Report No. 47
Causes of Defective Enforcement
5.1. Variety of provisions made to deal effectively with social and economic offences.-
As the foregoing survey shows, the statute book already contains a variety of provisions1 illustrating the attempts made to deal effectively with social and economic offences. No doubt, provision of a particular type, while occurring in one enactment, may not be found in another enactment. The question whether it should not be extended to the other enactment could, therefore, be usefully considered. That is one approach2 adopted in this Report.3
1. Para. 4.8, supra.
2. For detailed analysis, see Chapter 6, infra.
3. For recommendations, see Chapter 15, infra.
5.2. Causes of defective enforcement.-
The causes of defective enforcement of social and economic legislation are manifold. They might exist in the particular law, or they may be found in some other law forming part of the general legal system,-both these are "legal" causes. But the causes may sometimes not be concerned with the content of the legal system, and may be found elsewhere,-these may be termed "extra-legal" causes.
Again, in so far as the defect is connected with the legal system, it may be positive defect,-some existing provision which creates difficulties; or, it may be a negative defect,-the absence of some beneficial provision which could remove a felt difficulty.
Moreover, the legal defect, whether positive or negative, may concern the substantive law, the procedural law or the rules of evidence.
Finally, the stage at which the defect operates may be legislative (in the formulation of the law), executive (in implementation), judicial (at the stage of trial); or the defect may be connected with sentencing. In this context, it may be pertinent to state that one could distinguish between two different meanings of words used to denote criminal sanctions. "Punishment" should mean the authorisation by the legislature of the employment of criminal sanctions; while "sentencing" should mean the application by the judiciary of the criminal sanctions authorised by the Legislature. The Legislature provides the sword for general use, but the judiciary unsheathes the sword and uses it in particular cases.
5.3. Taking all these aspects into account, but at the same time, confining ourselves to important defects only, we could state that the defects in the enforcement of a particular piece of social or economic legislation could assume one of the following shapes:
(a) Absence of a legislative provision punishing the particular conduct which is considered to be harmful;
(b) Non-applicability of the particular regulatory provision though contained in the parent Act, because of absence of the relevant statutory notification;
(c) Non-enforcement of the law because of failure to detect or failure to investigate the offence;
(d) Faulty investigation or delay in investigation.
(e) Inefficiency in the actual conduct of the case;
(f) Procedural flaws which cause delay in trial, or even failure of prosecution (e.g. absence of requisite sanction);
(g) Want of evidence;
(h) Inadequacy of the punishment provided in the law;
(i) Inadequacy of the sentence actually awarded, although the range of punishment as given in the law may be adequate;
(j) Administrative difficulties, such as want of adequate enforcement staff required for detecting investigating, prosecuting and otherwise dealing with the offences under the relevant Act.
A few examples will illustrate the categories.
5.4. Absence of a legislative provision punishing the particular conduct which is considered to be harmful.-
A prosecution may fail because the situation is outside the Act in point of stage of the criminal activity or in point of time, or in point of the facts.
5.5. Thus, preparation to commit an offence is not, in general, punishable. Seizure of a truck with paddy in the Punjab Territory was, for that reason held to be illegal, as there was no "export" within the meaning of the relevant order under the Essential Commodities Act.1
1. Malkiat Singh v. State of Punjab, AIR 1970 SC 713: 1970 Cr LJ 750.
5.6. In a Madras case1, the situation was held to be outside the substantive provisions of the Foreign Exchange Act, and hence the prosecution failed. The following observations in the judgment are of interest:-
1. M.R. Pratap v. Director of Enforcement, 1969 Cr LJ 1582 (1594), para. 59 (Krishnaswamy Reddy J.).
"In respect of the third point, namely, whether the prosecution of the petitioners under section 4(1) of the Act is untenable, I find the same in favour; of the petitioners. We have already noted that under section 4(1) of the Act, 'acquiring foreign exchange' is made an offence by the Amendment Act 55 of 1964 which came into effect from 1-4-1965. The offence, in the complaint, was alleged to have been committed before 1-4-1965 when section 4(1) on respect of this offence was not in force. The enquiry under section 4(1) of the Act has to be dropped by the lower court."
5.7. Again, in an Allahabad case1, under sections 8 and 3(2)(d), Essential Commodities Act, the truck driver was transporting grain from one place to another place in the same district without a licence for transport. It was held that unless it was shown that such transport without licence constituted an offence under Act, the driver could not be convicted under section 8, even if he admitted that he had committed the mistake. In order to convict a person even on his plea of guilty, it is necessary for the prosecution to prove that allegations made against him, which he is alleged to have admitted as correct, constitute an offence under the law.
1. 1965 All Cri R 88: 1965 All WR (HC) 71, cited in the Yearly Digest.
5.8. A Gujarat case1 under section 16(1)(a), Prevention of Food Adulteration Act, illustrates failure of prosecution because of absence of mens rea. It was held that the prosecution must first establish knowledge on the part of the accused that the Food Inspector is to take the sample of food from him in his capacity as a Food Inspector and in discharge of his duty as such.
1. Teja Mohan v. Mangabhai, AIR 1970 Guj 209.
5.9. Non-use of the particular 'regulatory' provision though contained in the parent Act, because of absence of the relevant statutory notification.-
It may also happen that the relevant notification is not proved in court. In a Kerala case1 relating to sale of rice beyond the controlled price, the notification fixing the price was not in proof. It was held that the conviction was not sustainable.
1. 1966 Ker LT 638: 1966 Mad LJ (Cri) 806, cited in the Yearly Digest for 1966.
5.10. A recent Andhra case1 illustrates the failure of a prosecution because of failure to produce the notification conferring authority to initiate a prosecution under the Customs Act, section 135, and Defence of India Rules, 1962, rule 126 P(2). (There were other defects also in the case, but they are not relevant for our purpose).
Suspected contraband gold had been seized in that case, but the notification under rule 126(j)(4) and 126(x), Defence of India Rules, authorising the person who sanctioned the prosecution to do so, was not produced. The acquittal by the Magistrate was, therefore, upheld by the High Court.
1. P.P. v. Babulal, AIR 1971 AP 345 (346).