TMI Blog2005 (3) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;, should the prosecution fail for the simple reason that the flame test has not been conducted? Does the decision in Kunhimoideenkutty v. State of Kerala 1988 (2) KLT 128, insist that there must be evidence of the length of the flame in all prosecutions for violation of the Kerosene Control Order? 2. The facts of the case are correctly and beautifully summarised by the learned Single Judge in the reference order. Therefore, we quote the same: At 10.30 p.m. on 30-5-1990, P.W. 4--a police official intercepted a jeep. The jeep was driven by one of the accused and the other was travelling in the jeep. There was no other person in the jeep. From the jeep, inter alia, 71 litres of kerosene were seized. According to the prosecution, other rationed articles were also available in the jeep. We are not now concerned with other articles. P.W.4 seized 71 litres of kerosene alongwith other articles under Ext.P-1 seizure mahazar. P.Ws. 2 and 3 are the witnesses to the seizure mahazar. One of them admitted his signature in Ext.P-1. Both of them turned hostile to the prosecution. A sample of the kerosene seized was sent to the Chemical Examiner and the Chemical Examiner under Ext.P-6 repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is true that a technical definition is adopted in the Order. When a word is defined in a particular manner and it does not suffer from want of clarity or precision, Courts need not search for the meaning of the word from dictionaries or common parlance understanding. In support of the above proposition, he relied on the decision reported in Kunhimoideenkutty v. State of Kerala 1988 (2) K.L.T. 128. In that case, the Court was considering the very same question whether; in the absence of a scientific test to ascertain the flame height, the liquid can be held to be kerosene for the purpose of prosecution under the Kerala Kerosene Control Order. In paragraph 6 of the above Judgment, Mr. K.T. Thomas, J. (as he then was) observed as follows: 6. The definition postulates that the liquid must have a particular standard, if it is to be treated as kerosene under the order. It shall not only be mineral oil of a particular variety mentioned therein, but its flame height shall be of a specified range. In other words, if the range of the flame height is seen one millimetre less than the standard fixed, the liquid would not be regarded as kerosene as defined in the order, even if it has the sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier decision, observed as follows in the reference order: 12. The observations in Para 6 in Kunhimoideenkutty's case which I have extracted above clearly show and suggest that unless the flame height of the liquid is ascertained in the manner referred to in Explanation II of item No.7 of the First Schedule to the Central Excises and Salt Act, no successful prosecution can follow. After elaborate reasoning and reference to various decisions of the Apex Court, learned Single Judge did not accept the contentions of the Appellant that the dictum in Kunhimoideenkutty's case (cited supra) must be followed. The learned Single Judge observed as follows: 24. I am unable to accept this contention. Item No.7 of the First Schedule to the Central Excises and Salt Act is only inclusive in character and that definition has been incorporated in the Kerala Kerosene Control Order with the same intention. It is crucial to note Clause 2(f). It only says that kerosene 'shall have the meaning' in item No.7. It does not militate against the common concept of kerosene or suggest that kerosene shall have only the meaning given in item No.7 of the First Schedule to the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. Lord Justice Brett observed in Clarke v. Bradlaugh (1881) 8 BD 63, at page 69 as follows: ...there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not affect the second. The Apex Court in Gauri Shankar Gaur and Ors. v. State of U.P. and Ors. A.I.R. 1994 S.C. 189 observed as follows: 31. It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty must be strictly construed. Pollock, C.B. in A.G. v. Sillem (1864) 33 L.J. Ex 92, observed that I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law . According to Lord Esher M.R. in Tuck Sons v. Priester (1887) 19 QBD 629: if there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. Our Apex Court followed the above principle in a number of cases. In Tolaram v. State of Bombay A.I.R. 1954 S.C. 496, the Supreme Court observed as follows: If two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. The Apex Court in Sakshiv. Union of India and Ors. A.I.R. 2004 S.C. 3566, after referring to Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re conscious of the fact that forest wealth is required to be preserved; but, it is not open to us to legislate, as what a court can do in a matter like at hand is to iron out creases; it cannot weave a new texture. If there be any lacuna in the definition it is really for the legislature to take care of the same. But, even after the meaning of 'kerosene' as used in the Order was explained by the Court in Kunhimoideenkutty's case (cited supra), the rule making authority thought I that no amendment is necessary and the interpretation given by the Court has now held the field for nearly 17 years. 11. Now we will consider some of die decisions referred to by the Public Prosecutor and referred to in the reference order. