Balram Kumawat Vs. Union of India & Ors
 Insc 418 (27 August 2003)
Cji, S.B. Sinha & Arun Kumar. S.B. Sinha, J
Appeal (civil) 7537 of 1997
Whether 'mammoth ivory' imported in India
answers the description of the words 'ivory imported in India' contained in
Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the said Act') as
amended by Act No. 44 of 1991 is the question involved in these appeals which
arise out of a common judgment and order dated 20.3.1997 passed by a Division
Bench of the Delhi High Court.
The appellants M/s Unigems had imported mammoth
fossil said to be of an extinct species in the year 1987. The stock of mammoth
fossil held by the appellants is said to be periodically checked by the statutory
authorities. The appellant in the other case Balram Kumawat is a carver.
Mammoth is said to be pre-historic animal which
disappeared due to climatic conditions prevailing in Alaska and Siberia. According to the
appellants the distinction between mammoth and elephant ivory is that whereas
mammoth belongs to an extinct species, the ivory of elephant is of an extant
living animal. The appellants state that mammoth ivory is distinguishable by
visual and non-destructive means vis-à-vis elephant ivory and even in
Convention on International Trade in Endangered Species (CITES) their
distinguishing features have been pointed out.
Mr. Sanghi and Mr. Parikh, the learned counsel
would contend that trade in mammoth fossil ivory is not banned either under the
said Act or under the CITES and, thus, the impugned judgment of the High Court
cannot be sustained.
The learned counsel would take us through the
history of CITES as mentioned in the impugned judgment of the High Court and
would urge that the purport and object of the Act cannot be sub-served by
placing a ban on trade in mammoth ivory. Taking us to the provisions of the
said Act, the learned counsel would argue that as mammoth ivory does not answer
the description of 'wild animal', the provisions contained in Chapter VA of the
said Act would not be attracted.
As Mammoth is an extinct species and as what is
being used for carving is its fossil which is called ivory because it has white
and hard dentine substance which is also available in other animals, namely,
Whale, Walrus, Hippos and Warthog; it was urged, they cannot be included in the
term 'ivory' within the meaning of the provisions of the said Act.
It was contended that the High Court committed a
manifest error in passing the impugned judgment insofar as it failed to take
into consideration that mammoth ivory being deceptively similar to elephant
ivory to the naked eye, the impugned Act would be applicable in relation
thereto also. The learned counsel would contend that if this is taken to its
logical conclusion, then even trade in plastic articles which would be
deceptively similar to elephant ivory may also be held to have been banned. It
was argued that the intention of the Legislature cannot be to ban any article
irrespective of the purport and object it seeks to achieve only on the ground
that the same is deceptively similar to the banned item. There exists
scientific procedure, it was urged, whereby and whereunder mammoth ivory can be
distinguished from elephant ivory and with a view to buttress the said
argument, a large number of literature had been placed before us.
The preamble of the Act as also the 'Headings',
the learned counsel would contend, should be taken into consideration for the
purpose interpreting the provisions of the said Act.
In the connected matter in Indian Handicrafts
Emporium & Ors. disposed of this date, this Court upheld the constitutional
validity of the provisions of the said Act. This Court held that in terms of
Sub- Section (7) of Section 49-C of the Act all persons in general and traders
in particular have become disentitled from keeping in their control any animal
article including ivory imported in India.
This Court further held that as a logical
corollary to the said finding, the statutory authorities would be entitled to
take possession of such ivory in terms thereof; the purport and object of the
Act being to impose a complete ban on trade in ivory. A complete prohibition
has been imposed in the trade of ivory (whether imported in India or extracted by killing
Indian elephants) for the purpose of protecting the endangered species. Trade
in ivory imported in India has been prohibited further with a view to give effect to the
provisions contained in Article 48A as also Article 51A(g) of the Constitution
Why despite passage of time the trade in stock
could not be disposed of within a period of four years has not been disclosed
by the appellants. It is not in dispute that even in terms of Act 44 of 1991,
six months' time was granted for disposing the stock of ivory.
