Full Judgment Text
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CASE NO.:
Appeal (crl.) 1405 of 2004
PETITIONER:
State of Jharkhand and Anr.
RESPONDENT:
Govind Singh
DATE OF JUDGMENT: 03/12/2004
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.)No. 343 of 2004)
ARIJIT PASAYAT, J
Leave granted.
The State of Jharkhand has filed this appeal against the judgment
of learned Single Judge of the Jharkhand High Court at Ranchi holding
that even though there was no specific provision in Section 52 (3) of
the Indian Forest Act, 1927 (in short the "Act") as amended by Bihar
Act 9 of 1990 (hereafter referred to as the ’Bihar Act’), a vehicle
seized for alleged involvement in commission of forest offence can be
released on payment of fine in lieu of confiscation.
Background facts as projected by the appellants are as follows:
On 10.4.1997 at Barkagaon Protected Forest Area, a truck bearing
No. BR 13-9041 was found loaded with 11.8 tonnes of coal. Confiscation
Proceeding No.3/1997 arising out of Pelawal case No.28/97 was
instituted and show cause notice was issued. The respondent filed reply
to the notice. After considering the same the Divisional Forest
Officer, Hazaribagh directed confiscation of the truck.
An appeal was preferred before the Deputy Commissioner,
Hazaribagh, numbered as Case No.40/1997. By order dated 17.7.1999 the
appeal was dismissed. The matter was carried in revision by the
respondent before the Revisional Authority cum Secretary, Department of
Forest and Environment and by order dated 3.12.2002 the revisional
authority dismissed the revision. A petition under Article 226 of the
Constitution of India, 1950 (in short the ’Constitution’) was filed
before the High Court. It was the primary stand therein that there was
no prohibition in directing release of the vehicle on payment of fine
in lieu of confiscation. The High Court held that there was some
dispute regarding weight of coal which was being carried. It was noted
that the value of the coal was not established and considering the
value of coal which was being transported it would be inequitable to
direct confiscation and, therefore, it was held that to meet the ends
of justice the power to impose fine in lieu of confiscation can be read
into under Section 52 (3) of the Act. Accordingly, a fine of
Rs.50,000/- was imposed and the seizing authority was directed to
release the vehicle on payment thereof.
In support of the appeal, learned counsel for the appellant-State
submitted that the view taken by the learned Single Judge is contrary
to a Division Bench’s decision of Patna High Court, Ranchi Bench in the
case of Dilip Kumar Pandey v. The State of Bihar and Ors. Criminal Writ
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Jurisdiction Case No.12 of 1997(R) where considering an identical issue
it was held that there was no scope for directing release of the
vehicle on payment of fine in lieu of confiscation.
There is no appearance on behalf of the respondent in spite of
notice.
In order to appreciate the stand taken by learned counsel for the
appellants, it would be necessary to take note of Section 52 of the Act
and the State amendment by the Bihar Act.
"Section 52- Seizure of property liable to
confiscation: (1) When there is reason to believe
that a forest offence has been committed in respect
of any forest produce, such produce, together with
all tools, boats, carts or cattle used in committing
any such offence, may be seized by any Forest Officer
or Police Officer.
(2) Every officer seizing any property under this
section shall place on such property a mark
indicating that the same has been so seized, and
shall, as soon as may be, make a report of such
seizure to the Magistrate having jurisdiction to try
the offence on account of which the seizure has been
made:
Provided that, when the forest produce
with respect to which such offence is believed
to have been committed is the property of
Government, and the offender is unknown, it
shall be sufficient if the officer makes, as
soon as may be, a report of the circumstances
to his official superior."
"Section 52 as amended by Bihar Act \026Seizure and its
procedure for the property liable for confiscation:
(1) When there is reason to believe that a forest
offence has been committed in respect of any forest
produce, such produce, together with all tools, arms,
boats, vehicles, ropes, chains or any other article
used in committing any such offence, may be seized by
any Forest Officer or Police Officer.
(2) Every officer seizing any property under this
section shall place on such property a mark
indicating that the same has been so seized, and
shall, as soon as may be, either produce the property
seized before an officer not below the rank of the
Divisional Forest Officer authorized by the State
Government in this behalf by notification
(hereinafter referred to as the authorized officer)
or where it is, having regard to quantity of bulk or
other genuine difficulty, not practicable to produce
the property seized before the authorized officer, or
where it is intended to launch criminal proceedings
against the offender immediately, make a report of
such seizure to the Magistrate having jurisdiction to
try the offence on account of which the seizure has
been made:
Provided that, when the forest produce
with respect to which such offence is believed
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to have been committed is the property of
Government, and the offender is unknown, it
shall be sufficient if the officer makes, as
soon as may be, a report of the circumstances
to his immediate superior.
