Gurdev Singh, J.
1. The petitioner, Fauja Singh, was convicted by the Special Railway Magistrate, Ambala, on 8th of March, 1960 for unlawful possession of 23 seers of crushed poppy-heads and was awarded four months' rigorous imprisonment together with a fine of Rs. 200 as punishment. This order of the trial Magistrate was affirmed on appeal by the learned Sessions Judge and now the petitioner has come up in revision.
2. The petitioner's counsel has not challenge ed the concurrent finding of the Courts below that crushed poppy-heads weighing 23 seers were recovered from Fauja Singh.
3. Her sole contention in this case is that the possession of, crushed poppy-heads is not punishable, and it is only the possession of capsules of poppy that is prohibited. Reliance in this connection has been placed upon a decision of this Court reported as The State v. Sohan Lal . That decision was given by a Division Bench on a consideration of the definition of the word 'opium' as it then occurred in the Opium Act (I of 1878) and the rules framed thereunder. The learned Counsel forgets that subsequent to that decision the definition of opium contained in Section 3 of the Opium Act has been amended by the Opium Laws (Amendment) Act (52 of 1957). The relevant portion of Section 3 of the Opium Act (1 of 1878), as it stood before the amendment which was relied upon in , read as follows:
3. In this Act, unless there is something repugnant in the subject or context, 'opium' means-
(i) the capsules of the poppy....
4. By Section 2 of the Opium Laws (Amendment) Act, 1937, Clause (i) of Section 3 of the old Act was substituted by the following:
3. (i) the capsules of the poppy (Papaver somniferum L.), whether in their original form or cut, crushed or powdered, and whether or not juice has been extracted therefrom;
Thus it is evident that if under the Opium Act and the rules or orders promulgated thereunder the possession of opium is prohibited, that prohibition would apply not only to capsules of poppy in their original form but also to crushed or powdered poppy-heads. Section 5 of the Opium Act empowers the State Government, from time to time, by notification in the official gazette, to make rules 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, inter alia, possession, transport, import, export or sale of opium.
In exercise of these powers the Governor of the Punjab on the 14th July, 19S6, vide notification No. 2204-E&T-56;/2277, promulgated the Punjab Opium Orders, 1956. In Clause (d) of Order 1 thereunder the expression 'poppy-heads' was defined as meaning 'the capsules of the poppy plant whether or not the juice has been extracted from them.' Order 5 laid down the maximum quantity of excise opium and opium-impregnated poppy-heads which 'any person may, without a licence at any one time during the financial years (1955-56 to 1959-60)' possess.
5. These orders were, however, subsequently amended by the Punjab Government Notification No. 1136-E&T;(VII)58/703, issued on the 21st March, 1958. For Clause (d) of order 1 of the Punjab Opium Orders, 1956, the following clause was substituted:
(d) the expression 'poppy-heads' means the capsules of the poppy (Papaver somniferum L) whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.
6. It is obvious that by this amendment the definition, of the expression 'poppy-heads', contained, in the Punjab Opium Orders, was enlarged and brought in line with the definition of the word 'Opium' as introduced by the Opium Laws (Amendment) Act of 1957.
7. Order 5 was also amended by the aforesaid notification dated the 21st March, 1958, and substituted by the following:
5. (i) The possession of opium in any quantity by any person, except under and in accordance with the conditions of his ration card granted under the Punjab Opium (Restriction on Oral Consumption) Rules, 1956, or under an appropriate license or permit granted under the Opium Act, 1878 (I of 1878) or the Dangerous Drugs Act, 1930 (II of 1930), is prohibited.
(ii) Any person may, without a licence at any one time during the financial years tabulated below, have in the possession opium impregnated poppy heads up to the limit shown below each.
Serial Financial Limit of private possessionNo. Year of opium impregnated poppyheads.Seer1. 1957-58 2. 1958-59 3. 1959-60 Nil(iii) Possession of any kind of opium other than excise opium and opium extracted poppy-heads whether or not crushed or powdered in any quantity, is prohibited unless specifically provided under these orders.
8. As a consequence of this amendment no person could possess any quantity of poppy-heads,, whether in their original form or cut, crushed or powdered, in the year 1959-60, and not exceeding 1/2 a seer in 1957-58, and also not exceeding 1/4th seer in 1958-59, without a valid licence or permit. In the case, with which we are dealing, the petitioner was found in possession of 23 seers of crushed poppy-heads on the 20th August 1959. This was clearly in contravention of the above orders, which prohibited the possession of poppy-heads even in crushed or powdered state in any quantity in the year 1959-60.
9. This offence being punishable under Section 9 of the Opium Act, the petitioner's conviction is perfectly in order and must stand.
10. I, however, feel that the sentence awarded to him is somewhat excessive and I reduce the sentence to two months' rigorous imprisonment. The sentence of fine imposed upon the petitioner by the trial Court shall stand. The appeal succeeds only to the extent indicated above.