For the reasons stated hereinafter, it may not
be necessary for us to go into the question as to whether scientifically
mammoth ivory can be deciphered from elephant ivory.
What has been banned is ivory. There is complete
prohibition of trade in ivory. Such a complete prohibition is a reasonable
restriction within the meaning of Clause (6) of Article 19 of the Constitution
of India. The impugned Act being not unreasonable does not also attract the
wrath of Article 14 of the Constitution of India.
For the purpose of determination of the
question, we need to consider only the dictionary meaning of the term 'ivory'.
Commercial meaning or technical meaning of an object or article is required to
be taken recourse to when the same is necessary for the purpose of meeting the
requirements of law. The law in no uncertain terms says that no person shall
trade in ivory. It does not say that what is prohibited is trade in elephant
ivory or other types of ivory. The purport and object of the Act, as noticed in
the judgment in Indian Handicrafts Emporium (supra), is that nobody can carry
on business activity in imported ivory so that while doing so, trade in ivory
procured by way of poaching of elephants may be facilitated. The Parliament,
therefore, advisedly used the word 'ivory' instead of elephant ivory.
The intention of the Parliament in this behalf,
in our opinion, is absolutely clear and unambiguous. We cannot assume that the
Parliament was not aware of existence of different types of ivory. If the
intention of the Parliament was to confine the subject matter of ban under Act
44 of 1991 to elephant ivory, it would have said so explicitly.
As noticed hereinbefore, the object of the
Parliament was not only to ban trade in imported elephant ivory but ivory of
every description so that poaching of elephant can be effectively restricted.
An article made of plastic would by no means
In the Shorter Oxford Dictionary, the meaning of
'ivory' is stated as under:
(i) The hard, white, elastic and fine grain
substance (being dentine of exceptional hardness) composing the main part of
the tusks of the elephant, mammoth (fossil)...
(ii) A substance resembling ivory or made in
imitation of it.
In Collins English Dictionary, 'ivory' has been
(i) A hard smooth creamy white variety of
dentine that makes up a major part of the tusks of elephants, walruses, and
(ii) A tusk made of ivory.
(iii) A yellowish-white colour; cream
(iv) A substance resembling elephant tusk.
'Ivory', therefore, even as per dictionary
meaning is not confined to elephant ivory.
At this stage, we are not concerned with a
criminal trial. The appellants are not being proceeded against in a criminal
case. Their civil rights, if any, are only required to be dealt with. The
appellants in these matters complain of civil injuries only.
Contextual reading is a well-known proposition
of interpretation of statute. The clauses of a statute should be construed with
reference to the context vis-à-vis the other provisions so as to make a
consistent enactment of the whole statute relating to the subject- matter. The
rule of 'ex visceribus actus' should be resorted to in a situation of this
In State of West Bengal vs. Union of India [AIR 1963 SC 1241 at p.
1265], the learned Chief Justice stated the law thus :
"The Court must ascertain the intention of
the Legislature by directing its attention not merely to the clauses to be
construed but to the entire statute; it must compare the clause with the other
parts of the law, and the setting in which the clause to be interpreted
occurs." The said principle has been reiterated in R.S. Raghunath vs.
State of Karnataka and another [AIR 1992
SC 81 at p. 89].
Furthermore, even in relation to a penal statute
any narrow and pedantic, literal and lexical construction may not always be
given effect to. The law would have to be interpreted having regard to the
subject matter of the offence and the object of the law it seeks to achieve.
The purpose of the law is not to allow the offender to sneak out of the meshes
of law. Criminal Jurisprudence does not say so.