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. (1998) 8 S.C.C. 1, the Apex Court held that even though a word is defined in the Act, Courts may be justified by interpreting the same considering the subject or context in which that word is used as the definition clause itself is prefixed by the word unless there is anything repugnant in the subject or context . In that case, Apex Court was considering the definition of 'Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted. After observing so, the Court held that considering the context, the word 'son' mentioned in the definition section will include 'foster son' also and court also held that 'family' is a word of great flexibility and is capable of different meanings. But, the word 'son' was not defined in that Act. The Apex Court held that in view of the definition of 'son' in Section 3(57) of the General Clauses Act and the decision of the Privy Council in Adit Narayan Singh v. Mahabir Prasad Tiwari A.I.R. 1921 P.C. 53, in legal parlance 'son' has a little wider connotation and it may include not only the natural son but also an adopted son, if the personal law permits. But, if the word 'son' is defined as natural son or legitimate son born in marital relationship, or the word 'son' is prefixed with the word 'natural' in the definition of 'family', position is different and a wider interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple of interpretation quoted above 'brush away the cobweb varnish, and show the transactions in their true light' (Will not, C.J.) or (by Maxwell) 'to carry out effectively the breach of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or; circuitous manner that it has prohibited'. Hence, when the cheque is returned by a bank with an endorsement 'account closed', it would amount to returning the cheque unpaid because 'the amount of money standing to the credit of that account is insufficient to honour the cheque' as envisaged in Section 138 of the Act. Court was not considering a case where the meaning of the words were restricted by the statutory definition. If the word was not defined even in penal prosecution, a wider view can be taken to achieve the purpose of the Act. Similar view can be taken while interpreting a penal provision in the Statute considering the object of the Legislature as held by the Apex Court in Lalita Jalan and Anr. v. Bombay Gas Co. Ltd. and Ors. (2000) S.C.C. 1281. But, Court has no power to overlook the specific meaning of the words assigned to a particular word in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is obliged to lean in favour of the construction which exempts a citizen from penalty than the one which imposes the penalty. The Apex Court also accepted the observation of Lorebura, J. in Bristol Guardians v. Bristol Waterworks Company (1914) A.C. 379 that: After all, it is not our function to repair the blunders that are to be found in legislation. They must be corrected by the legislature. 15. The Apex Court in Nathi Devi v. Radha Devi Gupta A.I.R. 2005 S.C.W. 287 held that purposive construction has to be adopted by the Court when there exists some ambiguity in language or it is capable of two interpretations. But, at the same time, Apex Court, after considering a number of decisions, observed as follows: 14. It is equally well-settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urp legislative function under the disguise of interpretation and that they must avoid the danger of an apriori determination of the meaning of a provision based on their own preconceived notions of ideological structure. In the words of Cardozo, a Judge is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. (See: Cardozo: The Nature of the Judicial Process , page 141.) When the words of a Statute are clear, plain or unambiguous, that is, they are reasonably susceptible to only one meaning the Courts are bound to give effect to that meaning irrespective of the consequences as held by the Supreme Court in Nelson Motis v. Union of India A.I.R. 1992 S.C. 1981. When the language is plain and unambiguous and admits of only one meaning, no question of construction of a Statute arises, for the Act speaks for itself as held by the Apex Court in State of U.P. v. Vijay Anand Maharaj A.I.R. 1963 S.C. 948, (at page 950 - per Subba Rao, J.) Even though primary rule favours the literary interpretation, as early as in 1584, the mischief rule was laid down in Heydon's case (1584) 3 Co. Rep. 7a, Page 7b. (See also: Page 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and established by a Court of last resort should not be disregarded and set aside but should be adhered to and followed. The principle of 'stare decisis' is stated in Halsbury's Laws of England. The above principles were accepted by the Apex Court in Muktul v. Manbhari A.I.R. 1958 S.C. 918. The principle of 'stare decisis' is stated as follows: Apart from any question as to the Courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by Courts of higher authority than the court establishing the rule, even though the Court before whom the matter arises after words might not have given the same decision had the question come before it originally. But the Supreme Appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain and no gener ..... X X X X Extracts X X X X X X X X Extracts X X X X
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