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Criminal Revision No. 577 of 1958, decided on 23rd October 1958 for revision of the order of Sessions Judge, Mianwali, dated 11th July, 1958.
S. 235 (1) Expression "same transaction"‑Meaning of‑Whether distinct offences form part of "same transaction"‑Depends on facts of each particular case.
The expression "same transaction" is not defined in the Criminal Procedure Code, it having been pointed out by various High Courts that the word "transaction" is by its very nature. incapable of exact definition. It is, however, now well settled that the real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. Therefore the question whether distinct offences form part of the same trans action is one, the answer to which must depend on the facts of each particular case.
Emperor v. Sherufalli 27 Bom. 135 ; Palaki Dandapani Patro , v. Emperor A I R 1945 Pat. 293 ; Emperor v. Nga Lu Gale 19 Cr. L J 34 and Bali Sahu v. Emperor 44 I C 974 ref:
Bankey Lal v. Emperor A I R 1942 Oudh 462 and Onkar Singh v. Emperor A I R 1934 Oudh 457 dissented from.
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----Test to determine illegality or otherwise of Punjab Excise Act (I of 1914), S. 61‑Opium Act (1 of 1878), S. 9.
In determining the question of illegality or otherwise of a joint trial what is to be looked to is not the evidence led or even the charge framed but the accusation leading upto the charge.
Where in the same raid of a house charas and non excise opium were recovered, joint trial under section 61 of the Punjab Excise Act (I of 1914) and section 9 of the Opium Act (I of 1878) was held legal under the circumstances of the case.
Bashir v. The Crown P L D 1955 Lah. 70 ; S. M. K. Alvi v. The Crown P L D 1953 F C 189 ; Muhammad Khan v. The Crown P L D 1953 Lah. Ata Muhammad Khan v. The Crown P L D 1950 Lah. 41 and Noor Din v. The Crown P L D 1952 Lah. 185 ref.
----‑Continuing offence.
Possession of an illicit article is a continuing offence, and the essential fact is not the acquiring of possession, but the possession itself.
Syed Ghulam Abbas Jafri for Petitioner.
S. M. Zafar for A.‑G. for Respondent.
Date of hearing : 10‑10‑58.
This order will dispose of two connected revisions, Nos. 577 and 578 of 1958.
2. The facts briefly are that on the 29th of November 1957, the upper flat of a shop in the possession of the petitioner was raided and searched, as a result of which 2 tolas of non‑excise opium, 12 tolas of charas and 36 tolas of excise opium were recovered. As the petitioner is, or was, a Government opium contractor, his possession of the excise opium was lawful, but cases were registered against him in respect of the non‑excise opium and the charas. His nephew, one Muhammad Hayat, was also prosecuted and tried jointly with the petitioner, being convicted by the trial Court, but the learned Sessions Judge in appeal held that the possession of the illicit articles was that of the present petitioner, and acquitted Muhammad Hayat.
3. The convictions and sentences of the present petitioner under section 61 of the Excise Act and section 9 of the Opium Act and the sentences of one year on each count imposed by the learned trial Court were upheld by the learned Sessions Judge, the only concession allowed to the petitioner being that the sentences were ordered to run concurrently instead of con secutively.
4. On the merits there is no reason to interfere. The petitioner attempted to argue that he has been victimised and falsely implicated in the present case on account of a grudge harboured against him by Ayyaz Khan, Assistant Sub‑Inspector, who conducted the raid, and contends that the witnesses to the search are unreliable. The first allegation is entirely unsub stantiated, the mere fact that after the raid Ayyaz Khan carried away the petitioner's safe being insufficient to establish the accusation of enmity. With respect to the second point it is true that Hadayat Ullah (P. W. 5) was convicted some six years previously in a theft case, but even if his evidence be disregarded, there is no reason to reject the testimony of Faqir Muhammad (P. W. 6) and the Assistant Sub‑Inspector.
5. A point of law has, however, been raised by the petitioner which requires consideration, namely that the trial of the petitioner for separate offences under section 61 of the Punjab Excise Act (I of 1914) and section 9 of the Opium Act, 1878, is illegal, the offences not forming part of the same transaction within the meaning of section 235 (i) of the Criminal Procedure Code.
