C.S. Tiwana, J.
1. This revision is on behalf of Jit Singh, Gurmel Singh and Baldev Singh. They were convicted by the Judicial Magistrate First Class, Moga, by judgment dated January 29, 1980, for the commission of an offence under Section 9 of the Opium Act. Each of them was sentenced to undergo rigorous imprisonment for three years and to the payment of a fine of Rs. 5,000/-. In appeal the Sessions Judge, Faridkot, by judgment dated May 20, 1980, maintained the conviction but reduced the sentence of imprisonment to 1 1/2 years in respect of each of the petitioners. The sentence with regard to the payment of fine was maintained.
2. It is alleged against the petitioners that at about 3.30 a. m. on May 3, 1977, they were found carrying about 62 kgs. of opium in a truck. There were seven bags in which the opium was contained. Jit Singh was driving the truck while the other two petitioners were sitting by his side on the front seat,
3. The prosecution case is that Inspector Gurcharan Singh P.W. 2 joined with him certain other police officials of Police Station, Nihalsinghwala, and then proceeded to investigate a theft case. Sub-Inspector Gurbachan Singh P. W. 4 was a member of the police party. While the police party was coming from Badhni Kalan to Nihalsinghwala in a jeep the truck driven by Jit Singh was stopped and the opium was got recovered.
4. Learned Counsel for the petitioners urged that the trial Court did not allow the petitioners an opportunity of getting the second sample of opium examined from the Chemical Examiner. The lower appellate Court quoting an authority of this Court in para 7 of its judgment made a mention of this fact that the request of that kind could not be acceded to. No authority of this Court to the contrary has been cited by the learned Counsel for the petitioners and thus the petitioners cannot be allowed to send second sample for analysis.
5. It has been pointed out that three samples one after the other had been sent to the Chemical Examiner and no morphine content was found therein. It is the report of the Chemical Examiner, Exhibit PH, on the basis of which three more samples of opium were found to be containing morphine. These samples were obtained for examination in the presence of Shri Rajinder Singh Chahal P. W. 3 the Executive Magistrate. It was urged by the learned Counsel for the petitioners that the said Magistrate did not have any sample of the original seal so as to compare the seals put on those bags of opium out of which the samples had been obtained. Thus, according to him, there is no guarantee that the samples had been taken from those bags which had been recovered from the possession of the petitioners. Shri Rajinder Singh Chahal, however, deposed that when the bags of opium were produced before him he had with him the sample seal bearing the initials 'GS'. This sample seal could hardly have been produced but for enabling the Magistrate to compare the same with the seals with which the different bags were sealed. Had there been any tampering of the seals it would have been known to the Magistrate and he would have objected to the conduct of the police. Even though it was not specifically said by Shri Rajender Singh Chahal that the seals had not been tampered with yet from his conduct it stands proved that the seals were intact.
6. The third argument taken by the learned Counsel is that affidavit of no official was produced for showing that the seals were intact when the samples were received by Chemical Examiner. It is mentioned in the report of the Chemical Examiner, Exhibit PH, itself that the seal on each sample was intact and agreed with the sample seal. In the face of this evidence no further affidavit of anybody was required.
7. The defence taken by the petitioners was that the police had requested them to carry some bags of opium to Police Station, Nihalsinghwala, in their truck and that the opium had already been recovered from certain other persons. This line of defence was discarded by the lower appellate Court by saying that it had not been disclosed by the petitioners as to for what purpose they were going on a truck at the dead of the night. It must be said to the fairness of the learned Counsel for the petitioners that he did not at all base his arguments on the palpably false defence taken by the petitioners.
8. Lastly it was urged by the learned Counsel for the petitioners that the order passed by the trial court about the confiscation of truck No. PUM 4025 in which, the opium was being carried had operated harshly on the owner, as no notice was given before ordering the confiscation. The record of the trial court shows that at first Tarsem Lal had filed an application dated May 20, 1977, for obtaining on supardari the truck which was said to be in the custody of the police. Then there is another application filed by Vidya Devi on June 14, 1979 for exempting her from producing the truck on all the dates of hearing. This order was then passed that day that the truck owner was directed to produce the truck as and when required by the court. It is thus apparent that the owner of the truck is some person other than the petitioners. Section 11 of the Opium Act deals with the confiscation of opium. It is also provided therein that the animals and conveyances used in carrying opium shall be liable to confiscation. It is thereafter provided in Section 12 of the Act that whenever confiscation is authorised the officer ordering it may give the owner of the thing liable to confiscation an option to pay in lieu of confiscation such fine as the officer thinks fit. When the Opium Act was enforced in the year 1878 expensive conveyances like truck were at all not in existence. In view of the value of a truck these days it was necessary for the Magistrate to issue & notice to the owner of the truck before confiscating the same. He was also required to consider whether some amount of fine was to be imposed in lieu of confiscation. There are some authorities to show that notice to the owner in such like circumstances is necessary. It has been laid down in Manghan Dass v. Rahim Bux AIR 1921 Patna 232, that an order confiscating the conveyance under Section 11 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 transported in the conveyance in question. Then in Mohamad Keshab v. King-Emperor AIR 1925 Cal 1021 : 1926-27 Cri LJ 127, this opinion was expressed that in cases where there is no improper conduct imputed to the owner and where during the course of the case nothing is proved to show improper conduct on the part of the owner it would be advisable for the Magistrate who is trying the case to give the owner an opportunity of being heard before he comes to the conclusion whether the conveyance should be confiscated.
9. There being nothing on record to show that the petitioners were carrying on the trade in opium with the connivance of the owner of the truck, the order about the confiscation could not be passed in the present case. This revision is partially allowed. While maintaining the conviction and sentences of the petitioners the order about the confiscation of the truck is set aside. It shall be returned after determining as to who is its real owner at the present time.