G.P. Singh in his celebrated treatise
'Principles of Statutory Interpretation' distinguished between strict
construction of penal statutes which deals with crimes of aggravated nature
vis-à-vis the nature of the activities of the accused which can be checked
under the ordinary criminal law stating :
"In Joint Commercial Tax Officer, Madras v. YMA, Madras, SHAH, J. observed :
"In a criminal trial or a quasi-criminal proceeding, the court is entitled
to consider the substance of the transaction and determine the liability of the
offender. But in a taxing statute the strict legal position as disclosed by the
form and not the substance of the transaction is determinative of its
taxability." With great respect the distinction drawn by SHAH, J. does not
exist in law. Even in construing and applying criminal statutes any reasoning
based on the substance of the transaction is discarded.
But the application of the rule does not permit
the court in restraining comprehensive language used by the Legislature, the
wide meaning of which is in accord with the object of the statute. The
principle was neatly formulated by LORD JUSTICE JAMES who speaking for the
Privy Council stated : "No doubt all penal statutes are to be construed
strictly, that is to say, the court must see that the thing charged as an
offence is within the plain meaning of the words used, and must not strain the
words on any notion that there has been a slip; that there has been a casus omissus;
that the thing is so clearly within the mischief that it must have been
included if thought of.
On the other hand, the person charged has a
right to say that the thing charged although within the words, is not within
the spirit of the enactment. But where the thing is brought within the words,
and within the spirit, there a penal enactment is to be construed, like any
other instrument, according to fair commonsense 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 enactment." The above formulation
has been cited with approval by the House of Lords and the Supreme Court. In
the last-mentioned case, SUBBARAO, J., referring to the Prevention of
Corruption Act, 1947, observed : "The Act was brought in to purify public
When the Legislature used comprehensive
terminology - to achieve the said purpose, it would be appropriate not to limit
the content by construction when particularly the spirit of the statute is in
accord with the words used there." Similarly, the Supreme Court has
deprecated a narrow and pedantic construction of the Prevention of Food
Adulteration Act, 1954 likely to leave loopholes for the adulterator to escape.
And on the same principle the court has disapproved of a narrow construction of
section 135 of the Customs Act, 1962, Section 489A of the Penal Code, Section
12(2) of the Foreign Exchange Regulation Act, 1947, section 630(1)(b) of the
Companies Act, 1956, section 52A of the Copy Right Act, 1957, and section 138
of the Negotiable Instruments Act, 1881. So, language permitting a penal
statute may also be construed to avoid a lacuna and to suppress the mischief
and advance the remedy in the light of the rule in Heydon's case. Further, a
commonsense approach for solving a question of applicability of a penal
enactment is not ruled out by the rule of strict construction. In State of
Andhra Pradesh v. Bathu Prakasa Rao, rice and broken rice were distinguished by
applying the commonsense test that at least 50% must be broken in order to
constitute what could pass off as marketable 'broken rice' and any grain less
than 3/4th of the whole length is to be taken as broken.
The rule of strict construction does not also
prevent the court in interpreting a statute according to its current meaning
and applying the language to cover developments in science and technology not
known at the time of passing of the statute. Thus psychiatric injury caused by
silent telephone calls was held to amount to 'assault' and 'bodily harm' under
sections 20 and 47 of the Offence Against the Person Act, 1861 in the light of
the current scientific appreciation of the link between the body and
psychiatric injury." reported in 2003 (4) SCALE 52).
A statute must be construed as a workable
instrument. Ut res magis valeat quam pereat is a well-known principle of law.
In Tinsukhia Electric Supply Co. Ltd. vs. State of Assam [AIR 1990 SC 123],
this Court stated the law thus :
"The courts strongly lean against any
construction which tends to reduce a statute to a futility. The provision of a
statute must be so construed as to make it effective and operative, on the
principle "ut res magis valeat quam pereat". It is, no doubt, true
that if a statute is absolutely vague and its language wholly intractable and
absolutely meaningless, the statute could be declared void for vagueness. This
is not in judicial review by testing the law for arbitrariness or
unreasonableness under Article 14; but what a court of construction, dealing
with the language of a statute, does in order to ascertain from, and accord to,
the statute the meaning and purpose which the legislature intended for it.
