Full Judgment Text
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PETITIONER:
SUPERINTENDENT AND LEGAL REMEMBRANCER OF LEGAL AFFAIRS TOTHE
Vs.
RESPONDENT:
ABANI MAITY
DATE OF JUDGMENT06/03/1979
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KAILASAM, P.S.
REDDY, O. CHINNAPPA (J)
CITATION:
1979 AIR 1029 1979 SCR (3) 472
1979 SCC (4) 85
CITATOR INFO :
RF 1988 SC 603 (11,34)
ACT:
Bengal Excise Act, 1909-Ss. 63 and 64-Scope of.
Interpretation of Statutes-"Shall be liable to
confiscation" and "may order confiscation"-Whether have a
compulsive force-"Liable"-Meaning of.
HEADNOTE:
Section 63(1) of the Bengal Excise Act, 1909 provides
that whenever an offence punishable under the Act had been
committed, the intoxicant material and the means by which
such offence had been committed "shall be liable to
confiscation’. Section 64(1) provides that when the
Magistrate decides that anything is liable to confiscation
under s. 63 he may either order confiscation or give the
owner an option to pay in lieu of confiscation such fine as
he thinks fit.
The respondent was found carrying contraband ganja in a
car of which he was the owner. The Magistrate passing the
order of conviction and sentence against him, did not pass
orders for the disposal of the contraband goods and
confiscation of the car which was seized.
On the question whether the words "liable to" used in
the context of "confiscation" in s. 63(1) convey an absolute
imperative or merely leave it to the discretion of the
Magistrate to confiscate or not to confiscate the vehicle by
means of which such offence had been committed.
Allowing the appeal,
^
HELD: 1. It is imperative for the Magistrate to pass,
at the conclusion of the trial, in addition to the
conviction and sentence, an order of confiscation of the car
by means of which the offence was committed. [481 A]
2. The expressions "shall be liable to confiscation"
and "may" in the sections were intended to have a compulsive
force. As soon as the conditions of s. 63, namely, that the
conveyance had been used for carrying the contraband
intoxicant and that the owner of that conveyance was
implicated in the commission of the offences are established
the word "may" in s. 64(1) acquires the force of "must". The
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discretion of the Magistrate is restricted to a choice
between the two alternatives mentioned in s. 64(1) namely,
confiscation of the conveyance or imposition of fine in lieu
thereof. [478 F; 480 G-H]
3. Ordinarily the word "liable" has been held as
conveying not an absolute obligation or penalty but as
merely importing a possibility of attracting such obligation
or penalty even where it is used with the words "shall be."
But a statute is not to be interpreted merely from the
lexicographer’s angle. Exposition ex visceribus actus is a
long recognised rule of construction. Words in a statute
often take their meaning from the context of the statute as
a whole; they are not to be construed in isolation. The
purpose of the Excise Act is not merely to raise revenue but
also to stop free use of intoxicants and illegal
473
trade in them which has a deleterious effect on public
health and morals. Thus considered both the expressions are
intended to have a compulsive force. [477 E-H]
Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh,
Addl. Collector of Customs & Ors., [1964] 6 SCR 594; held in
applicable.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 57
of 1972.
Appeal by Special Leave from the Judgment and Order
dated 5-3-1971 of the Calcutta High Court in Crl. Revision
No. 35/71.
P. K. Chatterjee and G. S. Chatterjee for the
Appellant.
D. N. Mukherjee for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave is directed
against a judgment, dated March 5, 1971, of the High Court
of Calcutta. The facts are as follows:
Abani Maity, respondent herein, and three other persons
were tried by the Magistrate, First Class, Alipore, District
24-Parganas, in respect of a charge under Section 46(a) of
the Bengal Excise Act, 1909 (hereinafter referred to as the
Act).
