The State vs Jagat Singh Mota Singh and Another

Chopra, J.—A reference has been made by the Magistrate 1st Class, Bassi, in the above two) cases, u/s 432 (1), Code of Criminal Procedure because, in his opinion, certain rules framed by the State Government u/s 5, Opium Act (Act No. 1 of 1878) fall beyond the powers conferred by the section and are, therefore, ultra vires the provision of the Act.

At the outset, it may be observed that the reference is misconceived both as regards its -competency, and merits. u/s 432 (1) Code of Criminal Procedure what can be referred for decision of the High Court is the question of invalidity ''of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation.'' No question as to. the validity of any Act, Ordinance or Regulation or of any of their provisions is involved in the present case.

The dispute relates to the validity of certain rules framed by the Government in exercise of the powers conferred by Section 5, Opium Act. The rules may have the force of law and their contravention may also be liable to penalty under the Act; but that by itself does not make the rules part of the Act or its provisions.

In - The State Vs. Kunja Behari Chandra and Others, the question of invalidity or inoperativeness of certain rules framed under the Mines Act was referred for decision of the High Court u/s 432(1), Code of Criminal Procedure Section 30, Mines Act, enables the Central Government to make rules which are consistent with the Act; and its Section 31 (4) states in express terms that the rules, on publication in'' the official (AuguBt) 1956 Pepsu D.F./5/(2) & 6/(1) gazette, shall have effect as if enacted in the Act. In spite of this express provision, Jamuar J. took the view that

the rules must be considered as such and, though having the force'' of law, yet, not as provision? of the Act", and that

Section 432 (1), Code of Criminal Procedure does not include the reference where there is involved a question as to the validity of any rule framed under any Act.

Das and Narayan JJ. considered the question of the competency of the reference only of an academic character because the questions involved in the reference were the same which tell for their decision in the criminal revisions pending before them. Yet, they expressed a different view and disagreeing with Jamuar J. observed:

Having regard to the object of Section 432(1), Criminal Procedure Code, as enacted in 1951, it is more in consonance with that object to include within the expression ''any provision contained in any Act, Ordinance - or Regulation'' such rules as become part of the Act on publication.

No such express provision is made in the Opium Act. I am, therefore, of opinion that the reference is incompetent, as it does not strictly fall within the purview of Section 432 (1), Code of Criminal Procedure.

On merits also, the question raised does not brook any serious consideration. Section 3, Opium Act, as amended by the Dangerous Drugs Act, 1930, defines "Opium" inter alia as "the capsules of the poppy." With the other two clauses of the definition, we are not here concerned.

Section 4 prohibits, except as ''permitted by the Act or by rules framed under the Act, possession, transport, import or export and sale of opium. This section read with the above definition of opium prohibits the possession of "the capsules of the poppy", subject to the exceptions made in the Act or by the rules framed there under. Section 5 of the Act gives the rule-making power to the State government and the relevant portion of it says:

The State Government may, from time to time, by notification in the Official Gazette, make rules consistent with this Act, to permit absolutely, or subject to the payment of duty or to any other conditions, and to regulate, within the whole or any specified part of the territories administered by such government, all or any of the following matters:

(a) the possession of opium.

The Punjab Opium Orders, as contained in Chapter 21 of the Punjab Excise Manual, Vol. II, have been made applicable mutatis mutandis to this State. They are to be regarded as the rules, with respect to possession of opium, framed u/s 5, Opium Act.

For the purposes of this chapter, Rule 21. 1. (b) defined the expression "poppy-heads" as "the capsules of the poppy plant from which juice has not been extracted". Rule 21.5, before the recent amendment, stood as follows:

Any person may without a license at. any one time have in his possession -

(a) poppy heads in any quantity not exceeding two seers:

(b) the decoction of poppy-heads known as post in any quantity not exceeding one seer:

(c) pure opium in any quantity not exceeding two tolas.

The State Government, in exercise of the powers conferred by Section 5, Opium Act, has made certain amendments in the Punjab Opium Orders, as contained in Chapter 21 referred to above. Notification dated 4-2-1955, published in the Government Gazette dated 13-2-1955, relates to these, amendments and its Clause (1) substitutes the following for Clause (b) of Rule 21.1 of the Punjab Opium Orders:

The expression ''poppy-heads'' means the capsules of any poppy plant whether or not the juice has-been extracted from them."

Clause (2) of the Notification substitutes the following for B. 21.5 reproduced above:

"any person may without a license at any time have in his possession in any quantity:

(a) excise opium, not exceeding one tola:

(b) poppy-heads from which the juice has been extracted, not exceeding one Chhatak:

(c) poppy-heads from which the juice has not been extracted, not exceeding one seer:

(d) decoctions of poppy-heads, not exceeding one seer.

Now possession of the capsules of the poppy from which the juice has or has not been extracted is prohibited by Section 4 read with the definition of opium given in Section 3 of the Act. Rule-21.5 (read with Rule 21.1.b) before the, amendment allowed any person to have in his possession at- any time without license the capsules of the poppy plant from which the juice has not been extracted in any quantity not exceeding two, seers.

The effect of the amendment is that it reduces the allowable weights of such capsules to one seer, and it further permits the possession, by any .person at any time without license, of the capsule? of the poppy from which the juice has been extracted in any quantity not exceeding one chatak.

A simple reading of the above provisions makes it clear that the amendment does not in any manner exceed the powers conferred on the State Government u/s 5, Opium Act. The rulers, made by virtue of the powers conferred by ''this section provide inter alia for the grant of a license for possession of, or to deal in, the commodities described as opium under the Act.

The rules also make certain exemptions with respect to the possession of ''opium''; Rule 21.5 ''exempts, to the specified extent, the possession of certain commodities which fall within the definition of ''opium'', from the operation of the Act. The amendment in question does not add any-.thing to the definition of "opium" as contained in the Act. On the other hand, the amendment is simply an exempting provision, taking out the possession of certain articles, to the specified extent, from the mischief of the Act.

There is force in the learned Magistrate''s observation:

It was not competent for the government to bring something within the definition of opium In the Opium Act which was not independently a thing which could be termed opium. The Government has no power to regulate possession of anything which is not by itself opium.

But no such thing has, in my opinion, been done in the present case and there is nothing wrong in the amendment.

The question whether the particular substance, which forms the subject of dispute in these cases, does or does not fall within the definition of "opium" cannot be gone into in this reference. That shall have to be determined by the trial magistrate in the light of the evidence brought on the record.

10.The case shall now go back to the Magistrate 1st Class, Basel for decision in accordance with the Law. The parties have been directed to appear in this Court on 9-4-1956.