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Calcutta High Court
The Empress vs Kola Lalang And Anr. on 14 December, 1881
Equivalent citations: (1882) ILR 8 Cal 214
Author: Field
Bench: Pontifex, Field


Field, J.

1. The question in this case is concerned with the construction of Sections 15 and 16 of the Reng. Excise Act, VII of 1878. Two persons were charged under Section 61 of this Act with “being in possession of a certain excisable article, to wit six quart bottles of native spirits, being a quantity in excess of the quantity specified in Section 15.” Now Section 15 is as follows:

2. Unless the Board shall otherwise specially direct, the sale of any excisable article in a larger quantity than is specified below shall be deemed to be a sale by wholesale, and the sale of any other quantity shall be deemed a retail sale: Spirituous or fermented liquors, two imperial gallons, or twelve quart bottles.” The Chief Commissioner of Assam, exercising the powers of the Board of Revenue, made an order under the provisions of Section 15, declaring that six quart bottles shall be the maximum amount; and the question is, whether any lesser quantity so declared to be the maximum quantity by the Board of Revenue under the powers conferred by Section 15 of the Act can be taken to be the quantity specified for each article in Section 15 within the meaning of Section 61. Now, it is a rule that a penal Statute must be construed strictly. The meaning of this rule is, that nothing is to be regarded as within the meaning of the Statute which is not within the letter–which is not clearly and intelligibly described in the very words of the Statute itself. It was said in the case of Lord Huntingtower v. Gardiner 1 B. and C. 297 at p. 299 that “effect must not be given to a penal Statute unless the offence charged comes within the very words of it;” and in that case of Rex v. Bond 1 B. and All. 390 at p. 392 Abbott, J. said, that “it would be extremely wrong, that a man should, by a long train of conclusions, be reasoned into a penalty when the express words of the Act of Parliament do not authorize it.” Again, Willes, J., said, in the case of Britt v. Robinson L.R. 5 C.P. 503 at p. 513 that criminal enactments are not to be extended by construction, and that “when an offence against the law is alleged, and when the Court has to consider whether that alleged offence falls within the language of a criminal Statute, the Court must be satisfied not only that the spirit of the Legislative enactment has been violated, but also that the language used by the Legislature includes the offence in question, and makes it criminal.” Applying this rule of construction to the present case, we think it impossible to say that any lesser quantity of country spirits which may have been declared to be the maximum quantity by any rule or order made under the provisions of Section 15 of the Act can be deemed to be “the quantity specified in Section 15 within the meaning of Section 61.” A thing specified is a thing definitively mentioned or designated; and that can scarcely be said to be specified which depends on a rule or order to be made at some future time, and which may never come to the notice of the class of outside. persons with which Section 61 of the Act is concerned. For Section 15 is applicable to licensed vendors who would naturally know of any alteration made by the Chief Commissioner as to quantity under that section; but Section 61 applies to the general public who would have no general knowledge of any such alteration. It may be possible that the intention of those who promoted the Act was different; but if this were so, we can only say that adequate language has not been used to effectuate that intention. We think that the order of the Assistant Commissioner was correct, and we decline to interfere.

Pontifex, J.

3. I am of opinion that the order of the Assistant Commissioner is correct, and that we cannot interfere with it.

4. The charge was under Section 61 of the Beng. Excise Act. The Assistant Commissioner held, that the persons charged were not subject to a fine, unless they were in possession of a larger quantity of native spirits than that actually specified in Section 15 of the Act.

5. Section 15 enacts as follows: “Unless the Board shall otherwise specially direct, the sale of any excisable article in a larger quantity than is specified below shall be deemed to be a sale by wholesale: spirituous or fermented liquors, two imperial gallons, or twelve quart bottles.”

6. This section applies only to the sale of liquor by licensed manufacturers and vendors.

7. The language by which legislative authority is deputed to the Board to vary the quantity is peculiar; and as at present advised, it seems to me questionable whether the legislative authority so deputed empowers the Board (or in this case the Chief Commissioner) to lessen the quantity which is to constitute a wholesale sale even with respect to the licensed manufacturers and vendors mentioned in the section. And apart from the peculiar language by which this legislative authority is deputed, it would seem, on general grounds, questionable. For though the Legislature might reasonably depute its authority for the purpose of relaxing the penal obligation of its own Act, it is scarcely reasonable to suppose that it would, even if it could, depute its authority to render its Act more stringent, to impose severe restraints without debate, and after having itself carefully considered and specified what quantity should be deemed to constitute a wholesale sale.

8. But however this may be, I can find no authority deputed to vary the quantity so as to affect the general public under Sections 17 and 61, and to render them liable to a penalty for possessing a smaller quantity than that actually specified by the Legislature in Section 15. [q. v. supra, 8 Cal. 214.]

9. According to the well-known rule, a Statute imposing penalties must be construed strictly; and the Assistant Commissioner was therefore, in my opinion, right in refusing to impose a five in this present case.

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