BALBIR SINGH Vs. STATE

JUDGEMENT

(1.) THE short point which requires consideration in this Revision Petition is, as to whether the truck in which 120 bags of poppy husk were being carried and which was intercepted on July 28, 1973 in the area of village Paragpur, should have been confiscated to the State under the provisions of Section 11 of the Opium Act, or not. There is no dispute that on the aforementioned date. Truck No. D.H.G. 228 driven by one Surjit Singh was intercepted by the Police Party and it was found carrying 120 bags (about 50 quintals and 40 kgs.) of poppy husk. Baldev Singh was found sitting by the side of Surjit Singh. Both these persons after being duly prosecuted and tried, were convicted and sentenced. While rendering the judgment in that case the learned trial Magistrate also ordered that the truck should be confiscated to the State. An appeal against that part of the order was filed by Balbir Singh, one of the two partners of the truck for himself and as an attorney of his other partner Charan Singh, impugning the direction for the confiscation of the truck. The appeal was dismissed by the Additional Sessions Judge, Jullundur, and hence the present Revision Petition.

(2.) AS is apparent from perusal of Section 11 of the Opium Act, 1878 the conveyance used for carrying the opium "is liable to confiscation". The phraseology indicates that confiscation is not mandatory and a discretion is vested in the Court to assess if in a particular case it is appropriate to confiscate the conveying vehicle. In the case in hand, what was being illegally transported was poppy husk which falls within the definition of Opium only technically. There is also no dispute that the owners of the vehicle were not present at the time of the recovery and it were their employees who were using the truck for the illegal purpose. The learned Additional Sessions Judge while considering this aspect, observed that the owner is presumed to know about the movements of the vehicle from day to day and from place to place, but this presumption is not warranted, more so when there is no evidence to that effect, pointed out on behalf of the State. A truck costs quite a substantial amount and its confiscation, in the circumstances of the present case was not justifiable. The learned Counsel for the Petitioner has also submitted that in consequence of the order of confiscation passed by the trial Court, the vehicle has remained off the road uptil now and this has already caused sufficient loss to the Petitioner and his co -partner who were the owners of the vehicle.