{"id":39936,"date":"2003-08-27T00:00:00","date_gmt":"2003-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balram-kumawat-vs-union-of-india-ors-on-27-august-2003"},"modified":"2017-01-16T05:50:45","modified_gmt":"2017-01-16T00:20:45","slug":"balram-kumawat-vs-union-of-india-ors-on-27-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balram-kumawat-vs-union-of-india-ors-on-27-august-2003","title":{"rendered":"Balram Kumawat vs Union Of India & Ors. on 27 August, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Balram Kumawat vs Union Of India & Ors. on 27 August, 2003<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: Cji, S.B. Sinha, Arun Kumar.<\/div>\n
           CASE NO.:\nAppeal (civil)  7536 of 1997\nAppeal (civil)  7537 of 1997\n\nPETITIONER:\nBalram Kumawat\t\t\t\t\t\t\t\n\n\nRESPONDENT:\nVs.\n\nUnion of India & Ors.\t\t\t    \t\t.\n\n\nDATE OF JUDGMENT: 27\/08\/2003\n\nBENCH:\nCJI, S.B. Sinha & Arun Kumar.\n\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. SINHA, J :\n<\/p>\n
QUESTION :\n<\/p>\n
Whether ‘mammoth ivory’ imported in India answers the description <\/p>\n
of the words  ‘ivory imported in India’ contained in Wild Life <\/p>\n
(Protection) Act, 1972 (hereinafter referred to as ‘the said Act’) as <\/p>\n
amended by Act No. 44 of 1991 is the question involved in these appeals <\/p>\n
which arise out of a common judgment and order dated 20.3.1997 passed <\/p>\n
by a Division Bench of the Delhi High Court. <\/p>\n
FACTUAL BACKGROUND :\n<\/p>\n
The appellants M\/s Unigems had imported mammoth fossil said to be <\/p>\n
of an extinct species in the year 1987.  The stock of mammoth fossil <\/p>\n
held by the appellants is said to be periodically checked by the <\/p>\n
statutory authorities.  The appellant in the other case Balram Kumawat <\/p>\n
is a carver.\n<\/p>\n
Mammoth is said to be pre-historic animal which disappeared due <\/p>\n
to climatic conditions prevailing in Alaska and Siberia.   According to <\/p>\n
the appellants the distinction between mammoth and elephant ivory is <\/p>\n
that whereas mammoth belongs to an extinct species, the ivory of <\/p>\n
elephant is of an extant living animal.  The appellants state that <\/p>\n
mammoth ivory is distinguishable by visual and non-destructive means <\/p>\n
vis-\u00e0-vis elephant ivory and even in Convention on International Trade <\/p>\n
in Endangered Species (CITES) their distinguishing features have been <\/p>\n
pointed out.\n<\/p>\n
SUBMISSIONS :\n<\/p>\n
Mr. Sanghi and Mr. Parikh, the learned counsel would contend that <\/p>\n
trade in mammoth fossil ivory is not banned either under the said Act <\/p>\n
or under the CITES and, thus, the impugned judgment of the High Court <\/p>\n
cannot be sustained.\n<\/p>\n
The learned counsel would take us through the history of CITES as <\/p>\n
mentioned in the impugned judgment of the High Court and would urge <\/p>\n
that the purport and object of the Act cannot be sub-served by placing <\/p>\n
a ban on trade in mammoth ivory.  Taking us to the provisions of the <\/p>\n
said Act, the learned counsel would argue that as mammoth ivory does <\/p>\n
not answer the description of ‘wild animal’, the provisions contained <\/p>\n
in Chapter VA of the said Act would not be attracted.  <\/p>\n
As Mammoth is an extinct species and as what is being used for <\/p>\n
carving is its fossil which is called ivory because it has white and <\/p>\n
hard dentine substance which is also available in other animals, <\/p>\n
namely, Whale, Walrus, Hippos and Warthog; it was urged, they cannot be <\/p>\n
included in the term ‘ivory’ within the meaning of the provisions of <\/p>\n
the said Act.\n<\/p>\n
 \tIt was contended that the High Court committed a manifest error <\/p>\n
in passing the impugned judgment insofar as it failed to take into <\/p>\n
consideration that mammoth ivory being deceptively similar to elephant <\/p>\n
ivory to the naked eye, the impugned Act would be applicable in <\/p>\n
relation thereto also.  The learned counsel would contend that if this <\/p>\n
is taken to its logical conclusion, then even trade in plastic articles <\/p>\n
which would be deceptively similar to elephant ivory may also be held <\/p>\n
to have been banned.  It was argued that the intention of the <\/p>\n
Legislature cannot be to ban any article irrespective of the purport <\/p>\n
and object it seeks to achieve only on the ground that the same is <\/p>\n
deceptively similar to the banned item.   There exists scientific <\/p>\n
