Mam and Company, Rayavaram and Others vs Forest Range Officer and Another

Sadasivam, J.—The question of law referred to this Bench is whether Section 43 of the Madras Forest Act as amended by the Madras Act

XXXVI of 1961 offends the right to property guaranteed under Articles 19 (1) (f) and 31 (1) of the Constitution of India.

Section 43 of the Forest Act originally stood as follows:

When any person is convicted of a forest-offence all timber or forest-produce in respect of which such offence has been committed, and all tools,

ropes, chains, boats, vehicles and cattle used in committing such offence, shall be liable, by order of the convicting Magistrate, to confiscation.

Such confiscation may be in addition to any other punishment prescribed for such offence.

But the section was amended by Madras Act XXXVI of 1961 by substituting the words shall be confiscated to the Government for the words

shall be liable, by order of the convicting Magistrate, to confiscation.

Till the amendment of Section 43 of the Forest Act and the decision of the Supreme Court in Indo-China Steam Navigation Co. Ltd. Vs. Jasjit

Singh, Additional Collector of Customs and Others, , it has been the view of this Court that the owner of the vehicle used in the commission of an

offence under the Forest Act, or Opium Act, or other similar Acts, could get a return of the same if he proves that It was used without his

connivance or knowledge. In fact, Anantanara-: yanan J., as he then was, has, on a prior petition for the return of the car MDT 3625 filed by one

Krishna. '' swami Chetti,. who had purchased the car under a hire purchase agreement, held that it could not have been the intention of the

Legislature that even unwary owners of vehicles, whose vehicles have been used for the commission of such offences without their knowledge,

should be penalised by orders of confiscation of such vehicles merely because the vehicles, have been used as instruments in commission of

offences under the law (Forest Act) by other unscrupulous persons. But when the matter again came up in revision at the instance of the said

Krishnaswami Chetti after his petition was dismissed on merits by the Courts below, Kailasam J., declined to interfere in revision.

The reference in this case has been made by one of us in a revision petition filed by Mam & Co., who gave the car to Krishnaswami Chetti on a

hire purchase agreement, against the order of the District Magistrate declining to go into the question on merits on the ground that it is obligatory on

the Court to confiscate the property used in the commission of the offence. The order of reference has been made as some relevant considerations

did not appear to have been brought to the notice of Kailasam J., and the observation of Kailasam J., that it cannot be said that it is not a

reasonable restriction to require the owner to use his property in such a way as not to be used in the commission of any offence appeared to be

too wide in its terms. In the order of reference it is stated by way of illustration that if the offenders under the Forest Act had stolen the motor

vehicle and committed the forest offence and if u/s 43 of the Forest Act as amended it was obligatory that the vehicle should be confiscated as it

was used in a forest offence the owner of the vehicle could have no remedy even though it could not be reasonably urged that the owner of the

vehicle should not have allowed the theft and prevented the thieves from using it in committing the forest offence. It may be reasonable to infer that

the object of such confiscation is to prevent forest offences and this could be achieved without confiscating the vehicles of innocent persons.

Several of the rules framed under the Forest Act have created trivial offences. Thus page 104 of the Madras Forest Manual, volume I, 1940

edition, contains rules to regulate fishing other than trout in the Palni Hills, Madurai District. Rule 1 provides:

Save as hereinafter provided in these rules, no person shall fish in the Kodaikanal lake, the Kodai. kanal water-works reservoir, the Bryant Park

Pond or in their effluents or in any of the effluents lying within the boundaries specified in the schedule annexed to these rules.

Thus if a person sits in a car on the bank of the Kodaikanal lake and catches a fish or two without license and carries the same in his car, the car

would be liable to be confiscated. There is no provision in the Forest Act, unlike in Section 183 of the Sea Customs Act and Section 12 of the

Opium Act to enable an owner to pay such fine as the concerned officer may think fit to impose in lieu of the confiscation of his vehicle. It is also

significant to note that an accused who commits an offence under the Forest Act can compound the offence and avoid confiscation of his vehicle

and it could not have been the intention of the legislature that an innocent owner of a vehicle, which is wrongfully used by an unscrupulous offender

under the Forest Act, should be in a worse position than such an accused. Further, Section 47 of the Forest Act gives a right of appeal to any

person claiming to be interested in the property seized u/s 41 of the same Act against an order of confiscation passed under Sections 43 to 45 of

the same Act. We fail to see what objections the owner of a vehicle can put forward by way of appeal to the confiscation of his vehicle which has

been used without his knowledge or connivance in the commission of forest offence if it is obligatory on the Court in all cases to confiscate the

vehicle used in a forest offence.

Subsequent to this reference the Supreme Court has delivered judgment in State of Madhya Pradesh Vs. Azad Bharat Finance Co. and

Another, in dealing an identical question which arose in the following circumstances under the Opium Act. The relevant words of Section 11 of the

Opium Act of 1878 are as follows:

Confiscation of Opium-In any case in which an offence u/s 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.

The above provision was amended by the Opium (Madhya Bharat Amendment) Act, 1955, (Act XV of 1955) in the following words:

Section 11 In any case in which an offence under Sections 9, 9-A, 9-B, 9-C, 9-D, 9-E, 9-F and 9-G has been committed, the property detailed

herein below shall be confiscated:

(d) the receptacles,... in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it.

It was contended on behalf of the State that the different phraseology deliberately employed by the Amending Act clearly disclosed the intention

of the Legislature of making it obligatory on the Court to confiscate the vehicle used for the transport of opium. But the Supreme Court held that

the High Court was correct in reading Section 11 of the Madya Bharat Act as permissive and not obligatory. The Supreme Court referred to three

relevant considerations in the following terms at page 278:

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, 11. First, it is not denied by Mr.

Shroff (the learned Advocate for the State) that it would be. unjust to confiscate the truck of a person if he has no knowledge whats over that the

truck was being used for transporting opium. Suppose a person steals a truck and then uses it for transporting contraband opium-According to

Mr. Shroff, the truck would have to be confiscated. 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 Tirath Singh

Vs. Bachittar Singh and Others, .]

Secondly, it is a penal statute and it should, if possible, be construed in such a way that a person who has not committed or abetted any offence

should not be visited with a penalty.

Thirdly, if the meaning suggested by Mr. Shroff is given, Section 11 (d) of the Madhya Bharat Act may have to be struck down as imposing

unreasonable restrictions under Article 19 of the Constitution. Bearing all these considerations in mind, we consider that Section 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 are is being

transported should be confiscated or not, having regard to all the circumstances of the case.

Applying the principles of the above decision to the question referred to us, we have no hesitation in coming to the conclusion that the word

shall introduced by the amending Madras Act XXXVI of 1961 does not make it obligatory on the Court to confiscate the vehicle used in a forest

offence in each and every case irrespective of the innocence of the owner of the vehicle. We have already referred to the relevant consideration in

support of the said view. If really Madras Act XXXVI of 1961 made it obligatory to confiscate the vehicle used in the commission of a forest

offence under any circumstances so as to affect the rights of innocent owners of the vehicles, the amending Act may have to be struck down as

imposing unreasonable restrictions under Article 19 of the Constitution. Thus, having regard to the relevant considerations we are of opinion that

the amendment of Section 43 of the Madras Forest Act by Madras Act XXXVI of 1961 by the substitution of the words shall be confiscated to

the Government for the words shall be liable, by order of the convicting Magistrate, to confiscation does not make it obligatory to confiscate the

vehicles used in forest offences in all cases and that it is for the Court to consider in each case whether the vehicle used in the commission of the

forest offence should be confiscated or not having regard to all the circumstances of the case.

The reference is answered accordingly.