Superintendent and Remembrancer of Legal Affairs vs Deonandan Roy

Sudhamay Basu, J.—This Rule has been obtained against Order No. 7 in case No. C.R. 1655 of 1974 dated August 7, 1974, passed by the learned Metropolitan Magistrate, Sixteenth Court, Calcutta, sentencing the accused/opposite parties u/s 12(1)(vi) of the West Bengal Cattle Licensing Act, 1968, to pay a fine of Rs. 100, in default to suffer R.I. for twenty days each.

The accused/opposite parties were tried for keeping 22 buffaloes in the land of the Calcutta Port Commissioners on the bank of river Hooghly at Jagannath Ghat on July 31, 1974, without any licence from the Licensing Authority for keeping cattle. As the accused failed to produce any licence, the buffaloes were seized by the Police. After investigation, the Police submitted charge-sheet. The accused Nos. 1, 2 and 3 Deonandan Roy, Bhola Roy and Sudhdeo Jadav claimed to be the owners of 11, 10 and 1 buffaloes respectively and pleaded guilty of the charge. The learned Magistrate accepted their plea of guilt, convicted them and sentenced them as noted above. He also directed release of the seized buffaloes and returned them to the persons from whom they were seized, on proper receipt. The learned Magistrate, it may be noted, did not direct any forfeiture of the cattle. The said order is challenged by the Superintendent and Remembrancer of Legal Affairs. As notice was not served on the accused No. 3 Sudhdeo Jadav, this Rule has been discharged so far as he is concerned.

The only point argued before us was on the ground of sentence. Mr. Chakraborty, learned Advocate appearing on behalf of the Petitioner, urged that forfeiture was mandatory u/s 12(1)(vi) of the West Bengal Cattle Licensing Act, 1959 and that the sentence passed by the learned Magistrate was illegal.

It may be noted that Section 12 of the West Bengal Cattle Licensing Act, 1959, was amended in 1965 by the West Bengal Act I of 1965. After the amendment, u/s 12(3)(ii)(b) when a person is convicted of any offence u/s 12, Sub-section (1)(vi)(which is the offence in the present case)--

The Court shall direct that the cattle in respect of which the offence is committed shall be forfeited to the Government.

The learned Magistrate thought that the provision was discretionary one. He referred to the intention of the Legislature and Section 12(3)(i). The latter is clearly discretionary as the expression ''may'' is used by the Legislature. But while ''may'' has been used in Clause (i), ''shall'' has been used in (ii)(b). We are unable to appreciate the logic of the learned Magistrate. Because discretion has been conferred in Clause (i); there is no reason why the same is to be inferred in Clause (ii)(b) in spite of the use of the word ''shall'' in the place of ''may''. The reasons given by the learned Magistrate are clearly untenable.

Our attention has been drawn to the case of State of Madhya Pradesh Vs. Azad Bharat Finance Co. and Another, , in which, while construing the word ''shall'' in Section 11 of the Opium Act as applicable to Madhya Pradesh, the Supreme Court upheld the views of the High Court in regarding the section as permissive and not obligatory. It is well-settled, the Supreme Court 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. In that case a truck in which the opium was carried was confiscated. The person who had taken the truck under hire-purchase agreement was not present at the time of the seizure. The Supreme Court thought three considerations were relevant: firstly, confiscation of the truck of a person would be unjust if he had no knowledge whatsoever that the truck was being used for transporting opium. Suppose a person steals the truck and then uses it for transporting opium. A strict construction of the Act would compel confiscation of the said truck. The Supreme Court was of the view that if statute leads to absurdity, hardship or injustice, presumably not intended, construction may be put upon it which modifies the meaning of the word and even the structure of the sentence. Secondly, a penal statute should be construed in such a way that a person who has not committed or abetted any offence should not be visited with penalty; and thirdly, unreasonable restrictions imposed by an enactment would be hit under Article 19 of the Constitution. The three considerations noted above seem to be valid even in construing Section 12(3)(ii)(b) of the West Bengal Cattle Licensing Act, 1959, which seems to be in pari materia with the aforesaid section of the Opium Act. The word ''shall'' in Section 12(3)(ii)(b) may not, therefore, be held to be mandatory. The instant case, however, is not one in which the persons involved seem to be innocent ones. In appropriate cases this Court may mitigate hardships involved in the light of the facts and circumstances and having regard to the principles such as referred to in the Supreme Court case. In the instant case, even holding ''shall'' to be not mandatory, there is nothing before us to suggest that the exercise of any discretion in favour of the accused persons is called for. More so, when the accused pleaded guilty.

We were referred also to the revision case No. 747 of, 1972 Ramananda Roy v. The State in which a Division Bench of this Court consisting of Borooah and H.N. Sen JJ. set aside the order of forfeiture of the cattle in respect of which an offence was committed u/s 12(3)(ii)(b) on undertaking given by the Petitioner that the cattle would be removed outside the prohibited area. The provisions of the section were not construed by their Lordships in that case. Apparently, their Lordships regarded the word ''shall'' in Sub-section (3) of Section 12 not to be mandatory. We do not think that the said decision is in conflict with the present one.

We hold that although normally forfeiture should be ordered the same may not be ordered in every case u/s 12(3) of the West Bengal Cattle Licensing Act, 1959. In the instant case, we uphold the validity of the submission made by Mr. Chakraborty and we set aside the order of the learned Magistrate in releasing the buffaloes. Let the buffaloes belonging to the opposite parties Nos. 1 and 2 be forfeited. The Rule is made absolute.

Chanda J.

I agree.