P L D 1962 (W (PLP)

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11. In any case in which an offence under section 9 has been committed: ‑ (a) the opium in respect of which any offence under the same section has been committed. (b) Where in the case of an offence under clause 2 (b) or (c) of the same section, the offender is transporting, importing or exporting any opium exceeding the quantity (if any) which he is permitted to transport, import or export, as the case may be, the whole of the opium which he is transporting, important or exporting. (c) Where, in the case of an offence under clause 3 (d) of the same section, the offender has in possession any opium other than the opium in respect of which the offence has been committed, the whole of such other opium, shall be liable to confiscation. The vessels, packages and coverings in which any opium liable to confiscation under this section is found, and the other contents 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." "

12. When the offender is convicted, or when the person charged with an offence in respect of any opium is acquitted, but the Magistrate decides that the opium is liable to confiscation, such confiscation may be ordered by the Magist rate. Whenever confiscation is authorised by this Act, the officer ordering it may give the owner of the thing liable to be confiscated an option to pay, in lieu of confiscation, such fine as the officer thinks fit. When an offence against this Act has been committed, but the offender is not known or cannot be found or when opium trot in the possession of any person cannot be satisfactorily accounted for, the case shall be inquired into and determined by the Collector of the District or Deputy Commissioner or by any other officer authorised by the Provincial Government in this behalf, either personally or in right of his office who may order such confiscation Provided that no such order shall be made until the expiration of one month from the date of seizing the things intended to be confiscated or without hearing the persons (if any) claiming any right thereto, and the evidence (if any) which they produce in support of their claims."

3. A perusal of the above sections indicate that the trial Magistrate has a discretion to order the confiscation of the con veyance used in carrying contraband opium. In the alternative, it has been provided that the trial Magistrate may give the option to pay in lieu of confiscation, such fine, as the officer thinks fit. Although it has not been specifically provided in the sections that before passing the order of confiscation, the owner has to be served with a notice, but under the general principles no order affecting the property of a person can be passed unless he has been afforded an opportunity to show cause against the proposed, action. The owner of the car would have been well within his right to prove before the Court that the opium was being transported in his car without his knowledge and if that was proved to the satisfaction of the Court, no case would be made out for ordering the confiscation of the car. Similarly, the owner might exercise an option to pay in lieu of confiscation such fine as the trial Court might think fit. The same view has been taken in Manghan Dass v. Rahim Bux and others (A I R 1921 Pat. 232), Muhammad Keshab v. King Emperor (A I R 1925 Cal. 1021) and In re : Chakrapany Chettiar (A I R 1942 Mad. 724(2)).

4. The learned counsel for the State has contended that there is nothing in section 11 which makes it incumbent upon the trial Court to give an opportunity to the owner of the con veyance to show cause against confiscation and further that there is no discretion left with the trial Court, the order of confiscation must follow in case oh conviction. The learned counsel has cited Libab Gul v. The State (A I R 1942 Mad. 724(2)), in support of his contention There is no doubt that this authority supports the contention of the learned counsel for the State, but I am sorry, I am not prepared to follow this view. The words used in section 11 are "shall be liable to confiscation" as regards the opium and as regards the conveyance used for carrying illicit opium are "shall likewise be liable to confiscation." The words "shall be liable to confiscation" do not mean the same thing as the words "shall be confiscated." The plain meanings of the words "liable to confiscation" are that the conveyance may be confiscated in a proper case, otherwise: the legislature would have used the words "shall be confiscated." To make a thing liable to confiscation amounts to a declaration that the thing is available for confiscation. The use of the word "shall" here in the context only means that in case the Court considers proper, it will have power to order the confiscation of the conveyance. The interpretation given by the learned Judge deciding the Peshawar case can lead to terrible results. Supposing a person is going in his car and he is stopped at the road‑side by a waiting passenger who requests for a lift to the next city and the owner of the car agrees to give him a lift gratuitously. Passenger may be carrying illicit opium on his person and if it is detected, according to the interpretation given by the learned Judge, it' would be imperative for the Court to order the confiscation of the car. This could never have been the intention of the legis lature. I am afraid the learned Judge has given wrong meanings to the words "shall be liable to confiscation." I would, there fore, accept this revision petition and order that the learned Magistrate will take proceedings afresh as regards the confiscation of the car in the manner indicated above. The record of the case may be sent to the learned District Magistrate, who will entrust the case to some other Magistrate than the one who had already passed the order of the confiscation of the car. S. B. Order accordingly.