TaxTMI 
TaxTMI 
2003 (8) TMI 221
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 conditions prevailing in Alaska and Siberia. According to the appellants the distinction between mammoth and elephant ivory is that, whereas mammoth belongs to an extinct species, the ivory of elephant is of an extant living animal. The appellants state that mammoth ivory is distinguishable by visual and non-destructive means vis-a-vis elephant ivory and even in Convention on International Trade in Endangered Species (CITES) their distinguishing features have been pointed out. Submissions: Mr. Sanghi and Mr. Parikh, learned counsel would contend that trade in mammoth fossil ivory is not banned either under the said Act or under the CITES and, thus, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al 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 purpose of protecting the endangered species. Trade in ivory imported in India has been prohibited further with a view to give effect to the provisions contained in article 48A as also article 51A(g) of the Constitution of India. 8.. Why despite passage of time the stock in trade could not be disposed of within a period of four years has not been disclosed by the appellants. It is not in dispute that, even in terms of Act 44 of 1991, six months' time was granted for disposing of the stock of ivory. 9.. For the reasons stated hereinafter, it may not be necessary for us to go into the question as to whether scientifically mammoth ivory can be decipher....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 statute. The clauses of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of "ex visceribus actus" should be resorted to in a situation of this nature. 16.. In State of West Bengal v. Union of India AIR 1963 SC 1241 at page 1265, the learned Chief Justice stated the law thus: "The court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 brought in to purify public administration. When the Legislature used comprehensive terminology-to achieve the said purpose, it would be appropriate not to limit the content by construction when particularly the spirit of the statute is in accord with the words used there.' Similarly, the Supreme Court has deprecated a narrow and pedantic construction of the Prevention of Food Adulteration Act, 1954, likely to leave loopholes for the adulterator to escape. And on the same principle the court has disapproved of a narrow construction of section 135 of the Customs Act, 1962, section 489A of the Penal Code, section 12(2) of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o, 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 meanings, even though it is little to choose between them, the courts have to say what meaning the statute has to bear rather than reject it as a nullity'. (vide page 516) It is, therefore, the court's duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. Inland Revenue Commissioners [1926] AC 37, Lord Dunedin said: 'A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nstruction 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 holding so it referred with approval Madanlal Ramchandra Daga v. State of Maharashtra AIR 1968 SC 1267; [1968] 3 SCR 34, Murlidhar Meghraj Loya (1976) 3 SCC 684, Ganeshmal Jashraj v. Government of Gujarat (1980) 1 SCC 363, Thippaswamy v. State of Karnataka (1983) 1 SCC 194 and Kasambhai Abdulrehmanbhai Seikh v. State of Gujarat (1980) 3 SCC 120. 24.. Yet again in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal v. Abani Maity AIR 1979 SC 1029; (1979) 4 SCC 85, 90, the law is stated in the following terms (page 1032): "19. Exposition ex visceribus actus is a long recog....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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" or "keeping" acquired as an owner or a purchaser of the goods observing (page 677): "Such a narrow construction-which has been erroneously adopted by the High Court-in our opinion, would defeat the object of these provisions and undermine their efficacy as instruments for suppression of the mischief which the Legislature had in view. Construed in consonance with the scheme of the statute, the purpose of these provisions and the context, the expression 'acquires possession' is of very wide amplitude and will certainly include the acquisition of possession by a person in a capacity other than as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Indian Handicraft Emporium (Civil Appeal No. 7533 of 1997), 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 sho....