Thomson J:

The respondent in this case appeared before the Sessions Court at Parit Buntar on a charge of unlawful possession of chandu in contravention of s. 3(1) of the Opium and Chandu Proclamation, 1946. The Court found that the charge was proved and made an order that the respondent be "bound over under s. 18A". For what period, in what sum, with what sureties, if any, and subject to what conditions as to treatment for opium addiction the respondent was to be bound over, the order did not mention. The Deputy Public Prosecutor appealed against that order and I had no hesitation in quashing it and substituting for it an order that the respondent be convicted and undergo a sentence of three months' rigorous imprisonment. I said I would state my treasons for the course I took at a later date. I now proceed to do so.

Under s. 3(2) of the Opium and Chandu Proclamation the only punishment prescribed for unlawful possession of chandu is imprisonment for a term not exceeding five years. From that it is clear that the legislature intended that the offence should be regarded as one of considerable gravity.

The only cases in which a Court may refrain from inflicting a sentence of imprisonment are those which fall within s. 294 of the Criminal Procedure Code or within s. 18A of the Proclamation.

As regards s. 294 of the Criminal Procedure Code, that section provides that binding over may be substituted for imprisonment if it appears to the Court that such substitution is "expedient" regard being had to the character, the antecedents, the age, the health or mental condition of the offender or to the trivial nature of the offence or to any extenuating circumstances under which the offence was committed. As I had occasion to observe in Criminal Appeal No: 38 of 1949, [See [1949] MLJ 231] "each individual case must be considered on its merits and must be examined with a view to ascertaining whether having regard to any of the matters mentioned in s. 294 binding over is in all the circumstances of the case expedient.

Section 18A of the Proclamation provides that where a charge under the Proclamation is proved the Court may, instead of proceeding to conviction, bind over the party charged if the following two conditions are satisfied:

(1) That the Court is of opinion that the accused is an opium addict, by which expression I take it is meant not a person who smokes opium but a person who does so under the compulsion of a pathological liking for it; and,

(2) The Court is of opinion that having regard to the character, antecedents, age, health or mental condition of the person charged or to the extenuating circumstances under which the offence was committed (but not, it is to be observed, the trivial nature of the offence) it is inexpedient to impose a punishment or any other than a nominal punishment.

Presumably to assist in its application the section goes on to provide that in any case where the Court "suspects" that the accused is an opium addict or where the accused alleges that he is an opium addict the Court shall cause the accused to be examined by a Government Medical Officer and may accept the written certificate of such officer as to the existence or not of opium addiction, and as to the duration of treatment sufficient to enable the accused to overcome his addiction.

The meaning of s. 18A is very clear. It does not permit the Court to bind anybody over merely because it is of opinion that he is an opium addict. It only enables the Court to do so when in addition it is of opinion that having regard to the character of the accused or to any extenuating circumstances which may exist and, of course, in the light of the circumstances of the case as a whole it is inexpedient to inflict any punishment. Moreover, the section clearly indicates what steps the Court should take to enable itself to form an opinion as to the existence of opium addiction when it suspects or the accused alleges that such a condition exists.

Havi