# STATE OF MADHYA PRADESH v. AZAD BHARAT FINANCE CO. & ANR

- **Citation:** [1966] Supp. 1 S.C.R. 473
- **Court:** Supreme Court of India
- **Decided:** 1966-07-28
- **Case number:** Criminal Appeal No. 97 of 1964
- **Bench:** K. Subba Rao, J. Ands. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-madhya-pradesh-v-azad-bharat-finance-co-anr-3879
- **Pages:** 4

## Headnote

Opium Act (10 of 1878) as modified by the Opium Madhya Bharat Amendment Act 1955-Use of 'shalt' ins. 11 of the Madhya Bhar•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 circwmtances 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 circumstance•. 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 transporting 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 construed 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.

## Text

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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 Bharat Amendment Act 1955-Use of 'shalt' ins. 11 of the Madhya Bhar•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 circwmtances 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 circumstance•. 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 transporting 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 construed 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 Amendment) Act, 1955. hereinafter referred to as the Madhya ilharat C
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 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 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 Mis. 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."
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M. P. STATE V. BHARAT FINANCE
CO. (Sikri, J.)
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 are as follows:
"S. l 1 Confiscation of opium.-In any case in which
an offence under section 9 has been committed,-
The vessels, packages and coverings 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 con!iscate 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: -
-G
(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."
H
Jn 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
SUPRF.Mll COURT RKPOR'!'8
[1966] SUPP. e.c.n.
mean that the enactment is obligatory or mandatory; it depends
upon the context in which U1e word "shall" occurs and the other
circumstances. Three considerations are relevant in construing
s 11. 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 perron steals a ttuck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to
be Qonliscated. 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 Timth
Singh v. Bachittar Singh)(').
Secondly. it is a penal statute and it should, if possible, be
construed in such a way that a person who has not commilled or
abetted any offence should not be visited with a penally.
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. 11 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 Sc,sions Judge ordered confiscation of the
truck on the ground that they had no option in the mailer.
Mr. Shroff then raises the point that Mis. Azad Bharat
Finance Co. was a third party in the case and was not entitled
to- apply for setting asicle 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 rai,cd at this
stage.
In the result the appeal fails and is dismissed.
Appeal dismissed.
(') [19M] 2 8.C.R 457 at 464.
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