On the night of July 29, 1963, at about 7.30 p.m., the
Excise staff intercepted Motor Car No. WBD 8169 at village
Rajpur, Police Station Sonarpur. The car was searched and
thereupon 199 kgs. 700 grams contraband Ganja was recovered
from inside the car. The respondent, Abani Maity, who was
the registered owner of the car, and held a driving licence
was himself on the steering wheel. Abani Maity and the three
other occupants of the car were arrested. After completing
the investigation, a charge-sheet was submitted against
Abani Maity and his companions in respect of an offence
under Section 46(a) of the Act.
During the trial, out of the accused, Robin, died
Kalipada absconded; and the case proceeded only against
Abani Maity and his coaccused, Mihir Bose.
The Magistrate, ultimately, by his order dated August
21, 1970, convicted both the accused persons under Section
46(a) of the Act and sentenced each of them to pay a fine of
Rs. 800/-, and, in default, to suffer six months’ rigorous
imprisonment. The Magistrate, however, failed to pass orders
for the disposal of the contraband Ganja, and the
confiscation of the seized car.
In the course of the trial, it was established by
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evidence that the respondent, Abani Maity, was the
registered owner of the car and he was driving the vehicle
at the time of its interception. It was further
474
established that some packets of contraband Ganja were
seized from underneath the driver’s seat and some from the
luggage boot which was opened with a key produced by the
respondent. Thus, the evidence on record indubitably
established that the car (Registered No. WBD 8169) was used
for the transport of this contraband Ganja by its owner,
Abani Maity, respondent.
After his conviction, on November 16, 1970, Abani Maity
made an application to the Magistrate, praying for return of
the car and the other articles seized by the Excise Staff.
On the same day, the Magistrate, without issuing any notice
to the prosecution, passed an ex-parte order directing
return of the seized car and other articles to the accused-
respondent.
Against that order, dated November 16, 1970, of the
Magistrate, the State preferred a Revision in the High
Court, which was finally heard by a Division Bench, who, by
an order dated March 5, 1971, affirmed the Magistrate’s
order relating to the return of the car to the accused-
respondent, but directed confiscation of the Ganja.
Mr. Chatterjee, appearing for the appellant-State, does
not now request the Court to pass an order of confiscation
of the aforesaid car, obviously because the passing of such
an order after a lapse of about 16 years from the date of
its seizure, will be an exercise in futility. The learned
counsel, however, submits that this Court should for the
guidance of the courts below, clarify the law on the point
so that the efficacy of the provisions contained in Sections
63 and 64 of the Act as an instrument for combating and
preventing such anti-social crime is not undermined due to
misinterpretation or misunderstanding in regard to their
import, nature and application.
It is contended that as soon as Abani Maity, the owner-
driver of this car was found guilty of using this car for
transport of contraband Ganja, the Magistrate was bound in
addition to the conviction of Abani Maity for that offence,
to pass an order for confiscation of the car, or to give its
owner, Abani Maity, an option to pay in lieu of confiscation
a fine, as the Magistrate thought fit. The point sought to
be made out is that the words "shall be liable to
confiscation" occurring in Section 63(1) read with sub-
section (1) of Section 64, make it obligatory on the
Magistrate in the event of the conditions laid down in these
provisions being satisfied, to adopt either of the two
alternatives, namely, to confiscate the car, or, in lieu of
confiscation, to impose a fine at the option of its owner.
In support of this contention, reliance has been placed upon
certain observations of
475
this Court in Indo-China Steam Navigation Co. Ltd. v. Jasjit
Singh, Additional Collector of Customs & Ors(1).
As against this, learned counsel for the respondent,
submits that the words "liable to" used in the context of
"confiscation", in Section 63(1) of this Act or in some
other penal statutes, do not convey an absolute imperative;
they are merely directory and leave it to the discretion of
the Magistrate to confiscate or not to confiscate the
vehicle by means of which such offence has been committed.
Section 63 of the Act defines the things liable to
confiscation, while Section 64 indicates when the order of
confiscation is to be passed by the Magistrate or Collector.
