1. In this case, the accused Ludur Chandra Das was convicted by the trial Magistrate of an offence under Clause (c) and also Clause (e), Section 9, Opium Act (l of 1878). On appeal, the learned Additional Sessions Judge of the Assam Valley Districts has set aside both those convictions. The Government has brought this appeal against that order of acquittal made by the learned Judge.
2. The facts of the present case as proved by evidence are particularly short and conclusive. The accused is an Assamese living in Assam. The part of Assam to which he belongs is a place called Bokakhab. In May 1930, he sent some telegrams to a relation of his named Khagendra Nath Saikia who also lives in Bokakhat. These were sent from Cooch Behar: but the original writing of the telegrams has been produced and proved. The telegrams asked Khagendra not only to send him money but intimated that certain things were being sent by the accused from Cooch Behar to Khagendra in Bokakhat. One telegram ran: ' Silver parcel is sent; am penniless; wire 150.' On 29th May or soon after, there arrived by post in the Bokakhat post office a parcel addressed to Khagendra. The Sub-Post master was suspicious and he made arrangements to request Khagendra to take open delivery in the presence of two witnesses of this parcel. Khagendra refused whereupon the parcel was duly opened and it was found to contain opium.
3. There can be no doubt that the defence which was to the effect that the accused had sent the parcel from Gooch Behar but that the parcel contained silver bangles and that opium had been substituted at a later stage broke down entirely. It was disbelieved and it need not trouble up. Khagendra who gave evidence for the prosecution said that the accused told him that he was going to Tezpur and that ho would send letters and parcels meant for his (accused's) own home to the address of. Khagendra who was to hand them over to his (accused's) family. A letter (Ex. 5) was seized, as a matter of fact, from Khagendra's house and whether or not Khagendra is just as bad as this accused person, it is at any rate certain that the accused went to Gooch Behar having arranged with Khagendra to receive opium on his behalf and despatched the opium to Khagendra in order that it might get into the accused's own control. In these circumstances and on these facts, the question is whether the accused has committed an offence under the Opium Act (l of 1878) and, if he has committed offence, has he committed the offence in Cooch Behar or in Assam ?
4. For the present purpose, it will be as well to assume that we know nothing about the law prevailing in Cooch Behar and we may even assume--though I daresay it is not in the least true--that people who send opium from Cooch Behar to other States commit no offence against that State whatever. Clarifying our ideas in this way we come to ask whether the accused has committed any offence under the Opium Act and we find this: By Section 9 of the Act, any person who in contravention of the Act possesses opium or imports or exports opium is liable to be convicted of an offence. If we ask what is meant by 'any person who imports opium,' there is a definition-Import means
to bring into the territories administered by any Local Government from sea or from foreign territory or from a territory administered by any other local Government'
and, in like manner, 'export' means
to take out of the territories administered by any Local Government to sea or to any foreign territory or to any territory administered by another Local Government.
5. It is clear enough therefore that the offence of importing opium is an offence constituted by bringing it into the territory in question. It does not matter where it was before provided it was outside the province. The offence is in bringing it in and the word ' bring' may be specially noticed as part of the definition. If the goods once come across the border of Assam into Assam, if they come for and on account of the accused with his consent let alone by his procurement the offence of importing into Assam is complete; it is not necessary to show that the accused did anything outside Assam. In this particular case, the accused went outside of Assam into Gooch Behar and posted the parcel in effect to Bokakhat for himself which was exactly the same as if he had posted it to his own address and in his own name: but the offence of importing into Assam would be equally complete had the goods been despatched pursuant to the accused's order by somebody in New York and it would be equally complete if when the goods crossed the border the accused had been taking a voyage on the high seas for the benefit of his health. The coming of the goods for the accused, on his account and with his consent is bringing thorn into Assam and is an offence of importing the goods. That this is the right view to take appears from cases which have been decided in other Courts. The first decision is that of Munshi Lal v. Emperor A.I.R. 1922 All. 21 Walsh, J., said this:
I say nothing to discourage the view that a person who exports from outside the United Provinces to a warehouse inside the United Provinces of which he is really the proprietor or temporary possessor, even under a false name, is, in fact, committing an offence under the Act of importing into the United Provinces, although he is also the person who exported from outside. It is perfectly possible for me to send an article for myself from the High Court at Allahabad to my Chambers in London, and, if I did so with a dutiable article without declaration, I should be guilty of importing into England.
