TaxTMI 
TaxTMI 
2020 (3) TMI 1491
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....r the disposal of the writ appeal are as follows; as per Ext. P1 judgment dated 31.1.2003 in Session Case No. 63/2019, one Sreedharan was convicted for the offence punishable under section 55(a) of the Abkari Act (Act 1 of 1077), and sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs. 1 lakh and in default, to undergo simple imprisonment for six months. Criminal Appeal No. 484/2003 preferred before this Court by the accused culminated in Ext.P2 judgment dated 17.6.2009, affirming the conviction, however, modifying the sentence to simple imprisonment for three months and fine of Rs. 1 lakh with default sentence for a period of one month. Sreedharan died on 13.7.2009. Thereupon Exts.P5 & P6 notices dated 10.2.2009 and 16.2.2010 respectively, were issued against the legal heirs under sections 7 & 34 of the Kerala Revenue Recovery Act to recover the fine amount of Rs. 1 lakh with other charges, which was the subject matter of challenge in the writ petition. 4. The learned Single Judge after considering section 68 of the Abkari Act, and section 70 of the Indian Penal Code r/w section 421 of the Code of Criminal Procedure held that, the legal heirs are li....
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....dian Penal Code and rest of the provisions of the Indian Penal Code are excluded and therefore, section 70 of the Indian Penal Code cannot be imported for the purpose of recovery of the fine amount from the legal heirs of deceased Sreedharan. Sections 67, 68 and 69 of the Indian penal Code read thus: "67. Imprisonment for non-payment of fine, when offence punishable with fine only.-If the offence be punishable with fine only, 1[the imprisonment which the Court imposes in default of payment of the fine shall be simple, and] the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case. 68. Imprisonment to terminate on payment of fine.-The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law. "69. Termination of imprisonment on paymen....
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....ified in section 25 of Act, 1897 would apply to any Act, Regulation, Rules or Bye-law unless the aforesaid legislations contain an express provision to the contrary. Relying upon the said provision, it is contended by the learned counsel for appellants that, since section 70 of the Indian Penal Code is not included in section 68 of the Abkari Act, it is an express exclusion and therefore, fine amount cannot be realised. 13. On the other hand learned Government Pleader has invited our attention to section 4(2) of the Code of Criminal Procedure, 1973 dealing with trial of offences under the Indian Penal Code and other laws, which read thus: "4(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 14. Accordingly, it is submitted that, so far as the procedure for trial of offences and consequential action under any other law is concerned, it is taken care of under section 4(2) of the Code of Criminal Procedure and the....
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....ure, 1973 (Central Act 2 of 1974) relating to issue of execution of warrants for the levy of fine. Therefore, mere inclusion of certain provisions of the Indian Penal Code and the Code of Criminal Procedure does not mean that those are express provisions contrary to the provisions of the Indian Penal Code and the Code of Criminal Procedure to the extent specified in section 25 of the General Clauses Act, 1897. On the other hand in order to mean that a provision is express provision to the contrary, there should be either an express exclusion of the provisions of the Indian Penal Code, by specifically stating so or by making substantive provisions of law under section 68 of the Abkari Act to recover the fine amount from the legal heirs thus excluding the provisions of the Indian Penal Code and the Code of Criminal Procedure to the extent specified in section 25 of the General Clause Act, 1897. We are also of the view that, it is basic and fundamental, that the courts should not approach a provision of law or an enactment with the intention to search for defects in drafting, much less inexactitude in the word, phraseology or language employed. On the contrary the attempt of the court....
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....ning, which would be nothing but doing violence to the provisions of law. Therefore, to catch up with the arguments of the learned counsel for appellants, we need to mince words and phraseology employed in section 68 of the Abkari Act and section 25 of the General Clauses Act. 20. Needless to say, applicability and inapplicability and inclusion and exclusion are different connotations, having different meanings, and one cannot be substituted for the other in a given circumstance. Therefore, the attitude and approach of the courts must be to translate the intention of the legislature unless the provision has some basic and fundamental flaw making it totally unworkable and meaningless. Said so, if and when a question arise as to the meaning of a certain provision in any enactment, it is only proper and appropriate to read the provision contextually and in order to identify the context and the intention, the entirety of the statute must be taken into account. 21. It is also a well settled principle that, the language of the statute should be read as it is and the intention must be gathered from the language employed and it is not the duty of the court to substitute words in a pr....
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....ion and the purpose thereof, the mischief which it intended to suppress and the other provisions of the statute, and construe the language of s. 2(d) of the Prize Competitions Act, 1955, in the light of the indications furnished by them." In CIT v. Indian Bank Ltd. [1965] 56 ITR 77 (SC)], it is held as follows: "In our opinion, in construing the Act, we must adhere closely to the language of the Act. If there is ambiguity in the terms of a provision, recourse must naturally be had to well-established principles of construction but it is not permissible first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some general principle." In Commissioner of Income Tax, Central, Calcutta v. National Taj Traders [(1988) 121 ITR 535(SC) =AIR 1980 SC 485], it is held as follows in paragraph 10: "The basic principle of interpretation is that if the statute is plain and free from any ambiguity, a bare reading of the statute would be sufficient and no interpretation would be called for. On the other hand, if the statute is ambiguous or its meaning uncertain, it would be the duty of the court to ascertain what the Legislature meant. There....
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.... "Denning L.J. reiterated the same view in Magor and St. Mellons R.D.C. v. Newport Corporation [1950] 2 All ER 1226) thus : "I have no patience with an ultra-legalistic interpretation which would deprive them of their rights altogether. I would repeat what I said in Seaford Court Estates Ltd. v. Asher [1949] 2 All ER 155. We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis". No doubt, this observation of Denning L.J. received severe criticism at the hands of Lord Simonds when the matter was taken up to the House of Lords." Likewise in CIT v. Vaidyanathan (1985) 153 ITR [Mad.)(F.B) at page 11, it is held as follows in page 41: "Salmond in his book (Salmond on Jurisprudence), 12th edition, at page 131, deals with cases where the letter of the law need not be taken as conclusive in the matter of interpretation of enacted law.....
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....ave omitted to provide for the case if the omission had been called to its mind. If the answer is in the negative, then it is the duty of the court to supplement what the Legislature omitted to expressly say and should not decline to do so by taking refuge on the doctrine of casus omissus. 24. We also deem it appropriate and fit to refer to Maxwel's interpretation of Statute, 12th Edition, which read thus: "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear it must not be reduced....
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....nce, it must first seek to find the legislative intention from the words, phrases and sentences which make up the statute subject to construction. If the meaning of the language of the statute is plain, then, according to the rule announced in innumerable cases, there is really no need for construction as the legislative intention is revealed by the apparent meaning, that is, the meaning clearly expressed by the language of the statute. In this case, the statute is given a literal interpretation. It is interpreted to mean exactly what it says. Only where the statute is of doubtful meaning can the court endeavor to determine the legislative intention from elements beyond the language of the statute. It may also make use of the various pertinent rules of construction in its efforts to ascertain the legislative intent in an ambiguous statute. The legislative intention is not found in these rules of construction but is revealed by them. They perform the function of a microscope. The same is true with reference to the subject-matter of the statute, the purpose or object of its enactment, its effect and consequence, its occasion and necessity, and its logic-all of which are not sources o....