MOHANLAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS order shall also govern the disposal of Criminal Revisions Nos. 65, 66, 67 and 68 all of 1988 respectively by Shakirali, Sitaram, Ramlal and Obuzar which are directed against the orders of confiscation of Mahua found in their possession. Circumstances giving rise to these revisions are these. On 10 -5 -86 the Petitioners were admittedly found in possession of Mahua as detailed below in Jhabua district within the 'belt area' as defined in the M. P. Government Notification No. 1876/2262/Pr. A/86 dated 25 -4 -86 issued(sic) in exercise of powers under Rule 4 of the M. P. Mahua Rules, 1959 (for short 'the Rules'). The Mahua was seized from them and remained in their Supratnama. <FRM>JUDGEMENT_192_TLMPH0_1989.htm</FRM> According to the aforesaid notification, any where in M. P. except in the 'belt area' as therein defined, Mahua in any quantity could be possessed by a person without licence. As the Petitioners were found in possession of Maha in the 'belt area' and had no licence after sanction as required by Section 61 of the M. P. Excise Act, 1915 (for short 'the Act') complaints were filed against them for contravention of Rule 4 of the Rules made punishable under Section 37 of the Act. The Petitioners pleaded guilty and were convicted and sentenced by the learned trial Magistrate. The learned Magistrate cancelled the Supratnama with the result that the Petitioners became entitled to the Mahua found with them. Aggrieved by the aforesaid order in relation to Mahua, the State preferred separate appeals under Section 454 Cr. P. C. 1973 praying that the Mahua be ordered to be confiscated.

(2.) THE learned third Additional Sessions Judge Alirajpur by separate judgments allowed the appeals holding that under the provisions of Section 46 of the Act it was mandatory for the Magistrate to order confiscation of the Mahua seized and hence (sic) these revisions. The contention of the learned Counsel for the Petitioners in this Court is that the view taken by the learned Additional Sessions Judge is unwarranted in law. It is urged that the expression used in Section 46 of the Act is 'shall be liable to confiscation', and not 'shall be confiscated' and it is clearly indicative of the legislative intent of vesting the Court with discretion in the matter. In support of this submission reliance has also been placed on the provision in Section 47 of the Act and the Supreme Court decision in State of M. P. v. A. B. Finance Company, 1967 M.P.L.J. 14. The point or consideration is whether the revision petitions deserve to be allowed. On a careful consideration, I find that the contention that the law does not mandatorily require confiscations of Mahua must be permitted to prevail. In the decision in Rabi Deb Banna's case ( : 1973 Cri. L J. 105) the expression 'shall be liable' occurring in Section 325 of the I.. P. C. has been interpreted as vesting the Court with a discretion whether or not to impose fine. In the Supreme Court decision referred to in paragraph 6 above wherein not only the expression 'liable to confiscation' occurring in Section 11 of the Opium Act (1 of 1978) has been interpreted as giving a discretion to the Court whether to confiscate or not but it has also been pointed out that even the expression 'shall be confiscated' as used in the Madhya Bharat Act cannot be construed as depriving the Court of the discretion as in the context the word 'shall' has to be interpreted as 'may'. Reliance has also been rightly placed on the decision in Abani Matty's case [1979 S.C.C. (Cri.) 8021(sic) which makes an illuminating reading on the interpretation of the word 'Liable'.

(3.) APART from the expression used in Section 46 of the Act which cannot be construed as laying down a mandatory requirement, Section 47 (1) of the Act also shows that the Court has discretion in the matter. The provision therein reads thus: Order of confiscation -(1) Where in any case tried by him the Magistrate decides that anything is liable to confiscation under Section 46, he may either order confiscation or may give the owner of the thing liable to be confiscated, an option to pay, in lieu of confiscation, such fine as the Magistrate thinks fit. Learned Counsel for the Petitioners contends that the matter has also to be viewed in the context that it was permissible for the Petitioners to carry on business of sale of Mahua after obtaining licence and according to the notification No. B -1 (i) -1985 -five S. R. dated 1 -4 -85 the scale of fee for licence for sale of Mahua granted to a person who has lawfully collected or purchased them for the purpose of sale is as follows: