State of Madhya Pradesh Vs. Azad
Bharat Finance Co. & ANR  INSC 128 (28 July 1966)
28/07/1966 SIKRI, S.M.
RAO, K. SUBBA (CJ)
CITATION: 1967 AIR 276 1966 SCR 473
R 1972 SC2284 (19) RF 1988 SC 603 (11,31)
Opium Act (10 of 1878) as modified by the
Opium Madhya Bharat Amendment Act 1955-Use of 'shall' in s. 11 of the Madhya
Bharat Act-Truck found carrying opium-Confiscation of truck whether obligatory
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 circumstances
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 or not having regard to all the circumstances of the case.
[476 D-E] Tirath Singh v. Bachittar Singh,
 2 S.C.R. 457, referred to.
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
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 busstation, 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, maybe
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 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. 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 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
(1)  2 S.C.R. 457 at 464.