Topic: Ganesh Traders vs District Collector, Karimnagar
Ganesh Traders vs District Collector, Karimnagar
Date of Judgment: 12 November, 2001 - Equivalent citations: 2002 (1) ALD 210, 2002 (1) ALD Cri 137, 2002 (1) ALT 611 - Bench: S Sinha, G Raghuram, V Rao
S.B. Sinha, C.J.
1. Possession and transport of black jaggery although by itself is not an offence, can the vehicles carrying the same, be liable to be seized under the provisions of the Andhra Pradesh Excise Act and the Andhra Pradesh Prohibition Act is the question involved in these writ applications?
2. Facts of each case may be noticed briefly thus: In Writ Petition No. 354 of 2001 the petitioners were transporting 10176 kilograms of jaggery in a lorry bearing No. ABT 5508. The said lorry was seized and such seizure is challenged in this writ petition on the ground that it is illegal and arbitrary. Writ Petition No. 19706 of 2000 is filed assailing the action of the respondents in interfering with their day-to-day business in all varieties of jaggery and alum. The petitioners in Writ Petition N0.22705 of 2000 seek quashing of the criminal proceedings and also to declare the seizure of jaggery as illegal and void.
3. It is the case of the petitioners that sale of jaggery is neither prohibited nor restricted under law. It is further contended that in the event of allowing the writ petitions, the loss accrued to the petitioners by keeping the vehicle idle cannot be compensated.
4. In Writ Petition Nos. 19706 and 22705 of 2000 the respondents have contended that they did not take any steps whatsoever as a result whereof the business of the petitioners was disturbed.
5. The fact that the petitioners had been carrying on business for a long time is not in dispute. Admittedly the respondents also have not contended that carrying on business in black jaggery and alum is by itself an offence. The fact that they had been carrying on business openly is also not in dispute.
6. Counter-affidavits have been filed by the State wherein it has merely been contended that black jaggery is used for manufacture of ID liquor. Reliance in support of the seizure of the vehicle and initiation of the proceedings has been placed on Clause (e) of Section 34 of the A.P. Excise Act and Section 7-A of the A.P. Prohibition Act inter alia on the ground that black jaggery is a raw material used for the manufacturing of I.D. liquor.
7. No provision of any statute has been shown before us, which prohibits carrying on any business in black jaggery or alum.
8. By reason of the provisions of the A.P. Excise Act, 1968 a regulatory power has been conferred upon the State to prohibit activities in relation to intoxicant, its manufacture, storing, export, import, sale and possession. A citizen of India may have only a privilege to deal with the intoxicant but has the fundamental right to deal with business or trade of any other commodity which is not an intoxicant or which is not controlled by any law for the time being in force. The law within the meaning of Clause (6) of Article 19 of the Constitution of India must be a law, which is not unreasonable.
9. It is not and cannot be the case of the respondents that price of jaggery is fixed or controlled under any Act. Selling or buying of jaggery or alum is again admittedly not prohibited under the Excise Act. If selling or buying of jaggery or alum was prohibited the respondents would not have stated in the counter-affidavit in Writ Petition Nos. 19706 of 2000 that they have not prevented the petitioners therein from carrying on any business. If carrying on such business were illegal, they would have made attempts to justify their interference.
10. In the counter-affidavit filed in Writ Petition No. 22705 of 2000 it is averred that the names of the customers had not been supplied.
11. Is it necessary for any businessman to maintain a register or is it necessary for him to supply the names of the customers is the question which must be posed and answered.
12. It has not been pointed out as to under what law the same was required to be done. What is prohibited is sale of arrack. Jaggery or alum is not a commodity, which comes within the purview of the Excise Act. Licence is only necessary for selling or buying of excisable article and not any material, which may be used for manufacture of an intoxicant, if business in jaggery, alum and molasses is not prohibited, the traders are not concerned as who would be their buyers. Buyers may include the licensed ID liquor manufacturers also. In absence of any regulatory prohibition in respect of dealing in molasses, jaggery, etc., the traders are not required to see that the commodities are being sold to a select group of persons.
13. Under Section 7A of the A.P. Prohibition Act only production, manufacture, possession, storage, collection, purchase, sale and transport of arrack is prohibited. Seizure of an article is permissible only when the same has a direct nexus with the offences committed or to be committed. No justification of seizure is permissible by reason of a counter-affidavit. What is necessary for seizure is compliance of the provisions of Section 165 of the Code of Criminal Procedure. It is not the case of the respondents that any warrant was obtained for seizure. A police officer may seize any property only when he has a suspicion of commission of any offence. In the instant case, there is no dispute that possession or transport of jaggery is not prohibited under any law. A reference has been made by the State to certain circulars purported to have been issued by the Government which are circular No. 3095/95/ DPE/B3, dated 14.7.1995 and Memo No. 25779/Pol.F/A1/95-1 dated 22.6.1995 wherein it has been clarified that the jaggery traders should not be unduly harassed and that if they are found to be in possession of valid documents, they should not be harassed and the vehicle with the valid documents should be allowed free movement. Neither any offence can be created by reason of a circular issued by the State nor a power of seizure can be conferred thereby. In the instant cases it has also not been shown that under any law the authorities under the Excise Act are authorized to effect seizure of vehicles for alleged violations of any offence under other statutes e.g.., Motor Vehicles Act or the A.P. General Sales-tax Act.
