Shiva Prasad Marwari vs Emperor

Agarwala, J.—The petitioner has been convicted u/s 47(a), Bihar and Orissa Excise Act, 1915, and sentenced to two months rigorous imprisonment and to pay a fine of Rs. 45. The offence he is alleged to have committed is possession of ganja weighing three annas on 3lst October 1941. So far as it is material, Section 47(a) provides:

If any person, in contravention of this Act, or of any rule, notification or order made, issued or given, or license, permit or pass granted, under this Act, possesses any excisable article.

he shall be liable to imprisonment for a term which may extend to six months, or to fine which may extend to one thousand rupees, or to both. Excisable article is defined in Section 2(6) as any liquor or intoxicating drugs as defined by or under this Act. Under the definition of intoxicating drug in Section 2(13) is included ganja and every preparation of the hemp plant. Section 19 prohibits an unlicensed person having in his possession any Iquantity of any excisable article in excess1 of such quantity as the Board has, u/s 5, declared to be the limit of a retail sale, except under a permit granted by the Collector in that behalf. Sub-section (4) provides:

Notwithstanding anything contained in the foregoing sub-section, the Local Government, may, by notification, prohibit the possession by any person or class of persons, either in the Province of Bihar and Orissa or in any Specified local area, of any excisable article, either absolutely or subject to such conditions as it may prescribe.

This sub-se6tion was repealed by the Bihar Excise Amendment Act of 1940 and a new sub-section was substituted in its place. The only differences between the old and the new sub-sections are that for the words "Local Government" the words "Provincial Government" have been substituted; for the words "Province of Bihar and Orissa" the words "Province of Bihar" have been substituted, and for the words "any excisable article" the words "any intoxicant" have been substituted. As intoxicants include drugs which are dangerous drugs doubt arose Jas to the validity of the amending Act as dangerous drugs is a subject occurring in the concurrent list of the Government of India Act and the Act of 1940 had not received the sanction of the Governor-General. To remedy this defect the Bihar ''Excise Supplementary Act, 1941, was passed. This Act declared that the provisions of the amending Act of 1940 shall apply to every intoxicating drug as defined in the Act of 1915 although such drug may also be a dangerous drug. On 10th December 1940, the Provincial Government purporting to act in exercise of the powers conferred by Sub-section (4) of Section 19, Excise Act of 1915 (as amended by the Act of 1940, prohibited possession by any person, in certain areas specified in the schedule to the notification, of ganja.

The question arises whether in these circumstances the possession of ganja on 3ist October 1941, was possession in contravention of the Act within the meaning of Section 47. Clearly the Act of 1940 was ultra vires the Provincial Government in so far as it dealt with dangerous drugs. The result, therefore is that the Act of 1915 remained unaffected by it and the law in force at the time of the offence alleged to have been committed in the present case was as enacted in Sub-section (4) of Section 19 of the Act of 1915. This was the conclusion arrived at by a Pull Bench of the Madras High Court under similar circumstances in a case relating to similar legislation in the Presidencey of Madras: see In Re: Adilakshmi Ammal and Others, .

The next question-that arises is whether the possession of gania by the petitioner on 31st October 1941, amounted to a contravention of the provisions of the unamended Act and the solution of that question depends on the validity of the notification by which the Provincial Government attempted to make the possession of ganja a penal offence. The original Sub-section (4) of Section 19 of the Act of 1915, empowered the Local Government by notification to prohibit the possession of any excisable article including ganja by any person or class of persons either in the Province of Bihar and Orissa or in any specified local area. The notification of 10th December 1940, purports to prohibit possession of ganja by any person in the areas specified in the notification; but it has been held by a Full Bench of this Court that the words "any person" in Section 19(4) mean "any designated person" and that a notification which purports to apply to all persons in a particular area is ultra vires: Kanhai Sahu Vs. Emperor, .

The notification under consideration in that case was in almost precisely the same terms as the notification in the present case and applied to the same area. The notification under which the petitioner has been con--victed being ultra vires, the possession of ganja by the petitioner on 3lst October 1941 did not constitute an offence.

The result is that the conviction must be set aside and the fine, if paid, will be refunded.