In Manchester Ship Canal Co. v. Manchester
Racecourse Co. ((1900) 2 Ch 352, Farwell J. said : (pp. 360-61) "Unless
the words were so absolutely senseless that I could do nothing at all with
them, I should be bound to find some meaning and not to declare them void for
uncertainty." In Fawcett Properties Ltd. v. Buckingham County Council
((1960) 3 All ER 503) Lord Denning approving the dictum of Farwell, J. said :
"But when a Statute has some meaning, even though
it is obscure, or several meanings, even though it is little to choose between
them, the courts have to say what meaning the statute to bear rather than
reject it as a nullity." It is, therefore, the court's duty to make what
it can of the statute, knowing that the statutes are meant to be operative and
not inept and that nothing short of impossibility should allow a court to
declare a statute unworkable. In Whitney v. Inland Revenue Commissioners (1926
AC 37) Lord Dunedin said :
"A statute is designed to be workable, and
the interpretation thereof by a court should be to secure that object, unless
crucial omission or clear direction makes that end unattainable." The
Courts will therefore reject that construction which will defeat the plain intention
of the Legislature even though there may be some inexactitude in the language
used. [See Salmon vs. Duncombe [(1886) 11 AC 627 at 634]. Reducing the
legislation futility shall be avoided and in a case where the intention of the
Legislature cannot be given effect to, the Courts would accept the bolder
construction for the purpose of bringing about an effective result. The Courts,
when rule of purposive construction is gaining momentum, should be very
reluctant to hold that the Parliament has achieved nothing by the language it
used when it is tolerably plain what it seeks to achieve.
at 122-3) In Mohan Kumar Singhania and Others
vs. Union of India and Others [AIR 1992 SC 1], the law is stated thus :'
"We think, it is not necessary to proliferate this judgment by citing all
the judgments and extracting the textual passages from the various textbooks on
the principles of Interpretation of Statutes. However, it will suffice to say
that while interpreting a statute the consideration of inconvenience and hardships
should be avoided and that when the language is clear and explicit and the
words used are plain and unambiguous, we are bound to construe them in their
ordinary sense with reference to other clauses of the Act or Rules as the case
may be, so far as possible, to make a consistent enactment of the whole statute
or series of statutes/rules/regulations relating to the subject matter. Added
to this, in construing a statute, the Court has to ascertain the intention of
the law making authority in the backdrop of the dominant purpose and the
underlying intendment of the said statute and that every statute is to be
interpreted without any violence to its language and applied as far as its
explicit language admits consistent with the established rule of interpretation."
684] while dealing with the provisions of Food Adulteration Act it was stated :
"5. It is trite that the social mission of
food laws should inform the interpretative process so that the legal blow may
fall on every adulterator. Any narrow and pedantic, literal and lexical
construction likely to leave loopholes for this dangerous criminal tribe to
sneak out of the meshes of the law should be discouraged. For the new criminal
jurisprudence must depart from the old canons, which make indulgent presumptions
and favoured constructions benefiting accused persons and defeating criminal
statutes calculated to protect the public health and the nation's wealth."
In State of U.P. vs. Chandrika [(1999) 8
SCC 638], this Court held that in matters involving economic crime, food
offence and other cases, the doctrine of plea bargaining should not be applied.
While holding so it referred with approval Madanlal Ramchandra Daga vs. State
of Maharashtra [AIR 1968 SC 1267 =
(1968) 3 SCR 34], Murlidhar Meghraj Loya (supra), Ganeshmal Jashraj vs.
Government of Gujarat [(1980) 1 SCC 363], Thippaswamy vs. State of Karnataka [(1983) 1 SCC 194] and Kasambhai
Abdulrehmanbhai Sheikh vs. State of Gujarat [(1980) 3 SCC 120].
Yet again in Superintendent and Remembrancer of
Legal Affairs to 85] the law is stated in the following terms:
"19. 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 construed 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. ((1940) AC 1014, 1022) "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."