14. Reliance has further been placed upon an order dated 26.12.1995 passed by this Court in W.P. No. 29074 dated 26.12.1995 to the following effect:
The respondent authorities can take appropriate action if they have evidence that the jaggery is used for illicit distillation. However, in so far as seizure is concerned, the same is not tenable and the said jaggery has to be released after verification of the petitioner possesses the valid documents, namely way bill, purchase bill, the details of the person from whom the same is purchased and also the verification of the registration of the documents under the A.P.G.S.T. Act.
15. The State has relied upon the aforementioned order. By reason of an order of the Court again no offence can be created.
16. If a person does not possess valid documents viz., waybill, purchase bill, etc., he may be prosecuted under the A.P. General Sales-tax Act but not under the Excise Act. What is necessary is violation of a law. A penal law as is well known must be clear.
17. Article 20 of the Constitution of India reads thus:
20. Protection in respect of conviction for offences :--(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
18. It is not in dispute that no law exists prohibiting trade or control over black jaggery under the A.P. Excise Act. Furthermore, the seizure has been effected only under the A.P. Excise Act and not under A.P. Prohibition Act.
19. Sections 13(1)(f) and 34(a) and (e) of the A.P. Excise Act read thus:
13. Manufacture etc., of excisable articles prohibited except under a licence :--(1) No person shall
(f) use, keep or have in his possession, any materials, stills, utensiis, implements of apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy, except under the authority and subject to the terms and conditions of a licence granted by such officer, not below the rank of an Excise Superintendent, as may be prescribed.
34. Penalties for illegal import etc. :--Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act:--
(a) .. imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or
(e) uses, keeps, or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy; or
20. Section 7-A of the A.P. Prohibition Act reads:
7-A. Prohibition of production etc., of arrack:--The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited.
21. Section 7-A does not speak about jaggery, but refers to arrack. Ag such Section 7-A will also have no application. Section 34(a) and (e) of the Excise Act clearly state that using, keeping or having in possession of any material etc., must be in contravention of the Act or Rule or Notification issued thereunder or of any licence under the said Act. As noticed hereinbefore, it is admitted that possession and transport of black jaggery is not the subject matter of the said Act, and thus the question of contravention of the provisions of the said Act or Rule or Notification made thereunder does not arise. Section 13(1)(f) of the Act must be read in the aforementioned context which provides for grant of licence. Such licence is required for the purpose of manufacturing intoxicants other than toddy. It is not in dispute that apart front black jaggery, there are various other materials, which could be used for manufacturing liquor, including black grapes or maize etc.
22. Section 13 of the Act speaks about manufacture, etc., of excisable articles prohibited except under a licence. Such licence is required inter alia for the purpose of manufacturing liquor. Prohibition as regards possession of 'any material', stills, utensils, implements of apparatus, whatsoever for the purpose of manufacturing any intoxicant, as contained in Section 13 (1)(f) must, in the context of the regulatory provision, be construed as material which has been used together with the other things for the purpose of manufacturer of ID liquor. The material together with other matters must, therefore, be possessed at the time when liquor is to be manufactured and/or in the process of manufacturing and not prior thereto. All the materials which by themselves are not sufficient for production of ID liquor cannot be a subject matter of licence. Furthermore, the terminologies "use, keep or have in his possession" must be read ejusdem generis "the purpose being manufacture of any intoxicant".
23. Section 13 of the Act being regulatory in nature must be strictly construed. If any other meaning is construed, the word 'material' which is of wide amplitude would bring within its purview all other materials including rice, barley, grapes, etc and even for the said purpose water, which are also ingredients for production of liquor. It, therefore, could not have been the intention of the Legislature that possession and transportation of 'any material' which may be used for the manufacture of ID liquor would require licence.
24. Only because black jaggery may be used for the purpose of manufacture of ID liquor the same by itself cannot be a ground for seizure and prosecution for possessing the same. The Legislature must be presumed to know law. Had that been the intention of the State, the law could have specifically made a provision in this regard.
25. The interpretation as regards the provision relating to necessity of having a licence in relation to possession of material must also be considered having regard to Section 42 of the A.P. Excise Act wherein in terms of Clause (c) possession of only those material which have undergone any process towards the manufacture of an intoxicant or from which an intoxicant has been manufactured would lead to the presumption that the accused has committed an offence under Section 34 of the Act. Possession of the material which leads to such presumption must, therefore, have a direct nexus with any process towards the manufacture of an intoxicant. This together with the manner in which the word "material" has been employed immediately before the words "stills, utensils, implements or apparatus..." in Section 13 (1)(f) of the Excise Act is also a pointer to show that Section 13 contemplates obtaining of licence only when a material has already been used or has undergone any process towards the manufacture of an intoxicant and not prior thereto. A prosecution under Section 34 would be permissible provided a person is in possession of the material without having a licence. As indicated hereinbefore, the requirement to have a licence is for the purpose of manufacture of any intoxicant and not possession of any material alone. This is a cassus omissus which by reason of an interpretative role or otherwise the court cannot supply. In this context the dicta of the apex court in RESERVE BANK OF INDIA v. PEERLESS CO., , as to how to read a statute would be apt which is in the following terms:
Interpretation must depend on the text and the context. They are the bases 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 enacted. With this knowledge, the statute must be read, first as a whole and then S. 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 say 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.