procedure, it was urged, whereby and whereunder mammoth ivory can be <\/p>\n
distinguished from elephant ivory and with a view to buttress the said <\/p>\n
argument, a large number of literature had been placed before us.<\/p>\n
The preamble of the Act as also the ‘Headings’, the learned <\/p>\n
counsel would contend,  should be taken into consideration for the <\/p>\n
purpose interpreting the provisions of the said Act.<\/p>\n
FINDINGS :\n<\/p>\n
In the connected matter in Indian Handicrafts Emporium & Ors.<\/p>\n
\tVs. Union of India & Ors. (Civil Appeal No. 7533 of 1997) <\/p>\n
disposed of this date, this Court upheld the constitutional validity of <\/p>\n
the provisions of the said Act.  This Court held that in terms of Sub-<\/p>\n
Section (7) of Section 49-C of the Act all persons in general and <\/p>\n
traders in particular have become disentitled from keeping in their <\/p>\n
control any animal article including ivory imported in India.<\/p>\n
 \tThis Court further held that as a logical corollary to the said <\/p>\n
finding, the statutory authorities would be entitled to take possession <\/p>\n
of such ivory in terms thereof;  the purport and object of the Act <\/p>\n
being to impose a complete ban on trade in ivory.  A complete <\/p>\n
prohibition has been imposed in the trade of ivory (whether imported in <\/p>\n
India or extracted by killing Indian elephants) for the purpose of <\/p>\n
protecting the endangered species.  Trade in ivory imported in India <\/p>\n
has been prohibited further with a view to give effect to the <\/p>\n
provisions contained in Article 48A as also Article 51A(g) of the <\/p>\n
Constitution of India.\n<\/p>\n
 \tWhy despite passage of time the trade in stock could not be <\/p>\n
disposed of within a period of four years has not been disclosed by the <\/p>\n
appellants.  It is not in dispute that even in terms of Act 44 of 1991, <\/p>\n
six months’ time was granted for disposing the stock of ivory.<\/p>\n
 \tFor the reasons stated hereinafter, it may not be necessary for <\/p>\n
us to go into the question as to whether scientifically mammoth ivory <\/p>\n
can be deciphered from elephant ivory.\n<\/p>\n
 What has been banned is ivory.  There is complete prohibition of <\/p>\n
trade in ivory.  Such a complete prohibition is a reasonable <\/p>\n
restriction within the meaning of Clause (6) of Article 19 of the <\/p>\n
Constitution of India.  The impugned Act being not unreasonable does <\/p>\n
not also attract the wrath of Article 14 of the Constitution of India.<\/p>\n
 \tFor the purpose of determination of the question, we need to <\/p>\n
consider only the dictionary meaning of the term ‘ivory’.  Commercial <\/p>\n
meaning or technical meaning of an object or article is required to be <\/p>\n
taken recourse to when the same is necessary for the purpose of meeting <\/p>\n
the requirements of law.  The law in no uncertain terms says that no <\/p>\n
person shall trade in ivory.  It does not say that what is prohibited <\/p>\n
is trade in elephant ivory or other types of ivory.  The purport and <\/p>\n
object of the Act, as noticed in the judgment in Indian Handicrafts <\/p>\n
Emporium (supra), is that nobody can carry on business activity in <\/p>\n
imported ivory so that while doing so, trade in ivory procured by way <\/p>\n
of poaching of elephants may be facilitated.  The Parliament, <\/p>\n
therefore, advisedly used the word ‘ivory’ instead of elephant ivory.  <\/p>\n
The intention of the Parliament in this behalf, in our opinion, is <\/p>\n
absolutely clear and unambiguous.  We cannot assume that the Parliament <\/p>\n
was not aware of existence of different types of ivory.  If the <\/p>\n
intention of the Parliament was to confine the subject matter of ban <\/p>\n
under Act  44 of 1991 to elephant ivory, it would have said so <\/p>\n
explicitly.\n<\/p>\n
As noticed hereinbefore, the object of the Parliament was not <\/p>\n
only to ban trade in imported elephant ivory but ivory of every <\/p>\n
description so that poaching of elephant can be effectively restricted.  <\/p>\n
An article made of plastic would by no means resemble ivory.  <\/p>\n
 \tIn the Shorter Oxford Dictionary, the meaning of ‘ivory’ is <\/p>\n
stated as under:\n<\/p>\n<\/p>\n
(i)\tThe hard, white, elastic and fine grain substance (being <\/p>\n
dentine of exceptional hardness) composing the main part of <\/p>\n
the tusks of the elephant, mammoth (fossil)…<\/p>\n
(ii)\tA substance resembling ivory or made in imitation of it.<\/p>\n
