Full Judgment
S.P. Khare, J.
1. Appellant Sunil Kumar has been convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the 'Act') for being found in unlawful possession of 600 grams of Ganja on 22-4-1999 and sentenced to rigorous imprisonment for one year and a fine of Rs. 500/-. He has also been convicted under certain provisions of the Motor Vehicles Act, 1988 but the conviction and sentence on that account are not challenged at the time of hearing of this appeal as the appellant has already served out the substantive sentences of imprisonment under the provisions of the Motor Vehicles Act, 1988.
2. So far as conviction of the appellant under Section 20(b)(i) of the Act is concerned, that is challenged on the ground of non-compliance with the provisions of Sections 42, 50 and 57 of the Act. A scrutiny of the evidence on record shows that these statutory provisions have been fully complied with. The information received by Sub-Inspector A.P. Singh (P.W. 4) was recorded in the Panchanama (Ex. P-10) and it was communicated to the D.S.P., Sidhi as per radio message (Ex. P-10). There was compliance with the Section 42 of the Act. Sub- Inspector A.P. Singh (P.W. 4) has further deposed that he served the notice (Ex. P-3) on the accused before proceeding to search the dicky of the scooter. By this notice the accused was apprised of his right to be searched in the presence of the Magistrate or a Gazetted Officer as provided in Section 50 of the Act. The accused however expressed that he is prepared to be searched by the Police Officer. This is sufficient compliance with the Section 50 of the Act. Further this provision is applicable to personal search only as held by the Constitution Bench of the Supreme Court in State of Punjab v. Baldeo Singh (AIR 1999 SC 2378). It has been held in this case that the requirement of informing the accused about his right under Section 50 comes into existence only when person of the accused is to be searched. It does not apply to the search of the baggage of the accused. This has been reiterated in Kalema Tumba v. State of Maharashtra and Anr. (1999 AIR SCW 4544). On the same reasoning Section 50 would not apply to the search of a vehicle. The judgment of the Supreme Court in State of Punjab v. Jasbir Singh, (1996) 1 SCC 288, has been held to have been overruled by the Constitution Bench of the Supreme Court in Baldev Singh's case. In the present case the search of the dicky of the scooter belonging to the appellant was taken and therefore, Section 50 of the Act is not attracted.
3. From the evidence it is found that Section 57 of the Act has also been complied with. The Investigating Officer has informed his superior officer regarding the arrest and search of the accused. Even otherwise the provision of Section 57 has been held to be directory and not mandatory.
4. The testimony of Sub-Inspector A.P. Singh (P.W. 4) has been held to be fully reliable. He has deposed that he found 600 grams of Ganja in the dicky of the scooter of the appellant. It was seized as per seizure memo Ex. P-7.
5. The conviction of the appellant under Section 20(b)(i) of the Act is well founded and the sentence of rigorous imprisonment of one year and a fine of Rs. 500/- cannot be said to be disproportionate.
6. The learned counsel for the appellant has seriously challenged the confiscation of the new scooter under Section 60(3) of the Act. Section 60(3) provides that any animal or 'conveyance' used in carrying any narcotic drug shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself. The words 'shall be liable to confiscation' cannot be interpreted to mean that the Court has no discretion in the matter but to confiscate the conveyance. In State of M.P. v. Azad Bharat Finance Co. and Anr. (AIR 1967 SC 276) the Supreme Court considered the interpretation of these words used in the Opium Act, 1878. It was held 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. It was further held that Section 11 of the Madhya Bharat Act is permissive and not obligatory. In that case by a local amendment it was provided that conveyance 'shall be confiscated'. Thus, a stronger language was used than the words 'liable to confiscation'. Even then it was construed to mean that the confiscation is permissive and not obligatory. It would depend upon the facts of each case whether the conveyance should be confiscated or not. In the present case the appellant has been adequately punished. Keeping in view the quantity of Ganja which has been recovered from him, the confiscation of the new scooter would be highly disproportionate to the crime committed by the appellant.
7. Learned Govt. Advocate has relied upon the recent decision of the Supreme Court in Ganga Hire Purchase Pvt. Ltd. v. State of Punjab and Ors., (1999) 5 SCC 670, in support of his argument that the confiscation of the conveyance is mandatory. In that case the subject matter of interpretation was the word 'owner' in Section 63 of the Act. It was held that the owner means registered owner of a vehicle in whose name it stands registered and not the legal owner to whom the balance hire purchase money is due. This decision is not an authority for the proposition that the confiscation of the conveyance in every case of the commission of the offence under the Act is mandatory.
8. In view of the above discussion, the appeal against conviction and sentence is dismissed. However, the order of the trial Court relating to confiscation of the scooter is set aside and it is directed that the possession of this scooter will be restored to the appellant.