26. In VIJAYALAKSHMAMMA v. B.T. SHANKAR, 2001 (4) SCC 558, the Apex Court holding that the courts may not add or alter provisions of statute by reading into them what was never intended by the legislature or may have been deliberately avoided by it, observed thus:
....In such circumstances, acceding to the submission to read into Section 8 the stipulation in the proviso to Section 7 with the Explanation thereto would amount to legislation by courts on the lines as to what in its view the law should be, which is wholly impermissible for courts, de hors any justification or necessary for such a provision. ...
We are also of the view that either having regard to the state of law prevailing on the eve of coming into force of the Act or the nature and extent of the changes and alterations effected in the then existing personal law envisaged by Parliament could there by any justification whatsoever for courts to rewrite Section 8 of the Act by doing violence to the language by adding something which has been consciously and deliberately omitted by Parliament itself.
27. Interpreting the word "possession" in Section 55 (a) of the Madras Abkari Act, 1886 the Madras High Court in JAYARAMULU NAIDU v. EMPEROR, AIR 1923 Mad. 50, held thus:
The word 'possession', I think, does not mean constructive possession but actual possession. It is only people who are actually in possession of contraband liquor without licence that can be punished under the section.
28. As noticed hereinbefore, no law has been pointed out regulating business in jaggery or alum. The seizure memos have not been produced. The reason to believe has not been disclosed. An affidavit, which is inadmissible, affirmed by the respondents points out the reasonable suspicion that manufacture of ID liquor is being encouraged. Suspicion, however, grave may be, it is trite, is not substitute for an offence. No case has been made out for abetment of any crime under the Excise Act.
29. Assuming that commodity may be unfit for human consumption, the possession or transportation thereof by itself will not be offence unless an appropriate statute is made in that regard. In that event, grapes, maize, molasses, etc., which are unfit for human consumption would also come within the purview of the said Act. In one of the writ petitions a purported confession of the four persons has been relied upon, which is not a part of the first information report. A confession must be in relation to an offence and if, by reason of such a purported admission no offence is made out, the authorities thereby would not get any jurisdiction to make any investigation. It is not for this Court at this stage to consider the correctness or otherwise of any statement made by the petitioners or the respondents.
30. In K.L. SUBHAYYA V. STATE OF KARNATAKA, , it has been held:
This therefore renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word 'place' would not include the car, but the definition of the word 'place' under the Act clearly includes vehicle which would include a car. Thus, the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside the he is acquitted of the charges framed against him.
31. Even confiscation of a commodity is permissible when a clear case of contradiction of the relevant statute is made out. In SOMISETTI RAMANAIAH v. DIST. SUPPLY OFFICER, , it has been held:
I have therefore no doubt in holding that inspite of the fact that the order of confiscation is confirmed by the appellate authority in appeal under Section 6-C (1), if the prosecution for contravention of the order in respect of which the order of confiscation has been made has resulted in acquittal, the petitioner would be entitled to the price of the goods under the clear terms of Section 6-C(2). It is incongruous that on one hand there is an order of an appellate authority confirming confiscation which has become final and on the other hand, there is an order of acquittal. It is more so, as the appellate authority is also the Sessions Court. In many cases the order of acquittal may be only that of a Magistrate for it is possible that no appeal may be preferred against the order of acquittal and the final order would be that of a Magistrate only. Tn such a case it would lead to a Judicial Magistrate's order of acquittal overriding an order of confiscation of a Sessions Judge in appeal under Section 6-A. But such consideration cannot weigh with this Court in giving effect to the clear language of a particular section.
32. Is any licence required for possession or transport of any material? The answer to the said question must be in the negative. The reason thereto is more than one. No dictionary meaning can be given to the word "material" for construction of a penal statute. Only a commonsense meaning must be rendered therefor.
33. In K.N. FARMS INDUSTRIES (PVT) LTD v. STATE OF BHIAR, 1993 (2) BLJR 1425, it is held:
A dictionary meaning of a word may not be looked into where the same has been statutorily defined or judicially interpreted. The Court has to select the meaning which is relevant to the definition in which it has interpreted the word.
34. In STATE OF ORISSA v. TITAGARH PAPER MILLS COMPANY, , it is held:
The court may take the aid of dictionaries to ascertain the meaning of a word in common parlance, bearing in mind that a word is used in different senses according to its context and a dictionary gives all the meanings of a word, and the Court has, therefore, to select the particular meaning which is relevant to the context in which it has to interpret that word.
