S.B. Sinha, C.J.
1. Possession and transport of black jaggery although by itself is not an offence, can the vehicles carrying the same, be liable to be seized under the provisions of the Andhra Pradesh Excise Act and the Andhra Pradesh Prohibition Act is the question involved in these writ applications?
2. Facts of each case may be noticed briefly thus: In Writ Petition No. 354 of 2001 the petitioners were transporting 10176 kilograms of jaggery in a lorry bearing No. ABT 5508. The said lorry was seized and such seizure is challenged in this writ petition on the ground that it is illegal and arbitrary. Writ Petition No. 19706 of 2000 is filed assailing the action of the respondents in interfering with their day-to-day business in all varieties of jaggery and alum. The petitioners in Writ Petition N0.22705 of 2000 seek quashing of the criminal proceedings and also to declare the seizure of jaggery as illegal and void.
3. It is the case of the petitioners that sale of jaggery is neither prohibited nor restricted under law. It is further contended that in the event of allowing the writ petitions, the loss accrued to the petitioners by keeping the vehicle idle cannot be compensated.
4. In Writ Petition Nos. 19706 and 22705 of 2000 the respondents have contended that they did not take any steps whatsoever as a result whereof the business of the petitioners was disturbed.
5. The fact that the petitioners had been carrying on business for a long time is not in dispute. Admittedly the respondentsalso have not contended that carrying on business in black jaggery and alum is by itself an offence. The fact that they had been carrying on business openly is also not in dispute.
6. Counter-affidavits have been filed by the State wherein it has merely been contended that black jaggery is used for manufacture of ID liquor. Reliance in support of the seizure of the vehicle and initiation of the proceedings has been placed on Clause (e) of Section 34 of the A.P. Excise Act and Section 7-A of the A.P. Prohibition Act inter alia on the ground that black jaggery is a raw material used for the manufacturing of I.D. liquor.
7. No provision of any statute has been shown before us, which prohibits carrying on any business in black jaggery or alum.
8. By reason of the provisions of the A.P. Excise Act, 1968 a regulatory power has been conferred upon the State to prohibit activities in relation to intoxicant, its manufacture, storing, export, import, sale and possession. A citizen of India may have only a privilege to deal with the intoxicant but has the fundamental right to deal with business or trade of any other commodity which is not an intoxicant or which is not controlled by any law for the time being in force. The law within the meaning of Clause (6) of Article 19 of the Constitution of India must be a law, which is not unreasonable.
9. It is not and cannot be the case of the respondents that price of jaggery is fixed or controlled under any Act. Selling or buying of jaggery or alum is again admittedly not prohibited under the Excise Act. If selling or buying of jaggery or alum was prohibited the respondents would not have stated in the counter-affidavit in Writ Petition Nos. 19706 of 2000 that they have not prevented the petitioners therein from carrying on any business. If carrying on such business were illegal, they would have made attempts to justify their interference.
10. In the counter-affidavit filed in Writ Petition No. 22705 of 2000 it is averred that the names of the customers had not been supplied.
11. Is it necessary for any businessman to maintain a register or is it necessary for him to supply the names of the customers is the question which must be posed and answered.
12. It has not been pointed out as to under what law the same was required to be done. What is prohibited is sale of arrack. Jaggery or alum is not a commodity, which comes within the purview of the Excise Act. Licence is only necessary for selling or buying of excisable article and not any material, which may be used for manufacture of an intoxicant, if business in jaggery, alum and molasses is not prohibited, the traders are not concerned as who would be their buyers. Buyers may include the licensed ID liquor manufacturers also. In absence of any regulatory prohibition in respect of dealing in molasses, jaggery, etc., the traders are not required to see that the commodities are being sold to a select group of persons.
