1966 (7) TMI 74

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....ked 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 ss. 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....

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....tion of the conveyance used for carrying contraband opium." 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....

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....r 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 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 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 s. 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 pe....