35. Seizure made in violation of law amounts to deprivation of property. In WAZIR CHAND v. STATE OF H.P., , it was observed:
... Assuming that that was so, goods in the possession of a person who is not lawfully in possession of them cannot be seized except under authority of law and in absence of such authority, Wazir Chand could not be deprived of them. On the materials placed on this record it seems clear that unless and until Prabhu Dayal proved his allegations that the Chamba concern was part and parcel of the Jammu Partnership firm (which fact has been denied) and that Trilok Nath who was admittedly one of the partners had no right to put Wazir Chand in possession of the property.
36. Seizure must be effected in accordance with the procedure laid down therefor. It is also well settled that whenever a seizure is found to be illegal, the property seized should be directed to be returned forthwith. We may refer to the decision in BOARD OF REVENUE, MADRAS V. R.S. JHAVER, , wherein, it was observed:
We have already indicated that the High Court held that the warrant issued by the Magistrate for search of the residential accommodation was bad because it showed that the Magistrate had not applied his mind to the question of issuing it, inasmuch as there were portions which should have been struck out from the printed form and gaps which should have been filed in. But this was not done. That conclusion of the High Court has not been challenged before us. The High Court has further held that a proper and reasonable opportunity was not given to the persons concerned to show that the goods seized were not property accounted for in their account books, though this finding is not material now for we have held that Sub-section (4) falls in its entirety. It follows therefore that anything recovered form the search of the residential accommodation on the basis of this defective warrant must be returned. It also follows that anything confiscated must also be returned, as we have held that Sub-section (4) must fall. As to the accounts etc., said to have been seized, it appears to us that the safeguards provided under Section 165 of the Code of Criminal Procedure do not appear to have been followed when the search was made for the simple reason that everybody thought that that provision was not applicable to a search under Sub-section (2). Therefore, as the safeguards provided in Section 165 of the Code of Criminal Procedure were not followed, anything recovered on a defective search of this kind must be returned.
37. For the purpose of search and seizure there must be a reasonable suspicion as regards commission of an offence. History of liberty is the history of procedure. Whenever any seizure is made all formalities must be complied with. When a seizure is questioned as invalid one, the respondents must disclose facts before the court to satisfy it that it had a reasonable belief that an offence had been committed, in the instant case, the respondents proceeded on the basis that possession or transport of jaggery is not an offence but despite the same transportation and the possession of jaggery had been interfered with and the same had been seized. It was obligatory on the part of the respondents to prima facie satisfy the court that such search and seizure was legal.
38. 'Reasonable belief for search or seizure or for the purpose of registering a case under Section 34 (3) of the Excise Act must be formed only when an offence is being committed. If possession and transportation of jaggery is per se not an offence, such purported reasonable belief on the part of the authorities under the Excise Act for the purpose of initiation of a criminal proceedings be wholly without jurisdiction. In other words, the purported reasonable belief must have a nexus with an existing offence and cannot be formed for the purpose of creation of an offence. What is a black jaggery and what would be its quality is not a matter which is required to be found out by the court. The law does not say so. The first information report does not say so. Even no statement has been made in the counter-affidavit. Some materials have been placed on record by the learned Government Pleader which cannot be looked into by court in absence of any affidavit. Such materials cannot also be said to be authenticated.
39. The expressions 'use', 'keep' or 'being in possession' qualifies any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacture of any intoxicant. The words "any material" must be possessed for the purpose of manufacturing any intoxicant and possession of any material for any other purpose would not constitute an offence. Furthermore, in a case of this nature the doctrine of ejusdem generis must be applied.
40. Section 45 of the A.P. Excise Act, 1968 reads as under:
45. Liability of certain things to confiscation :--Whenever any offence has been committed, which is punishable under this Act, following things shall be liable to confiscation namely:
(1) any intoxicant, materials, still, utensil, implements or apparatus in respect of or by means of which such offence has been committed;
(2) Any intoxicant lawfully imported, transported or manufactured, had in possession, sold or brought along with, or in addition to, any intoxicant liable to confiscation under Clause (1); and
(3) Any receptacle, package, or covering in which anything liable to confiscation under Clause (1) or Clause (2) is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, vessel, raft or other conveyance used for carrying the same.
41. In terms of Clause (1) of Sub-section (1) of Section 45 any material or vehicle etc., can be seized and becomes liable for confiscation when an offence punishable under the Act has been committed. An offence is committed only when ID liquor is being manufactured or is in the process of manufacturing.
42. In STATE OF BIHAR v. BHAGIRATH, , the apex court clearly held that tyre of a motor car comes within the purview of Bihar Essential Commodities Act - other than Foodgrains -Prices and Stocks (Display and Control) Order, 1967 and the tubes would not. The following observations of the apex court are apt:
.... In our view, the drafting precedent furnished by the other Notifications considered in the earlier decision of the High Court (in Cri. Misc. Case No. 1479/68) do indicate that the draftsman did not intend the scheduled items in the Order as in force in May, 1969 to cover "Tyres and Tubes of Motor Cars'.
43. Such interpretation was made although item (5) of the said Order covers cycle tyres and tubes including cycle rickshaw tyres and tubes. The apex court noticed that only after amendment in the notification published on 22.9.1970 both tyre and tube would come within the mischief of the said order.