13. Under Section 7A of the A.P. Prohibition Act only production, manufacture, possession, storage, collection, purchase, sale and transport of arrack is prohibited. Seizure of an article is permissible only when the same has a direct nexus with the offences committed or to be committed. No justification of seizure is permissible by reason of a counter-affidavit. What is necessary for seizure is compliance of the provisions of Section 165 of the Code of Criminal Procedure. It is not the case of the respondents that any warrant was obtained for seizure. A police officer mayseize any property only when he has a suspicion of commission of any offence. In the instant case, there is no dispute that possession or transport of jaggery is not prohibited under any law. A reference has been made by the State to certain circulars purported to have been issued by the Government which are circular No. 3095/95/ DPE/B3, dated 14.7.1995 and Memo No. 25779/Pol.F/A1/95-1 dated 22.6.1995 wherein it has been clarified that the jaggery traders should not be unduly harassed and that if they are found to be in possession of valid documents, they should not be harassed and the vehicle with the valid documents should be allowed free movement. Neither any offence can be created by reason of a circular issued by the State nor a power of seizure can be conferred thereby. In the instant cases it has also not been shown that under any law the authorities under the Excise Act are authorized to effect seizure of vehicles for alleged violations of any offence under other statutes e.g.., Motor Vehicles Act or the A.P. General Sales-tax Act.
14. Reliance has further been placed upon an order dated 26.12.1995 passed by this Court in W.P. No. 29074 dated 26.12.1995 to the following effect:
The respondent authorities can take appropriate action if they have evidence that the jaggery is used for illicit distillation. However, in so far as seizure is concerned, the same is not tenable and the said jaggery has to be released after verification of the petitioner possesses the valid documents, namely way bill, purchase bill, the details of the person from whom the same is purchased and also the verification of the registration of the documents under the A.P.G.S.T. Act.
15. The State has relied upon the aforementioned order. By reason of an order of the Court again no offence can be created.
16. If a person does not possess valid documents viz., waybill, purchase bill, etc., he may be prosecuted under the A.P. General Sales-tax Act but not under the Excise Act. What is necessary is violation of a law. A penal law as is well known must be clear.
17. Article 20 of the Constitution of India reads thus:
20. Protection in respect of conviction for offences :--(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
18. It is not in dispute that no law exists prohibiting trade or control over black jaggery under the A.P. Excise Act. Furthermore, the seizure has been effected only under the A.P. Excise Act and not under A.P. Prohibition Act.
19. Sections 13(1)(f) and 34(a) and (e) of the A.P. Excise Act read thus:
13. Manufacture etc., of excisable articles prohibited except under a licence :--(1) No person shall
(f) use, keep or have in his possession, any materials, stills, utensiis, implements of apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy, except under the authority and subject to the terms and conditions of a licencegranted by such officer, not below the rank of an Excise Superintendent, as may be prescribed.
34. Penalties for illegal import etc. :--Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act:--
(a) .. imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or
(e) uses, keeps, or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy; or
20. Section 7-A of the A.P. Prohibition Act reads:
7-A. Prohibition of production etc., of arrack:--The production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is hereby prohibited.
21. Section 7-A does not speak about jaggery, but refers to arrack. Ag such Section 7-A will also have no application. Section 34(a) and (e) of the Excise Act clearly state that using, keeping or having in possession of any material etc., must be in contravention of the Act or Rule or Notification issued thereunder or of any licence under the said Act. As noticed hereinbefore, it is admitted that possession and transport of black jaggery is not the subject matter of the said Act, and thus the question of contravention of the provisions of the said Act or Rule or Notification made thereunder does not arise. Section 13(1)(f) of the Act must be read in theaforementioned context which provides for grant of licence. Such licence is required for the purpose of manufacturing intoxicants other than toddy. It is not in dispute that apart front black jaggery, there are various other materials, which could be used for manufacturing liquor, including black grapes or maize etc.
