P L D 1955 Federal Court 383 (PLP)

The .case for the prosecution was that three consignments of boxes were booked by the appellant at Karachi, the first two on the 7th March and the 3rd on the ‑17th March 1950 for transport by the North Western Railway to Lyallpur. These boxes were declared to contain black tea as described in the invoice wherein Nut Muhammad M. Habib and Habib‑ur- Rahman were mentioned respectively as consignors. The boxes were addressed for delivery to the consignors themselves at Lyallpur. While these consignments were being unloaded on the 4th April 1950 at Lyallpur one of the boxes was found broker' and it contained poppy‑heads. On the matter being reported to the local Excise Sub‑Inspector he inspected all the boxes and found every one of them stuffed with poppy heads. Evidence was adduced with regard to the booking of the boxes from Karachi by the appellant is well as the declaration that the boxes contained black tea. The appellant admitted that be booked the boxes but his defence was that he was working as a muqaddam or dalal and had booked them on behalf of the dealers without know ing their contents. He adduced evidence to the effect that dealers do not appear at the Karachi Railway Station for booking' their goods but get them booked through their muqaddams and that he (the appellant) was a muqaddams at the, Karachi Bundar Railway Station engaged by dealers for booking the goods on their behalf. Neither in the defence evidence nor in his statement under section 342 Cr. P. C. the particulars or addresses of the dealers on whose behalf the boxes were booked were given. In the invoice only their names are mentioned and in his statement before the Magistrate the appellant merely referred to beoparis but did not say who they were. ‑ The trying Magistrate took the view that muqaddams ordinarily know who their employers are and that the appellant furnished fictitious names. He, therefore, came to the conclusion that either he was the owner of the goods in question or knew that those boxes contained poppy‑heads. That Sessions judge also came to the sane conclusion. The learned Chief Justice in dismissing the revision petition observ ed that the evidence showed that the petitioner was in possession of and exported opium within the meaning of section 9 of the Opium Act, 1878, and therefore the burden of satisfactorily accounting for that opium was on him under section 10 of the Opium Act, but that that burden was not discharged. Section 9 of the Opium Act, 1878, ‑ so far it is relevant to this case is as follows " Any person who in contravention of this Act or of rules made and notified under section 5 or section 8‑ (a) possesses opium ; or . . . . . . . (c) imports or exports opium ; . . shall on conviction before a, Magistrate be punished for each such 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." The period of imprisonment and the maximum amount of fine mentioned above is according to the Punjab Amend ment of the Act. Section 10 is as follows " In prosecution under section 9, it shall be presumed until the contrary is proved, that all opium‑ for which the accused person is unable to account satisfactorily is opium in respect of which he has committed an offence under this Act ." It was contended by the learned Advocate for the appellant that the burden imposed under section 10 could fall on the appellant only if it was established that he‑ knew that the boxes which he booked contained poppy‑heads, that the evidence did not establish that he knew the contents and that therefor he was not guilty. But as pointed out by the learned Advocate‑General for section 9 to apply mere physical possession is sufficient and that can be no doubt that the appellant was in possession of the boxes which were found to contain poppy‑heads though they were described as containing black tea. He booked those boxes and it was not suggested that they were tampered with in transit. That being so it was for turn to prove he did not know the contents of the boxes. The fact that neither in the evidence adduced by him nor in his statement or the invoices the particulars of the consignors were given, supports the contention of the learned Advocate‑General that those names were fictitious. The facts of the three cases relied on by the learned Advocate for the appellant were entirely different. The first of these cases, V. R. Venkatarama v. Emperor (4 1 C 898) was a case of Upper Burma under Excise Act 12 of 1896 and not under the Opium Apt, 1878 and further it was considered that there was no satisfactory proof that the Majun found with the accused contained hemp. In the second case in Nga Pu v. Emperor (13 1 C 788) the accused was not in actual possession but opium was found in his house and there was nothing to indicate that he was aware , of his presence. In Cyril C. Baker v. Emperor (A I R 1930 Cal. 688) the 3rd case cited for the appellant opium was found in the cabin of a ship exclusively in the possession of the Assistant Wireless Operator and though it was opened with the key produced by him it was held that it was possible that his servant who disappeared even before the discovery introduced the opium into the cabin through the port hole. It was, however, observed by the learned Judges of the Calcutta High Court that possession implies knowledge and that there would be no possession when there. is no knowledge on the part of the ostensible occupant of the cabin or room as the case may be When it is shown that the opium was placed there by someone else. But as observed in an earlier decision of the same High Court in Chedi Mala and others v. The King Emperor (8 C W N 349) such a view would render section 10 of the Opium Act unnecessary. In that case opium was found in a boat and the person in possession of that boat as well as the crew were convicted. The High Court set aside the convictions of the crew but as regards the accused in possession of the boat they declined to interfere. With reference to section 10 it was observed "It is also plain the possession need not be to the knowledge of the accused otherwise the section would not be necessary. The section is a penal one and must therefore be read plainly, and the plain meaning is that if excessive opium is found in a man's possession he is liable to be punished unless he is able to account for it satis factorily." The present case, however, is quite plain. As stated already the appellant was in actual possession of the boxes. His version that he was not aware of the contents of the boxes was not established. We, therefore, consider that the appellant was rightly convicted. But as has been pointed out on his behalf the sentence of fine and imprisonment in default imposed on him by the Sessions Judge were illegal as the maximum amount of fine under section 9 as far as the Province of Punjab is. concerned is Rs. 2,000 while the appellant was sentenced to pay a fine of Rs. 5,

000. The sentence in default of payment was also illegal as the maximum period of imprisonment under the section is two years and therefore imprisonment for only six months was the maximum that could be imposed as the sentence to be under gone in default of payment of fine. The sentence imposed by the Sessions Judge is therefore set aside and for it is substituted a sentence of fine of Rs. 1,000 and in default of payment a sentence of rigorous imprisonment for six months. With this modification of the sentence the appeal is dismissed. A. H. Sentence modified.