44. In NESU SHEIKH v. STATE OF BIHAR, , the question which arose for consideration, is as to whether paddy was being exported from Bihar to West Bengal wherein the seizure took place within 75 yards of the border and it was held that the distance assumes importance. The same principles would apply in this case also inasmuch in some of the cases seizure and/or raid had been made in the shops whereas in some cases the trucks were intercepted without mentioning the distance between the place where such seizure was made and the destination of the vehicle.
45. As the possession and transport of any black jaggery as such is not an offence, the seizure must be held to be wholly illegal. For the purpose of valid seizure, the reason to believe that an offence has been committed is sine qua non and illegal seizure would amount to deprivation of the property.
46. The words "for the purpose of manufacturing an intoxicant" can be found when the process of manufacturing has started or an attempt is being made.
47. The licence granted in terms of Section 13 also does not postulate a separate licence for any material which can be used for the purpose of manufacturing any intoxicant separately. Section 28 of the Act deals with forms and conditions of licence, etc.
48. The said provisions of the Act and the Rules do not contain any provisions restricting either possession or transport of 'any material, utensils...' separately. In the said Rules export permit, transport permit for Indian liquor and foreign liquor - licence for sale at different places of only Indian liquor and foreign liquor is contemplated. Rules being a part of the Act, the provisions of the Rules and the forms appended thereto also must be taken into consideration for purpose of construction of statutes. Applications for licence in different forms are all meant for Indian liquor and foreign liquor or beer and not for any other material. If no provisions for licence of any material either for possession or transport can be granted, Clause (f) of Sub-section (1) of Section 13 of the Act must be construed to mean that "material" must be found out from "for the purpose of manufacturing of any intoxicant" at the relevant point of time and not for any other purpose. Any other construction would make Section 13 (1)(f) otiose. Section 13 provides for licence for manufacturing of excisable articles which are prohibited. Excisable articles has been defined in Section 2(9) to mean "any alcoholic liquor for human consumption; or any intoxicating drug". It does not mean any material which may be used for manufacturing any alcoholic liquor for human consumption or any intoxicating drug. "Intoxicant" and "intoxicating drug" have been defined under Section 2(19) and 2(20) respectively thus:
"intoxicant" means any liquor as defined in Clause (21) or any intoxicating drug as defined in Clause (20) and includes gulmohwa (that is mohwa flower): "intoxicating drug" means,--
(a) the leaves, small stalks and flowering or fruiting tops of the Indian hemp plant including all forms known as bhang, siddi or ganja;
(b) charas, that is, the resin obtained from the Indian hemp plant which has not been subjected to any manipulations other than those necessary for packing and transport;
(c) any mixture with or without neutral materials of any of the above forms of intoxicating drug or any drink prepared therefrom; and
(d) any other intoxicating or narcotic substance which the Government may, by notification, declare to be an intoxicating drug, such substance not being opium, coca leaf or manufactured drug as defined in Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985).
49. Thus, jaggery is not even an intoxicant. Had it been so, it would have found place with Gulmohwa ie mohwa flower.
50. The word 'material' must be given restricted meaning as otherwise materials like molasses, jaggery or any other material which would be a material for production of ID liquor could have been mentioned as raw material. It is in that sense, a dictionary meaning may not be relevant for construction in such fact situation.
51. Molasses is also a material for manufacture of liquor. There may be molasses which would be unfit for human consumption. But still then a division bench of this Court in Writ Appeal No. 2209 of 1998 and batch, dated 8.5.2001 held:
....But coming to the instant cases and the provisions of Andhra Pradesh Excise Act, 1968 there is no such statutory provision dealing with the molasses. In this scenario the only option for the State Government is to legislate on the molasses if it wants to impose any restrictions on the said product. As on this date, no such statutory provision has been enacted. Hence, the analogy of the cases of Rajasthan and Uttar Pradesh, which were upheld by the Supreme Court in SITARAM & BROTHERS v. STATE OF RAJASTHAN and SIEL LTD v. UNION OF INDIA
is not applicable.
52. Furthermore, when it is not in dispute that jaggery can be used as a fodder, although it may not be fit for human consumption, whether jaggery is being sold for human consumption or fodder or as a raw material for manufacturing of I.D. liquor, is essentially a question of fact and in the absence of any statute, it is not permissible for any officer to proceed on hypothesis.
53. For the purpose of construction of the words "any material" even the doctrine of Noscitur A Sociis may be applied. In ROHIT PULP PAPER MILLS LTD v. COLLECTOR OF CENTRAL EXCISE, BARODA, , the apex court referred to the following from Lord Macmillan in his treatise 'Law and Other Things' :
The meaning of a word is to be judged by the company it keeps.
54. Reference in this connection may also be made to G.P. Singh's Principles of Statutory Interpretation 7th Edn at 347. What is, therefore, necessary in terms of Section 13 is to have licence if a person is in possession of anything which is specifically provided for in Section 13 and not otherwise. Possession de hors the purpose of manufacture, etc of excisable articles is not prohibited under the Act. As indicated hereinbefore jaggery is not an excisable article. Had it been so, it would have found place in the interpretation clause.