6. The expression "same transaction" is not defined in the Code, it having been pointed out by various High Courts that the word "transaction" is by its very nature incapable of exact definition. It is, however, now well settled that, as held in Emperor v. Sherufalli (27 Bom. 135) the real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action. It is, therefore, clear that the question of whether distinct offences form part of the same transaction is one, the answer to which must depend on the facts of each particular case.
7. In the authority relied upon by the Courts below, namely Palaki Dandapani Patro v. Emperor (A I R 1945 Pat. 293), a grocer was found in possession of contraband goods, opium and ganja, for the purposes of illicit sale. The learned Judges applied the test of continuity of action and purpose and held that the possession of the two articles for the purpose of illicit sale formed part of one transaction, and that the trial of the accused for offences under the Opium Act and the Bihar and Orissa Excise Act was not illegal. In coming to the above conclusion the learned Judges followed two previous cases, Emperor v. Nga Lu Gale, (19 Cr. L J 34) and Bali Sahu v. Emperor (44 I C 974).
8. Mr. Jafri, on the other hand, relies on two decisions of the Oudh Chief Court, Bankey Lal v. Emperor (A I R 1942 Oudh 462) and Onkar Singh v. Emperor (A I R 1934 Oudh 457) following in the later authority. With very great respect, I find myself unable to agree with the above decisions. The facts of Bankey Lal's case are that the house of the petitioner was raided, 2 seers of charas and half seer of opium being recovered. The petitioner was convicted at one trial of offences under section 60 (2) read with section 69 of the Excise Act and section 9 of the Opium Act. In his revisional order the learned Single Judge remarked:
"I think that it cannot be said that the offences of keeping charas and opium were committed in one series of acts so connected together as to form part of the same transaction. There is nothing to show whether these articles were received by the applicant at one time or on different occasions. In 11 O. W. N. 1206 a person was found to be in possession of a stolen gun and he was prosecuted under S. 19 (d), Arms Act, and S. 411, Penal Code. A Bench of this Court held that the provisions of Ss. 234, 235, 236 and 239 were not applicable and the accused was entitled to a separate trial in respect of each offence charged against him. I see no ground to distinguish the case before me from that case. The learned Government Advocate has relied on a ruling of the Lower Burma Chief Court reported in 19 Cr. L J 34. In that case the accused was found in illegal possession of opium and cocaine and it was held that the accused could be tried jointly for both the offences. That case is distinguishable because the accused was found to be in possession of the two articles in the course of carrying through the business of selling contraband and it was held that the purposes for which the accused had the two articles in his possession was the same, that is, keeping a place where contraband could be obtained. There is nothing in the present case to show for what purpose the accused was keeping these articles. The case relied on by learned Government Advocate is 1940 O W N 965. In that case it was held that where the same speeches of the accused constitut ed offences under Ss. 124‑A and 153‑A, Penal Code, separate trials under the two sections are not necessary. In this case the applicant is prosecuted not for keeping one article but two different articles. I hold that the accuse committed two distinct offences which were not committed in one transaction and therefore there should have been a separate and each charge should have been tried separately".
9. Onkar Singh's case, being a Division Bench authority, was binding on the learned Single Judge unless he found reason to distinguish the facts on which the decision is based from those of the case before him. The relevant portion of the judgment in Onkar Singh's case runs:
"In the present case we note that the accused has been tried for two very distinct offences, one under S. 19 (d), Arms Act, and the other in respect of being in possession of stolen property knowing or having reason to believe it to be stolen property. Under S. 233, Cr. P. C., it is laid down that
For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Ss. 234, 235, 236 and 239.
We are of opinion that the provisions of Ss. 234, 235, 236 and 239 cannot be made applicable to the facts of the present case and the accused was entitled to a separate trial in ‑respect of each offence charged against him. For this reason also, the trial of the accused in the Court of the learned Magistrate was illegal".
