Sadasivam, J.- The main question to be considered in this petition is whether section 43 of the Forest Act as amended offends the right to property guaranteed under Articles 19 (1) (f) and 31 (1) of the Constitution of India. This question has been considered by Kailasam, J., in Crl.M.P. No. 2290 of 1964, and answered in the negative. But as the question is an important one and some relevant considerations do not appear to have been brought to his notice, I consider it fit to refer this question to a Bench, and in doing so, I shall briefly advert to the said considerations. Section 43 of the Forest Act originally stood as follows: “ When any person is convicted of a forest offence, all timber or forest produce in respect of which such offence has been committed, and all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, shall be liable, by order of the convicting Magistrate, to confiscation. Such confiscation may be in addition to any other punishment prescribed for such offence.” But the section was amended by Madras Act XXXVI of 1961 by substituting the words “shall be confiscated to the Government” for the words “shall be liable, by order of the convicting Magistrate, to confiscation” . The words “ such confiscation may be in addition to any other punishment prescribed for such offence” were omitted. The car MDT. No. 3625 was confiscated in C.C. No. 644 of 1962, on the file of the Court of Sub-Magistrate, Perambulur, on the ground that it was used as a. vehicle for the commission of a forest offence, namely, transport of sandalwood billets from the reserve forest. Though the order of confiscation was passed as early as on 10th April, 1962, the petitioner herein filed C.M.P. No. 207 of 1965 before the District Magistrate (J), Tiruchirapalli, for the return of the car only on 3rd April, 1965, on the ground that he was the owner of the car, who had given it to one Krishnaswami Chetti under a hire-purchase agreement. The order of the District Magistrate shows how Krishnaswami Chetti filed several infructuous petitions, which he took up to this Court on more than one occasion. The learned District Magistrate did not negative the claim of the petitioner on merits; but relying on the decision of Kailasam, J., in C.M.Ps. Nos. The order of the District Magistrate shows how Krishnaswami Chetti filed several infructuous petitions, which he took up to this Court on more than one occasion. The learned District Magistrate did not negative the claim of the petitioner on merits; but relying on the decision of Kailasam, J., in C.M.Ps. Nos. 2841 and 2842 of 1964 filed by Krishnasami Chetti that it is obligatory on the part of the Court to confiscate the property used in the commission of a forest offence, by virtue of section 43 of the Madras Forest Act as amended by Madras Act XXXVI of 1961, he observed that it was immaterial who was the real owner of the car and dismissed the petition. The decision of Kailasam, J., that by virtue of section 43 of the Forest Act as amended it is obligatory to confiscate the vehicle used in committing a forest offence is not open to question in view of the decision of the Supreme Court in Indo-China Steam Navigation Co. v. Jasjit Singh1. But the Supreme Court held in that decision that a foreign company whose vessel had been confiscated for contravention of section 52-A of the Sea Customs Act is not entitled to challenge the validity of section 52-A on the ground that though mens rea is not an essential element of the section, it is ultra vires of Articles 14, 19 and 31 (1) of the Constitution. It was observed in that decision that certain rights guaranteed to the citizens of India under Article 19 being not available to foreigners, the pleas which may successfully be raised by the citizens on the strength of the said rights guaranteed under Article 19 would not be available to foreigners. The Judges of the Supreme Court however made it clear that they were not expressing any opinion on the validity of section 52-A of the Sea Customs Act under Article 19 (1) (f) of the Constitution and that if the said question were to arise for their decision in any case, they would have to consider whether the provisions of section 52-A are not justified by Article 19 (5). In State of Madras v. V. G. Row1, it has been held that in applying the test of reasonableness, 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 be taken into consideration. In Collector of Customs v. Sampathu Chetty2, it was held that the test for ascertaining the reasonableness postulated of the restrictions in clauses (2) to (6) of Article 19 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 conclusion of Kailasam, J. that it cannot be said that it is not a reasonable restriction to require the owner to use his property in such a way as not to be used in the commission of any offence, if I may say so with respect, is too wide in its terms. The offenders under the Forest Act could have robbed the motor vehicle and committed the forest offence, and under section 43 of the Forest Act as amended, the vehicle should be confiscated as it was used in a forest offence. It could not be reasonably urged that the owner of the vehicle should not have allowed the robbery and prevented the robbers from using it in committing the forest offence. It is not clear from the Forest Act the object which is sought to be achieved by the confiscation of the vehicle. But it may be inferred that such confiscation is deemed necessary to prevent forest offences. In fact the amendment of the Forest Act made by Madras Act XXXVI of 1961 refers only to offences relating to sandalwood trees in the reserve forests. If the object of the Amending Act was only to preserve sandalwood trees in the reserve forests, it would be sufficient to confiscate vehicles used to commit forest