 \tIn Collins English Dictionary, ‘ivory’ has been defined as:<\/p>\n
(i)\tA hard smooth creamy white variety of dentine that makes up a <\/p>\n
major part of the tusks of elephants, walruses, and similar <\/p>\n
animals.\n<\/p>\n
(ii)\tA tusk made of ivory.\n<\/p>\n
(iii)\tA yellowish-white colour; cream<\/p>\n
(iv)\tA substance resembling elephant tusk.<\/p>\n
(Emphasis supplied)<\/p>\n
‘Ivory’, therefore, even as per dictionary meaning is not <\/p>\n
confined to elephant ivory.\n<\/p>\n
 \tAt this stage, we are not concerned with a criminal trial.  The <\/p>\n
appellants are not being proceeded against in a criminal case.  Their <\/p>\n
civil rights, if any, are only required to be dealt with.  The <\/p>\n
appellants in these matters complain of civil injuries only.<\/p>\n
Contextual reading is a well-known proposition of interpretation <\/p>\n
of statute.  The clauses of a statute should be construed with <\/p>\n
reference to the context vis-\u00e0-vis the other provisions so as to make a <\/p>\n
consistent enactment of the whole statute relating to the subject-<\/p>\n
matter.  The rule of ‘ex visceribus actus’ should be resorted to in a <\/p>\n
situation of this nature.\n<\/p>\n
In State of West Bengal vs. Union of India<\/a> [AIR 1963 SC 1241 at <\/p>\n
p. 1265], the learned Chief Justice stated the law thus :<\/p>\n
“The Court must ascertain the intention of the <\/p>\n
Legislature by directing its attention not merely to <\/p>\n
the clauses to be construed but to the entire <\/p>\n
statute; it must compare the clause with the other <\/p>\n
parts of the law, and the setting in which the clause <\/p>\n
to be interpreted occurs.”\n<\/p>\n
The said principle has been reiterated in R.S. Raghunath vs. <\/p>\n
State of Karnataka and another [AIR 1992 SC 81 at p. 89].<\/p>\n
Furthermore, even in relation to a penal statute any narrow and <\/p>\n
pedantic, literal and lexical construction may not always be given <\/p>\n
effect to.  The law would have to be interpreted having regard to the <\/p>\n
subject matter of the offence and the object of the law it seeks to <\/p>\n
achieve.  The purpose of the law is not to allow the offender to sneak <\/p>\n
out of the meshes of law.  Criminal Jurisprudence does not say so.  <\/p>\n
G.P. Singh in his celebrated treatise ‘Principles of Statutory <\/p>\n
Interpretation’ distinguished between  strict construction of penal <\/p>\n
statutes which deals with crimes of aggravated nature vis-\u00e0-vis the <\/p>\n
nature of the activities of the accused which can be checked under the <\/p>\n
ordinary criminal law stating :\n<\/p>\n
“In Joint Commercial Tax Officer, Madras <\/p>\n
v. YMA, Madras, SHAH, J. observed : “In a <\/p>\n
criminal trial or a quasi-criminal proceeding, <\/p>\n
the court is entitled to consider the substance <\/p>\n
of the transaction and determine the liability <\/p>\n
of the offender.  But in a taxing statute the <\/p>\n
strict legal position as disclosed by the form <\/p>\n
and not the substance of the transaction is <\/p>\n
determinative of its taxability.”  With great <\/p>\n
respect the distinction drawn by SHAH, J. does <\/p>\n
not exist in law.  Even in construing and <\/p>\n
applying criminal statutes any reasoning based <\/p>\n
on the substance of the transaction is <\/p>\n
discarded.\n<\/p>\n
But the application of the rule does not <\/p>\n
permit the court in restraining comprehensive <\/p>\n
language used by the Legislature, the wide <\/p>\n
meaning of which is in accord with the object <\/p>\n
of the statute.  The principle was neatly <\/p>\n
formulated by LORD JUSTICE JAMES who speaking <\/p>\n
for the Privy Council stated : “No doubt all <\/p>\n
penal statutes are to be construed strictly, <\/p>\n
that is to say, the court must see that the <\/p>\n
thing charged as an offence is within the plain <\/p>\n
meaning of the words used, and must not strain <\/p>\n
the words on any notion that there has been a <\/p>\n
slip; that there has been a casus omissus; that <\/p>\n
the thing is so clearly within the mischief <\/p>\n
that it must have been included if thought of. <\/p>\n
On the other hand, the person charged has a <\/p>\n
right to say that the thing charged although <\/p>\n
within the words, is not within the spirit of <\/p>\n
the enactment.  But where the thing is brought <\/p>\n
within the words, and within the  spirit, there <\/p>\n
a penal enactment is to be construed, like any <\/p>\n
other instrument, according to fair commonsense <\/p>\n
meaning of the language used, and the court is <\/p>\n