55. In Textbook of Criminal Law (2nd Edn at page 5) the learned author Granville Williams has stated why sometimes the consent of a higher authority is required for a charge of abutting suicide observing that "the law's bark is to be worse than its bite".
56. In Francis Bennion's Statutory Interpretation (2nd Edn at 858) it is observed thus:
The ejusdem generis principle arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) arc treated as reduced in scope by the verbal context. It may be regarded as an instance of ellipsis, or reliance on implication. As Cross put it: 'the draftsman must be taken to have inserted the general words in case something which ought to have been included among the specifically enumerated items had been omitted ....,.'. Or, as Odgers says, it is assumed 'that the general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extent to objects of a wholly different kind'. It follows that the principle is presumed to apply unless there is some contrary indication,
57. Even search of a person and seizure of property must be made strictly in terms of the procedure prescribed in law. See STATE OF PUNJAB v. BALDEV SINGH, , wherein the law is stated in the following terms:
That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted,
58. In S.M. DATTA v. STATE OF GUJARAT, 2001 AIR SCW 3133, the apex court while stating that quashing of a complaint should rather be an exception and rarity than a binding rule, referred to its earlier decision in STATE OF WEST BENGAL v. SWAPAN KUMAR GUHA, , and held:
This Court in Sanchaita Investment has been thus rather candid to record that it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual if the Court on a consideration of relevant materials is satisfied that no offence is disclosed.
As noticed above, there is no contra note till date sounded by this Court. In the event the FIR does not disclose an offence, question of continuation of the investigation would not arise, since the same would be an utter abuse of the process of Court and a harassment, which is unknown to law......
59. Can there be a prosecution on the basis of vague allegation? For seeking an answer we must note what is a crime and an offence. In Ferdico's Criminal Law and Justice Dictionary 'crime' and 'offence' have been defined as follows :
Crime - An act committed or omitted in violation of a law specifically prohibiting or commanding it, for which the possible penalties for an adult upon conviction include a fine and incarceration, for which a corporation can be penalized by fine or forfeiture, or for which a juvenile can be adjudged delinquent or transferred to criminal court for prosecution. Crimes are usually divided into felonies and misdemeanors, but may be otherwise classified in some modern statutory schemes. Generally, a crime consists of conduct that violates the duties a person owes to the community or society, as distinguished from a private wrong.
Offence - An act committed or omitted in violation of a law forbidding or commanding it. The term offence is sometimes used restrictively as a synonym of Crime. In its broadest usage, however, offence may include crimes, delinquent acts, status offences, infractions, civil violations, and private wrongs and injuries.
60. There can be no crime without a statute that quite specifically forbids the behaviour involved (nullum crimen sine lege). According to William Blackstone, a crime is an act committed or omitted in violation of a public law either forbidding or commanding. In Smith and Hogan's Criminal Law (5th Edn) as regards moral wrong as a characteristic of crime it is noticed that the enforcement of criminality as such by the criminal law is losing ground. In Kenny's Outlines of Criminal Law (19th Edn) it is stated thus:
So long as crimes continue (as would seem inevitable) to be created by government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.
61. Kenny's definition of 'crime' was commented upon in Smith and Hogan's Criminal law in the following terms:
Kenny finally seized upon the degree of control exercised over the two types of proceedings by the Crown as the criterion, and define "crimes" as "wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all".
He thought it necessary to bring in the elements of punishment only to exclude action for the recovery of the Crown's debts or other civil rights; and the italicized words were included so as not to exclude certain crimes which cannot be pardoned.
Kenny's definition has been criticized. Winfield thought it led to a vicious circle:
"What is a crime? Something that the Crown alone can pardon.
What is it that the Crown alone can pardon? A crime."
Winfield thought it advisable not to accept this part of Kenny's definition; and he concentrated on the question, what is punishment? The answer he arrived at is that: "The essence of punishment is its inevitability ... no option is left to the offender as to whether he shall endure it or not"; whereas, in a civil case, "he can always compromise or get rid of his liability with the assent of the injured party". Thus we seem to arrive back at the just rejected test of who can remit the sanction.
More substantial is the point made by Williams. If we are going to define crime by reference to procedure, we ought to make use of the whole law of procedure, not just one item of it - the power to remit the sanction. If a court has to decide whether a particular act which has been prohibited by Parliament is a crime, it may be guided by a reference in the statute to any element which exists only in civil, or only in criminal, procedure as the case may be. A crime is:
"an act that is capable of being followed by criminal proceedings, having one of the types of outcome (punishment, etc.) known to follow these proceedings."
