iminal 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 section 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 Ms 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 MPE 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 sections 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 Ms 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 Ms 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 section 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 Ms Azad Bharat Finance Co filed revisions in the Court of the Sessions Judge
The Sessions Judge also held that the word shall in section 11d 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 Ms 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 MP 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 section 11 the
relevant words Ate as follows  section 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 section 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 dthe 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 section 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 section 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 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 vs Bachittar Singh1
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 s11 d of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under article 19 of the Constitution
Bearing all these considerations in mind we consider that section 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 Ms 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  at 464


Summary:
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 sections 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 section 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 section 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 article 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 vs Bachittar Singh   referred to