9911796707
TMI Blog2007 (9) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... orporated company under the provisions of the Companies Act, 1956, which trades in value added handicrafts, carpets and other items in natural and artificial fiber. The petitioner No. 2 Mr. Rajender Kumar Mehta is in charge of the exports of the petitioner No. 1. The respondent No. 1 is Union of India through the Secretary to the Government, Ministry of Environment and Forest. The respondent No. 2 is the Collector of Customs, Indira Gandhi International Airport. The respondent No. 3 is the State of Jammu and Kashmir through its Chief Secretary. The respondent No. 4 is the Government of National Capital Territory of Delhi. The respondent No. 5 is the Director, Wildlife Preservations, Ministry of Environment and Forest. 2. The brief facts of this case as per the case set up by the petitioner through his Senior counsel Shri Sanjay Parikh as under : (a) On 6th April, 1996, 16th April, 1996 and 12th May, 1996, M/s. Istihaq and Co. supplied various types of shawls to the petitioner company. The supplies included shawls which have been seized by the respondent. (b) On 7th November, 1996, the petitioner no. 2 made arrangement for the export of the consignment containing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in whole or in part through a process of taxidermy, and (b) antler, bone carapace, shell, horn, rhinoceros, horn, hair, feather, nail, tooth, musk, eggs, nests and honeycomb." 'Animal Article' does not refer to 'hair' though it makes a specific reference to ivory, whereas 'Trophy' specifically uses the word 'hair' in its original form. (b) 'Animal Article' requires making and therefore, involves human skill. In the State of Tamilnadu v. M/s Kay Pee Industrial Chemical Pvt. Ltd., AIR 2005 Mad. 304, it was held as under : '29. It may be noted that the expression "animal article" in Section 2(2) of the Act means "an article made from any captive animal or wild animal". In our opinion, the word "made" used in the definition denotes the process involving human effort." Thus, it is different from a 'trophy' where animal or part of an animal is kept or preserved by natural or artificial means. (c) Under the Wildlife (Protection) Act, items made from ivory are banned which is specifically included in the definition of the 'animal article' and in the definition of 'trophy' where the word bone is mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court : "13. It can also restrict the meaning of a word by defining it in that manner. Generally, when the definition of a word beings with "means" it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been indicated in the definition itself. There can also be extensive definitions when the definition starts with "includes". 14. Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition." Therefore, the meaning of animal article and trophy are restricted to animal or part of animal. However, the meaning as restricted in both definitions is widened to "include" certain items with reference to "trophy". Thus it has been widened to include items which without the inclusive clause could not have been covered. Thus, hair is not within the meaning of animal or part of ani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in Scheduled-I or Part II of Schedule II." Scheduled Animal Article has been defined in Section 49A(b) of the Act which reads as follows : "to mean an article made from any scheduled animal and includes an article or object in which the whole or any part of such animal has been used but does not include tail feather of peacock, an article or trophy madetherefrom and snake venom or its derivative." Section 2(31) of the Act defines trophy as mentioned earlier. Section 2(32) of the Act defines uncured trophy as follows : '"uncured trophy" means the whole or any part of any captive animal or wild animal, other than vermin, which has not undergone a process of taxidermy, and includes a (freshly-killed wild animal, ambergris, musk and other animal products)' A harmonious construction of the aforesaid definitions implies that the definition of scheduled animal article would necessarily include a trophy or an uncured trophy because a Scheduled 'Animal Article' as defined under the Wildlife (Protection) Act can only be derived from a trophy or an uncured trophy. Therefore, the intention of the legislature is unambiguous because when any part of a captive or wild animal which is need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duled animal'. (c) The petitioner has also contended that the words 'and ivory imported into India and an article made therefrom' as found in the definition of the animal article in Section 2(2) of the Act in the absence of a similar provision for hair, would imply that 'hair' is not included in the definition of animal article. But this submission of the learned Counsel for the petitioner cannot be accepted because the trade in ivory derived from Indian elephant stood prohibited on the expiry of two months from the date of inclusion of Indian elephant in the Schedule I of the Wildlife (Protection) Act. The words 'ivory imported in India' were added in 1991 to the definition of 'animal article' in order to prohibit trade in ivory derived from animals other than Indian elephants. This was done because the Wildlife (Protection) Act was applicable only to those species which were found in India. Therefore, the analogy being sought to be relied upon by the petitioner is misplaced. (d) The intention of the Parliament while enacting the provisions contained in the Chapter 5A was to impose a complete prohibition on manufacture and trade in Scheduled animal articles. If the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed." 104. In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors. (2003) 2 SCR 799 this Court noticed : "37. In Reserve Bank of India v. Peerless Co. reported in (1987) 1 SCC 424 this Court said :- "33. Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Kumawat v. Union of India and Ors. (2003) 7 SCC 628, the Hon'ble Supreme Court held as under : '25. A statute must be construed as a workable instrument. Ut res magis valeat quam pereat is a well-known principle of law. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam (1989 ) 3 SCC 709, this Court stated the law thus : '118. The courts 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 magis valeat quam pereat''. 