Pritam Singh Pattar, J.
1. This is a revision petition filed by Bishan Singh son of Roda Singh, resident of Meerut, against the order dated 10-1-1973 of the Sessions Judge, Rupar dismissing his appeal against the order of the trial Magistrate confiscating his truck No. U.S.D. 6351 without giving him any notice.
2. The facts of this case are that on September 1, 1965 at about 3 P. M. there was a meeting of traffic officers of the police at Chandigarh and after attending the same, Shivdev Singh, Shadi Lal and Pirthi Singh, M.M.P.S. Is., posted at Ludhiana, Amritsar and Jullundur respectively along with others were returning from Chandigarh to Ludhiana, in Government jeep No. P. N. T. 7001 and when they were at a distance of about 6/7 miles from Morinda towards Ludhiana, they saw truck No. U.S.D. 6351 and truck No. APT 6660 coming from the side of Ludhiana. Shivdev Sirmh gave signal to the trucks for checking, but both the trucks did not stop and hurriedly passed by the jeep. The police officers then chased the trucks which went towards Kurali, but they were stopped at the railway crossing, Kurali, as it was closed. The police party arrested Balbir Singh accused, who was sitting on the steering of truck No. USD 6351. The other two persons, whose names were later on disclosed to be Lakhpal Singh and Ajit Singh, escaped, but they were arrested later on. On search of this truck, 111 bags of poppy husk, each containing 46 kilograms of poppy husk were recovered, which were taken into possession. After the completion of the investigation, the accused were challaned and the Judicial Magistrate 1st Class, Kharar convicted Balbir Singh, Ajit Singh and Lakhpal Singh under Section 9 of the Opium Act and sentenced each of them to rigorous imprisonment for 1 1/2 years and to pay Rs. 1, 000/- as fine and in default of payment of fine to further undergo rigorous imprisonment for five months. The Magistrate further ordered that the truck bearing No. USD 6351 used in carrying the poppy husk is confiscated to the State under Section 11 of the Opium Act. Against this judgment, Lakhpal Singh, Ajit Singh and Balbir Singh filed separate appeals in the Court of the Sessions Judge, Rupar against their convictions and sentences. Bishan Singh, the owner of the truck, also filed an appeal against the order of the Magistrate directing the confiscation to the State of his truck No. USD 6351. The appeals of Ajit Singh and Lakhpal Singh were accepted by the Sessions Judge, Rupar and giving them the benefit of doubt, they were acquitted. The appeal of Balbir Singh was dismissed. The Sessions Judge remarked in his judgment that the appeal preferred by Bishan Singh against the order under Section 11 of the Opium Act of the Magistrate confiscating the truck was without force and the same was dismissed. Feeling dissatisfied, Bishan Singh filed this revision petition alleging that he is the owner of the truck and he was not connected with the commission of the crime and that no notice was given to him as to why the truck should not be confiscated and that the orders of the lower Courts ware wrong and illegal and may be set aside and his truck may be released.
3. It is undisputed that before passing the order under Section 11 of the Opium Act, the Magistrate did not give any notice to Bishan Singh petitioner to show cause why the truck should not be confiscated. The relevant portion of Section 11 of the Opium Act reads as follows:
In any case in which an offence under Section 9 has been committed:
(a) ..... .... .... .... .... ....
(b) ..... .... .... .... .... ....
(c) ..... .... .... .... .... ....
The vessels, packages and coverings in which any opium liable to confiscation under this section is found and the other contents (if any) 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.
It is well-settled law that an order confiscating the conveyance under Section 11 of the Opium Act should not be passed without giving an opportunity to the alleged owner to prove that he did not know and had no reason to believe that opium was likely to be transported in the conveyance in question. It would be unjust to confiscate the truck of a person, if he has no knowledge whatsoever that the truck was being used for transporting opium by his employee, the driver of the truck. Section 11 is a penal provision and it should be construed in such a way that the person, who has not committed or abated any offence, should not be visited with penalty; unless he is given notice to show cause why the truck should not be confiscated and a person cannot be made liable because his employee made use of his truck for transporting opium without his knowledge; vide re: G. N. Chakrapany Chettiar and Sons AIR 1942 Mad 724 (2 : 44 Cri LJ 136), Manghan Das v. Rahim Bux AIR 1921 Pat 232, Sheikh Abdul Rahman v. Emperor (1911) 12 Cri LJ 103 (2) and Mohammad Keshab v. King Emperor AIR 1925 Cal 1021 : 27 Cri LJ 127
4. The law laid down in the above-mentioned cases is fully applicable to the present case. Admittedly, the petitioner Bishan Singh, who is the owner of the truck USD 6351 was not given any notice by the Magistrate to show cause why the truck should not be confiscated. Therefore, in view of the law laid down in the abovementioned cases, the order of confiscation of this truck cannot be sustained. As a result, this revision petition is accepted, the order of the Judicial Magistrate 1st. Class. Kharar confiscating this truck No. USD 6351 is set aside and it is directed that this truck should be returned to Bishan Singh petitioner.