Order: This revision involves a very interesting question, upon which I cannot find any definite principles of distinction laid down in any authority to which my attention has been drawn; whether a group of circumstances which would justify an inference that a person was carrying liquor which he possessed would equally justify the inference that he was ‘transporting’ that liquor under section 4(1)(a)of the Madras Prohibition Act. In section 3, sub-clause (19), for the Act, transport’ has been defined as follows: “To move from one place to another within any local area to which this Act applied.” The problem can be posed in the following form. Supposing that a person is himself moving from one place to another carrying the contraband on his person, is he liable merely to be convicted for possession of contraband, which is an offense under section 4(1)(a)of the Act, or can he also be convicted, oralternatively convicted, for ‘transport’? What are the principles upon which any distinction can be drawn between a set of circumstances and another, with reference to this particular inference? I must confess that very little light is so far available in the authorities to which my attention has been drawn, and that it seems to be a matter of peculiar difficulty to enunciate any clear criteria which would distinguish these distinct offences, with regard to facts of this description. The problem, of course, arises because the Legislature has thought it fit to make a minimum sentence of imprisonment obligatory for the offence of ‘transport’. No such minimum has been enacted with regard to the offence of ‘possession’ alone. It may be convenient to refer to the established facts of the present caste. Though the learned Counsel for the revision petitioner does not admit those facts nevertheless they have certainly been established by definite evidence, and are not liable to be challenged in those revision proceedings. We may hence take it that this revision petitioner was apprehended at about 10-30 p.m. on 6th May, 1963, on the southern bund of Panchanthangi while he was proceeding along that bund. The officer who arrested him was the Sub-Inspector of Police, Shevapet (P.W.1). The revision petitioner was actually carrying a bottle (M.O.1) containing 4 drams of arrack, tucked up in the clothes of his waist. The point is, was he transporting contraband as defined in section 4(1)(a) of the Act. The officer who arrested him was the Sub-Inspector of Police, Shevapet (P.W.1). The revision petitioner was actually carrying a bottle (M.O.1) containing 4 drams of arrack, tucked up in the clothes of his waist. The point is, was he transporting contraband as defined in section 4(1)(a) of the Act. Coming now to the authorities I would like, in the first instance to refer to the decision of the Supreme Court in P. Agarwala v. State of Orissa1. No doubt, that decision did not relate to the Prohibition Act, but to section 9(a) and (4) of the Opium Act I of 1878. But the following observations of their Lordships of the Supreme Court appear to me to be very pertinent, in the context of the problem arising in this revision. “Provisions of the Opium Act make it clear that possession of opium and transport of opium contrary to the provisions of 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, la certain circumstances, include the element of possession, while in other cases it may not..... .A person may transport opium and yet to be in possession of it. In the latter case, such person would beguiltyof both of transport of opium and being in possession of it.” It is relevant here to note that the Opium Act also defined. ‘transport’ as to move from one place to another within the same State. I am referring to this case, because it appears to me to be obvious that three contingencies are possible. Firstly, a person may be in possession of contraband, such as illicit liquor, without at all transporting it. Secondly, a person may be transporting contraband, in the sense of moving it from one place to another within the local area to which the Act applied, without physical possession of it on his own part. For instance he might be moving it, in the sense of causing it to be transported, in a trunk kept at the top of a bus by which he may or may not be travelling. Thirdly, a person may both be in possession of the contraband, and may be engaged in its transport. For instance he might be moving it, in the sense of causing it to be transported, in a trunk kept at the top of a bus by which he may or may not be travelling. Thirdly, a person may both be in possession of the contraband, and may be engaged in its transport. In that case, it seems to me to be fairly clear that he is liable to be convicted for possession and also liable to be convicted for the distinct offence of transport. The matter has been considered in several decisions of this Court. It has been considered at some length by Sadasivam, J., in (Ladakaran alias Minian v. The State of Madras1. The learned Judge has extracted a passage from Emperor v. D.Shetiba2. He then observed: “In the ultimate analysis, it is for the Court to determine on the facts of each case whether there is transport within the meaning of section 4(1)(a)of the Madras Prohibition Act. In doing so, the Court should consider the quantity of liquor, the alleged mode of transport, the places between which the liquor is alleged to have been transported and other circumstances and give some commonsense meaning be the word.” Kunhamad Kutti, J., in Irusary v. State of Madras3, has referred to the decision of Sadasivarh, J., in the case just cited. Ramakrishnan ‘J., in T.M. Kuttia Pillai v. State of Madras4 had occasion to consider this very problem, and the learned Judge observed that the mere fact of possession by a person then engaged in moving from one place to another will not ipso facto make it a case of transport. In minor Muthusami, In re,5 the learned Judge