22. Section 13 of the Act speaks about manufacture, etc., of excisable articles prohibited except under a licence. Such licence is required inter alia for the purpose of manufacturing liquor. Prohibition as regards possession of 'any material', stills, utensils, implements of apparatus, whatsoever for the purpose of manufacturing any intoxicant, as contained in Section 13 (1)(f) must, in the context of the regulatory provision, be construed as material which has been used together with the other things for the purpose of manufacturer of ID liquor. The material together with other matters must, therefore, be possessed at the time when liquor is to be manufactured and/or in the process of manufacturing and not prior thereto. All the materials which by themselves are not sufficient for production of ID liquor cannot be a subject matter of licence. Furthermore, the terminologies 'use, keep or have in his possession' must be read ejusdem generis 'the purpose being manufacture of any intoxicant'.
23. Section 13 of the Act being regulatory in nature must be strictly construed. If any other meaning is construed, the word 'material' which is of wide amplitude would bring within its purview all other materials including rice, barley, grapes, etc and even for the said purpose water, which are also ingredients for production of liquor. It, therefore, could not have been the intention of the Legislature that possession and transportation of 'any material' which may be used for the manufacture of ID liquor would require licence.
24. Only because black jaggery may be used for the purpose of manufacture of ID liquor the same by itself cannot be a ground for seizure and prosecution for possessing the same. The Legislature must be presumed to know law. Had that been the intention of the State, the law could have specifically made a provision in this regard.
25. The interpretation as regards the provision relating to necessity of having a licence in relation to possession of material must also be considered having regard to Section 42 of the A.P. Excise Act wherein in terms of Clause (c) possession of only those material which have undergone any process towards the manufacture of an intoxicant or from which an intoxicant has been manufactured would lead to the presumption that the accused has committed an offence under Section 34 of the Act. Possession of the material which leads to such presumption must, therefore, have a direct nexus with any process towards the manufacture of an intoxicant. This together with the manner in which the word 'material' has been employed immediately before the words 'stills, utensils, implements or apparatus...' in Section 13 (1)(f) of the Excise Act is also a pointer to show that Section 13 contemplates obtaining of licence only when a material has already been used or has undergone any process towards the manufacture of an intoxicant and not prior thereto. A prosecution under Section 34 would be permissible provided a person is in possession of the material without having a licence. As indicated hereinbefore, the requirement to have a licence is for the purpose of manufacture of any intoxicant and not possession of any material alone. This is a cassus omissus which by reason of an interpretative role or otherwise the court cannot supply. In this context the dicta of the apex court in RESERVE BANK OF INDIA v. PEERLESS CO., : 2SCR1 , as to how to reada statute would be apt which is in the following terms:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then S. by section, clause-by-clause, phrase-by-phrase and word-by-word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.
26. In VIJAYALAKSHMAMMA v. B.T. SHANKAR, 2001 (4) SCC 558, the Apex Court holding that the courts may not add or alter provisions of statute by reading into them what was never intended by the legislature or may have been deliberately avoided by it, observed thus: ..In such circumstances, acceding to the submission to read into Section 8 the stipulation in the proviso to Section 7 with the Explanation thereto would amount to legislation by courts on the lines as to what in its view the law should be, which is wholly impermissible for courts, de hors any justification or necessary for such a provision. ...
We are also of the view that either having regard to the state of law prevailing on the eve of coming into force of the Act or the nature and extent of the changes and alterations effected in the then existing personal law envisaged by Parliament could there by any justification whatsoever for courts to rewrite Section 8 of the Act by doing violence to the language by adding something which has been consciously and deliberately omitted by Parliament itself.
27. Interpreting the word 'possession' in Section 55 (a) of the Madras Abkari Act, 1886 the Madras High Court in JAYARAMULU NAIDU v. EMPEROR, AIR 1923 Mad. 50, held thus:
The word 'possession', I think, does not mean constructive possession but actual possession. It is only people who are actually in possession of contraband liquor without licence that can be punished under the section.
