuance of a raid organised by the police on the 9th June, 1959. If such recoveries constitute one offence, there has to be one trial. If they constitute different offences as alleged by the prosecution, there have to be separate trials as envisaged by Section 233 of the Code of Criminal Procedure. This would of course be subject to be exceptions set out in that section. In this case it is urged in the alternative that the case the alternative argument as I am of the view that the recoveries constitute a single offence.
(2) The residential premises of Bhagwan Dass were raided by the Police on the 9th June, 1959, at 2. P.M. and opium was recovered from his person in a bag which he was carrying from his car to his house and also from a chaubara in his possession. The opinion from the chaubara was recovered in pursuance of a statement made by him under Section 27 of the Indian Evidence Act on police interrogation. On the basis of these two recoveries, the prosecution has put up two separate challans. In one challan, the accused are Bhagwan Dass and three other persons and in the challan relating to the recovery from the chaubara, Bhagwan Dass alone in the accused.
(3) The present petition arises on the objection raised by Bhagwan Dass to these two separate challans. It is contended on his behalf that there has to be one challan in respect of these recoveries and one trial. He accordingly moved the learned Sessions Judge, Sangrur, in revision, but without success. Dissatisfied with the decision of the learned Sessions Judge, he has moved this Court in revision.
(4) The contention advanced by his learned counsel is that the offence for which Bhagwan Dass has been charged is the possession of opinion without a permit, and he contends that it is immaterial whether the opium is stored at open place or at different places or is recovered from one place or different places. It would all same be in the possession of Bhagwan Dass at each and every moment and therefore he would be guilty only of one offence under Section 9 of the Opium Act.
(5) Before dealing with this contention, it would be proper to set out the relevant provisions of the Opium Act (hereinafter referred to as the Act).
'4. Except as permitted by this Act, or by any other enactment relating to opium for the time being in force, or by rules framed under this Act or under any such enactment, no one shall:
* * * * * *
(a) Possess opium;
(b) transport opium;
(c) import or export opium; or
(d) sell opium.
5. The State Government.
* * may from time to time, by notification in the Official Gazette, make rules consistent with this Act, to permit absolutely or subject to the payment of duty or to any other conditions, and to regulate, within the whole or any specified part of the territories administered by such Government, all or any of the following matters:
* * * * * *
* * * * * *
(a) the possession of opium;
(b) the transport of opium;
(c) the importation or exportation of opium and
(d) the sale of opium, and the farm duties leviable on the sale of opium by retail, Provided that no duty shall be levied under any such rule on any opium imported and on which a duty is imposed by or under the law relating to sea-customs for the time being in force or under the Dangerous Drugs Act, 1930.
6. * * * *
7. * * * *
8. * * * *
9. Any person who, in contravention of this Act, or of rules made and notified under Section 5 or Section 8:
(a) possesses opium, or
(b) transports opium, or
(c) imports or exports opium; or
(d) sells opium, or
(e) omits to warehouse opium, or removes or does any act in respect of warehoused opium.
and any person who otherwise contravenes any such rule, shall, on conviction before a Magistrate, be punished for each offence with imprisonment for a term which may extend to two years or with fine which may extend to two thousand rupees or with both:
* * * * * * *'
(6) It would be apparent from these provisions that the offence under the Act with which Bhagwan Dass is charged is possession of opium without a permit. The gravamen of the charge is possession of illicit opium. 'Possession' has not been defined in any of the relevant statutes. It may be for the simple reason that it is not capable of an exact definition. The courts have from time to time tried to fix its meaning with some definition, but it cannot be said that they have been able to exactly define it. All that has been achieved is that a certain amount of vagueness has been removed.
It has a variety of definitions and interpretations, and, therefore, its meaning will have to be seen in the context in which it is used. It is variously defined as meaning the act or state of possessing; or holding as one's own or having a thing in one's power. In law the term is defined as meaning an act, fact, or condition of a person having such control of property that he may legally enjoy it to the exclusion of others having no better right then himself; the physical control of a thing which belongs of right to unqualified ownership in such a manner as to exclude control by other persons. It is also defined as meaning the thing possessed; that which anyone occupies, owns or controls.
(7) Therefore, in view of the above observations, it has to be seen in what context the word 'possession' is used in S. 9 of the Act. It cannot be said that when the raid was made, Bhagwan Dass was not in possession of the entire opium though he may have stored the same in different places. The mere fact that it was recovered from different places will not divide his possession so as to constitute two different offences of possession with regard to it. This is the only way that S. 9 can be read. This does not mean that if part of opium is recovered by the police and another part of the opium in possession of a person is not recovered the person in possession of the remaining portion of the opium not recovered cannot subsequently be tried for an offence under S. 9 merely for the reason that qua the part recovered he has already been tried.
The reason for this exception is not that the word 'possession' has a different connotation in this situation, but the reason is that possession of illicit opium is an offence, and so long as a person remains in possession of illicit opium, he is liable to prosecution under Section 9. But this is not the case so far instant case is concerned. Here in the same transaction the opium was recovered, and in this situation, the possession of opium cannot be split up for purposes of S. 9 merely because it was recovered from two places. It is not a case where the recovery is not made in one transaction.
(8) Once it is held that the two recoveries constitute one offence, then there is no difficulty in the matter as under S. 233 of the Act which is in these terms:
'233. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Ss. 234, 235, 236 and 239'.
What can be separately tried are two distinct offences? Possession of the same article at two different places by the same individual is nowhere stated to be a separate offence and as such there can be no question of there being separate trials.
(9) I would accordingly allow this petition, and set aside the order of the learned Sessions Judge and direct that for the recovery of the opinion there should be only one trial of the petitioner.
(10) The petitioner is directed to appear before the Addl. District Magistrate, Sangrur, on 4-7-1960.
(11) Petition allowed.