Case Note & Summary
The case arose from the seizure of a truck on May 3, 1961 at Guna bus-stand, where excise authorities found about three seers of contraband opium. Five persons were challaned under Sections 9A and 9B of the Opium Act, 1878 as amended by the Opium (Madhya Bharat Amendment) Act, 1955. The truck had been taken on hire-purchase by one Harbhajan Singh from M/s. Azad Bharat Finance Co., who was not present at the time of seizure. The Additional District Magistrate convicted three persons and acquitted one, while postponing disposal of the truck until the separate trial of Harbhajan Singh, who had absconded and was tried later. After Harbhajan Singh was acquitted on September 7, 1962, the magistrate ordered confiscation of the truck under Section 11 of the Madhya Bharat Act, believing that the word 'shall' made confiscation mandatory irrespective of the owner's knowledge. The Sessions Judge upheld this view on revision, holding that Section 11(d) gave no discretion. The High Court, on further revision by the finance company, interpreted 'shall' as 'may' and held that confiscation was discretionary, especially where the owner had no knowledge or connivance in the transport of opium. The State appealed by special leave, contending that the Madhya Bharat Amendment deliberately changed the phraseology from 'liable to confiscation' to 'shall be confiscated' to make it obligatory, and that the finance company, being a third party, could not seek release of the truck. The Supreme Court dismissed the appeal. It reasoned that the word 'shall' is not always mandatory; its meaning depends on context and consequences. The Court identified three considerations: first, it would be unjust to confiscate the property of a person who had no knowledge of the illegal use; second, the provision is part of a penal statute and should be construed so as not to penalize someone who has not committed or abetted an offence; and third, if confiscation were obligatory, Section 11(d) might be struck down as imposing unreasonable restrictions under Article 19 of the Constitution. The Court also noted the principle that if a statute leads to absurdity, hardship or injustice, a construction may be adopted which modifies the meaning of words, citing Tirath Singh v. Bachittar Singh. Accordingly, Section 11 was held to be permissive, requiring the court to consider all circumstances of each case before ordering confiscation. The Court further held that the State's contentions about third-party rights and interference with discretion could not be raised because they were not argued before the High Court. The appeal failed and was dismissed.
Headnote
A) Statutory Interpretation - Mandatory vs Directory - Use of 'shall' does not always make a provision obligatory; context and consequences matter - Opium Act, 1878 as modified by Opium (Madhya Bharat Amendment) Act, 1955, Section 11(d) - The question was whether Section 11(d) required compulsory confiscation of a vehicle used to transport contraband opium even if the owner had no knowledge. The Court held that 'shall' is not always mandatory and three considerations (avoidance of injustice to innocent owner, penal statute construction, possible violation of Article 19) indicated that confiscation is discretionary. The Court directed that each case must be considered on its circumstances. Held that Section 11 is permissive, not obligatory. (Paras 475-476) B) Criminal Procedure - Third Party Rights - Right of owner to seek release of confiscated property - Opium Act, 1878 as modified by Opium (Madhya Bharat Amendment) Act, 1955, Section 11 - The State contended that the finance company was a third party not entitled to apply for setting aside confiscation or return of truck. The Supreme Court declined to allow this point as it was not raised before the High Court. Held that the point cannot be raised at this stage. (Paras 476-477) C) Judicial Review - Interference with Discretion - Appellate court's interference with confiscation orders - Opium Act, 1878 as modified by Opium (Madhya Bharat Amendment) Act, 1955, Section 11 - The State argued that if the matter was discretionary, the High Court should not have interfered with the Sessions Judge's discretion. The Court noted that this point was not raised before the High Court, and both lower courts had ordered confiscation on the erroneous assumption of mandatory confiscation. Held that the High Court's order was justified. (Paras 476-477)
Issue of Consideration
Whether under Section 11 of the Opium (Madhya Bharat Amendment) Act, 1955, the use of the word 'shall' makes confiscation of a vehicle carrying contraband opium mandatory, even where the owner had no knowledge or connivance.
Final Decision
The appeal was dismissed. Section 11 of the Opium (Madhya Bharat Amendment) Act, 1955 was held to be permissive, not obligatory; the court must exercise discretion considering all circumstances. The High Court's order setting aside confiscation was affirmed.
Law Points
- Legal points not extracted
- The word 'shall' is not always mandatory
- it depends upon the context in which the word occurs and the other circumstances. 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. A penal statute 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. Section 11 of the Opium (Madhya Bharat Amendment) Act
- 1955 is not obligatory
- it is for the court to consider in each case whether the vehicle in which contraband opium is found or is being transported should be confiscated
- having regard to all the circumstances. If confiscation were obligatory under Section 11(d)
- the section may have to be struck down as imposing unreasonable restrictions under Article 19 of the Constitution.
