- motor vehicles act, 1988
[c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. ordernarasimham, c.j. 1. this is a revision against the appellate judgment of the sessions judge of cuttack maintaining the conviction and sentence passed on the petitioner, under section 9 (a) of the opium act for unlawful possession of 34 bags of capsules of the poppy. the said capsules were seized from his possession on 11th november 1954 by the excise sub-inspector (p. w. 4).the seizure is admitted by the petitioner but it was urged on his behalf that the capsules werelanced and dried capsules from which the juice had been extracted and that possession of such capsules would not amount to an offence under the opium act. this question has been fully discussed by me in my judgment in kashinath poddar v. the state, criminal revn. no. 120 of 1956 : (air 1957 orissa 93) (a), where i have held, after discussing the rules made under the dangerous drugs act 1930, that there is no restriction on the possession of capsules of the poppy which are lanced and dried or from which the juice had been extracted.the reasoning in that judgment would apply with full force in the present case. some of the seized capsules were sent to the chemical examiner whose report showed that the capsules bore marks of incision and contained traces of opium. the presence of mere traces of opium would not suffice to show that these capsules are outside the scope of the proviso to rule 4 (1) and rule 11 of the dangerous drugs (import, export and transhipment) rules 1933, in cases where it is admitted that they have been lanced and dried or the juice has been extracted therefrom.2. i must therefore hold that the petitioner isnot guilty of the offence with which he was charged.the conviction and sentence are set aside and heis acquitted. the seized capsules of the poppyshould be returned to him.