The State Vs. Sohan Lal - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. 1. this judgment will dispose of three appeals (criminal appeals nos. 287, 238 and 289 of 1955) in which the questions to be decided are the same and can conveniently be dealt with in one judgment.2. sohan lal, ram gopal and dahu bam were tried and convicted under section 9(a) of the opium act for possessing various quantities of poppy husk which it was claimed by the prosecution to be covered by the word 'opium' as given in the opium act.the learned magistrate relying on a judgment of the nagupr high court in -- 'jagjiwan pitambar v. emperor', 1936 nag 240 (air v 23) (a), held that the substance which was found from the various accused persons fell within the definition of the word 'opium' as given in section 3 (i) of tha opium act and he convicted and sentenced them to imprisonment till rising of the court and a fine of rs. 1,000/- each. on the matter being taken to the learned sessions judge he was of the opinion that the substance may technically fall within the word 'opium' but was really not opium. he therefore acquitted all three accused persons and the state has come up in appeal to this court.3. the substance which was found from the possession of the accused persons is called 'bhuki' (poppy husk) and the question for determination is whether that substance ia covered by the definition of the word 'opium' which in section 3 (i) of the opium act is defined in the following terms;'3. in this act, unless there is something repugnant in the subject or context.-- 'opium' means- (i) the capsules of the poppy .....;'' 4. section 4 of the act provides for rules in regard to prohibition of poppy cultivation and possession of opium, and section 5 empowers the government to make rules in regard to the possession, transport, importation or exportation and sale of opium. under section 9 any person who contravenes any provision of the act or the rule made thereunder becomes liable to a penalty, and amongst the articles prohibited is possession of opium, and therefore the act as it stands means that any person who possesses opium as defined in the act, subject, of course, to the rules becomes liable to a penalty on a contravention of the statute or the rules made thereunder.5. the rules which were in force at the time when this offence was committed are contained in chapter 21 of the punjab excise manual, volume ii, which dealt with opium. under rule 21.1 (b) the expression 'poppy-heads' was defined to mean the capsules of the poppy plant from which the juice has hot been extracted. rule 21.5 dealt with possession and ran as under:'21.5. any person may without a licence 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) excise opium in any quantity not exceeding two tolas. possession of any kind of opium other than excise opium in any quantity is prohibited under section 4 of the opium act, 1878, unless otherwise specifically provided under these rules.' 6. thus a combined reading of the two rules means that no person could possess poppy-heads exceeding two seers in quantity. there is no rule which has been brought to our notice which deals with poppy husk or 'bhuki' which is the substance in dispute in the present case.7. the learned assistant advocate-general mr. kartar singh chawla has relied on the judgment of the nagpur high court in '1936 nag 240 (air v 23) (a)', where it was held that the substance called 'bondika bhusa' which consists of the shells of poppy-heads possesses in some measure the active properties of opium and can be used as an intoxicant, and therefore comes within the definition of 'opium'. with due respect we are unable to agree with oils opinion.8. the case before us is a criminal case and it is for the state to show that the accused persons have committed the offence with which they are charged. in other words, unless the state shows that the substance which was found from the possession of the accused person is covered by the definition of the word 'opium' as given in the act no offence can be held to have been committed, and the prosecution cannot succeed.'capsule' as given in webster's dictionary means 'any closed vessel containing spores or seeds'. poppy husk has not been shown to be a capsule and we cannot agree that the word 'cap-sule' is synonymous with husk or 'bhukl, which is the name of the substance found in the present case. the accused persons have in our opinion been rightly acquitted and we would therefore dismiss all the three appeals.