Superintendent and Legal Remembrancer of
Legal Affairs to the Vs. Abani Maity  INSC 61 (6 March 1979)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION: 1979 AIR 1029 1979 SCR (3) 472 1979
SCC (4) 85
CITATOR INFO :
RF 1988 SC 603 (11,34)
Bengal Excise Act, 1909-Ss. 63 and 64-Scope
Interpretation of Statutes-"Shall be
liable to confiscation" and "may order confiscation"-Whether
have a compulsive force-"Liable"-Meaning of.
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 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 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.,  6 SCR 594; held in applicable.
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
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 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,
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 &
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.
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
Explanation.-For purpose of this Section
"owner" includes, in relation to any animal car, vessel, raft or
(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 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
(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
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
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
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
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 contravention of s. 52A
in a given case and that it would be unfair to impose the penalty of
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 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.