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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: AZAD BHARAT FINANCE CO. & ANR.

DATE OF JUDGMENT: 28/07/1966

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. RAO, K. SUBBA (CJ)

CITATION:  1967 AIR  276            1966 SCR  473  CITATOR INFO :  R          1972 SC2284  (19)  RF         1988 SC 603  (11,31)

ACT: Opium Act (10 of 1878) as modified by the Opium Madhya  Bha- rat Amendment Act 1955-Use of ’shall’ in s. 11 of the Madhya Bharat  Act-Truck found carrying opium-Confication of  truck whether obligatory under section.

HEADNOTE: H  took  a truck on hire from the respondent  company.   The truck was found to contain contraband opium and H was  tried for  offences  under ss. 9A and 9B of the Opium Act  (10  of 1878) as modified by the Opium (Madhya Bharat Amendment) Act 1955.   The company made an application for the  release  of the  truck  but  the magistrate while acquitting  H  on  the ground that he had no knowledge that the truck was  carrying opium,  confiscated  the  truck under s. 11  of  the  Madhya Bharat  Act.   He  took the view that the use  of  the  word ’shall’ in that section gave him no option but to confiscate the  truck.  The Sessions Judge took the same view  but  the High  Court held that the word ’shall in the context of  the section  was  not mandatory and in the circumtances  of  the case the truck should not have been confiscated.  The  State appealed to this by special, leave.  HELD:- The word ’shall’ is not always mandatory; it depends upon  the  context in which the word occurs  and  the  other circumstances [475H] Three  considerations  are  relevant in  construing  s.  11. First it would be unjust to confiscate the truck of a person if  he has no knowledge whatsoever that the track was  being used  for transporting the opium.  Secondly it is a  penal’. statute and it should if possible be construed in such a way that  a person who has not committed or abetted any  offence should   not  be  visited  with  a  penalty.   Thirdly,   if confiscation  was obligatory under the section, the  section may  have  to  be struck down as  imposing  an  unreasonable restrictions under Art. 19 of the Constitution. [476 A-D] Section  11 of the Madhya Bharat Act is not therefore to  be construed as obligatory and it is for the court to  consider in  each case whether the articles in which  the  contraband opium is found or is being transported should be confiscated

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or  not having regard to all the circumstances of the  case. [476 D-E] Tirath  Singh  v.  Bachittar Singh,  [1955]  2  S.C.R.  457, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION:- Criminal Appeal No. 97  of 1964. Appeal  by special leave from the judgment and  order  dated January  29, 1964 of the Madhya Pradesh High Court  (Gwalior Bench) in Criminal Revision No. 5 of 1963. I.   N. Shroff, for the appellant. R.   L. Anand and S. N. Anand, for the respondents. 474 The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the  judgment  of  the Madhya Pradesh  High  Court  (Gwalior Bench)  in  a Criminal Revision filed by M/s.   Azad  Bharat Finance Company, one of the respondents in this appeal.  The revision arose out of the following facts.  On May 3,  1961, truck  No.  M.P.E.  1548, while it was parked  at  the  bus- station, Guna, was searched by the Excise Sub-Inspector  and he found contraband opium weighing about three seers in  it. Five   persons  were  challaned  for  the  alleged   illegal possession of contraband opium and for its transport,  under ss.  9A and 9B of the Opitum Act (1 of 1878) as modified  by the  Opium (Madhya Bharat Amendment) Act, 1955,  hereinafter referred to as the Madhya Bharat Act.  Harbhajan Singh,  one of   the  accused,  is  alleged  to  have  absconded,   and, therefore, he was tried separately later on.  The Additional District  Magistrate,  Guna,  convicted  three  persons  and acquitted one person.  Regarding the truck, he ordered  that the  final orders regarding the disposal of the truck  would be passed later, on the conclusion of the trial of Harbhajan Singh.   It may be Mentioned that Harbhajan Singh had  taken this truck. under a hire-purchase agreement from  M/s.  Azad Bharat  Finance  Co. and he Was not present in or  near  the truck  when the contraband opium was taken possession of  by the Excise Officer. On  May 28, 1962, M/s.  Azad Bharat Finance Co,  applied  in the  Court  of  Shri  M. C. Bohre, in  which  the  trial  of Harbhajan Singh was going on. for the release of the  truck. On September 7. 1962.  Harbhajan Singh was acquitted by  the Magistrate  but he ordered that the truck be confiscated  to the State.  The Magistrate was of the opinion that s. 11  of the  Madhya  Bharat Act showed ,Clearly that  the  truck  in which  the  opium  was carried had to be  forfeited  in  all circumstances.  He observed:-               "By the use of the word "shall" this Court was               ,compelled  that the truck be seized,  may  be               there  was the hand of the owner in it or  not               and  neither there is any provision  that  the               truck  owner had the knowledge or not  of  the               opium being carried." Both Harbhajan Singh and M/s.  Azad Bharat Finance Co. filed revisions in the Court of the Sessions Judge.  The  Sessions Judge  also  held  that the word "shall"  in  s.  11(d)  was mandatory and not directory.  He observed:-               "Though  it is correct that the truck was  not               used for carrying opium with the knowledge  or               connivance of the owner but section 11 (d)  as               applicable   in  this  state  does  not   give               discretion  to the Court in not  ordering  the