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 : (pp. 360-61) : "Unless the words were so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not so created. 38. 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 Handicraft Emporium (supra), any useful purpose would be served by referring to a large number of decisions relied upon by Mr. Parikh as regards efficacy of referring to the preamble of a statute or its heading, in view of the well-settled principles of law that where plain and dictionary meaning can be given, reference to preamble or a heading may not be of much use. The submission of Mr. Parikh that in a case of this nature a restrictive meaning should be attributed to the word 'ivory' cannot be acceded to inasmuch as, in our opinion, the dictionary meaning should be adhered to for the purpose of giving effect to the purport and object of the Act. 39. It is no doubt true that normally a technical meaning should be attributed rather than a common meaning to a word if the same relates to a particular trade, business or profession, art or science or words having a special meaning as has been held in Union of India v. Garware Nylons Ltd. [AIR 1396 S.C. 3509 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(11) defines 'dealer' to mean in relation to any captive animal, animal article, trophy, uncured trophy, meat or specified plant, means a person, who carried on the business of buying or selling any such animal or article, and includes a person who undertakes business in any single transaction. Section 49C(7) defines that no person, other than a person who has been issued a certificate of ownership under sub-section (3) shall, on and after the specified date, keep under his control, sell or offer for sale or transfer to any person any scheduled animal, or a scheduled animal article, or a scheduled animal article or ivory import into India or any article made therefrom.? The contravention of Section 49C(7) is an offence under Section 51(A) which is punishable with imprisonment for a term not less than three years but which may extend to seven years and fine not less than ten thousand rupees. Section 57 further shifts the burden of proof on the person in possession of such animal article by providing that "it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of the Act which provides for protection of wild animal, birds and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country. The statement of objects and reasons of the Act is instructive and reads as follows :- '"Statement of Objects and Reasons" The rapid decline of India's wild animals and birds, one of the richest and most varied in the world, has been a cause of grave concern. Some wild animals and birds have already become extinct in this country and others are in the danger of being so. Areas which were once teeming with wild life have become devoid of it and even in Sanctuaries and National Parks the protection afforded to wild life needs to be improved. The Wild Birds and Animals Protection Act, 1912 (8 of 1912), has become completely outmoded. The existing State laws are not only out-dated but provide punishments which are not commensurate with the offence and the financial benefits which accrue from poaching and trade in wild life produce. Further, such laws mainly relate to the decline of India's wild life, namely, taxidermy and trade in wild life and products deriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meet the demand in foreign markets. This clandestine trade is abetted by illegal practices of poaching which have taken a heavy toll of our wild animals and birds. The stocks declared by the traders at the commencement of the Wild Life (Protection) Act, 1972 are still used as a cover for such illicit trade. Attempts to acquire the declared stocks of skins of some wild species have also not met with the desired success, mainly because most traders are not inclined to part with their stocks and thereby loose the ploy for illegal activities. It is, therefore, necessary to suitably amend the Act to prohibit trade in certain specified wild animals or their derivatives. It is, therefore, proposed to provide that no one will be permitted to trade in wild animals specified in Schedule I or Part II of Schedule II of the Act or in any derivatives therefrom after a period of two months from the commencement of the amending Act or two months from the date on which a wild animals is included in Schedule I or Part II of Schedule II by notification issued under the provisions of the Act. All existing licenses for internal trade would be invalid thereafter. Further, no fresh licences would be gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II of Schedule II of the Wild Life Act and their parts and products can be acquired only by way of inheritance; (xiii) to enhance and rationalize penalties prescribed under the Act including the making of suitable provisions on the lines of the provisions of Chapter V-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 in cases of offences pertaining to wild animals included in Schedule I and Part II of Schedule II of the Act; (xiv) to enhance the amount of rewards payable to persons rendering assistance in detection of offences and apprehension of offenders; (xv) to increase the amount that can be realized as compensation from Rs. 2,000/- to Rs. 2500/-; (xvi) to provide that the vehicles, weapons and tools, etc., used in committing compoundable offences are not be returned to the offenders." (emphasis supplied) 7. A perusal of the above statement of objects and reasons clearly demonstrates that the legislature has been conscious of the acute need to curb trading, poaching of animal articles and products and each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the context or in the object of the statute to suggest the contrary. It has been often held that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. Obviously the aforesaid rule of construction is subject to exceptions. Just as it is not permissible to add words or to fill in a gap or lacuna, similarly it is of universal application that effort should be made to give meaning to each and every word used the legislature." (emphasis supplied) The Hon'ble Supreme Court laid down the following position of law in Bhag Nak v. Ch. Prabhu Ram (1985) 1 SCC 61 : "A statutory provision must be so construed, if it is possible, that absurdity and mischief may be avoided. Where the plain and literal interpretation of a statutory provision produces a manifestly absurd and unjust result, the Court might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the Legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect to and the question of interpretation does not arise. The mere fact that the result of a statute may be unjust, does not entitle the court to refuse to give effect t it. However, if two reasonable interpretations are possible, the court would adopt that construction which is just, reasonable or sensible. Courts cannot substitute the words or phrases or supply casus omissus. The court could in an appropriate case iron out the creases to remove ambiguity to give full force and effect to the legislative intention. An wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires the power or manifestly illegal vitiated by fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icles". The petitioner contented that as the term "hair" falls within the "inclusive" part of the definition of 'trophy', it would not fall within the definition of the term "Scheduled animal article", unless a similar inclusive provision as provided for in the definition of "trophy" is incorporated in the definition of 'scheduled animal article". 12. The petitioner further in support of his contention relied upon the words "........and ivory imported into India and an article made therefrom" as found in the definition of 'animal article' in Section 2(2) of the Act to contend that in the absence of a similar provision of 'hair', it would imply that 'hair' is not included in the definition of "animal article". 13. In our view, this contention is totally misplaced as trade in ivory derived from Indian Elephant stood prohibited upon the expiry of two months from the date of inclusion of Indian Elephant in the Schedule-I of the said Act. Indian elephant was included at Entry No. 12-B of Schedule-I on 24th November, 1986 and the trade stood prohibited with effect from 23rd January, 1987. The words "ivory imported in India......." were added in 1991 to the definition of 'anim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imals or any parts of such animals; or (iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or (iv) a dealer in any captive animals being scheduled animals; or (v) a dealer in any captive derived from any scheduled animal; or (b) cook or serve meat derived from any scheduled animal in any eating-house." A perusal of the above provisions demonstrates without doubt that the Act prohibits trade or commerce in trophies, animal articles derived from certain animals which leads to the following inevitable conclusion : Prohibition on Trade and Commerce of- (i) Articles made from any scheduled animal; (ii) Includes an article or object in which the whole or any part of such animal has been used. (Emphasis supplied) (iii) What has been specifically excluded from the ambit of this Section includes: (a) a tail feather of peacock or an article, trophy made therefrom and; (b) snake venom or its derivatives. Thus, there is no intention of the legislature to exclude animal hair from the definition and scope of 'animal article' as only certain articles specified in sub-sections (a) and (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word 'hair' in the definition of the trophy would defeat the very object of the Act. The raw wool of Chiru after treating and processing would in fact fall within the meaning of the trophy. In our view, the definitions of 'uncured trophy', 'trophy' and 'Scheduled animal article' are not separate, distinct and exclusive compartments but are complementary to one another. Any other construction would defeat the object of the Act and the intention of the legislature. Secondly, the raw 'hair' under the wool of chiru after treatment and processing would admittedly fall within the meaning of 'trophy'. The thread made from such processed wool including the shawl woven from such thread would be covered by the definition of 'animal article' as defined in Section 49A(b) in as much as both the thread and the shawl are articles which have been made by use of hair (wool) of a scheduled wild animal. 20. We hold that if the legislative intent was to exclude naturally shed animal parts including 'hair', it would have specifically excluded such animal parts from the definition of 'uncured trophy' or 'trophy' or 'scheduled animal article' under the Act. The Parliament having chosen not to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State of Jammu and Kashmir had enacted a law, the legislation was not being enforced. This 2004 report had also endorsed an earlier report given by CITES in which it had categorically stated that though a case had been made out by the State that no animals were being killed as the wool of Chiru which got stuck on bushes was gathered was incredible.' It was said : "Anyone who cared to visit the terrain of the Tibetan Plateau, observe the lack of bushes, view the piles of skinned Carcases discovered by antipoaching personnel of examine the heaps of skins and bundles of wool seized by Forest Police and Customs in China and India would immediately realize such explanations to be falsehoods, designed to reassure and dupe potential customs in countries far distant from where the slaughter of the Chiru was taken place." 24. The law laid down by the Hon'ble Supreme Court in Indian Handicraft Emporium's case (supra) is directly relevant on the question involved in this petition and bears reiteration :- The Hon'ble Supreme Court further directed as follows : "102. In District Mining Officer v. Tata Iron and Steel Co. ( 2001 ) 7 SCC 358, this Court stated : A statute is an edict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why it was enacted. With this knowledge, the statute must be read, first a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to any as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place and everything is in its place......." (emphasis supplied) 25. We also derive sustenance from the position of law laid down in Balram Kumavat's case (supra) which reads as follows :- "The courts strongly lean against any construction, which tends ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