(3) Subject to sub-section (5), where the authorized
officer upon production before him of property seized
or upon receipt of report about seizure, as the case
may be, is satisfied that a forest offence has been
committed in respect thereof, he may by order in
writing and for reasons to be recorded, confiscate
forest produce so seized together with all tools,
arms, boats, vehicles, ropes, chains or any other
article used in committing such offence. The
Magistrate having jurisdiction to try the offence
concerned may, on the basis of the report of the
authorized confiscating officer, cancel the
registration of a vehicle used in committing the
offence, the licence of the vehicle-driver and the
licence of the arms. A copy of the order on
confiscation shall be forwarded without undue delay
to the Conservators of Forests of the forest-circle
in which the forest produce, as the case may be, has
been seized.
(4) No order confiscating any property shall be
made under sub-section (3) unless the authorized
officer-
(a) sends an intimation about initiation of
proceedings for confiscation of property to the
magistrate having jurisdiction to try the offence on
account of which the seizure has been made;
(b) issue a notice in writing to the person
from whom the property is seized, and to any other
person who may appear to the authorized officer to
have some interest in such property;
(c) affords an opportunity to the persons
referred to in clause (b) of making a representation
within such reasonable time as may be specified in
the notice against the proposed confiscation; and
(d) gives to the officer effecting the
seizure and the persons or person to whom notice has
been issued under clause (b), a hearing on date to be
fixed for such purposes.
(5) No order of confiscation under sub-section (3)
of any tools, arms, boats, vehicles, ropes, chains or
any other article (other than the forest produce
seized) shall be made if any person referred to in
clause (b) of sub-section (4) proves to the
satisfaction of authorized officer that any such
tools, arms, boats, vehicles, ropes, chains or other
article were used without his knowledge or connivance
or as the case may be, without the knowledge or
connivance of his servant or agent and that all
reasonable and necessary precautions had been taken
against use of the objects aforesaid for commission
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of forest offence"
Learned Single Judge by the impugned judgment held that though
the power to levy fine in lieu of confiscation is not there, same has
to be read into the statute to fully effectuate the legislative intent.
It was a case of casus omissus.
The conclusion is clearly erroneous. It is against the settled
principles relating to statutory interpretation.
When the words of a Statute are clear, plain or unambiguous, i.e.
they are reasonably susceptible to only one meaning, the courts are
bound to give effect to that meaning irrespective of consequences. 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. [See J.P. Bansal v. State
of Rajasthan (2003 (5) SCC 134]
As a consequence, as construction which requires for its support
addition or substitution of words or which results in rejection of
words as meaningless has to be avoided. As was noted by the Privy
Council in Crawford v. Spooner (1846) 6 Moore PC1:"We cannot aid the
Legislature’s defective phrasing of an Act, we cannot add or mend and,
by construction make up deficiencies which are left there". The view
was reiterated by this Court in State of Madhya Pradesh v. G.S. Dall
and Flour Mills (AIR 1991 SC 772), and State of Gujarat v. Dilipbhai
Nathjibhai Patel (JT 1998(2) SC 253). Speaking briefly the Court cannot
reframe the legislation, as noted in J.P. Bansal’s case (supra), for
the very good reason that it has no power to legislate.
It is said that a statute is an edict of the legislature. The
elementary principle of interpreting or construing a statute is to
gather the mens or sententia legis of the legislature.
Interpretation postulates the search for the true meaning of the
words used in the statute as a medium of expression to communicate a
particular thought. The task is not easy as the "language" is often
misunderstood even in ordinary conversation or correspondence. The
tragedy is that although in the matter of correspondence or
conversation the person who has spoken the words or used the language
can be approached for clarification, the legislature cannot be
approached as the legislature, after enacting a law or Act, becomes
functus officio so far as that particular Act is concerned and it
cannot itself interpret it. No doubt, the legislature retains the power
to amend or repeal the law so made and can also declare its meaning,
but that can be done only by making another law or statute after
undertaking the whole process of law-making.
Statute being an edict of the legislature, it is necessary that
it is expressed in clear and unambiguous language. In spite of Courts
saying so, the draftsmen have paid little attention and they still
boast of the old British jingle "I am the parliamentary draftsman. I
compose the country’s laws. And of half of the litigation, I am
undoubtedly the cause", which was referred to by this Court in Palace
Admn. Board v. Rama Varma Bharathan Thampuran (AIR 1980 SC 1187 at.
P.1195). In Kirby v. Leather (1965 (2) All ER 441) the draftsmen were
severely criticized in regard to Section 22(2)(b) of the (UK)
Limitation Act, 1939, as it was said that the section was so obscure
that the draftsmen must have been of unsound mind.