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             confiscation   of  the  conveyance  used   for               carrying contraband opium." 475 M/s.   Azad Bharat Finance Co. filed a revision in the  High Court.  The High Court held as follows:-               "The word "shall" occurring in Sec. 11 of  the               M.P. Opium Act means "may" and that it confers               discretion  on  the court  to  confiscate  the               conveyance   provided   it  belongs   to   the               offender.   But where it is not so,  and,  the               owner of the truck has neither authorised  the               offender to transport opium, nor is there  any               reason to believe that the owner knew that his               vehicle was likely to be used for transporting               contraband opium, the conveyance should not be               confiscated   because  confiscation  in   such               circumstances would be tantamount to punishing               one,  who has not committed any offence  under               the Opium Act." The learned counsel for the appellant, Mr. Shroff,  contends that  the Opium (Madhya Bharat Amendment) Act, 1955  (15  of 1955)  which  amended  the  Opium  Act,  1878,  deliberately employed  a  different  phraseology with  the  intention  of making  it obligatory on a Court to confiscate a vehicle  in which contraband opium had been transported.  He points  out that  in the Opium Act, 1878, in s. 11, the. relevant  words Ate as follows:-               " S. 11 Confiscation of opium.-In any case  in               which  an  offence under section  9  has  been               committed,-               The  vessels, packages and covering  in  which               any  opium liable to confiscation  under  this               section  is found, and the other contents  (if               any)  of the vessel or package in  which  such               opium  may be concealed, and the  animals  and               conveyances   used  in  carrying   it,   shall               likewise be liable to confiscation." He  stresses  the  words  "liable  to  confiscation"   which according  to  him and certain authorities  clearly  give  a discretion to the Court whether to confiscate the vehicle or not.   In  the  Madhya  Bharat  Amendment  Act  the  section providing for confiscation is as follows:-               "S. 11. In any case in which an offence  under               Sections 9, 9A, 9B, 9C, 9D, 9E, 9F and 9G  has               been  committed, the property detailed  herein                             below shall be confiscated:-               (d)the receptacles, packages and  coverings               in  which  any opium  liable  to  confiscation               under  this  Section is found, and  the  other               contents (if any) of the receptacle or package               in which such opium may be concealed, and  the               animals, carts, vessels, rafts and conveyances               used in carrying it." In our opinion, the High Court was correct in reading s.  11 of  the Madhya Bharat Act as permissive and not  obligatory. It is well-settled that the use of the word "shall" does not always 476 mean  that  the  enactment is obligatory  or  mandatory,  it depends  upon the context in which the word  "shall"  occurs and  the  other  circumstances.   Three  considerations  are relevant  in construing s. 1 1. First, it is not  denied  by Mr.  Shroff that it would be unjust to confiscate the  truck of a person if he has no knowledge whatsoever that the truck was  being  used for transporting opium.  Suppose  a  person

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steals a truck and then uses it for transporting  contraband opium.  According to Mr. Shroff, the truck would have to  be confiscated.  It is well recognised that if a statute  leads to   absurdity,  hardship  or  injustice,   presumably   not intended,  a construction may be put upon it which  modifies the  meaning  of the words, and even the  structure  of  the sentence. (Vide Tirath Singh v. Bachittar Singh)(1). Secondly, it is a penal statute and it should, if  possible, be  construed  in  such  a way that a  person  who  has  not committed or abetted any offence should not be visited  with a penalty. Thirdly,  if the meaning suggested by Mr. Shroff  is  given, s.11 (d) of the Madhya Bharat Act may have to be struck down as  imposing unreasonable restrictions under Art. 19 of  the Constitution.  Bearing all these considerations in mind,  we consider  that  s.  II  of the  Madhya  Bharat  Act  is  not obligatory and it is for the Court to consider in each  case whether  the vehicle in which the contraband opium is  found or is being transported should be confiscated or not, having regard to all the circumstances of the case’. Mr.   Shroff   then   contends  that  if   the   matter   is discretionary. the High Court should not have interfered  in the discretion exercised by the learned Sessions Judge.  But apart  from  the  question that this point  was  not  raised before the High Court, both the Magistrate and the  Sessions Judge  ordered confiscation of the truck on the ground  that they had no option in the matter. Mr.  Shroff  then raises the point that  M/s.   Azad  Bharat Finance  Co.  was  a third party in the  case  and  was  not entitled   to   apply  for  setting  aside  the   order   of confiscation or request for the, return of the truck.   This point  was not raised before the High Court and,  therefore, cannot be allowed to be raised at this stage. In the result the appeal fails and is dismissed. Appeal dismissed. (1)  [1955] 2 S.C.R. 457 at 464. 477