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Section 63 and 64 read as follows:
"63 (1). Whenever an offence has been committed
which is punishable under this Act, the (intoxicant)
materials, steel, utensils, implement and apparatus in
respect of or by means of which such offence has been
committed shall be liable to confiscation.
(2) Any (intoxicant) lawfully imported,
transported, manufactured; had in possession or sold
along with, or in addition to, any (intoxicant) which
is liable to confiscation under sub-section (1) and the
receptacles, packages and coverings in which any such
(intoxicant) as first aforesaid, or any such materials,
steel, utensils, implement or apparatus as aforesaid,
is found, and the other contents, if any, of such
receptacles or packages, and the animals, carts,
vessels, rafts or other conveyances used in carrying
the same shall likewise be liable to confiscation:
Provided that no animal, cart, vessel, raft or
other conveyance as aforesaid shall be liable to
confiscation unless the owner thereof is proved to have
been implicated in the commission of the offence.
Explanation.-For purpose of this Section "owner"
includes, in relation to any animal car, vessel, raft
or other conveyance.
(a) which is the subject of a hire purchase
agreement, the person in possession thereof under that
agreement."
"64(1). When in any case tried by him, the
Magistrate decides that anything is liable to
confiscation under Section
476
63, he may either order confiscation or give the owner
of such an option to pay, in lieu of confiscation, such
fine as the Magistrate thinks fit:
Provided that the Magistrate shall in cases order
confiscation of the intoxicants decided by him to be
liable to confiscation under Section 63.
(2) Whenever anything is liable to confiscation
under Section 63, and the offender or the person
entitled to possession is not known or cannot be found,
the case shall be inquired into and determined by the
Collector, who may order confiscation:
Provided that no such order shall be made until
the expiration of two months from the date of seizing
the thing intended to be confiscated, or, without
giving such person as may, before such expiration,
claim any right thereto, an opportunity of being heard
and of producing such evidence as he may like to
produce in support of his claim:
Provided further that if the thing in question is
liable to speedy and natural decay, or if the Collector
is of opinion that its sale would be for the benefit of
its owner, the Collector may at any time direct it to
be sold, and the provisions of this sub-section shall,
as early as may be practicable, apply to the net
proceeds of the sale."
It will be seen that the liability to confiscation of a
conveyance, such as, a car or cart or vessel under Section
63 is incurred only if two conditions are established,
namely: (a) that the conveyance was used in carrying the
contraband intoxicant, (b) the owner of that conveyance is
implicated in the commission of the offence. In the instant
case, both these conditions were established. It has been
found by all the courts below that the car in question (WBD
8169) was used in carrying and transporting contraband Ganja
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and it was being driven by its owner, Abani Maity, who was
convicted of the offence of possessing and transporting the
contraband Ganja in this car. The liability to confiscation
of the car had, therefore, been incurred.
It may be further marked that in sub-section (2) of s.
63 the Legislature has used the words "shall be" in the
context of "liable to confiscation". Even, in the proviso to
sub-section (2) the expression "shall be liable to
confiscation" has been reiterated. Once
477
the facts essential for incurring the liability to
confiscation are established, the Magistrate has no option
but to adopt any of the two alternative courses indicated in
sub-section (1) of Section 64, that is to say, he may either
order confiscation of that conveyance; or give its owner an
option to pay in lieu of confiscation, such fine as the
Magistrate thinks fit. The Magistrate cannot just ignore to
adopt any of these alternatives.
Since sub-section (1) of Section 64 talks of the
imposition of fine in lieu of confiscation, it appears that
such an order of confiscation or fine in lieu of
confiscation, is to be passed at the conclusion of the
trial, when after conviction, a sentence for the commission
of the offence is awarded.
It is true that ordinarily, the word "liable" denotes:
(1) "legally subject or amenable to", (2) "Exposed or
subject to or likely to suffer from (something
prejudicial)", (3) "Subject to the possibility of (doing or
undergoing something undesirable)" (See Shorter Oxford
Dictionary). According to Webster’s New World Dictionary,
also, the word "liable" denotes "something external which
may befall us".