offences with regard to sandalwood. It should be seen that ‘forest offence ‘as defined in section 2 of the Madras Forest Act means an offence punishable under the Act or any rule made thereunder. Number of rules framed under the Forest Act have created trivial offences. It should be seen that ‘forest offence ‘as defined in section 2 of the Madras Forest Act means an offence punishable under the Act or any rule made thereunder. Number of rules framed under the Forest Act have created trivial offences. Thus page 104 of the Madras Forest Manual, Volume I, 1940 Edition, contains rules to regulate fishing other than the trout in the Palni Hills, Madura District, Rule 1 provides: “ Save as hereinafter provided in these rules, no person shall fish in the Kodaikanal Lake, the Kodaikanal water-works reservoir, the Bryant Park pond or in their effluents or in any of the effluents lying within the boundaries specified in the schedule annexed to these rules.” Thus, if a person sits in a car on the bank of the Kodaikanal lake and catches two fishes without licence and carries them in his car, the car would be liable to be confiscated. Though section 52-A of the Sea Customs Act provides for confiscation of a ship containing device for concealing goods, there is a provision in section 183 of the same Act that whenever confiscation is authorised by the Act, the Officer adjudicating it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. Thus in the case of a trivial violation, the owner of a ship could pay a small fine and get back the ship. In Mehtab Singh & Sons v. State of Madhya Pradesh3, clause (d) of section 11 of the Opium Act as amended in the State of Madhya Pradesh, though hit directly by Article 19 (1) (f) of the Constitution inasmuch as it leaves no option in the matter of confiscation of any conveyance not necessarily of an accused but also belonging to an innocent person, was held to be saved by clause (5) of Article 19, as it imposed reasonable restriction on a person’s fundamental right to property in the interests of the general public. But under section 12 of the Opium Act, whenever confiscation is authorised by the Act, the Officer ordering it may give the owner of the thing liable to be confiscated an option to pay, ii. lieu of confiscation, such fine as the officer thinks fit. There is no such corresponding provision in the Forest Act. But under section 12 of the Opium Act, whenever confiscation is authorised by the Act, the Officer ordering it may give the owner of the thing liable to be confiscated an option to pay, ii. lieu of confiscation, such fine as the officer thinks fit. There is no such corresponding provision in the Forest Act. Till the amendment of section 43 of the Forest Act and the decision of the Supreme Court referred to above, it has been the view of this Court that the owner of the vehicle could get a return of the same if he proves that it was used without his connivance or knowledge. (Vide Kesavalu Naidu, In re)1 . In fact, Anantanarayanan, J., has on a prior petition filed by Krishnaswami Chettiar for the return of the same car in this case, held that it could not have been the intention of the Legislature that even unwary owners of vehicles, whose vehicles have been used for the commission of such offences without their knowledge, should be penalised by orders of confiscation of such vehicles, merely because the vehicles have been used as instruments in the commission of offences under the law (Forest Act), by other unscrupulous persons. It is true Kailasam, J. explained away these observations by stating that the learned Judge was not dealing with section 43 of the Madras Forest Act and that his attention was not drawn to the amended section which makes it obligatory on the Court to confiscate the property, which is used in the commission of the offence. In this connection two other circumstances have to be considered. Section 55 of the Forest Act provides that: “ Any Forest Officer specially empowered in this behalf may accept from any person reasonably suspected of having committed any forest offence other than an offence under section 5o or section 52 a sum of money by way of compensation for the offence which may have been committed ; and, where any property has been seized as liable to confiscation, may release the same on payment of the value thereof as estimated by such officer.” This shows that an accused who commits an offence under the Forest Act can compound the offence and avoid confiscation of his vehicle. It could not have been the intention of the Legislature that an innocent owner of a vehicle, which is wrongfully used by an unscrupulous offender under the Forest Act, should be in a worse position than such an accused. Section 55 clearly indicates that it is not necessary to confiscate in all cases the vehicles used for the commission of forest offences. Another circumstance to be noted is the provision contained in section 47 of the Forest Act giving a right of appeal to any person claiming to be interested in property seized under section 41 against an order of confiscation passed under sections 43 to 45 of the Forest Act. I fail to see what objection the owner of a vehicle can put forward to the confiscation of his vehicle which has been used without his knowledge or connivance in the commission of forest offence, having regard to the absolute character of the provision contained in section 43 of the Act. It is true that the owner can plead that the vehicle was not used for committing the forest offence. But obviously such a plea would be totally inconsistent with the conviction of the accused of the forest offence which entailed the confiscation of the vehicle. Having regard to the above circumstances, I entertain doubts about the correctness of the decision of Kailasam, J., in Crl.M.P. No. 2290 of 1964. Hence the question referred to at the commencement of this order should, in my opinion, be considered by a Bench of this Court. I therefore direct the papers to be placed before my Lord the Chief Justice for suitable orders. In pursuance of the above Order of reference the petition came on for hearing before a Bench (K. Srinivasan and R. Sadasivam, JJ.) Fyzee Mohamed, Advocate for Petitioner in Crl.M.P. No. 3266 of 1965. The Advocate-General for the Special Public Prosecutor on behalf of the State. The Order of the Court was made by Sadasivam, J.