stressed that the surrounding circumstances would be pertinent, such as the mode of transport, the quantity of liquor. carried, etc. The learned Judge held that the quantity of liquor in the case, and the circumstances showed that it was a case of transport and not of possession. The difficulty, of course, is to enunciate any definite criteria of distinction. As I have pointed out earlier, a person may both be in possession of contraband, and may also be committing the offence of transport of the contraband as defined in the Act. The difficulty, of course, is to enunciate any definite criteria of distinction. As I have pointed out earlier, a person may both be in possession of contraband, and may also be committing the offence of transport of the contraband as defined in the Act. With very great respect to the Bench decision in Emperor v. D. Shetiba2, I am not clear that that decision can aid us in a satisfactory resolution of the problem of formulating distinguishing principles on this aspect. Beaumont, C.J., said: “Nor I think can it be suggested that anybody who takes an excisable article from his bungalow to his office for consumption at tiffin is transporting it from the place to another and therefore committing an offence under the Act. One must, I think, give some sort of commonsense meaning to the very wide anguage used.” I think that it may be of some assistance to note the following broad features of the distinction between the two offences. While a person may possess without transporting and one may equally transport without possession, a person may possess and transport, in which case he will be committing both the offences. It cannot be said that the purpose of the transport determines the offence, for we are bound by the terms of the enactment, and the Legislature has made no such distinction. With great respect of the Bench decision of the Bombay High Court above referred to, I am unable to see why a person who takes liquor from one place to another, not for sale to some one else but for his own consumption at some ultimate destination, is to be considered, as not engaged in ‘transport’ of the contraband. The Legislature has not laid it down that the transport must be for commercial purposes or that it is transport for sale alone which is punishable, and not transport for personal consumption. Again, the quantity of liquor carried may be relevant, but I am afraid that if cannot be decisive. For, here again, the Legislature has not laid it down that the offence of transport can be committed only if the contraband is appreciable in quantity, or only if it exceeds a particular quantity. The distance of the ultimate destination, whatever it might be, from the place at which the offender is apprehended, again, may not furnish any true basis for distinction. The distance of the ultimate destination, whatever it might be, from the place at which the offender is apprehended, again, may not furnish any true basis for distinction. The argument is certainly conceivable that every person, possessing contraband and having it physically in his possession, while he himself is in movement, is not necessarily ‘transporting’ the contraband; this is the point which Ramakrishnan, J., has emphasised Since the provision is penal, presumably the circumstances must justify an inference of an animus or intention to transport or at least the knowledge that the contraband is being transported by the concerned person. It can hardly be argued, for instance, that if some other person has put contraband into the pocket of a person who is walking along a particular road, that latter person is liable to be convicted for the offence of transport, even if he is totally ignorant that there is contraband, with cealed in his pocket. But, where it is clear that a person is taking contraband concealed in his pocket. But, where it is clear that a person is taking contraband, with the knowledge that he is taking it from one place to another, and be physically in possession, it is very difficult to see how the mere fact that he is ultimately going to consume it himself, or the fact that the quantity is not considerable, will afford any principle on which he can be convicted for possession alone, and acquitted as regards the charge of transport. In the present case, I am unable to find any justification for holding that the revision petitioner was not enagaed in ‘transport’ of the contraband. The purpose with which he was so engaged is really immaterial. But the quantity is small, and presumably he was intending to consume the liquor himself and was not engaged in trafficking in the commodity. Had he been stationary at the time of arrest, or had he consumed the liquor immediately before arrest, he would have been liable for other offences alone, which would involve no minimum punishment. In my view, these are special circumstances extenuating the character of the offence, though they do not affect the legal propriety of the conviction. Had he been stationary at the time of arrest, or had he consumed the liquor immediately before arrest, he would have been liable for other offences alone, which would involve no minimum punishment. In my view, these are special circumstances extenuating the character of the offence, though they do not affect the legal propriety of the conviction. Hence I confirm the conviction, but, in the light of the special factors and adequate reasons to the contrary just specified, direct that the imprisonment shall be limited to the period already undergone by the revision petitioner, and confirm the sentence of fine of Rs. 25. I may point out that special reasons ought to have been furnished by the Courts below for imposing a fine which is less than the minimum; but presumably, the poverty of the revision petitioner justified this relatively lenient sentence. The revision petition is otherwise dismissed. R.M. ----- Petition dismissed but sentence modified,