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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.