Where, however, the words were clear, there is no obscurity,
there is no ambiguity and the intention of the legislature is clearly
conveyed, there is no scope for the court to innovate or take upon
itself the task of amending or altering the statutory provisions. In
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that situation the Judges should not proclaim that they are playing the
role of a law-maker merely for an exhibition of judicial valour. They
have to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed or
erased. This can be vouchsafed by "an alert recognition of the
necessity not to cross it and instinctive, as well as trained
reluctance to do so". (See: Frankfurter, Some Reflections on the
Reading of Statutes in "Essays on Jurisprudence", Columbia Law Review,
P.51.)
It is true that this Court in interpreting the Constitution
enjoys a freedom which is not available in interpreting a statute and,
therefore, it will be useful at this stage to reproduce what Lord
Diplock said in Duport Steels Ltd. v. Sirs (1980 (1) ALL ER 529, at p.
542):
"It endangers continued public confidence in
the political impartiality of the judiciary, which
is essential to the continuance of the rule of law,
if Judges, under the guise of interpretation,
provide their own preferred amendments to statutes
which experience of their operation has shown to
have had consequences that members of the court
before whom the matter comes consider to be
injurious to public interest."
Where, therefore, the "language" is clear, the intention of
the legislature is to be gathered from the language used. What is to
be borne in mind is as to what has been said in the statute as also
what has not been said. A construction which requires, for its
support, addition or substitution of words or which results in
rejection of words, has to be avoided, unless it is covered by the
rule of exception, including that of necessity, which is not the
case here. (See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v.
Custodian of Vested Forests (AIR 1990 SC 1747 at p. 1752); Shyam
Kishori Devi v. Patna Municipal Corpn. (AIR 1966 SC 1678 at p.
1682); A.R. Antulay v. Ramdas Sriniwas Nayak (1984 (2) SCC 500, at
pp. 518, 519)]. Indeed, the Court cannot reframe the legislation as
it has no power to legislate. [See State of Kerala v. Mathai
Verghese (1986 (4) SCC 746, at p. 749); Union of India v. Deoki
Nandan Aggarwal (AIR 1992 SC 96 at p.101)
The question is not what may be supposed and has been intended
but what has been said. "Statutes should be construed not as theorems
of Euclid". Judge Learned Hand said, "but words must be construed with
some imagination of the purposes which lie behind them". (See Lenigh
Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in
Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama
(AIR 1990 SC 981).
In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport
Commissioner and Ors. etc. (AIR 1977 SC 842), it was observed that
Courts must avoid the danger of a priori determination of the meaning
of a provision based on their own pre-conceived notions of ideological
structure or scheme into which the provision to be interpreted is
somewhat fitted. They are not entitled to usurp legislative function
under the disguise of interpretation.
While interpreting a provision the Court only interprets the law
and cannot legislate it. If a provision of law is misused and subjected
to the abuse of process of law, it is for the legislature to amend,
modify or repeal it, if deemed necessary. (See Commissioner of Sales
Tax, M.P. v. Popular Trading Company, Ujjain (AIR 2000 SC 1578). The
legislative casus omissus cannot be supplied by judicial interpretative
process.
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Two principles of construction \026 one relating to casus omissus
and the other in regard to reading the statute as a whole \026 appear to
be well settled. Under the first principle a casus omissus cannot be
supplied by the Court except in the case of clear necessity and when
reason for it is found in the four corners of the statute itself but at
the same time a casus omissus should not be readily inferred and for
that purpose all the parts of a statute or section must be construed
together and every clause of a section should be construed with
reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent
enactment of the whole statute. This would be more so if literal
construction of a particular clause leads to manifestly absurd or
anomalous results which could not have been intended by the
Legislature. "An intention to produce an unreasonable result", said
Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to
be imputed to a statute if there is some other construction available".
Where to apply words literally would "defeat the obvious intention of
the legislature and produce a wholly unreasonable result" we must "do
some violence to the words" and so achieve that obvious intention and
produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC
557) where at p. 577 he also observed: "this is not a new problem,
though our standard of drafting is such that it rarely emerges".
It is then true that, "when the words of a law extend not to an
inconvenience rarely happening, but due to those which often happen, it
is good reason not to strain the words further than they reach, by
saying it is casus omissus, and that the law intended quae frequentius
accidunt." "But," on the other hand, "it is no reason, when the words
of a law do enough extend to an inconvenience seldom happening, that
they should not extend to it as well as if it happened more frequently,
because it happens but seldom" (See Fenton v. Hampton 11 Moore, P.C.
345). A casus omissus ought not to be created by interpretation, save
in some case of strong necessity. Where, however, a casus omissus does
really occur, either through the inadvertence of the legislature, or on
the principle quod semel aut bis existit proetereunt legislators, the
rule is that the particular case, thus left unprovided for, must be
disposed of according to the law as it existed before such statute -
Casus omissus et oblivioni datus dispositioni communis juris
relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart
(1 T.R. 52), "can in no case be supplied by a court of law, for that
would be to make laws."
