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Fong Kun (Khun) Chinaman Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in52Ind.Cas.389
AppellantFong Kun (Khun) Chinaman
RespondentEmperor
Cases ReferredKali Charan Mukherjee v. Emperor
Excerpt:
opium act (i of 1878), section 9, clauses (c), (e) - possession of railway receipt by consignee with knowledge that parcel contains opium, whether amounts to possession of opium--importation of opium, what amounts to. - .....being in possession of contraband opium and sentenced to rigorous imprisonment for six months. a railway receipt was traced to the possession of the petitioner which covered a parcel consigned to him by a correspondent in assam. a letter addressed to the petitioner advising him of the despatch of the parcel was recovered at the same time. in that letter the contents of the parcel were described as 'five numbers.' the parcel was subsequently opened and found to contain five seers of opium. the circumstances leave no room for doubt that the petitioner was trafficking in smuggled opium.2. it was held in kashi nath v. emperor 32 c. 557 : 9 c.w.n. 719 : 2 cr. l.j. 417 that in such a case, the consignee knowing that the parcel had been sent to him and that it contained opium, the possession.....
Judgment:

Richardson, J.

1. The petitioner, Fong Khun, has been convicted under Section 9 of the Opium Act (I of 1878) of being in possession of contraband opium and sentenced to rigorous imprisonment for six months. A railway receipt was traced to the possession of the petitioner which covered a parcel consigned to him by a correspondent in Assam. A letter addressed to the petitioner advising him of the despatch of the parcel was recovered at the same time. In that letter the contents of the parcel were described as 'five numbers.' The parcel was subsequently opened and found to contain five seers of opium. The circumstances leave no room for doubt that the petitioner was trafficking in smuggled opium.

2. It was held in Kashi Nath v. Emperor 32 C. 557 : 9 C.W.N. 719 : 2 Cr. L.J. 417 that in such a case, the consignee knowing that the parcel had been sent to him and that it contained opium, the possession of the railway receipt constituted possession of the opium within the meaning of Section 9 of the Opium Act. That case was followed, though reluctantly, in Ashruf Ali v. Emperor 4 Ind. Cas. 699 : 36 C. 1016 : 14 C.W.N. 233 : 11 Cr. L.J. 29 and we are bound by these decisions, unless we are able to hold, as the Court held in Kali Charan Mukherjee v. Emperor 22 Ind. Cas. 148 : 41 C. 537 : 15 C.L.J. 514 : 18 C.W.N. 309 : 15 Cr. L.J. 4, that on the facts they are distinguishable.

3. It is suggested here that because two days before the railway receipt came into the petitioner's hands, the Police, acting on information received, had told the railway parcel clerk not to part with the parcel and had tied a piece of red tape round it and sealed it, therefore, the petitioner as holder of the -receipt bad no possession of the parcel. The precautions taken by the Police were intended merely to prevent delivery being given without their cognizance. At the time neither the Police nor the parcel clerk knew for certain what was in the parcel. Nothing was done which affected the legal rights of the parties or deprived the petitioner of possession or right to possession under and by virtue of the receipt. His possession continued until the parcel was opened and the opium was actually seized. That was after the receipt had been obtained from the petitioner. The facts, as it seems to me, do not justify a distinction being drawn between the present case and the cases to which I have referred.

4. On that ground or on the ground suggested by my learned brother that the petitioner was at any rate guilty of importing opium, in my opinion this is not a case in which we ought to interfere in revision and the Rule must be discharged.

5. The petitioner must surrender to his bail and undergo the unexpired portion of his imprisonment.

Shamsul Huda, J.

6. I feel considerable doubt whether in the circumstances proved in this case the petitioner could be said to be in possession of opium within the meaning of Section 9, Clause (c), of the Opium Act. In my opinion, however, the petitioner was clearly guilty of importing opium under Clause (e) and might have been convicted of that offence. In the view I take I do not think that this is a fit case for our interference in revision.

7. I accordingly agree with my learned brother in discharging the Rule.


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