Penal confiscation provisions may be discretionary when mandatory reading of "shall" would cause hardship and injustice.

In a penal confiscation provision, the word "shall" in Section 11 of the Opium (Madhya Bharat Amendment) Act, 1955 was construed in context as directory rather than invariably mandatory. The Court held that confiscation of a conveyance used to carry contraband opium depended on judicial consideration of the facts of each case, including hardship to a third-party owner without knowledge or connivance. A mandatory reading was avoided because it could lead to injustice, absurdity, and possible constitutional difficulty under Article 19. Confiscation was therefore discretionary, and the confiscation order was not disturbed.

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Issues: Whether Section 11 of the Opium (Madhya Bharat Amendment) Act, 1955 made confiscation of the conveyance used for carrying contraband opium mandatory or left the Court with discretion having regard to the circumstances, including the position of a third-party owner.

Analysis: The expression "shall" in Section 11 was construed in context and not as invariably mandatory. The provision was read against the background of the penal character of the statute, the hardship that would result from confiscating a vehicle used without the owner's knowledge or connivance, and the principle that a construction producing absurdity or injustice should be avoided. The Court also noted that a mandatory construction could raise difficulty under Article 19 of the Constitution of India. On that basis, confiscation was held to depend upon judicial consideration of the circumstances of each case rather than to follow automatically.

Conclusion: Section 11 was held to be permissive and not obligatory, and the order of confiscation was not interfered with.

Ratio Decidendi: In a penal confiscation provision, the word "shall" may be construed as directory where a mandatory reading would produce injustice, hardship, or constitutional difficulty, and the Court may exercise discretion on the facts of each case.

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