Accordingly, the word "liable" occurring in many
statutes, has been held as not conveying the sense of an
absolute obligation or penalty but merely importing a
possibility of attracting such obligation, or penalty, even
where this word is used along with the words "shall be".
Thus, where an American Revenue Statute declared that for
the commission of a certain act, a vessel "shall be liable
to forfeiture", it was held that these words do not effect a
present absolute forfeiture but only give a right to have
the vessel forfeited under due process of law. (See Kate
Haron, 14 Fed. Cas. 139, 141 6 Sawy. 106) quoted in Words
and Phrases, Vol. 25 page 109. Permanent Edition, West
Publishing Co.) Similarly, it has been held that in Section
302, Indian Penal Code, the phrase "shall also be liable to
fine" does not convey a mandate but leave it to the
discretion of the Court convicting an accused of the offence
of murder to impose or not to impose fine in addition to the
sentence of death or transportation for life.
But a statute is not to be interpreted merely from the
lexicographer’s angle. The court must give effect to the
will and inbuilt policy of the Legislature as discernible
from the object and scheme of the enactment and the language
employed therein.
Exposition ex visceribus actus is a long recognised
rule of construction. Words in a statute often take their
meaning from the context of the statute as a whole. They are
therefore, not to be cons
478
trued in isolation. For instance, the use of the word "may"
would normally indicate that the provision was not
mandatory. But in the context of a particular statute, this
word may connote a legislative imperative, particularly when
its construction in a permissive sense would relegate it to
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the unenviable position, as it were, "of an ineffectual
angel beating its wings in a luminous void in vain". If the
choice is between two interpretations", said Viscount Simon
L.C. in Nokes v. Doncaster Amalgamated Collieries, Ltd,(1)
"the narrower of which would fail to achieve the manifest
purpose of the legislation we should avoid a construction
which would reduce the legislation to futility and should
rather accept the bolder construction based on the view that
Parliament would legislate only for the purpose of bringing
about an effective result".
The provisions of Sections 63 and 64 of the Act are to
be interpreted in the light of this principle. The language
and scheme of the Excise Act, taken as a whole, show that
the purpose of this legislation is not only to raise revenue
but also to control and restrict the import, export,
transport, manufacture and sale of intoxicants. Free and
unrestricted use of intoxicants and illicit trade in
contraband intoxicants not only means a loss of revenue to
the public exchequer but also has a harmful effect on public
health and morals. Moreover, illicit trade and smuggling of
intoxicants is often committed in an organised and
clandestine manner, and is difficult to detect.
We have, therefore, to adopt that construction of the
expressions "shall be liable to confiscation" used in
Section 3(2) and "may" in sub-section (1) of Section 64,
which will preserve the efficacy of the provisions as an
instrument for combating these anti-social activities, and
reject the other which will render them ineffective.
Thus considered, it seems clear that the expressions
"shall be liable to confiscation" and "may" in the aforesaid
provisions were intended to have a compulsive force.
We need not dilate on the topic further. We will close
the discussion by noticing one decision of this Court which
has been cited by the counsel for the appellant. That case
is: Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh,
Additional Collector of Customs Ors. (ibid), wherein this
Court was considering the interpretation of certain
provisions of the Sea Customs Act.
In dealing with an offence under Section 167(12A) of
the Sea Customs Act, 1878, the Customs Officer has also to
exercise his jurisdiction under Section 183 of that Act,
which expressly requires
479
the adjudicating Officer to give an option to the owner of
the offending vessel to pay fine in lieu of confiscation.
Question arose as to what was the nature of the
responsibility prescribed by Section 167(12A).
Gajendragadkar, C.J., speaking for the Court elucidated the
position, thus:
"We have already seen that Section 167(12A)
provides that if a vessel contravenes Section 52A, it
shall be liable to confiscation and the master of such
vessel shall be liable to a penalty not exceeding Rs.