This definition is by no means so unhelpful as at first sight may appear; for there are many points of distinction between civil and criminal procedure, and the specification in a statute of any one procedural feature which is peculiar either to the civil or the criminal law will therefore point to the nature of the wrong. The question in issue may well be whether a rule of criminal, or a rule of civil, procedure should be followed. While it may be that no statute or decision gives guidance on this precise point, the procedure test may yet supply the answer if a statute or decision indicates, as the appropriate procedure, some other rule which is peculiar either to civil or to criminal proceedings. Of course, the definition tells us nothing about what acts ought to be crimes, but that is not its purpose. Writers who set out to define a crime by reference to the nature of the act, on the other hand, inevitably end by telling us not what a crime is, but what the writer thinks it ought to be; and that is not a definition of a crime,
62. It is trite that a penal law must be clear and unambiguous. In the event a statute is not clear, recourse to strict interpretation must be made for construction thereof. In his classic work 'The Interpretation and Application of Statutes' Reed Dickerson states:
(1) The court will not extend the law beyond its meaning to take care of a broader legislative purpose. Here, "strict" means merely that the court will refrain from exercising its creative function to apply the rule announced in the statute to situations not covered by it, even though such an extension would help to advance the manifest ulterior purpose of the statute. Here, strictness relates not to the meaning of the statute but to using the statute as a basis for judicial law making by analogy with it.
(2) The court will resolve an evenly balanced uncertainty of meaning in favour of a criminal defendant, the common law, the "common right," a tax payer, or sovereignty.
(3) The court will so resolve a significant uncertainty of meaning even against the weight of probability.
(4) The court will adhere closely to the literal meaning of the statute and infer nothing that would extend its reach.
(5) Where the manifest purpose of the statute, as collaterally revealed, is narrower than its express meaning, the court will restrict application of the statute to its narrower purpose. This differs from the Riggs situation in that the narrow purpose is revealed by sources outside the statute and its proper context.
63. In Section 263 of the Francis Bennion's Statutory Interpretation it is stated:
A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention.
Maxwell in The Interpretation of Statutes (12th Edn) says:
The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.
64. In Craies on Statute Law (7th Edn., at p 529) it is said that penal statutes must be construed strictly. In TUCK v. PRIESTER, (1887) 19 QBD 629, which is followed in LONDON AND COUNTY COMMERCIAL PROPERTIES IN VESTMENTS v. ATT. GEN., (1953) 1 WLR 312, it is stated:
We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they arc not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive,
65. Blackburn J in WILLS v. THORP, (1875) LR 10 QB 383, said:
When the legislature imposes a penalty, the words imposing it must be clear and distinct.
66. In Craies on Statute Law (7th Edn at p 530) referring to U.S. v. WILTBERGER, (1820) 2 Wheat (US) 76, it is observed thus:
The distinction between a strict construction and a more free one has, no doubt, in modem times almost disappeared, and the question now is, what is the true construction of the statute? I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislature, and not in the judicial department, for it is the legislature, not the court, which is to define a crime and ordain its punishment.
67. On the own showing of the respondents, transportation and possession of the jaggery and alum is not an offence.
68. It is also well-known that there exists a principle against doubtful penalisation. In MOHD ALI KHAN AND ORS. v. THE C.W. TAX, NEW DELHI, , it is held:
It is a cardinal principle of construction that the words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in 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 additional support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. Obviously the aforesaid rules 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 by the legislature.
69. In P.K. UNNI v. NIRMALA INDUSTRIES AND ORS., , reference has been made to the decision of Denning, LJ., in SEAFORD COURT ESTATES LTD v. ASHER, (1949) All. ER 155 at 164, wherein it was held:
"Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvious intention of the Legislature. In doing so "a judge must not alter the material of which the Act is woven, but he can and should iron out the creases",
70. In GOODYEAR INDIA LTD AND ORS. v. STATE OF HARYANA AND ANR., , it is held:
...It has always been said to be important to consider the mischief which the Act was apparently intended to remedy. The word mischief is traditional. ...In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supported to have intended to remedy by the Act.
71. Francis Bennion's Statutory Interpretation states that the principle of legal policy known as the principle against doubtful penalization, requires strict construction of penal enactments. Although often referred to as though limited to criminal statutes, the principle in fact extends to any form of detriment.
72. It is opined at Section 265: It is a principle of legal policy that a person should not be penalised except under clear law. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which penalises a person where the legislator's intention to do so is doubtful, or penalises him in a way which was not made clear.
73. One other aspect of the principle against doubtful penalisation is that by the exercise of State power the physical liberty of a person should not be interfered with except under clear authority of law.
74. We may usefully refer to Kenny's Outlines of Criminal Law at page 45 with respect to actus reus in statutory offences, which reads: In deciding what matter is prohibited by statute little difficulty need be found, since the ordinary rules of interpretation of statutes are of course, to be applied; it has been judicially laid down that a penal enactment is to be construed, like any other instrument, according to the fair common-sense 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 instrument.
75. When the law operating in the Field is clear, what is necessary for the Court is to find out is as to whether any offence has been committed. If not, the seizure and the first information report are to be quashed. For the purpose of ascertaining as to whether an offence has been made out or not, the golden rule of literal interpretation shall be adhered to. There is no scope, so far as penal statute is concerned, for exercise of interpretative role by the court as in case of doubt the same has to be construed in favour of the accused. Article 21 of the Constitution as interpreted by the apex court not only guarantees 'life but also liberty. The expression life' has been held to include within its purview right to live with dignity. Article 21 embraces within its fold human right and human dignity.
