LexSTATE OF MADHYA PRADESH versus AZAD BHARAT FINANCE CO. & ANR.
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473
STATE OF MADHYA PRADESH
v.
AZAD BHARAT FINANCE CO. & ANR.
July 28, 1966
[K. SUBBA RAO, C, J. ANDS. M. SIKRI, J.J
Opium Act (10 of 1878) as modified by the Opium Madhya Bha-
rat Amendment Act 1955-Use of 'shalt' ins. 11 of the Madhya Bha-
r•P Act-Truck found carrying opium-Confiscation of truck whether
obligatory under section.
H took a truck on hire from the respondent company. The truck
waa 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
•~uitting H on the ground that he had no knowledge that the truck
was carrying opium, confiscated the truck under s. 11 cJf the Madhya
Bharat Act. He took the view that the use of the word 'shall' in that
~ection gave him no option but to confiscate the truck. The Sessions
Judge took the same view but the High Court held that the word
'~hall' in· the context of the section was not mandatory and in the cir-
cwmtances of the case the truck should not have been confiscated.
The State appealed to this Court by special leave.
HELD: The word 'shall' is not always mandatory; it depend•
npon the context in which the word occurs and the1 other circumstan-
ce•. r475Hl
Three considerations are relevant in construing s. 11.
First it
would be unjust to confiscate the truck of a person if he has no
k1'owledge whatsoever that the truck was being used for transport-
ing the opium. Secondly it i$ a penal' statute and it should if possible
b~ construed in such a way that a person 1vh01 has not committed or
•betted 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. f476 A-Dl
Section 11 of the Madhya Bharat Act is not therefore to be con-
strued as obligatory and it is for the court to consider in each case
whether the articles in wh~ch 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-El
Tirath Singh v. Bachittar Singh, f19551 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 respondents.
474
(1966] SUPP, S,{.R,
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 Cr;mina' Revision filed by MI 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.
B
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
challancd for the alleged illegal possession of contraband opium
i.nd for its transport. under "'· 9A and 9B of the Opium Act (I
of 1878) as modified by the Opium (Madhya Bharat Amend-
ment) Act, 1955. hereinafter referred to as the Madhya ilharat C
Act. Harbhajan Singh. one of the accused, is alleged to have ab-
sconded. 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 th;it 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
D
hire-purchase agreement from MI 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,
E
1962, Harbhajan Singh was acquitted by the Magistrate but he
ordered that the truck be confiscated to the State. The Magistrnte
was of the opinion that s. 11 of the '.vladhya BhExcerpt shown. Read the full judgment & AI analysis in Lexace.