- (1.) THE petitioner has been convicted for possession of opium, punishable under section 9 (a) of the Opium Act, and has been sentenced to three months rigorous' imprisonment.
(2.) IT has been found by both the Courts below that when the house of the petitioner was searched, a Dabba (small box), containing raw opium, was recovered from behind the idol of Shri Hanumanji. In fact, this was admitted by the accused. His plea was that his school going son found it lying on the road somewhere and it was he who put it behind the idol. The learned trial Magistrate as also the appellate Court have disbelieved the defence; in my opinion, rightly. IT is unnecessary to repeat the reasons stated by the appellate Court in detail. Learned counsel for the petitioner contends that the prosecution did not prove the quantity of opium, which was in the Dabba and further that it was the duty of the prosecution to prove that the quantity therein exceeded the quantity of opium, which a person is permitted to possess, that is, 1/4 Tola in weight. In my opinion, the first point is correct but the second point is irrelevant. The seizure memo (Ex. P-1) clearly shows that the weight of the opium, including the Dabba, was 80 grams and this is also clear from the statement of C. G. Jaiswal, Excise Inspector (P. W. 1). He admitted in cross-examination that the weight 80 grams, included that of the Dabba. This appears to have escaped notice of the Courts below. The charge mentions 81 grams of opium; the judgment of the Magistrate mentions 80 grams of opium; "JO AFIM BARAMAD HUI HAI WAH 80 GRAM KE LAGBHAG HAI JO KAFI MATRA HAI"; and the judgment of the Additional Sessions Judge also mentions, "a Dabba containing 80 grams of raw opium". Since the weight of the Dabba is not known, it is difficult to say whether the weight of the opium was 79 grams or 1 gram.
(3.) BUT the weight of opium does not matter. In this State, it is not permissible to be in possession of any quantity of opium without a licence Shri R. K. Pandey relies on sub-rule (1) of rule 8, Part VI, of the C. P. Rules made under the Opium Act, as amended by notification No. 47, dated 10 January 1948. The sub-rule was substituted by these words: "(1)(a). Except in areas in which the C. P. and Berar Prohibition Act, 1938, (VII of 1938) is in force, no person shall at any one time possess opium exceeding 1 /4 Tola in weight, provided that an Indian soldier may.. . . ". Learned counsel produces before me a book containing those rules and the amendment. BUT those rules are not in force as they were repealed under rule 25 of the M. P. Opium Rules, 1950, which came into force on 1 April 1959 (published in M. P. Gazette Extraordinary, dated 1 April 1959). Shri Pandey then appealed for reduction of sentence. Shri Tamasker, learned Deputy Government Advocate, contends that three months' imprisonment is the minimum sentence so that reduction is out of the question. Learned counsel for the petitioner urges that there is no minimum sentence prescribed for an offence under section 9 (a) of the Opium Act Alternatively, he relies on the principle of State of M.P. v. Barman, 1964 MPLJ 367.;