and a Bench of the same High Court; confirmed this view in the subsequent case of Emperor v. Govind Ram A.I.R. 1924 All. 558 the learned Judges pointing out that the person who imported must be a person who was intending or had the right to take delivery or desired to take delivery inside the area. I am quite satisfied on the evidence in the present case that the substance of the matter is that those goods were sent by the accused from Gooch, Behar to himself in Assam on his own account and the fact that they were to be taken delivery of by Khagendra under an arrangement with him has no importance at all. The position under the Opium Act is exactly the same as if he had kept a warehouse in Assam and he had sent the goods to that spot.
6. In these circumstances, I come to consider the view taken by the Courts below. The trial Magistrate found that the accused was guilty both of possession of this opium and also of importing it and he imposed a fine of Rs. 250 on each of the charges. As regards possession, I cannot say that it appears to me that that offence is at all made out having regard to the fact that the article was not, in fact, taken possession of, Khagendra having refused altogether to take possession of it after he became suspicious. The Magistrate however found that the accused caused it to be imported from a foreign territory and he convicted him of that offence. When the case came before the learned Additional Sessions Judge, the learned Judge was not satisfied that there was any proof of possession and, so far as that ruling is concerned, I am disposed to agree with him on the facts of this particular case. But his view on the other question was this: that what was shown was an offence of exporting opium from Cooch Behar and ho thought that while Khagendra might be placed on his trial for importing opium into Assam the accused had not imported opium into Assam but had only exported it from Cooch Behar. Accordingly the learned Judge took the view that as the offence alleged against the accused was an offence committed in Cooch Behar and as there was no certificate from the Political Agent of Cooch Behar prosecution on that account did not lie. The Magistrate had thought and said that the case was one under Section 179 and not under Section 188, Criminal P.C. Of course, if it was under Section 188, it would be no answer to say that the case was under Section 179, because Mr. Banerji has shown that since the Code was amended Section 188 overrides1 Section 179 in any case in which Section 188 is applicable; that is to say, where the question is as to a native Indian subject committing an offence without and beyond the limits of British India or a British subject committing an offence in the territories of a Native Prince and so forth.
7. It appears to me however that the learned Judge was wrong. The offence of which the Magistrate rightly convicted the accused was of importing the goods into Assam and that offence it appears to me is amply proved. That is not an offence committed in Cooch Behar at all from the nature of the offence. The offence is entirely committed within' Assam, and Section 188, Criminal P.C., has no application to the case. In my judgment therefore the Government appeal must be allowed, the acquittal must be sot aside and the accused must be convicted of the offence of importing this opium into Assam. It is very unfortunate that although this accused has been found to be trafficking in opium notwithstanding the great trouble the legislature in Assam has taken to stop the evils of opium smuggling, this accused person who had engaged himself in committing such an offence in order to got rich is punished only by a fine of Its. 250. Trial Magistrates dealing with these cases should have sufficient business sagacity to impose heavy penalties in cases where traffic is clearly brought home to the accused, because obviously a man trafficking in opium can well afford to pay a fine of Rs. 250 and still make a handsome profit. However in the present case, the; question of sentence is not one which at the moment we have any jurisdiction over.
8. It will be sufficient to restore the judgment of the Magistrate and to direct that on this count the penalty imposed by him shall stand, namely, a penalty of Rs. 250 fine, in default, to undergo six months' rigorous imprisonment.
C.C. Ghose, J.
9. I agree.