not to find or make any doubt or ambiguity in <\/p>\n
the language of a penal statute, where such <\/p>\n
doubt or ambiguity would clearly not be found <\/p>\n
or made in the same language in any other <\/p>\n
enactment.”  The above formulation has been <\/p>\n
cited with approval by the House of Lords and <\/p>\n
the Supreme Court.  In the last-mentioned case, <\/p>\n
SUBBARAO, J., referring to the Prevention of <\/p>\n
Corruption Act, 1947, observed : “The Act was <\/p>\n
brought in to purify public administration.  <\/p>\n
When the Legislature used comprehensive <\/p>\n
terminology – to achieve the said purpose, it <\/p>\n
would be appropriate not to limit the content <\/p>\n
by construction when particularly the spirit of <\/p>\n
the statute is in accord with the words used <\/p>\n
there.”  Similarly, the Supreme Court has <\/p>\n
deprecated a narrow and pedantic construction <\/p>\n
of the Prevention of Food Adulteration Act, <\/p>\n
1954 likely to leave loopholes for the <\/p>\n
adulterator to escape.  And on the same <\/p>\n
principle the court has disapproved of a narrow <\/p>\n
construction of section 135 of the Customs Act, <\/p>\n
1962, Section 489A of the Penal Code, Section <\/p>\n
12(2) of the Foreign Exchange Regulation Act, <\/p>\n
1947, section 630(1)(b) of the Companies Act, <\/p>\n
1956, section 52A of the Copy Right Act, 1957, <\/p>\n
and section 138 of the Negotiable Instruments <\/p>\n
Act, 1881. So, language permitting a penal <\/p>\n
statute may also be construed to avoid a lacuna <\/p>\n
and to suppress the mischief and advance the <\/p>\n
remedy in the light of the rule in Heydon’s <\/p>\n
case.  Further, a commonsense approach for <\/p>\n
solving a question of applicability of a penal <\/p>\n
enactment is not ruled out by the rule of <\/p>\n
strict construction.  In State of Andhra <\/p>\n
Pradesh v. Bathu Prakasa Rao,<\/a> rice and broken <\/p>\n
rice were distinguished by applying the <\/p>\n
commonsense test that at least 50% must be <\/p>\n
broken in order to constitute what could pass <\/p>\n
off as marketable ‘broken rice’ and any grain <\/p>\n
less than 3\/4th of the whole length is to be <\/p>\n
taken as broken.\n<\/p>\n
The rule of strict construction does not <\/p>\n
also prevent the court in interpreting a <\/p>\n
statute according to its current meaning and <\/p>\n
applying the language to cover developments in <\/p>\n
science and technology not known at the time of <\/p>\n
passing of the statute.  Thus psychiatric <\/p>\n
injury caused by silent telephone calls was <\/p>\n
held to amount to ‘assault’ and ‘bodily harm’ <\/p>\n
under sections 20 and 47 of the Offence Against <\/p>\n
the Person Act, 1861 in the light of the <\/p>\n
current scientific appreciation of the link <\/p>\n
between the body and psychiatric injury.”       <\/p>\n
(See also Lalita Jalan & Anr. Vs. Bombay Gas Co. Ltd. & Ors. <\/p>\n
reported in 2003 (4) SCALE 52).\n<\/p>\n
A statute must be construed as a workable instrument.  Ut res <\/p>\n
magis valeat quam pereat is a well-known principle of law.   In <\/p>\n
Tinsukhia Electric Supply Co. Ltd. vs. State of Assam<\/a> [AIR 1990 SC <\/p>\n
123], this Court stated the law thus :\n<\/p>\n
 “The courts strongly lean against any <\/p>\n
construction which tends to reduce a statute to <\/p>\n
a futility. The provision of a statute must be <\/p>\n
so construed as to make it effective and <\/p>\n
operative, on the principle “ut res magis <\/p>\n
valeat quam pereat”. It is, no doubt, true that <\/p>\n
if a statute is absolutely vague and its <\/p>\n
language wholly intractable and absolutely <\/p>\n
meaningless, the statute could be declared void <\/p>\n
for vagueness. This is not in judicial review <\/p>\n
by testing the law for arbitrariness or <\/p>\n
unreasonableness under Article 14; but what a <\/p>\n
court of construction, dealing with the <\/p>\n
language of a statute, does in order to <\/p>\n
ascertain from, and accord to, the statute the <\/p>\n
meaning and purpose which the legislature <\/p>\n
intended for it. In Manchester Ship Canal Co. <\/p>\n
v. Manchester Racecourse Co. ((1900) 2 Ch 352,  <\/p>\n
Farwell J. said : (pp. 360-61) <\/p>\n
“Unless the words were so absolutely <\/p>\n
senseless that I could do nothing at all <\/p>\n
with them, I should be bound to find some <\/p>\n
meaning and not to declare them void for <\/p>\n
uncertainty.”\n<\/p>\n
In Fawcett Properties Ltd. v. Buckingham County <\/p>\n
Council ((1960) 3 All ER 503) Lord Denning <\/p>\n
