TMI Blog2003 (8) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... for the parties. Other Advocates: Sanjay Parikh, Abinash K. Misra, A.N. Singh, Rajiv Nanda, Prateek Jalan, C.V. Subba Rao, P. Parameswaran, Ms. Anil Katiyar, Ranji Thomas, Ms. Bharati Upadhyaya, Javed M. Rao, Raj Panjwani and Vijay Panjwani for the parties. -------------------------------------------------- The judgment of the Court was delivered by S.B. SINHA, J .-Question: Whether "mammoth ivory" imported in India answers the description of the words "ivory imported in India" contained in the Wild Life (Protection) Act, 1972 (hereinafter referred to as "the said Act"), as amended by Act No. 44 of 1991 is the question involved in these appeals which arise out of a common judgment and order dated March 20, 1997, passed by a division Bench of the Delhi High Court. Factual background: The appellants, M/s. Unigems, had imported mammoth fossil said to be of an extinct species in the year 1987. The stock of mammoth fossil held by the appellants is said to be periodically checked by the statutory authorities. The appellant in the other case, Balram Kumawat, is a carver. 2.. Mammoth is said to be a pre-historic animal which disappeared due to climatic co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant ivory and with a view to buttressing the said argument, a large number of literature had been placed before us. 6.. The Preamble of the Act as also the "Headings", the learned counsel would contend, should be taken into consideration for the purpose of interpreting the provisions of the said Act. Findings: In the connected matter in Indian Handicrafts Emporium v. Union of India (Civil Appeal No. 7533 of 1997) Since reported, see (2003) 7 SCC 589. disposed of this date, this Court upheld the constitutional validity of the provisions of the said Act. This Court held that in terms of sub-section (7) of section 49-C of the Act all persons in general and traders in particular have become disentitled from keeping in their control any animal, article, including ivory imported in India. 7.. This Court further held that as a logical corollary to the said finding, the statutory authorities would be entitled to take possession of such ivory in terms thereof; the purport and object of the Act being to impose a complete ban on trade in ivory. A complete prohibition has been imposed in the trade of ivory (whether imported in India or extracted by killing Indian elephants) for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f elephant can be effectively restricted. An article made of plastic would by no means resemble ivory. 13.. In the Shorter Oxford Dictionary, the meaning of "ivory" is stated as under: "(i) The hard, white, elastic and fine-grained substance (being dentine of exceptional hardness) composing the main part of the tusks of the elephant, mammoth (fossil)........ (ii) A substance resembling ivory, or made in imitation of it." In Collins English Dictionary, "ivory" has been defined as: "(i) A hard smooth creamy white variety of dentine that makes up a major part of the tusks of elephants, walruses, and similar animals; (ii) A tusk made of ivory; (iii) A yellowish-white colour cream; (iv) A substance resembling elephant tusk." (emphasis supplied) "Ivory", therefore, even as per dictionary meaning, is not confined to elephant ivory. 14.. At this stage, we are not concerned with a criminal trial. The appellants are not being proceeded against in a criminal case. Their civil rights, if any, are only required to be dealt with. The appellants in these matters complain of civil injuries only. 15.. Contextual reading is a well-known proposition of interpretation of statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speaking for the Privy Council, stated: 'No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip; that there has been a casus omissus; that the thing is so clearly within the mischief that it must have been included if thought of. On the other hand, the person charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment. But where the thing is brought within the words, and within the spirit, there a penal enactment is to be construed, like any other instrument, according to fair commonsense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other enactment.' The above formulation has been cited with approval by the House of Lords and the Supreme Court. In the last-mentioned case, Subba Rao, J., referring to the Prevention of Corruption Act, 1947, observed: 'The Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts strongly lean against any construction which tends to reduce a statute to a futility. The provision of a statute must be so construed as to make it effective and operative, on the principle 'ut res majis valeat quam periat'. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial-review by testing the law for arbitrariness or unreasonableness under article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the Legislature intended for it. In Manchester Ship Canal Co. v. Manchester Racecourse Co. (1900) 2 Ch 352, Farwell, J. said: 'Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty.' (pages 360-361) In Fawcett Properties v. Buckingham County Council [1960] 3 All ER 503, Lord Denning approving the dictum of Farwell, J. said: 'But when a statute has some meaning, even though it is obscure, or several meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose and the underlying intendment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation." 22.. In Murlidhar Meghraj Loya v. State of Maharashtra (1976) 3 SCC 684 while dealing with the provisions of the Food Adulteration Act it was stated (page 686): "5. It is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on every adulterator. Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons, which make indulgent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes calculated to protect the public health and the nation's wealth." 23.. In State of U.P. v. Chandrika (1999) 8 SCC 638, this Court held that in matters involving economic crime, food offence and other cases, the doctrine of plea bargaining should not be applied. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion against the accused. The manner in which the contraband is discovered may affect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial." 26.. The said principle has been reiterated in Khet Singh v. Union of India (2002) 4 SCC 380 stating (page 387): "Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused." 27.. In State of Maharashtra v. Natwarlal Damodardas Soni AIR 1980 SC 593; (1980) 4 SCC 669 this Court was concerned with search and seizure of gold under the Customs Act and the Defence of India Rules. The court was dealing with smuggling of gold into India affecting the public economy and financial stability of the country and in that context the court applied the mischief rule. While interpreting the words "acquires possession" or "keeping" in clause (b) of section 135(1) of the Customs Act, this Court observed that they are not to be restricted to "possession" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w a construction which tends to stultify the law. The second charge thus had been fully established against the respondent." 28.. These decisions are authorities for the proposition that the rule of strict construction of a regulatory/penal statute may not be adhered to, if thereby the plain intention of the Parliament to combat crimes of special nature would be defeated. 29.. We are, however, not oblivious of the fact that potential public mischief cannot be a ground to invoke the court's interpretative role to make a new offence. Making of legislation is not the job of the judiciary. Making of a penal legislation by the judiciary is strictly out of its bound. However, when the law working in the field is clear then what is necessary for it is to find out as to whether any offence has been created or not. Once it is held that the subject-matter comes within the purview of the law, the court may not go further and say by interpretative reasonings that the same is not so created. 30.. We do not think that in a case of this nature, where the principles of law as enunciated hereinbefore as also the doctrine of purposive construction, which have been discussed in details in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of clause (6) of article 19 of the Constitution of India has come to the conclusion that the provisions of the Amending Acts satisfy even the strict scrutiny test. In Om Kumar (2001) 2 SCC 386, this Court pointed out that the area of discretion of the administrator would vary in different situations stating (page 405): "While the courts' level of scrutiny will be more in case of restrictions on fundamental freedoms, the courts give a large amount of discretion to the administrator in matters of high level economic and social policy and may be reluctant to interfere: [R. v. Secretary of State for the Environment: ex parte Nottinghamshire County Council [1986] 1 AC 240; [1986] 1 All ER 199; [1986] 2 WLR 1 (HL); R. v. Secy. of State for Environment: ex parte Hammersmith and Fulham London Borough Council [1990] 1 AC 521 ; [1990] 3 All ER 589; [1990] 3 WLR 898 (AC at page 597)]. Smith speaks of 'variable margin of appreciation'. The new rule 1 of the Civil Procedure Rules, 1999, permits the courts to apply 'proportionality' but taking into account the financial issues, complexities of the matter and the special facts of the case." 35.. In Papnasam Labour Union v. Madura Coats Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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