1,000/-. Can it be said that the penalty prescribed by
Section 167(12A) may in any given case not be imposed
against the ship on the ground that the contravention
proved against it is of a very trivial character, or
has been the result of an act on the part of a criminal
who acted on his own contrary to the instructions of
the master of the ship? The words used in the third
column of Cl. (12A) are that "such vessel shall be
liable to confiscation". The context seems to require
that it is not open to the Customs Authority to refuse
to confiscate the vessel on the ground that there are
any extenuating circumstances surrounding the
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contravention of s. 52A in a given case and that it
would be unfair to impose the penalty of confiscation.
Two penalties are prescribed, one is the confiscation
of the ship, and the other is a fine against the
master. In regard to the later penalty, it is within
the discretion of the Customs Authority to decide what
amount of penalty should be imposed; just as in the
case of the first penalty it is not open to it to say
that it would not impose the penalty of confiscation
against the offending ship, so in the case of the
second penalty it is not open to it to say that it will
not levy any penalty against the master. In its
discretion, it may impose a very small fine against the
master if it is satisfied that the master was innocent
and despite his best efforts, he could not prevent the
contravention of s. 52A. If the two penalties
prescribed by cl. (12A) had been alternative, the
position may have been different, but they are
independent penalties, one is against the ship and the
other is against the master; and so, there is no scope
for contending that the Customs Authority may refuse to
impose one penalty and impose the other, or may refuse
to impose either of the two penalties. It must be
regarded as an elementary requirement of clause 12A
that as soon as the offence referred to in column 1 of
the said clause is
480
proved, some penalty has to be imposed and cl. (12A)
indicates that two penalties have to be imposed and not
one, there being discretion in regard to the penalty
imposable against the master as regards the amount of
the said penalty. Therefore, we do not think it would
be possible to take the view that if there are
extenuating circumstances attending the contravention
of s. 52A in a given case the Customs Authority can
refrain from confiscating the vessel. Confiscation of
the vessel is the immediate statutory consequence of
the finding that an offence under cl. 12A is
established, just as the imposition of some penalty
against the master is another statutory consequence of
the same contravention."
The language of Section 167(12A) and 183 of the Sea
Customs Act, is not in pari materia with those of Sections
63 and 64 of the Bengal Excise Act. It was on the language
of these provisions, as they then stood, it was held that
the penalties prescribed under Sections 167(12A) and 183 are
independent and not alternative. The observations, extracted
above therefore, are not applicable in their entirety.
Nevertheless, they are a useful guide inasmuch as the
expression "shall be liable to confiscation" used in Section
167(12A) in the context of a vessel found in the Customs
waters in circumstances that amounted to a contravention of
Section 52A, was held to cast on the Customs Authority an
imperative duty to confiscate such vessel.
For all that has been said above and keeping in view
the purpose, the scheme and the language of the provisions
in question, we are of opinion that as soon as on proof of
the conditions necessary under Section 63, a conveyance
incurs the liability to confiscation, the word "may" used in
Section 64(1) acquires the force of "must", and the
Magistrate is bound to abide by either of the two
alternatives viz., confiscation of the conveyance or
imposition of the fine in lieu thereof in accordance with
that Section. Thus, the discretion of the Magistrate is
restricted to choice between these two alternatives. This
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limited discretion, also, is not to be exercised
whimsically, but judicially, in a manner which will not
emasculate these provisions or debilitate their potency as
an instrument for suppressing the mischief which the
Legislature had in view. In the circumstances of this case
therefore, it was imperative for the Magistrate, to pass, at
the
481
conclusion of the trial, in addition to the conviction of
the accused-respondent, an order of confiscation of the car
by means of which the offence was committed.
With this clarification of the law on the point, the
appeal stands disposed of.
P.B.R. Appeal allowed.
482