approving the dictum of Farwell, J. said : <\/p>\n
“But when a Statute has some meaning, <\/p>\n
even though it is obscure, or several <\/p>\n
meanings, even though it is little to <\/p>\n
choose between them, the courts have to <\/p>\n
say what meaning the statute to bear <\/p>\n
rather than reject it as a nullity.”\n<\/p>\n
It is, therefore, the court’s duty to <\/p>\n
make what it can of the statute, knowing that <\/p>\n
the statutes are meant to be operative and not <\/p>\n
inept and that nothing short of impossibility <\/p>\n
should allow a court to declare a statute <\/p>\n
unworkable. In Whitney v. Inland Revenue <\/p>\n
Commissioners (1926 AC 37) Lord Dunedin said : <\/p>\n
“A statute is designed to be workable, <\/p>\n
and the interpretation thereof by a court <\/p>\n
should be to secure that object, unless <\/p>\n
crucial omission or clear direction makes <\/p>\n
that end unattainable.”\n<\/p>\n
The Courts will therefore reject that construction which will <\/p>\n
defeat the plain intention of the Legislature even though there may be <\/p>\n
some inexactitude in the language used. [See Salmon vs. Duncombe <\/p>\n
[(1886) 11 AC 627 at 634].  Reducing the legislation futility shall be <\/p>\n
avoided and in a case where the intention of the Legislature cannot be <\/p>\n
given effect to, the Courts would accept the bolder construction for <\/p>\n
the purpose of bringing about an effective result.  The Courts, when <\/p>\n
rule of purposive construction is gaining momentum, should be very <\/p>\n
reluctant to hold that the Parliament has achieved nothing by the <\/p>\n
language it used when it is tolerably plain what it seeks to achieve. <\/p>\n
(See BBC Enterprises Vs. Hi-Tech Xtravision Ltd., (1990) 2 All ER 118 <\/p>\n
at 122-3)<\/p>\n
In Mohan Kumar Singhania and Others  vs. Union of India and <\/p>\n
Others<\/a>  [AIR 1992 SC 1], the law is stated thus :’<\/p>\n
“We think, it is not necessary to proliferate <\/p>\n
this judgment by citing all the judgments and <\/p>\n
extracting the textual passages from the <\/p>\n
various textbooks on the principles of <\/p>\n
Interpretation of Statutes. However, it will <\/p>\n
suffice to say that while interpreting a <\/p>\n
statute the consideration of inconvenience and <\/p>\n
hardships should be avoided and that when the <\/p>\n
language is clear and explicit and the words <\/p>\n
used are plain and unambiguous, we are bound to <\/p>\n
construe them in their ordinary sense with <\/p>\n
reference to other clauses of the Act or Rules <\/p>\n
as the case may be, so far as possible, to make <\/p>\n
a consistent enactment of the whole statute or <\/p>\n
series of statutes\/rules\/regulations relating <\/p>\n
to the subject matter. Added to this, in <\/p>\n
construing a statute, the Court has to <\/p>\n
ascertain the intention of the law making <\/p>\n
authority in the backdrop of the dominant <\/p>\n
purpose and the underlying intendment of the <\/p>\n
said statute and that every statute is to be <\/p>\n
interpreted without any violence to its <\/p>\n
language and applied as far as its explicit <\/p>\n
language admits consistent with the established <\/p>\n
rule of interpretation.”\n<\/p>\n
 \tIn Murlidhar Meghraj Loya Vs. State of Maharashtra [(1976) 3 SCC <\/p>\n
684] while dealing with the provisions of Food Adulteration Act it was <\/p>\n
stated :\n<\/p>\n
“5. It is trite that the social mission of food <\/p>\n
laws should inform the interpretative process <\/p>\n
so that the legal blow may fall on every <\/p>\n
adulterator. Any narrow and pedantic, literal <\/p>\n
and lexical construction likely to leave <\/p>\n
loopholes for this dangerous criminal tribe to <\/p>\n
sneak out of the meshes of the law should be <\/p>\n
discouraged. For the new criminal jurisprudence <\/p>\n
must depart from the old canons, which make <\/p>\n
indulgent presumptions and favoured <\/p>\n
constructions benefiting accused persons and <\/p>\n
defeating criminal statutes calculated to <\/p>\n
protect the public health and the nation’s <\/p>\n
wealth.”\n<\/p>\n
In State of U.P. vs. Chandrika<\/a> [(1999) 8 SCC 638], this Court <\/p>\n
held that in matters involving economic crime, food offence and other <\/p>\n
cases, the doctrine of plea bargaining should not be applied.  While <\/p>\n
holding so it referred with approval Madanlal Ramchandra Daga vs. State <\/p>\n
of Maharashtra [AIR 1968 SC 1267 = (1968) 3 SCR 34],  Murlidhar Meghraj <\/p>\n
Loya (supra), Ganeshmal Jashraj vs. Government of Gujarat<\/a> [(1980) 1 SCC <\/p>\n