Keeping in view the aforesaid legal principles the inevitable
conclusion is that the High Court was not justified in reading into
Section 52 (3) of the Act the power to direct release by imposing fine
in lieu of confiscation.
The matter can be looked at from another angle. Section 68 of the
Act reads as follows:
"Section 68- Power to compound offences: (1) The
State Government may, by notification in the Official
Gazette, empower a Forest Officer-
(a) to accept from any person against
whom a reasonable suspicion exists that he has
committed any forest offence, other than an
offence specified in Section 62 or Section 63,
a sum of money by way of compensation for the
offence which such person is suspected to have
committed, and
(b when any property has been seized
as liable to confiscation, to release the same
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on payment of the value thereof as estimated by
such officer.
(2) On the payment of such sum of money, or such
value, or both, as the case may be, to such officer,
the suspected person, if in custody, shall be
discharged, the property, if any seized shall be
released, and no further proceedings shall be taken
against such person or property.
(3) A Forest-officer shall not be empowered under
this section unless he is a Forest-officer of a rank
not inferior to that of a Ranger and is in receipt of
a monthly salary amounting to at least one hundred
rupees, and the sum of money accepted as compensation
under clause (a) of sub-section (1) shall in no case
exceed the sum of fifty rupees."
The said section was also amended by the State amendment. The
amended provision reads as follows:
"Section 68- Power to compound offences: (1) The
State Government may, by notification in the Official
Gazette, empower a Forest Officer-
(a) to accept from any person against
whom a reasonable suspicion exists that he has
committed any forest offence, other than an
offence specified in clauses (c) and (d) to
Section 26, clauses (c) and (d) to Section 33
or Section 62 or Section 63, sum of money by
way of compensation for the offence which such
person is suspected to have committed, and
(b) when any property has been seized
as liable to confiscation, to release the same
on payment of the value thereof as estimated by
such officer.
(2) On the payment of such sum of money, or such
value, or both, as the case may be, to such officer,
the suspected person, if in custody, shall be
discharged, the property, if any seized shall be
released, and no further proceedings shall be taken
against such person or property.
(3) A Forest-officer shall not be empowered under
this section unless he is a Forest-officer of a rank
not inferior to that of an Assistant Conservator of
Forest."
The power to act in terms of Section 68 of the Act is limited to
offences other than those specified in clauses (c) and (d) to Section
26, clauses ) and (d) to Section 33 or Section 62 or Section 63. Sub-
section (1)(b) of Section 68 is also relevant. It provides that where
any property has been seized as liable for confiscation, an officer
empowered by the State Government has power to release the same on
payment of the value thereof as estimated by such officer. The officer
has to be empowered in the official gazette by the State Government. To
act in terms of the position the value of the property seized or as
liable for confiscation has to be estimated. Therefore, on a combined
reading of Section 52 and Section 68 of the Act as amended by the Bihar
Act, the vehicle as liable for confiscation may be released on payment
of the value of the vehicle and not otherwise. This is certainly a
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discretionary power, exercise of which would depend upon the gravity of
the offence. The officer is empowered to release the vehicle on the
payment of the value thereof as compensation. This discretion has to be
judicially exercised. Section 68 of the Act deals with power to
compound offences. It goes without saying that when the discretionary
power is conferred, the same has to be exercised in a judicial manner
after recording of reasons by the concerned officer as to why the
compounding was necessary to be done. In the instant case, learned
Single Judge did not refer to the power available under Section 68 of
the Act and on the contrary, introduced the concept of reading into
Section 52 of the Act, a power to levy fine in lieu of confiscation
which is impermissible. In the impugned judgment nowhere the value of
the truck which was liable for confiscation was indicated. It appears
that the first appellate Court and the revisional authority did not
consider it to be a fit case where the vehicle was to be released and
were of the considered view that confiscation was warranted. They took
specific note of the fact that fake and fabricated documents were
produced to justify possession of the seized articles. In any event the
respondent had not made any prayer for compounding in terms of Section
68 of the Act.
Confiscation in terms of sub-section (3) of Section 52 of the Act
is the immediate statutory action which provides that when forest
offence as defined in Section 2(3) of the Act is believed to have been
committed in respect of the seized vehicle, the authorized officer may
confiscate the forest produce and the vehicle involved in the
transportation of the forest produce. Foundation for action in terms
of Section 52(3) of the Act is the belief entertained by the concerned
officer that forest offence has been committed. It is not the value of
the forest produce which is relevant, but the value of the article
liable for confiscation. In the instant case it is the truck carrying
the forest produce.
Judgment of the High Court is clearly indefensible, deserves to
be set aside which we direct. The appeal is allowed.