1. The petitioner in this case made an application under Sections 516-A and 517 of the Code of Criminal Procedure before the First Class Magistrate, Neemuch, for restoration of a car which was ordered to be confiscated under Clause (d) of Section 11 of the Opium Act, 1878, consequent to the conviction of two persons, Surendrakumar and Omprakash, under Section 9-B of the Opium Act. The petitioner claimed that the car had been sold and delivered to the accused persons on hire-purchase agreement; and as they had failed to pay the instalments due from them, the ownership of the car remained with it; and that, therefore, even if the car had been used by the aforesaid persons for transporting opium contrary to the provisions of the Act it could not be confiscated. This application was rejected by the Magistrate taking the view that the provisions of Clause (d) of Section 11 were mandatory and if any conveyance was found to have been used for carrying opium in any case in which an offence under Section 9-B was committed, then the conveyance had to be confiscated. The petitioner then filed an application under Section 520 of the Code of Criminal Procedure before the Additional Session Judge, Neemuch, for setting aside the order of the First Class Magistrate, which was rejected. Thereupon, this revision 'petition was filed by the applicant.
2. When this petition first came up for hearing before Tare J. it was urged on behalf of the petitioner that Clause (d) of Section 11 of the Opium Act was ultra vires as it infringed the petitioner's fundamental right under Article 19(1)(f) of the Constitution. Tare J. therefore made an order recommending that this petition should be heard and disposed of by a Division Bench. Accordingly, the matter has come up before us.
3. There is no dispute that the car of which the petitioner claims ownership was used for carrying opium by Surendrakumar and Omprakash who were convicted under Section 9-B of the Opium Act. Shri Harbans Singh, learned counsel appearing for the applicant, did not also dispute that Section 11 of the Opium Act is mantatory and that if 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, then the property detailed in the various clauses of Section 11 has to be confiscated irrespectivee of the consideration whether the property belonged to the accused person or same other person. Learned counsel, however, submitted that Section 11(d) of the Act under which the petitioner's car was confiscated violated the petitioner's fundamental right under Article 19(1)(f) of the Constitution and was, therefore, ultra vires.
4. We are unable to accede to this contention. Section 11(d) of the Opium Act runs as follows:
'11. Confiscation of opium--In any case in which the 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, packages and coverings in which any opium liable to confiscation under this section is found, and the other contents (if any) of the receptacles or package in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it.'
There is no doubt that this provision which leaves no option in the matter of confiscation of any conveyance is expropriatory in character and is directly hit by Article 13(1)(f) of the Constitution; but the provision would be valid if it is saved by Clause (5) of Article 19. This is clear from the Supreme Court's decision in Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080 : (1960) 3 SCR 887 that under Article 31(1) a person cannot be deprived of his property save by authority of a valid law; and that a law depriving a person of his property will be invalid if it infringes Article 19(1)(f) unless it imposes a reasonable restriction on a person's fundamental right.
The question, therefore, the arises for determination is whether Section 11 (d) of the Opium Act imposes a reasonable restriction on the exercise of the fundamental right under Article 19(1)(f) in the interests or the general public or for the protection of the interests of any Scheduled Tribe. The meaning of imposing reasonable restrictions on the exercise of fundamental right in the interests of the general public has been expounded by the Supreme Court in Chintaman Rao v. State of Madhya Pradesh, 1950 SCR 759 : (AIR 1951 SC 118), State of Madras v. V. G. Row, 1952 SCR 597 : (AIR 1952 SC 196} and Collector of Customs, Madras v. Sampathu Chetty, AIR 1962 SC 316. In the case of 1952 SCR 597 : (AIR 1952 SC 196) (supra) toft Supreme Court said at p. 607 (of SCR) : (at p. 200 of AIR) that--
'................ .the test of reasonableness, wherever proscribed, should be applied to each, individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.'
In the case of AIR 1962 SC 316 (supra) it was observed by the Supreme Court that these observations were in line with the principle underlying the structure of rights guaranteed by Aft. 19, namely,
'a balancing of the need for individual liberty in the matter inter alia of the right to hold property or of the right to trade, with the need for social control in order that freedoms guaranteed to the individual subserve the larger needs--moral, social, economic and political--of the community and thus ensure orderly progress towards the goal indicated by the preamble.'
In that case also, it was emphasised that the reasonableness of the restraint should be judged by the magnitude of the evil which it is the purpose of the restraint to curb or eliminate.
5. On the application of the above principles it is plain that the restriction imposed by Section 11 !d) in the form of confiscation of property including conveyances in the circumstances mentioned in that provision is a reasonable restriction in the interests of the general public. The object of the Opium Act is clearly to regulate the cultivation of the poppy, the manufacture of opium, and the sale and distribution of opium in the interest of public health and public morals.
6. Learned counsel for the applicant conceded that the provision about confiscation of a conveyance would be reasonable, constitutional and valid in the case of a person owning the vehicle and committing any of the offences mentioned in Section 11. He also did not dispute that the provision would be equally reasonable and valid in the case of confiscation of a conveyance of a person who deliberately or knowingly allows the use of his vehicle by a person committing an offence under any of the sections of the Opium Act enumerated in Section 11. It was, however, urged that the restriction in the form of total deprivation of a vehicle would be unreasonable and invalid in a case where a parson owning the vehicle had no idea that the vehicle had been used or would be used by a person committing the offences specified in Section 11 of the Act. Such cases of confiscation would no doubt arise; but merely because they are also rovered by Section 11(d), it cannot be held that Section 11(d) is constitutionally invalid.
The matter of restraint in the form of confiscation has to be viewed as a whole in relation to all types of cases. It is easy to see that if esses of confiscation of vehicles belonging to a person other than the accused person were to be excluded from the operation of Section 11 (d), its effectiveness would be greatly reduced; and a door would open out for easy evasion of confiscation of vehicles and other property really belonging to the accused persons by just setting up third persons to claim title to the property. Indeed, it was because of evasion of this type on the part of the accused persons becoming too common and frequent that Section 11 of the Opium Act was amended in this State so as to make confiscation of the property referred to in Section 11 mandatory in all cases in which offences under Sections 9, 9-A, 9-B, 9-C, 9-D, 9-E, 9F and 9-G are committed. For the purpose of achieving the desired objective of regulating the manufacture, sale and distribution of opium and preventing smuggling, it was, therefore, necessary for the Legislature to draw no distinction between a conveyance or property belonging to accused persons and that belonging to others where the property is involved in the commission of any of the offences mentioned in Section 11 of the Act. The decision of the Supreme Court in AIR 1962 SC 316 (supra) clearly shows that the inclusion in Section 11(d) of the Act of cases of confiscation of property belonging to innocent persons, if necessary to ensure the effective enforcement of the law, cannot render the provision unconstitutional or unreasonable.
7. In our judgment, Section 11(d) is saved by Clause (5) of Article 19 and is constitutionally valid. If the provision is valid, then the confiscation of the car under Section 11(d) of the Act, even if it belonged to the petitioner, was legal. It was admittedly used by Surendrakumar and Omprakash who were convicted under Section 9-B of the Opium Act. That being so, there can be no question of the restoration of the car to the petitioner.
8. For the foregoing reasons, the order of the First Class Magistrate, Neemuch, rejecting the petitioner's prayer for restoration of the car is upheld; and this application is dismissed.