76. A person cannot be deprived of his liberty as also the right to property unless a law operates in the field. Such law must be clear and unambiguous. Such law must be given publicity so as to enable a person to know whether by reason of his carrying on business he is contravening the same. The court's jurisdiction of interpretation of a statute would arise provided the law is vague. Interpretative role of the court would vary from statute to statute and case to case. An interpretation which may be applicable in a case of beneficent legislation cannot be applied in a penal statute.
77. In Sutherland's Statutory Construction (Vol 2 at page 237) it is stated: "In the case of criminal statutes the provisions are only strictly construed against the accused. They are liberally construed in his favour. [UNITED STATES v. NEW BEDFORD BRIDGE, Fed. Cas No. 15,867 (1847); MYERS v. STATE, 1 Conn. 502 (1816)]. This is a rather complicated way of saying the same thing - that when the individual faces the State in litigation, the courts will zealously protect the individual against the passions of the moment. They will make certain that a fair and conclusive case is made against the individual before the force of the State is applied to restrict his liberty. This desire to ensure a fair and conclusive trial is basic to our entire legal system; it does not justify, however, a restrictive interpretation of the objectives of the legislature. No presumption should apply in this case; the court should determine what the legislative intent was and follow it. If no clear legislative intent can be determined, then, and only then, should a restrictive interpretation be applied. But note that this procedure, though reaching the same result in many cases as the rule of penal and remedial construction is much more accurate. If the statute is first classified as penal and strictly construed from the start, the legislative intent may be wholly abrogated. [Note that the modern tendency is to avoid strict construction, particularly, if the result would be inconsistent with the legislative intent. [DONNELLEY v. UNITED STATES, 276 US 505]".
78. The more a particular construction is likely to damage a person's reputation, the stricter the interpretation a court is likely to give. Any conviction for a criminal offence imparts a stigma, even though an absolute discharge is given. If an offence carries a heavy penalty, the stigma will be correspondingly greater. (SWEET v. PARSLEY, 1970 AC 132 at 149). This is an important consideration in determining whether Parliament intended to require mens rea. [R v. PHEKOO, (1981) 1 WLR 1117].
79. In Section 286 of Bennion's it is stated: It is presumed to be the legislator's intention that the court when considering, in relation to the facts of the case, which of the opposing constructions of the enactment corresponds to its legal meaning, should assess the likely consequences of adopting each construction, both to the parties in the case and (where similar facts arise in future cases) for the law generally. If on balance the consequences of a particular construction are more likely to be adverse than beneficent this is a factor telling against that construction.
80. Lord Radcliff said "it sometimes helps to assess the merits of a decision, if one starts by noticing its results and only after doing that allots to it the legal principles upon which it is said to depend [ICJ LTD v. SHATWELL, 1965 AC 656 at 675], Lord Radcliff went on to say that in the instant case he had begun by considering the consequences of the apparent meaning of the enactment, and found these disquieting. He went on:" I start then with the assumption that something must have gone wrong in the application of legal principles that produce such a result.
81. 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.
82. In the aforementioned backdrop the observations of one of us (Goda Raghuram, J) in referring the matter to the Full Bench may be noticed:
Having regard to the huge quantity of blade jaggery seized, having regard to the averments in the counter-affidavit filed in support of the vacale stay petition that the jaggery is meant for utilization in manufacture of illicit liquor, having regard to the confession statements allegedly recorded as evidence from the Panchanama and having regard to the "notice on illicitly distilled liquor" prepared by the Government Chemical examiner which has been presented for perusal by this Court and which asserts a proximate linkage between black jaggery and ID liquor, I am of the considered view that the question whether mere transport of black jaggery is not prohibited per se by any of the provisions of the Excise Act and whether a citizen or a trader is at liberty to transport any quantity of black jaggery even if, it is potentially capable of or intended for, utilization in the manufacture of illicit liquor, is a question that needs to be considered afresh by a Division Bench of this Court.
Having regard to the earlier decisions of this Court referred to hereinabove and as I am prima facie of the view that potential public mischief might ensue if the State were to be held denuded of regulatory powers in this area and as a purposive and dynamic interpretative analysis may posit some measure of regulatory power in the State, despite the facial silence of the Legislation, in particular as Article 21 rights of the general populace may have to be balanced against the asserted Article 19 rights of the traders and manufacturers of black jaggery, I consider it appropriate to refer the matter to a Division Bench including this application for vacation of the interim orders. Conscious as I am of the hierarchical discipline which constrains me to follow the earlier rulings yet the potential public injury considerations constrain me to refer the matter to a Division Bench.
83. With great respect to the learned Judge I am of the view that facial silence of the legislation cannot clothe the courts with a jurisdiction, even, having regard to Article 21 of the Constitution, to construe a provision in such a manner which would not only be violative of Article 19 of the Constitution but also violative of Articles 20 and 21 thereof. It is the duty of the State Legislature to make a law to prevent public mischief if it considers necessary to do so. If a legislator is attempting to remove some evil and cannot plainly identify the target at which his statute is directed, it is obvious he will have difficulty in making his laws clear.