363], Thippaswamy vs. State of Karnataka<\/a> [(1983) 1 SCC 194] and <\/p>\n
Kasambhai Abdulrehmanbhai Sheikh vs. State of Gujarat [(1980) 3 SCC <\/p>\n
120].\n<\/p>\n
 \tYet again in Superintendent and Remembrancer of Legal Affairs to <\/p>\n
Govt. of West Bengal Vs. Abani Maity [AIR 1979 SC 1029: (1979) 4 SCC <\/p>\n
85] the law is stated in the following terms:<\/p>\n
“19. Exposition ex visceribus actus is a long <\/p>\n
recognised rule of construction. Words in a <\/p>\n
statute often take their meaning from the <\/p>\n
context of the statute as a whole. They are <\/p>\n
therefore, not to be construed in isolation. <\/p>\n
For instance, the use of the word “may” would <\/p>\n
normally indicate that the provision was not <\/p>\n
mandatory. But in the context of a particular <\/p>\n
statute, this word may connote a legislative <\/p>\n
imperative, particularly when its construction <\/p>\n
in a permissive sense would relegate it to the <\/p>\n
unenviable position, as it were, “of an <\/p>\n
ineffectual angel beating its wings in a <\/p>\n
luminous void in vain”. “If the choice is <\/p>\n
between two interpretations”, said Viscount <\/p>\n
Simon L. C. in Nokes v. Doncaster Amalgamated <\/p>\n
Collieries, Ltd. ((1940) AC 1014, 1022) “the <\/p>\n
narrower of which would fail to achieve the <\/p>\n
manifest purpose of the legislation, we should <\/p>\n
avoid a construction which would reduce the <\/p>\n
legislation to futility and should rather <\/p>\n
accept the bolder construction based on the <\/p>\n
view that Parliament would legislate only for <\/p>\n
the purpose of bringing about an effective <\/p>\n
result.”\n<\/p>\n
This decision was followed  in State of Karnataka and Others vs. <\/p>\n
Saveen Kumar Shetty<\/a> [(2002) 3 SCC 426].\n<\/p>\n
In State of  Himachal Pradesh vs. Pirthi Chand and Another<\/a> <\/p>\n
[(1996) 2 SCC 37], this Court while dealing with a case of contraband <\/p>\n
article  following amongst others in Abani Maity (supra) stated  :<\/p>\n
 \t“It would be seen that the organised <\/p>\n
traffic in contraband generates deleterious <\/p>\n
effect on the national economy affecting the <\/p>\n
vitals of the economic life of the community. <\/p>\n
It is settled law that illegality committed in <\/p>\n
investigation does not render the evidence <\/p>\n
obtained during that investigation <\/p>\n
inadmissible. In spite of illegal search <\/p>\n
property seized, on the basis of said search, <\/p>\n
it still would form basis for further <\/p>\n
investigation and prosecution against the <\/p>\n
accused. The manner in which the contraband is <\/p>\n
discovered may affect the factum of discovery <\/p>\n
but if the factum of discovery is otherwise <\/p>\n
proved then the manner becomes immaterial.” <\/p>\n
The said principle has been reiterated in Khet Singh vs. Union of <\/p>\n
India<\/a> [(2002) 4 SCC 380] stating :\n<\/p>\n
“Law on the point is very clear that even if there is <\/p>\n
any sort of procedural illegality in conducting the <\/p>\n
search and seizure, the evidence collected thereby <\/p>\n
will not become inadmissible and the court would <\/p>\n
consider all the circumstances and find out whether <\/p>\n
any serious prejudice had been caused to the <\/p>\n
accused.”\n<\/p>\n
\tIn State of Maharashtra Vs. Natwarlal Damodardas Soni [AIR 1980 <\/p>\n
SC 593: (1980) 4 SCC 669] this Court was concerned with search and <\/p>\n
seizure of gold under the Customs Act and the Defence of India Rules.  <\/p>\n
The Court was dealing with smuggling of gold into India affecting the <\/p>\n
public economy and financial stability of the country and in that <\/p>\n
context the Court applied the Mischief Rule.  While interpreting the <\/p>\n
words ‘acquires possession’ or  ‘keeping’ in Clause (b) of Section <\/p>\n
135(1) of the Customs Act, this Court observed that they are not to be <\/p>\n
restricted to ‘possession’ or ‘keeping’ acquired as  an  owner or a <\/p>\n
purchaser of the goods  observing :\n<\/p>\n
“Such a narrow construction – which has been <\/p>\n
erroneously adopted by the High Court – in our <\/p>\n
opinion, would defeat the object of these <\/p>\n
provisions and undermine their efficacy as <\/p>\n
instruments for suppression of the mischief <\/p>\n
which the legislature had in view. Construed in <\/p>\n
consonance with the scheme of the statute, the <\/p>\n
purpose of these provisions and the context, <\/p>\n
the expression “acquires possession” is of very <\/p>\n
wide amplitude and will certainly include the <\/p>\n