10. With great respect, it must be pointed out that the learned Judges have given no reasons for holding that the provisions of section 235, Criminal Procedure Code, were inapplicable to the facts of the case before them, and it cannot be said whether they considered the criterion of continuity of action and purpose on which the Patna decision above referred to is based. The reason for the omission possibly is that as the learned Judges had already held the trial to be vitiated by non‑observance of the provisions of section 242, Criminal Procedure Code, they did not consider it necessary to discuss the second supposed illegality in any detail. I may add with respect, that I have been unable to appreciate the significance of the word "very" in the expression "two very distinct offences". The mere fact that one of the offences was under the Arms Act and the other under the Penal Code is, of course, immaterial for consideration of the question before me, since the expression "offence", as defined in section 40 of the Penal Code, includes offences under a special or local law. Moreover, the same gun in respect of which an offence under section 19 (d) of the Arms Act was alleged to have been committed was the subject matter of the charge under section 411, P. P. C. an possession of it was the essential offences. In the absence of any clue to the reasoning adopted by the learned Judges, I have been unable to obtain guidance from the decision.
11. Reverting to Bankey Lal's case, it is clear from the passage cited that in reaching his conclusion that the offences under consideration were not committed in one series of acts so connected together as to form part of the same transaction, the learned Judge was influenced by the absence of any indication whether the articles were received by the petitioner at one time or on different occasions. With great respect, I am compelled to remark that the dates on which the articles were received by the petitioner appear to me to be, in the circumstances of the case, immaterial. Possession of an illicit article is a continuing offence,) and the essential fact is not the acquiring of possession, but the possession itself. From this point of view, the possession of the illicit articles, both in the case dealt with by the learned Judge, and in the one now before me, was not only proximate but actually simultaneous.
12. In Bankey Lal's case it was further held that there was nothing on the record to show for what purpose the accused was keeping the illicit articles. It is unfortunately not stated in the judgment what trade or calling the accused followed, but in the present case there is no doubt whatever that the petitioner, an opium contractor, was keeping the illicit articles for sale, so that in addition to continuity of action (simultaneous possession of the illicit goods) there is also continuity of purpose, namely, the ultimate sale of the articles.
13. The judgment in Bankey Lal's case does not reveal whether the finding of the learned Judge that a joint trial for the two offences alleged to have been committed by the accused 'was illegal is based on the accusation against him or on the actual evidence. It is, however, settled law that in determining the question of the illegality or otherwise of a joint trial what is to be looked to is not the evidence led or even the charge framed, but the accusation leading up to the charge. Reference may fie made in this connection to the following Judicial decisions :‑
(1) Bashir v. The Crown P L D 1955 Lah. 70.
(2) S. M. K. Alvi v. The Crown P L D 1953 F C 189.
(3) Muhammad Khan v. The Crown P L D 1953 Lah. 262.
(4) Ata Muhammad Khan v. The Crown P L D 1950 Lah. 417.
(5) Noor Din v. The Crown P L D 1952 Lah. 185.
In the present case both the first information report Exh. P. R/1 and the police report Exh. P. B. contained the allegation that the alleged illicit articles were intended to case by the offender. On the basis of the decision in Bashir's case Mr. Jafri attempted to argue that in determining the precise nature of the accusation against the accused the first information report is to be disre garded and only the police report looked to. No doubt, it is remaked by Shabir Ahmad, J. in the course of his judgment that if the offences for which the accused are being tried according to summons case procedure were investigated by the police, the accusation would generally be the report of the police but apart from the cautious nature of the language it cannot be interpreted as implying that in all cases only the report of the police can be taken into consideration. The present case was tried by the warrant procedure, with respect to which the same learned Judge went on to observe : "In warrant cases which are tried according to the provisions contained in Chapter XXI of the Code of Criminal Procedure, the accusation for the purposes of section 239 of the Code of Criminal Procedure would be the material before the Magistrate at the time when he decides to frame a charge under section 254 of the Code of Criminal Procedure". The word "material" is one of wide connotation, and must be interpreted as including not only the report made by the police but also the first information report.
14. For the above reasons I hold that the two offences for which the petitioner was tried formed, not only according to the evidence but also according to the accusation, part of the same transaction, and that the provisions of section 235, Criminal Procedure Code, permitted their being dealt with at one trial. This objection has consequently no force, and the petitions stand dismissed.
K. B. A. Petitions dismissed.
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