Transport includes possession, and so the double punishment for possession and transport is warranted by law.

Judgment

S. J. IMAM, J. : This appeal by special leave is limited to the question whether transport includes possession, and so the double punishment for possession and transport is not warranted by law as stated in ground (xi) of the petition for special leave.

2. On the facts found there can be no question that the appellant went in a rickshaw from the Sambalpur Road Railway Station to the State Transport Bus Stand with a trunk and a bedding in order to proceed to a place called Bargarh. He bought a ticket for Bargarh and took his seat in the bus after loading his trunk and bedding on top of it. On information received by the Officer-in-charge of Sadar Police Station of Sambalpur, the bus was detained near the police station, while on its way, and all the trunks and beddings on it were unloaded, and the passengers of the bus were asked to take their respective trunks and beddings. The passengers took their trunks and beddings. One trunk and a bedding, however, remained on the ground. The appellant claimed the bedding to be his own, but denied the trunk to be his property. The bedding and the trunk were brought to the thana and the trunk was opened. The trunk contained opium weighing six seers and six and half chhataks. On the facts found, the trunk was identified as that of the appellant, and there can be no question that he was in possession of the opium. The only question for consideration, having regard to the limited ground upon which special leave was granted, is whether the appellant could also be punished for being in possession of opium, as it is suggested that transport includes possession .

3. The appellant was sentenced under S. 9 (a) for possession of opium and under S. 9 (b) for transport of opium, and sentenced to undergo rigorous imprisonment for three months under each count, the sentences to run consecutively.

4. Section 4, Opium Act, 1878 (Act I of 1878) reads as follows :

"Except as permitted by this Act, or by any other enactment relating to opium for the time being in force, or by rules framed under this Act or under any such enactment, no one shall -

(a) possess opium ;

(b) transport opium ;

..................................."

It is clear from the provisions of S. 4 that no one shall possess opium or transport opium, except under the circumstances mentioned in the section. Section 9 provides that

"Any person who, in contravention of this Act, or of rules made and notified under S. 5 or S. 8 -

(a) possesses opium, or

(b) transports opium

.................................

shall, on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

This was the provision in S. 9 before its amendment by Act LII of 1957 which provided that on conviction before a Magistrate, a person convicted of any of the offences mentioned in S. 9 shall be punishable for each such offence with imprisonment which may extend to three years, with or without fine. We are, however, not concerned in this particular case with the punishment provided by the amendment, as the offence was committed previous to it. The provisions of the Opium Act make it clear that possession of opium and transport of opium contrary to the provisions of the Act or any other enactment relating to opium or to rules framed under 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 through various agencies and yet not be in possession of it at the time it was transported. On the other hand, a person may transport opium and yet be in possession of it. In the latter case, such a person would be guilty both of transporting opium and being in possession of it. Under the Act, transport means