This decision was followed in State of Karnataka and Others vs. Saveen Kumar Shetty [(2002) 3
In State of Himachal Pradesh vs. Pirthi Chand and Another [(1996) 2
SCC 37], this Court while dealing with a case of contraband article following
amongst others in Abani Maity (supra) stated :
"It would be seen that the organised
traffic in contraband generates deleterious effect on the national economy
affecting the vitals of the economic life of the community.
It is settled law that illegality committed in
investigation does not render the evidence obtained during that investigation
inadmissible. In spite of illegal search property seized, on the basis of said
search, it still would form basis for further investigation and prosecution
against the accused. The manner in which the contraband is discovered may
affect the factum of discovery but if the factum of discovery is otherwise
proved then the manner becomes immaterial." The said principle has been
reiterated in Khet Singh vs. Union of India [(2002) 4 SCC 380] stating :
"Law on the point is very clear that even
if there is any sort of procedural illegality in conducting the search and
seizure, the evidence collected thereby will not become inadmissible and the
court would consider all the circumstances and find out whether any serious
prejudice had been caused to the accused." SC 593: (1980) 4 SCC 669] this
Court was concerned with search and seizure of gold under the Customs Act and
the Defence of India Rules.
The Court was dealing with smuggling of gold
into India affecting the public
economy and financial stability of the country and in that context the Court
applied the Mischief Rule. While interpreting the words 'acquires possession'
or 'keeping' in Clause (b) of Section 135(1) of the Customs Act, this Court
observed that they are not to be restricted to 'possession' or 'keeping'
acquired as an owner or a purchaser of the goods observing :
"Such a narrow construction - which has
been erroneously adopted by the High Court - in our opinion, would defeat the
object of these provisions and undermine their efficacy as instruments for
suppression of the mischief which the legislature had in view. Construed in
consonance with the scheme of the statute, the purpose of these provisions and
the context, the expression "acquires possession" is of very wide
amplitude and will certainly include the acquisition of possession by a person
in a capacity other than as owner or purchaser. This expression takes its colour
from the succeeding phrase commencing with the word "or", which is so
widely worded that even the temporary control or custody of a carrier, remover,
depositor, harbourer, keeper or dealer of any goods which he knows or has
reason to believe to be smuggled goods or prohibited goods (liable to
confiscation under Section 111), cannot escape the tentacles of clause (b). The
expressions "keeping" and "concealing in the second phrase of clause
(b) also cover the present case." This Court while setting aside a
judgment of acquittal passed in favour of the Respondents therein on the basis
of the interpretation of the Customs Rules observed:
"The High Court has held that those rules
do not apply because the accused-respondent had not acquired possession of
these gold biscuits by purchase or otherwise within the meaning of these rules.
Such a narrow construction of this expression, in our opinion, will emasculate
these provisions and render them ineffective as a weapon for combating gold
smuggling. As was pointed out by this Court in Balkrishna Chhaganlal v. State
of West Bengal (AIR 1974 SC 120), Rule 126-P(2)(ii) penalises a person who has
in his possession or under his control any quantity of gold in contravention of
any provision of this Part, and the court cannot cut back on the width of the
language used, bearing in mind the purpose of plenary control the State wanted
to impose on gold, and exempt smuggled gold from the expression "any
quantity of gold" in that sub-rule. These provisions have, therefore, to
be specially construed in a manner which will suppress the mischief and advance
the object which the legislature had in view. The High Court was in error in
adopting too narrow a construction which tends to stultify the law. The second
charge thus had been fully established against the respondent." These
decisions are authorities for the proposition that the rule of strict
construction of a regulatory/penal statute may not be adhered to, if thereby
the plain intention of the Parliament to combat crimes of special nature would
We are, however, not oblivious of the fact that
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. However, when the law working in the field is clear then what
is necessary for it is to find out as to whether any offence has been created
or not. Once it is held that the subject matter comes within the purview of the
law, the Court may not go further and say by interpretive reasonings that the
same is not so created.
