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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