acquisition of possession by a person in a <\/p>\n
capacity other than as owner or purchaser. This <\/p>\n
expression takes its colour from the succeeding <\/p>\n
phrase commencing with the word “or”, which is <\/p>\n
so widely worded that even the temporary <\/p>\n
control or custody of a carrier, remover, <\/p>\n
depositor, harbourer, keeper or dealer of any <\/p>\n
goods which he knows or has reason to believe <\/p>\n
to be smuggled goods or prohibited goods <\/p>\n
(liable to confiscation under Section 111), <\/p>\n
cannot escape the tentacles of clause (b). The <\/p>\n
expressions “keeping” and “concealing in the <\/p>\n
second phrase of clause (b) also cover the <\/p>\n
present case.”\n<\/p>\n
 \tThis Court while setting aside a judgment of acquittal passed in <\/p>\n
favour of the Respondents therein on the basis of the interpretation of <\/p>\n
the Customs Rules observed:\n<\/p>\n
“The High Court has held that those rules do <\/p>\n
not apply because the accused-respondent had <\/p>\n
not acquired possession of these gold biscuits <\/p>\n
by purchase or otherwise within the meaning of <\/p>\n
these rules. Such a narrow construction of this <\/p>\n
expression, in our opinion, will emasculate <\/p>\n
these provisions and render them ineffective as <\/p>\n
a weapon for combating gold smuggling. As was <\/p>\n
pointed out by this Court in Balkrishna <\/p>\n
Chhaganlal v. State of West Bengal (AIR<\/a> 1974 SC <\/p>\n
120), Rule 126-P(2)(ii) penalises a person who <\/p>\n
has in his possession or under his control any <\/p>\n
quantity of gold in contravention of any <\/p>\n
provision of this Part, and the court cannot <\/p>\n
cut back on the width of the language used, <\/p>\n
bearing in mind the purpose of plenary control <\/p>\n
the State wanted to impose on gold, and exempt <\/p>\n
smuggled gold from the expression “any quantity <\/p>\n
of gold” in that sub-rule. These provisions <\/p>\n
have, therefore, to be specially construed in a <\/p>\n
manner which will suppress the mischief and <\/p>\n
advance the object which the legislature had in <\/p>\n
view. The High Court was in error in adopting <\/p>\n
too narrow a construction which tends to <\/p>\n
stultify the law. The second charge thus had <\/p>\n
been fully established against the respondent.”<\/p>\n
 \tThese decisions are authorities for the proposition that the rule <\/p>\n
of strict construction of a regulatory\/penal statute may not be adhered <\/p>\n
to, if thereby the plain intention of the Parliament to combat crimes <\/p>\n
of special nature would be defeated.\n<\/p>\n
 \tWe are, however, not oblivious of the fact that potential public <\/p>\n
mischief cannot be a ground to invoke the court’s interpretative role <\/p>\n
to make a new offence. Making of legislation is not the job of the <\/p>\n
judiciary. Making of a penal legislation by the Judiciary is strictly <\/p>\n
out of its bound.  However, when the law working in the field is clear <\/p>\n
then what is necessary for it is to find out as to whether any offence <\/p>\n
has been created or not.  Once it is held that the subject matter comes <\/p>\n
within the purview of the law, the Court may not go further and say by <\/p>\n
interpretive reasonings that the same is not so created.<\/p>\n
We do not think that in a case of this nature where the <\/p>\n
principles of law as enunciated hereinbefore as also the doctrine of <\/p>\n
purposive construction, which have been discussed in details in Indian <\/p>\n
Handicraft Emporium (supra), any useful purpose would be served by <\/p>\n
referring to a large number of decisions relied upon by Mr. Parikh as <\/p>\n
regards efficacy of referring to the preamble of a statute or its <\/p>\n
heading, in view of the well-settled principles of law that where plain <\/p>\n
and dictionary meaning can be given, reference to preamble or a heading <\/p>\n
may not be of much use.  The submission of Mr. Parikh that in a case of <\/p>\n
this nature a restrictive meaning should be attributed to the word <\/p>\n
‘ivory’ cannot be acceded to inasmuch as, in our opinion,  the <\/p>\n
dictionary meaning should be  adhered to for the purpose of giving <\/p>\n
effect to the purport and object of the Act. <\/p>\n
It is no doubt true that normally a technical meaning should be <\/p>\n
attributed rather than a common meaning to a word if the same relates <\/p>\n
to a particular trade, business or profession, art or science or words <\/p>\n
having a special meaning as has been held in Union of India vs. Garware <\/p>\n