We do not think that in a case of this nature
where the principles of law as enunciated hereinbefore as also the doctrine of
purposive construction, which have been discussed in details in Indian
Handicraft Emporium (supra), any useful purpose would be served by referring to
a large number of decisions relied upon by Mr. Parikh as regards efficacy of
referring to the preamble of a statute or its heading, in view of the
well-settled principles of law that where plain and dictionary meaning can be
given, reference to preamble or a heading may not be of much use. The submission
of Mr. Parikh that in a case of this nature a restrictive meaning should be
attributed to the word 'ivory' cannot be acceded to inasmuch as, in our
opinion, the dictionary meaning should be adhered to for the purpose of giving
effect to the purport and object of the Act.
It is no doubt true that normally a technical
meaning should be attributed rather than a common meaning to a word if the same
relates to a particular trade, business or profession, art or science or words
having a special meaning as has been held in Union of India vs. Garware Nylons
Ltd. [AIR 1996 SC 3509 and Unwin vs. Hanson [1891 (2) QB 115].
But we are not dealing with an ordinary/taxing
statute. We are dealing with a law which has been enacted in larger public
interest and in consonance with Articles 48A and 51A(g) of the Constitution of
India as also International Treaties and Conventions.
As pointed out hereinbefore, the Parliament has
enacted the Amending Acts of 1986, 1991 and 2003 not only for the purpose of
banning a trade in elephant ivory but with a view to create a blockade of the
activities of poachers and others so that a complete prohibition in trade in
ivory is achieved. By reason of the Amending Acts, the Parliament was anxious
to plug the loop-holes and impose a ban on trade in ivory so that while
purporting to trade in imported ivory and carvings therefrom, poaching of
Indian elephants and resultant illegal trade by extracting their tusks may not
The submission of Mr. Parikh that the doctrine
of proportionality should be applied in a case of this nature cannot also be
In Om Kumar and Others vs. Union of India
[(2001) 2 SCC 386], to which a pointed reference has been made, this Court made
a distinction between the primary and secondary review of administrative
orders. As indicated in Indian Handicraft Emporium (supra), this Court while
construing the provisions of the Act vis-à-vis restrictions imposed in terms of
clause (6) of Article 19 of the Constitution of India has come to the
conclusion that the provisions of the Amending Acts satisfy even the strict
scrutiny test. In Om Kumar (supra), this Court pointed out that the area of
discretion of administrator would vary in different situations stating :
"While the courts' level of scrutiny will
be more in case of restrictions on fundamental freedoms, the courts give a
large amount of discretion to the administrator in matters of high-level
economic and social policy and may be reluctant to interfere : (R. v. Secy of
State for the Environment, ex p Nottinghamshire County Council (1986 AC 240 :
(1986) 1 All ER 199 : (1986) 2 WLR 1 (HL)); R. v. Secy. of State for
Environment, ex p Hammersmith and Fulham London Borough Council ((1991) 1 AC
521 : (1990) 3 All ER 589 : (1990) 3 WLR 898) (AC at p. 597). Smith speaks of
"variable margin of appreciation". The new Rule 1 of the Civil
Procedure Rules, 1999 permits the courts to apply "proportionality"
but taking into account the financial issues, complexities of the matter and
the special facts of the case." In Papanasam Labour Union vs. Madura Coats
[(1995) 1 SCC 501] whereupon Mr. Parikh has placed reliance, this Court held
that while a power has been conferred upon a higher authority, a presumption
can be raised that he would be conscious of its duties and obligations and so
would act promptly and reasonably.
There is also no quarrel on the proposition of
law laid down therein for the purpose of judging the constitutionality of the
statutory provisions in the light of Article 19 of the Constitution of India. The
impugned acts fulfill the said criteria.
For the reasons aforementioned, we are of the
opinion that the impugned judgment cannot be faulted. Accordingly, the appeals
are dismissed but without any order as to costs.