28. As noticed hereinbefore, no law has been pointed out regulating business in jaggery or alum. The seizure memos have not been produced. The reason to believe has not been disclosed. An affidavit, which is inadmissible, affirmed by the respondents points out the reasonable suspicion that manufacture of ID liquor is being encouraged. Suspicion, however, grave may be, it is trite, is not substitute for an offence. No case has been made out for abetment of any crime under the Excise Act.
29. Assuming that commodity may be unfit for human consumption, the possession or transportation thereof by itself will not be offence unless an appropriate statute is made in that regard. In that event, grapes, maize, molasses, etc., which are unfit for human consumption would also come within the purview of the said Act. In one of the writ petitions a purported confession of the four persons has been relied upon, which is not a part of the first information report. A confession must be in relation to an offence and if, by reason of such a purportedadmission no offence is made out, the authorities thereby would not get any jurisdiction to make any investigation. It is not for this Court at this stage to consider the correctness or otherwise of any statement made by the petitioners or the respondents.
30. In K.L. SUBHAYYA V. STATE OF KARNATAKA, : 1979CriLJ651 , it has been held:
This therefore renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment. The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences. It was, however, suggested that the word 'place' would not include the car, but the definition of the word 'place' under the Act clearly includes vehicle which would include a car. Thus, the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside the he is acquitted of the charges framed against him.
31. Even confiscation of a commodity is permissible when a clear case of contradiction of the relevant statute is made out. In SOMISETTI RAMANAIAH v. DIST. SUPPLY OFFICER, : AIR1979AP19 , it has been held:
I have therefore no doubt in holding that inspite of the fact that the order ofconfiscation is confirmed by the appellate authority in appeal under Section 6-C (1), if the prosecution for contravention of the order in respect of which the order of confiscation has been made has resulted in acquittal, the petitioner would be entitled to the price of the goods under the clear terms of Section 6-C(2). It is incongruous that on one hand there is an order of an appellate authority confirming confiscation which has become final and on the other hand, there is an order of acquittal. It is more so, as the appellate authority is also the Sessions Court. In many cases the order of acquittal may be only that of a Magistrate for it is possible that no appeal may be preferred against the order of acquittal and the final order would be that of a Magistrate only. Tn such a case it would lead to a Judicial Magistrate's order of acquittal overriding an order of confiscation of a Sessions Judge in appeal under Section 6-A. But such consideration cannot weigh with this Court in giving effect to the clear language of a particular section.
32. Is any licence required forpossession or transport of any material? The answer to the said question must be in the negative. The reason thereto is more than one. No dictionary meaning can be given to the word 'material' for construction of a penal statute. Only a commonsense meaning must be rendered therefor.
33. In K.N. FARMS INDUSTRIES (PVT) LTD v. STATE OF BHIAR, 1993 (2) BLJR 1425, it is held:
A dictionary meaning of a word may not be looked into where the same has been statutorily defined or judicially interpreted. The Court has to select the meaning which is relevant to the definition in which it has interpreted the word.
34. In STATE OF ORISSA v. TITAGARH PAPER MILLS COMPANY, : 3SCR26 , it is held:
The court may take the aid of dictionaries to ascertain the meaning of a word in common parlance, bearing in mind that a word isused in different senses according to its context and a dictionary gives all the meanings of a word, and the Court has, therefore, to select the particular meaning which is relevant to the context in which it has to interpret that word.
35. Seizure made in violation of law amounts to deprivation of property. In WAZIR CHAND v. STATE OF H.P., : 1954CriLJ1029 , it was observed: . Assuming that that was so, goods in the possession of a person who is not lawfully in possession of them cannot be seized except under authority of law and in absence of such authority, Wazir Chand could not be deprived of them. On the materials placed on this record it seems clear that unless and until Prabhu Dayal proved his allegations that the Chamba concern was part and parcel of the Jammu Partnership firm (which fact has been denied) and that Trilok Nath who was admittedly one of the partners had no right to put Wazir Chand in possession of the property.