- The question of law referred to this Bench is whether section 43 of the Madras Forest Act as amended by the Madras Act XXXVI of 1961 offends the right to property guaranteed, under Articles 19 (1) (f) and 31 (1) of the Constitution of India. The Order of the Court was made by Sadasivam, J.- The question of law referred to this Bench is whether section 43 of the Madras Forest Act as amended by the Madras Act XXXVI of 1961 offends the right to property guaranteed, under Articles 19 (1) (f) and 31 (1) of the Constitution of India. Section 43 of the Forest Act originally stood as follows: “When any person is convicted of a forest offence, all timber or forest produce in respect of which such offence has been committed, and all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, shall be liable , by order of the convicting Magistrate, to confiscation Such confiscation may be in addition to any other punishment prescribed for such offence” But the section was amended by Madras Act XXXVI of 1961 by substituting the words “ shall be confiscated to the Government” for the words “ shall be liable, by order of the convicting Magistrate, to confiscation.” Till the amendment of section 43 of the Forest Act and the decision of the Supreme Court in Indo-China Steam Navigation Co. v. Jasjit Singh1, it has been the view of this Court that the owner of the vehicle used in the commission of an offence under the Forest Act, or Opium Act, or other similar Acts, could get a return of the same, if he proves that it was used without his connivance or knowledge In fact, Anantanarayanan, J., as he then was, has, on a prior petition for the return of the car MDT. No. 3625 filed by one Krishnaswami Chetti, who had purchased the car under a hire-purchase agreement, held that it could not have been the intention of the Legislature that even unwary owners of vehicles, whose vehicles have been used for the commission of such offences without their knowledge, should be penalised by orders of confiscation of such vehicles merely because the vehicles have been used as instruments in commission of offences tinder the law (Forest) Act by other unscrupulous persons. But when the matter again came up in revision at the instance of the said Krishnaswami Chetty after his petition was dismissed on merits by the Courts below, Kailasam, J., declined to interfere in revision. But when the matter again came up in revision at the instance of the said Krishnaswami Chetty after his petition was dismissed on merits by the Courts below, Kailasam, J., declined to interfere in revision. The reference in this case has been made by one of us in a revision petition filed by Mam & Co., who gave the car to Krishnaswami Chetti on a hire-purchase agreement, against the order of the District Magistrate declining to go into the question on merits on the ground that it is obligatory on the Court to confiscate the property used in the commission of the offence. The order of reference has been made as some relevant considerations did not appear to have been brought to the notice of Kailasam, J., and the observation of Kailasam, J., that it cannot be said that it is not a reasonable restriction to require the owner to use his property in such a way as not to be used in the commission of any offence appeared to be too wide in its terms. In the order of reference it is stated by way of illustration that if the offenders under the Forest Act had stolen the motor vehicle and committed the forest offence and if under section 43 of the Forest Act as amended it was obligatory that the vehicle should be confiscated as it was used in a forest offence the owner of the vehicle could have no remedy even though it could not be reasonably urged that the owner of the vehicle should not have allowed the theft and prevented the thieves from using it in committing the forest offence. It may be reasonable to infer that the object of such confiscation is to prevent forest offences and this could be achieved without confiscating the vehicles of innocent persons. Several of the rules framed under the Forest Act have created trivial offences. Thus page 104 of the Madras Forest Manual, Volume I, 1940 Edition, contains rules to regulate fishing other than trout in the Palni Hills, Madura District. Several of the rules framed under the Forest Act have created trivial offences. Thus page 104 of the Madras Forest Manual, Volume I, 1940 Edition, contains rules to regulate fishing other than trout in the Palni Hills, Madura District. Rule 1 provides: “ Save as hereinafter provided in these rules, no person shall fish in the Kodaikanal lake the Kodaikanal water-works reservoir, the Byrant Park Pond or in their effluents or in any of the effluents lying within the boundaries specified in the Schedule annexed to these rules.” Thus if a person sits in a car on the bank of the Kodaikanal lake and catches a fish or two without licence and carries the same in his car, the car would be liable to be confiscated. There is no provision in the Forest Act, unlike in section 183 of the Sea Customs Act and section 12 of the Opium Act to enable an owner to pay such fine as the concerned officer may think fit to impose in lieu of the confiscation of his vehicle. It is also