iminal Appeal No 69 of 1956
Appeal by special leave from the judgment and order dated November 18 1955 of the Orissa Hioh Court at Cuttack in Criminal Revision No 20 of 1955 arising out of the Judgment and order dated December 23 1954 of the Court of the Sessions Judge at Sambalpur in Criminal Appeal No 111S of 1954
Tara Chand Mathur and K L Arora for the appellant
NS Bindra and R H Dhebar for the respondent
August 19
The Judgment of the Court was delivered by IMAM J
This appeal by special leave is limited to the question  whether transport includes possession and so the double punishment for possession and transport is not warranted by law s stated in ground xi of the petition for special leave
On the facts found there can be no question that the appellant went in a rickshaw from the Sambalpur Road Railway Station to the State Transport Bus Stand with a trunk and a bedding in order to proceed to a place called Bargarh
He bought a ticket for Bargarh and took his seat in the bus after loading his trunk and bedding on top of it
On information received by the Officer in charge of Sadar Police Station of Sambalpur the bus was detained near the 148 1164 police station while on its way and all the trunks and beddings on it were unloaded and the passengers of the bus were asked to take their respective trunks and beddings
The passengers took their trunks and beddings
One trunk and a bedding however remained on the ground
The appellant claimed the bedding to be his own but denied the trunk to be his property
The bedding and the trunk were brought to the thana and the trunk was opened
The trunk contained opium weighing six seers and six and half chhataks
On the facts found the trunk was identified as that of the appellant and there can be no question that he was in possession of the opium
The only question for consideration having regard to the limited ground upon which special leave was granted is whether the appellant could also be punished for being in possession of opium as it is suggested that transport  includes I possession 
The appellant was sentenced under section 9 a for possession  of opium and under section 9b for transport  of opium and sentenced to undergo rigorous imprisonment for three months tinder each count the sentences to run consecutively
Section 4 of the Opium Act 1878 Act 1 of 1878 reads as follows Except as permitted by this Act or by any other enactment relating to opium for the time being in force or by rules framed under this Act or under any such enactment no one shall a possess opium b transport opium         
It is clear from the provisions of section 4 that no one shall possess opium or transport opium except under the circumstances mentioned in the section
Section 9 provides that  Any person who in contravention of this Act or of rules made and notified under section 5 or section 8 a possesses opium or b transports opium           1165 shall on conviction before a Magistrate be punished for each such offence with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both
 This was the provision in section 9 before its amendment by Act 111 of 1957 which provided that on conviction before a Magistrate a person convicted of any of the offences mentioned in section 9 shall be punishable for each such offence with imprisonment which may extend to three years with or without fine
We are however not concerned in this particular case with the punishment provided by the amendment as the offence was committed previous to it
The provisions of the Opium Act make it clear that possession of opium and transport of opium contrary to the provisions of the Act or any other enactment relating to opitum or to rules framed under the Act are two separate offences
Mere possession of opium may not on the proved facts of a particular case involve any question of transporting it
Transport of opium may in certain circumstances include the element of possession while in other cases it may not
A person may transport opium through various agencies and yet not be in possession of it at the time it was trans ported
On the other hand a person may transport opium and yet be in possession of it
In the latter case such a person would be guilty both of transporting opium and being in possession of it
Under the Act transport  means to remove from one place to another within the same State 
A person may remove opium and be in possession of it while removing it and he can also remove it from one place to another within the same State in circumstances when while removing it he is not in possession of the opium
The intention of the Legislature appears to have been that neither possession of doium nor transporting of opium was permissible if such possession or transporting was in contravention of the provisions of the Opium Act or any other enactment relating to opium or rules framed under the Opium Act
It seems therefore that where a person transports opium and is in possession of it at the time he was transporting it he has committed 1166 two offences viz 1 of transporting opium and 2 of possessing opium
He can therefore be convicted for both the offences
As to the sentence which can be imposed reference to section 35 of the Code of Criminal Procedure and section 71 of the Indian Penal Code is necessary
Section 35 of the Code of Criminal Procedure provides that where a person is convicted at one trial of two or more offences the Court may subject to the provisions of section 71 of the Indian Penal Code sentence him for such offences to the several punishments prescribed therefor which such Court is competent to inflict  such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct unless the Court directs that such punishment shall run concurrently
Section 35 therefore permits the passing of separate sentences for different offences and for them to run consecutively unless the Court directs that they shall run concurrently
This however is subject to the provisions of section 71 of the Indian Penal Code
Section 71 of the Indian Penal Code provides  Where anything which is an offence is made up of parts any of which parts is itself an offence the offender shall not be punished with the punishment of more than one of such his offences unless it be so expressly provided
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished or where several acts of which one or more than one would by itself or themselves constitute an offence constitute when combined a different offence the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences
 It is clear from these provisions that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished the offender shall not be punished with a more severe punishment than the 1167 Court which tries him could award for any one of such offences
The maximum sentence which could have been imposed upon the appellant for any one of the offences of which he had been convicted was one year s imprisonment
In other words even if separate sentences were passed under section 9 sub sections a and b the sum total of these sentences should not exceed one year s imprisonment
In the present case the sentence imposed upon the appellant has been in all 6 months 3 months  imprisonment under each count
It would appear therefore that the sentence passed upon the appellant did not contravene the provisions of section 71 of the Indian Penal Code
In our opinion the appellant  as rightly convicted under section 9 a and b of the Opium Act and there has been no illegality in the sentence imposed upon him
It was strongly urged on behalf of the appellant that there might be a reduction in the sentence
Instead of a sentence of imprisonment being imposed the appellant may be sentenced to a substantial fine
In our opinion offences against the Opium Act are serious ones and we cannot accede to the request made
A sentence of 6 months  imprisonment cannot be considered as unduly severe
The appeal is accordingly dismissed


Summary:
The appellant a non profit making registered society is running a school in Delhi
The Municipal Corporation raised a demand of general tax on the school building
The appellant claimed exemption from the tax on the ground that the society was running the school for a charitable purpose and therefore fell within the ambit of clause 4 of section 115 of the Delhi Municipal Corporation Act 1957
The claim was rejected by the Corporation
The appellant s writ petition under Article 226 of the Constitution was dismissed by the High Court
The High Court held that mere imparting of education could not be called giving relief and to qualify for exemption the Society had to give education and medical relief and that fees were charged from students
Before this Court it was contended by the appellant that in view of the language of section 1154a it was not correct to suggest that to qualify for exemption from the tax li ability it was necessary for the society to offer medical relief
The respondent on the other hand contended that although it was not in a position to support the reasoning given by the High Court the appellant was for other reasons not entitled to the exemption claimed and the High Court s judgment was therefore correct
Allowing the appeal and remitting the case to the High Court for fresh decision on the facts relied upon by the parties this Court HELD 1 A charitable purpose as defined in the Act includes relief of the poor education and medical relief
The test of charitable purpose  is satisfied by the proof of any of the three conditions 67 namely relief of the poor education or medical relief
68E F 2 The fact that some fee is charged from the students is also not decisive inasmuch as the proviso to section 1154a indicates that the expenditure incurred in running the society may be supported wholly or in part by voluntary contributions