36. Seizure must be effected in accordance with the procedure laid down therefor. It is also well settled that whenever a seizure is found to be illegal, the property seized should be directed to be returned forthwith. We may refer to the decision in BOARD OF REVENUE, MADRAS V. R.S. JHAVER, : 1SCR148 , wherein, it was observed:
We have already indicated that the High Court held that the warrant issued by the Magistrate for search of the residential accommodation was bad because it showed that the Magistrate had not applied his mind to the question of issuing it, inasmuch as there were portions which should have been struck out from the printed form and gaps which should have been filed in. But this was not done. That conclusion of the High Court has not been challenged before us. The High Court has further held that a proper and reasonable opportunity was not given to the persons concerned to show that the goods seized were not property accountedfor in their account books, though this finding is not material now for we have held that Sub-section (4) falls in its entirety. It follows therefore that anything recovered form the search of the residential accommodation on the basis of this defective warrant must be returned. It also follows that anything confiscated must also be returned, as we have held that Sub-section (4) must fall. As to the accounts etc., said to have been seized, it appears to us that the safeguards provided under Section 165 of the Code of Criminal Procedure do not appear to have been followed when the search was made for the simple reason that everybody thought that that provision was not applicable to a search under Sub-section (2). Therefore, as the safeguards provided in Section 165 of the Code of Criminal Procedure were not followed, anything recovered on a defective search of this kind must be returned.
37. For the purpose of search and seizure there must be a reasonable suspicion as regards commission of an offence. History of liberty is the history of procedure. Whenever any seizure is made all formalities must be complied with. When a seizure is questioned as invalid one, the respondents must disclose facts before the court to satisfy it that it had a reasonable belief that an offence had been committed, in the instant case, the respondents proceeded on the basis that possession or transport of jaggery is not an offence but despite the same transportation and the possession of jaggery had been interfered with and the same had been seized. It was obligatory on the part of the respondents to prima facie satisfy the court that such search and seizure was legal.
38. 'Reasonable belief for search or seizure or for the purpose of registering a case under Section 34 (3) of the Excise Act must be formed only when an offence is being committed. If possession and transportation of jaggery is per se not an offence, such purported reasonable belief onthe part of the authorities under the Excise Act for the purpose of initiation of a criminal proceedings be wholly without jurisdiction. In other words, the purported reasonable belief must have a nexus with an existing offence and cannot be formed for the purpose of creation of an offence. What is a black jaggery and what would be its quality is not a matter which is required to be found out by the court. The law does not say so. The first information report does not say so. Even no statement has been made in the counter-affidavit. Some materials have been placed on record by the learned Government Pleader which cannot be looked into by court in absence of any affidavit. Such materials cannot also be said to be authenticated.
39. The expressions 'use', 'keep' or 'being in possession' qualifies any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacture of any intoxicant. The words 'any material' must be possessed for the purpose of manufacturing any intoxicant and possession of any material for any other purpose would not constitute an offence. Furthermore, in a case of this nature the doctrine of ejusdem generis must be applied.
40. Section 45 of the A.P. Excise Act, 1968 reads as under:
45. Liability of certain things to confiscation :--Whenever any offence has been committed, which is punishable under this Act, following things shall be liable to confiscation namely:
(1) any intoxicant, materials, still, utensil, implements or apparatus in respect of or by means of which such offence has been committed;
(2) Any intoxicant lawfully imported, transported or manufactured, had in possession, sold or brought along with, or in addition to, any intoxicant liable to confiscation under Clause (1); and
(3) Any receptacle, package, or covering in which anything liable to confiscation under Clause (1) or Clause (2) is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, vessel, raft or other conveyance used for carrying the same.
41. In terms of Clause (1) of Sub-section (1) of Section 45 any material or vehicle etc., can be seized and becomes liable for confiscation when an offence punishable under the Act has been committed. An offence is committed only when ID liquor is being manufactured or is in the process of manufacturing.