significant to note that an accused who commits an offence under the Forest Act can compound the offence and avoid confiscation of his vehicle and it could not have been the intention of the Legislature that an innocent owner of a vehicle, which is wrongfully used by an unscrupulous offender under the Forest Act, should be in a worse position than such an accused. Further section 47 of the Forest Act gives a right of appeal to any person claiming to be interested in the property seized under section 41 of the same Act against an order of confiscation passed under sections 43 to 45 of the same Act. We fail to see what objections the owner of a vehicle can put forward by way of appeal to the confiscation of his vehicle which has been used without his knowledge or connivance in the commission of forest offence if it is obligatory on the Court in all cases to confiscate the vehicle used in a forest offence. Subsequent to this reference, the Supreme Court has delivered judgment in Criminal Appeal No. 97 of 1964 on its file in dealing an identical question which arose in the following circumstances under the Opium Act. Subsequent to this reference, the Supreme Court has delivered judgment in Criminal Appeal No. 97 of 1964 on its file in dealing an identical question which arose in the following circumstances under the Opium Act. The relevant words of section 11 of the Opium Act of 1878 are as follows: “ Section 11 - Confiscation of Opium.- - In any case in which an offence under section 9 has been committed...................... 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 conveyance used in carrying it shall likewise be liable to confiscation.” The above provision was amended by the Opium (Madhya Bharat Amendment) Act, 1955 (Act XV of 1955) in the following words: “ Section 11. 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, the property detailed herein below shall be confiscated..................(b) the receptacles,........in which such opium may be concealed, and the animals, carts, vessels, rafts and conveyances used in carrying it.” It was contended on behalf of the State that the different phraseology deliberately employed by the Amending Act clearly disclosed the intention of the Legislature of making it obligatory on the Court to confiscate the vehicle used for the transport of opium. But the Supreme Court held that the High Court was correct in reading section 11 of the Madhya Bharat Act as permissive and not obligatory. The Supreme Court referred to three relevant considerations in the following terms: “ It is well settled 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. Three considerations are relevant in construing section 11. First it is not denied by Mr. Shroff (the learned Advocate for the State) that 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. Suppose a person steals a truck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to be confiscated. Shroff (the learned Advocate for the State) that 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. Suppose a person steals a truck and then uses it for transporting contraband opium. According to Mr. Shroff, the truck would have to be confiscated. It is well recognised that if a statute leads to absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. (Vide Tirath Singh v. Bachictar Singh)1. Secondly it is a penal statute and it should, if possible, be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. Thirdly if the meaning suggested by Mr. Shroff is given, section 11 (d) of the Madhya Bharat Act may have to be struck down as imposing unreasonable restrictions under Article 19 of the Constitution. Bearing all these considerations in mind, we consider that section 11 of the Madhya Bharat Act is not obligatory and it is for the Court to consider in each case whether the vehicle in which the contraband opium is found or is being transported should be confiscated or not, having regard to all the circumstances of the case.” Applying the principles of the above decision to the question referred to us, we have no hesitation in coming to the conclusion that the word ‘shall ‘introduced by the Amending Madras Act XXXVI of 1961 does not make it obligatory on the Court to confiscate the vehicle used in a forest offence in each and every case irrespective of the innocence of the owner of the vehicle. We have already referred to the relevant consideration in support of the said view. If really Madras Act XXXVI of 1961 made it obligatory to confiscate the vehicle used in the commission of a forest offence under any circumstances so as to affect the rights of innocent owners of the vehicles, the amending Act may have to be struck down as imposing unreasonable restrictions under Article 19 of the Constitution. If really Madras Act XXXVI of 1961 made it obligatory to confiscate the vehicle used in the commission of a forest offence under any circumstances so as to affect the rights of innocent owners of the vehicles, the amending Act may have to be struck down as imposing unreasonable restrictions under Article 19 of the Constitution. Thus, having regard to the relevant considerations we are of opinion that the amendment of section 43 of the Madras Forest Act by Madras Act XXXVI of 1961 by the substitution of the words “ shall be liable, by order of the convicting Magistrate, to confiscation” does not make it obligatory to confiscate the vehicles used in forest offences in all cases and that it is for the Court to consider in each case whether the vehicle used in the commission of the forest offence should be confiscated or not having regard to all the circumstances of the case. The reference is answered accordingly. Crl. M. P. No. 3265 of 1965.- The decision in Crl.M.P. No. 2024 of 1965 will govern this case also. R.M. ------------ Answered accordingly