Full Judgment
Henry Richards, C.J. and Pramada Charan Banerji, J.
1. Ismail Khan has been convicted under Section 60A of the Excise Act and under Section 61 read with Section 70 of the Post Office Act. On conviction on the first charge he was fined Rs. 200 and on the second one Rs. 100, The learned Sessions Judge, to whom Ismail Khan appealed, has affirmed the convictions, but referred the matter to this Court for the purpose of having the sentences considered with a view to enhancement. Notice was duly served upon Ismail Khan, and he has been represented by Mr. Hoskins as counsel. Mr. Hoskins on his behalf urges, first, that both convictions were illegal, and that in any event the punishment was sufficient. In our opinion the court below was justified in finding that the accused had been guilty of an offence under Section 60A of the Excise Act and that he was rightly convicted. So far as the conviction under Section 61 read with Section 70 of the Post Office Act is concerned we think that the conviction was not justified by law. Section 70 of the Post Office, Act VI of 1898, provides that any person 'who abets the commission of any offence punishable under the Act or attempts to commit any offence so punishable, shall be punishable with the punishment provided for that offence.' We have now to see what offence Ismail Khan is alleged to have abetted. Section 61 is the only section referred to. That section provides that 'whoever in contravention of the provisions of Section 19 or Section 20 sends or tenders or makes over in order to be sent by post any postal article or anything shall be punishable with imprisonment for a term which may extend to one year or with fine, or with both.' We have now to see whether any person in contravention of the provisions of Section 19 or Section 20 sent any article by post. Section 19 is as follows : Clause (1) 'Except as otherwise provided by rule and subject to such conditions as may be proscribed thereby, no person shall send by post any explosive, dangerous, filthy, noxious or deleterious substance, any sharp instrument not properly protected, or any living creature which is either noxious or likely to injure postal articles in course of transmission by post or any officer of the Post Office.' Clause (2) 'No person shall send by post any article or thing which is likely to injure postal articles in course of transmission by post or any officer of the Post Office.' It is quite clear that the provisions of Section 20 have no bearing on the case. It seems to us that the provisions of Section 19 really deal with the sending of articles or animals by post which will be likely to injure any person occupied in the execution of the Post Office work, or which might be likely to cause injury to articles in the course of transmission through the post It does not seem to aim at the restriction of any trade. It is very hard to say that cocaine could be considered to be an 'explosive' or a 'dangerous, filthy, noxious or deleterious substance' within the meaning of the section. No doubt the abuse of cocaine may be followed by very serious consequences, but this, it seems to us, is not what the section was intended to provide against. It is said that rules have been made to prevent the sending of these articles by post. The sending of articles by post in contravention of the rules so made does not seem to be an offence under Section 61, which only deals with the sending of articles in contravention of Section 19 and Section 20. We think, therefore, that the accused was wrongly convicted of an offence under the Post Office Act. We think, however, that the sentence under Section 60A of the Excise Act was inadequate. We, therefore, set aside the conviction under Section 70 read with Section 61 of the Post Office Act and acquit the accused of that offence and remit the fine. We enhance the sentence under Section 60A of the Excise Act to a sentence of three months simple imprisonment in addition to the fine of Rs. 200. The fine of Rs. 100, if paid, will be refunded.