42. In STATE OF BIHAR v. BHAGIRATH, : 1973CriLJ1184 , the apex court clearly held that tyre of a motor car comes within the purview of Bihar Essential Commodities Act - other than Foodgrains -Prices and Stocks (Display and Control) Order, 1967 and the tubes would not. The following observations of the apex court are apt: .. In our view, the drafting precedent furnished by the other Notifications considered in the earlier decision of the High Court (in Cri. Misc. Case No. 1479/68) do indicate that the draftsman did not intend the scheduled items in the Order as in force in May, 1969 to cover 'Tyres and Tubes of Motor Cars'.
43. Such interpretation was made although item (5) of the said Order covers cycle tyres and tubes including cycle rickshaw tyres and tubes. The apex court noticed that only after amendment in the notification published on 22.9.1970 both tyre and tube would come within the mischief of the said order.
44. In NESU SHEIKH v. STATE OF BIHAR, : 1972CriLJ1039 , the question which arose for consideration, is as to whether paddy was being exported from Bihar to West Bengal wherein the seizure took place within 75 yards of the border and it was held that the distance assumes importance. The same principles would apply in this case also inasmuch in some of the cases seizure and/or raid had been made in the shops whereas in some cases the trucks were intercepted without mentioning the distance between the place where such seizure was made and the destination of the vehicle.
45. As the possession and transport of any black jaggery as such is not an offence, the seizure must be held to be wholly illegal. For the purpose of valid seizure, the reason to believe that an offence has been committed is sine qua non and illegal seizure would amount to deprivation of the property.
46. The words 'for the purpose of manufacturing an intoxicant' can be found when the process of manufacturing has started or an attempt is being made.
47. The licence granted in terms of Section 13 also does not postulate a separate licence for any material which can be used for the purpose of manufacturing any intoxicant separately. Section 28 of the Act deals with forms and conditions of licence, etc.
48. The said provisions of the Act and the Rules do not contain any provisions restricting either possession or transport of 'any material, utensils...' separately. In the said Rules export permit, transport permit for Indian liquor and foreign liquor - licence for sale at different places of only Indian liquor and foreign liquor is contemplated. Rules being a part of the Act, the provisions of the Rules and the forms appended thereto also must be taken into consideration for purpose of construction of statutes. Applications for licence in different forms are all meant for Indian liquor and foreign liquor or beer and not for any other material. If no provisions for licence of any material either for possession or transport can begranted, Clause (f) of Sub-section (1) of Section 13 of the Act must be construed to mean that 'material' must be found out from 'for the purpose of manufacturing of any intoxicant' at the relevant point of time and not for any other purpose. Any other construction would make Section 13 (1)(f) otiose. Section 13 provides for licence for manufacturing of excisable articles which are prohibited. Excisable articles has been defined in Section 2(9) to mean 'any alcoholic liquor for human consumption; or any intoxicating drug'. It does not mean any material which may be used for manufacturing any alcoholic liquor for human consumption or any intoxicating drug. 'Intoxicant' and 'intoxicating drug' have been defined under Section 2(19) and 2(20) respectively thus:
'intoxicant' means any liquor as defined in Clause (21) or any intoxicating drug as defined in Clause (20) and includes gulmohwa (that is mohwa flower): 'intoxicating drug' means,--
(a) the leaves, small stalks and flowering or fruiting tops of the Indian hemp plant including all forms known as bhang, siddi or ganja;
(b) charas, that is, the resin obtained from the Indian hemp plant which has not been subjected to any manipulations other than those necessary for packing and transport;
(c) any mixture with or without neutral materials of any of the above forms of intoxicating drug or any drink prepared therefrom; and
(d) any other intoxicating or narcotic substance which the Government may, by notification, declare to be an intoxicating drug, such substance not being opium, coca leaf or manufactured drug as defined in Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985).
