Sikri, J. - (1.) This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court (Gwalior Bench) in a Criminal Revision filed by M/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. 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 challaned for the alleged illegal possession of contraband opium and for its transport, under Ss. 9-A and 9-B of the Opium Act (I of 1878) as modified by the Opium (Madhya Bharat Amendment) Act, 1955, hereinafter referred to as the Madhya Bharat Act. I 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 tint-6 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 hire-purchase agreement from M/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.
(2.) 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, 1962, Harbhajan Singh was acquitted by the Magistrate but he ordered that the truck be confiscated to the State. The Magistrate was of the opinion that S. 11 of the Madhya 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 M/s. 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 S. 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."
(3.) M/s. Azad Bharat Finance Co. filed a revision in the High Court. The High Court held as follows: "The word "shall" occurring in S. 11 of the M. P. Opium Act means "may" and that it confers s 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 confiscate should not he confiscated because confiscation in such circumstances would be tantamount to punishing one, who has not committed any offence under the Opium Act";