In Re: Kandasami

Anantanarayanan, J.—This revision involves a very interesting question, upon which I cannot find any definite principles of distinction laid

down in any authority to which my attention has been drawn, whether a group of circumstances which would justify an inference that a person was

carrying liquor which he possessed, would equally justify the inference that he was transporting that liquor u/s 4(1)(a) of the Madras Prohibition

Act. In Section 3, Sub-clause, 19, of the Act, transport has been defined as follows:

to move from one place to another within any local area to which this Act applies.

The problem can be posed in the following form. Supposing that a person is himself moving from one place to another carrying the contraband

on his person, is he liable merely to be convicted for possession of contraband, which is an offence u/s 4(1)(a) of the Act or can he also be

convicted or alternatively convicted, for transport. What are the principles upon which any distinction can be drawn between a set of

circumstances and another, with reference to this particular inference I must confess that very little light is so far available in the authorities to which

my attention has been drawn, and that it seems to be a matter of peculiar difficulty to enunciate any clear criteria which would distinguish these

distinct offences; with regard to facts of this description. The problem, of course, arises because the Legislature has thought it fit to make a

minimum sentence of imprisonment obligatory for the offence of transport. No such minimum has been enacted with regard to the offence of

possession alone.

It may be convenient to refer to the established facts of the present case. Though the learned Counsel for the revision Petitioner does not admit

those facts, nevertheless, they have certainly been established by definite evidence and are not liable to be challenged in those revision proceedings.

We may hence take it that this revision Petitioner was apprehended at about 10-30 p.m. on 6th May 1963 on the southern bund of Panchanthangi

while he was proceeding along that bund. The officer who arrested him was the Sub-Inspector of Police, Shevapet (P.W. 1). The revision

Petitioner was actually carrying a battle (M.O. 1) containing 4 drams of arrack, tucked up in the clothes of his waist. The point is, was he

transporting contraband as defined in Section 4(1)(a) of the Act?

Coming now to the authorities, I would like, in the first instance, to refer to the decision of the Supreme Court in Puranmall Agarwalla Vs. The

State of Orissa, . No doubt, that decision did not relate to the Prohibition Act but to Sections 9(a) and (b) of the Opium Act I of 1878. But the

following observations of their Lordships of the Supreme Court appear to me to be very pertinent, in the context of the problem arising in this

revision.

The provisions of the Opium Act make it clear that possession of opium and transport of opium contrary to the provisions of the Act, are two

separate offences. Mere possession of opium may not on the proved facts of a particular case involve any question of transporting it. Transport of

opium may, in certain circumstances, include the element of possession, while in other cases it may not...A person may transport opium and yet be

in possession of it, In the latter case, such person would be guilty of both of transport of opium and being in possession of it.

It is relevant here to note that the Opium Act also defined transport as to move from one place to another within the same State. I am referring

to this case, because it appears to me to be obvious that three contingencies are possible. Firstly, a person may be in possession of contraband,

such as illicit liquor, without at all transporting it. Secondly, a person may be transporting contraband, in the sense of moving it from one place to

another within the local area to which the Act applies, without physical possession of it on his own part. For instance, he might be moving it, in the

sense of causing it to be transported, in a trunk kept at the top of a bus by which he may or may not be traveling. Thirdly, a person may both be in

possession of the contraband, and may be engaged in its transport. In that case, it seems to me to be fairly clear that he is liable to be convicted for

possession and also liable to be convicted for the distinct offence of transport.

The matter has been considered in several decisions of this Court. It has been considered at some length by Sadasivam J., in Criminal Revision

Case No. 1545 of 1961 Ladakaran alias Munian v. The State of Madras. The learned Judge has extracted a passage from Emperor v. Dagadu

Shetiba ILR (1938) Bom. 49, 51. He then observed:

In the ultimate analysis, it is for the Court to determine on the facts of each case whether there is transport within the meaning of Section 4(1)(a) of

the Madras Prohibition Act. In doing so, the Court should consider the quantity of liquor, the alleged mode of transport, the places between which

the liquor is alleged to have been transported and other circumstances and give some common sense meaning to the word.

Kunhamad Kutti J., in Criminal Revision Case No. 52 of 1962 Irusary v. The State of Madras has referred to the decision of Sadasivam J., in

the case just cited. Ramakrishnan J., in Criminal Revision Case No. 996 of 1962, T.M. Kuttia Pillai v. The State of Madras had occasion to

consider this very problem, and the learned Judge observed that the mere fact of possession by a person then engaged in moving from one place to

another will not ipso facto make it a case of transport. In Criminal Revision Case No. 556 of 1964, the learned Judge stressed that the surrounding

circumstances would be pertinent, such as the mode of transport, the quantity of liquor carried, etc. The learned Judge held that the quantity of

liquor in the case, and the circumstances, showed that it was a case of transport and not of possession.

The difficulty, of course, is to enunciate any definite criteria of distinction. As I have pointed out earlier, a person may both be in possession of

contraband and may also be committing the offence of transport of the contraband as defined in the Act. With very great respect to the Bench

decision in Emperor v. Dagadu Shetiba ILR (1938) Bom. 49, I am not clear that that decision can aid us in a satisfactory resolution of the problem

of formulating distinguishing principles on this aspect. Beaumont C.J., said:

...nor I think can it be suggested that anybody who takes an excisable article from his bungalow to his office for consumption at Tiffin is

transporting it from one place to another, and therefore committing an offence under the Act. One must, I think, give some sort of commonsense

meaning to the very wide language used.

I think that it may be of some assistance to note the following broad features of the distinction between the two offences. While a person may

possess without transporting and one may equally transport without possession a person may possess and transport, in which case he will be

committing both the offences. It cannot be said that the purpose of the transport determines the offence, for we are bound by the terms of the

enactment, and the Legislature has made no such distinction. With great respect to the Bench decision of the Bombay High Court above referred

to, I am unable to see why a person who takes liquor from one place to another, not for sale to some one else but for his own consumption at

some ultimate destination, is to be considered, as not engaged in transport of the contraband. The Legislature has not laid it down that the transport

must be for commercial purposes or that it is transport for sale alone which is punishable, and not transport for personal consumption. Again, the

quantity of liquor carried may be relevant, but I am afraid that it cannot be decisive. For, here again, the Legislature has not laid it down that the

offence of transport can be committed only if the contraband is appreciable in quantity or only if it exceeds a particular quantity. The distance of the

ultimate destination, whatever it might be, from the place at which the offender is apprehended, again, may not furnish any true basis for distinction.

The argument is certainly conceivable that every person, possessing contraband and having it physically in his possession, while he himself is in

movement, is hot necessarily transporting the contraband ; this is the point which Ramakrishnan J., has emphasised. Since the provision is penal,

presumably, the circumstances must justify an inference of an animus or intention to transport or at least the knowledge that the contraband is being

transported by the concerned person. It can hardly be argued, for instance, that if some other person has put contraband into the pocket of a

person who is walking along a particular road, that latter person is liable to be convicted for the offence of transport, even if he is totally ignorant

that there is contraband concealed in his pocket. But, where it is clear that a person is taking contraband with the knowledge that he is taking it

from one place to another, and he is physically in possession, it is very difficult to see how the mere fact that he, is ultimately going to consume it

himself, or the fact that the quantity is not considerable, will afford any principle on which he can be convicted for possession alone, and acquitted

as regards the charge of transport.

In the present case I am unable to find any justification for holding that the revision Petitioner was not engaged in transport of the contraband.

The purpose with which he was so engaged is really immaterial. But the quantity is small, and presumably he was intending to consume the liquor

himself, and was not engaged in trafficking in the commodity. Had he been stationary at the time of arrest or had he consumed the liquor

immediately before arrest, he would have been liable for other offences, alone, which would involve no minimum punishment. In my view, these are

special circumstances extenuating the character of the offence, though they do not affect the legal propriety of the conviction.

Hence I confirm the conviction, but, in the light of the special factors and adequate reasons to the contrary just specified, direct that the

imprisonment shall be limited to the period already undergone by the revision Petitioner, and confirm the sentence of fine of rupees twenty five. I

may point out that special reasons ought to have been furnished by the Courts below for imposing a fine which is less than the minimum ; but

presumably, the poverty of the revision Petitioner justifies this relatively lenient sentence. The revision petition is otherwise dismissed.