Nylons Ltd.<\/a> [AIR 1996 SC 3509 and  Unwin vs. Hanson [1891 (2) QB 115].  <\/p>\n
But we are not dealing with an ordinary\/taxing statute.  We are dealing <\/p>\n
with a law which has been enacted in larger public interest and in <\/p>\n
consonance with Articles 48A and 51A(g) of the Constitution of India as <\/p>\n
also International Treaties and Conventions.<\/p>\n
As pointed out hereinbefore, the Parliament has enacted the <\/p>\n
Amending  Acts of 1986, 1991 and 2003 not only for the purpose of <\/p>\n
banning a trade in elephant ivory but with a view to create a blockade <\/p>\n
of the activities of poachers and others so that a complete prohibition <\/p>\n
in trade in ivory is achieved.  By reason of the Amending Acts, the <\/p>\n
Parliament was anxious to plug the loop-holes and impose a ban on trade <\/p>\n
in ivory so that while purporting to trade in imported ivory and <\/p>\n
carvings therefrom, poaching of Indian elephants and  resultant illegal <\/p>\n
trade by extracting their tusks may not continue.<\/p>\n
The submission of Mr. Parikh that the doctrine of proportionality <\/p>\n
should be applied in a case of this nature cannot also be acceded to.  <\/p>\n
In Om Kumar and Others vs. Union of India<\/a> [(2001) 2 SCC 386], to <\/p>\n
which a pointed reference has been made, this Court made a distinction <\/p>\n
between the primary and secondary review of administrative orders.  As <\/p>\n
indicated in Indian Handicraft Emporium (supra), this Court while <\/p>\n
construing the provisions of the Act vis-\u00e0-vis restrictions imposed in <\/p>\n
terms of clause (6) of Article 19 of the Constitution of India has come <\/p>\n
to the conclusion that the provisions of the Amending Acts satisfy even <\/p>\n
the strict scrutiny test.  In Om Kumar (supra), this Court pointed out <\/p>\n
that the area of discretion of administrator would vary in different <\/p>\n
situations stating :\n<\/p>\n
“While the courts’ level of scrutiny will be <\/p>\n
more in case of restrictions on fundamental <\/p>\n
freedoms, the courts give a large amount of <\/p>\n
discretion to the administrator in matters of <\/p>\n
high-level economic and social policy and may <\/p>\n
be reluctant to interfere : (R. v. Secy of <\/p>\n
State for the Environment, ex p Nottinghamshire <\/p>\n
County Council (1986 AC 240 : (1986) 1 All ER <\/p>\n
199 : (1986) 2 WLR 1 (HL)); R. v. Secy. of <\/p>\n
State for Environment, ex p Hammersmith and <\/p>\n
Fulham London Borough Council ((1991) 1 AC 521 <\/p>\n
: (1990) 3 All ER 589 : (1990) 3 WLR 898) (AC <\/p>\n
at p. 597). Smith speaks of “variable margin of <\/p>\n
appreciation”. The new Rule 1 of the Civil <\/p>\n
Procedure Rules, 1999 permits the courts to <\/p>\n
apply “proportionality” but taking into account <\/p>\n
the financial issues, complexities of the <\/p>\n
matter and the special facts of the case.”<\/p>\n
In Papanasam Labour Union vs. Madura Coats<\/a> [(1995) 1 SCC 501] <\/p>\n
whereupon Mr. Parikh has placed reliance, this Court held that while a <\/p>\n
power has been conferred upon a higher authority, a presumption can be <\/p>\n
raised that he would be conscious of its duties and obligations and so <\/p>\n
would act promptly and reasonably.\n<\/p>\n
 There is also no quarrel on the proposition of law laid down <\/p>\n
therein for the purpose of judging the constitutionality of the <\/p>\n
statutory provisions in the light of Article 19 of the Constitution of <\/p>\n
India.    The impugned acts fulfill the said criteria.   <\/p>\n
For the reasons aforementioned, we are of the opinion that the <\/p>\n
impugned judgment cannot be faulted.  Accordingly, the appeals are <\/p>\n
dismissed but without any order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Balram Kumawat vs Union Of India & Ors. on 27 August, 2003 Author: S.B. Sinha Bench: Cji, S.B. Sinha, Arun Kumar. CASE NO.: Appeal (civil) 7536 of 1997 Appeal (civil) 7537 of 1997 PETITIONER: Balram Kumawat RESPONDENT: Vs. Union of India & Ors. . DATE OF JUDGMENT: 27\/08\/2003 BENCH: CJI, S.B. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-39936","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBalram Kumawat vs Union Of India & Ors. on 27 August, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balram-kumawat-vs-union-of-india-ors-on-27-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balram Kumawat vs Union Of India & Ors. on 27 August, 2003 - 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