49. Thus, jaggery is not even an intoxicant. Had it been so, it would have found place with Gulmohwa ie mohwa flower.
50. The word 'material' must be given restricted meaning as otherwise materials like molasses, jaggery or any other material which would be a material for production of ID liquor could have been mentioned as raw material. It is in that sense, a dictionary meaning may not be relevant for construction in such fact situation.
51. Molasses is also a material for manufacture of liquor. There may be molasses which would be unfit for human consumption. But still then a division bench of this Court in Writ Appeal No. 2209 of 1998 and batch, dated 8.5.2001 held: ..But coming to the instant cases and the provisions of Andhra Pradesh Excise Act, 1968 there is no such statutory provision dealing with the molasses. In this scenario the only option for the State Government is to legislate on the molasses if it wants to impose any restrictions on the said product. As on this date, no such statutory provision has been enacted. Hence, the analogy of the cases of Rajasthan and Uttar Pradesh, which were upheld by the Supreme Court in SITARAM & BROTHERS v. STATE OF RAJASTHAN : 1996(55)ECC40 and SIEL LTD v. UNION OF INDIA : AIR1998SC3076 is not applicable.
52. Furthermore, when it is not in dispute that jaggery can be used as a fodder, although it may not be fit for human consumption, whether jaggery is being sold for human consumption or fodder or as a raw material for manufacturing of I.D. liquor, is essentially a question of fact and in the absence of any statute, it is not permissible for any officer to proceed on hypothesis.
53. For the purpose of construction of the words 'any material' even the doctrineof Noscitur A Sociis may be applied. In ROHIT PULP PAPER MILLS LTD v. COLLECTOR OF CENTRAL EXCISE, BARODA, : 1990(47)ELT491(SC) , the apex court referred to the following from Lord Macmillan in his treatise 'Law and Other Things' :
The meaning of a word is to be judged by the company it keeps.
54. Reference in this connection may also be made to G.P. Singh's Principles of Statutory Interpretation 7th Edn at 347. What is, therefore, necessary in terms of Section 13 is to have licence if a person is in possession of anything which is specifically provided for in Section 13 and not otherwise. Possession de hors the purpose of manufacture, etc of excisable articles is not prohibited under the Act. As indicated hereinbefore jaggery is not an excisable article. Had it been so, it would have found place in the interpretation clause.
55. In Textbook of Criminal Law (2nd Edn at page 5) the learned author Granville Williams has stated why sometimes the consent of a higher authority is required for a charge of abutting suicide observing that 'the law's bark is to be worse than its bite'.
56. In Francis Bennion's Statutory Interpretation (2nd Edn at 858) it is observed thus:
The ejusdem generis principle arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) arc treated as reduced in scope by the verbal context. It may be regarded as an instance of ellipsis, or reliance on implication. As Cross put it: 'the draftsman must be taken to have inserted the general words in case something which ought to have been included among the specifically enumerated items had been omitted ....,.'. Or, as Odgers says, it is assumed 'that thegeneral words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extent to objects of a wholly different kind'. It follows that the principle is presumed to apply unless there is some contrary indication,
57. Even search of a person and seizure of property must be made strictly in terms of the procedure prescribed in law. See STATE OF PUNJAB v. BALDEV SINGH, : 1999CriLJ3672 , wherein the law is stated in the following terms:
That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted,
58. In S.M. DATTA v. STATE OF GUJARAT, 2001 AIR SCW 3133, the apex court while stating that quashing of a complaint should rather be an exception and rarity than a binding rule, referred to its earlier decision in STATE OF WEST BENGAL v. SWAPAN KUMAR GUHA, : 1982CriLJ819 , and held:
This Court in Sanchaita Investment has been thus rather candid to record that it will bethe duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual if the Court on a consideration of relevant materials is satisfied that no offence is disclosed.
As noticed above, there is no contra note till date sounded by this Court. In the event the FIR does not disclose an offence, question of continuation of the investigation would not arise, since the same would be an utter abuse of the process of Court and a harassment, which is unknown to law......
59. Can there be a prosecution on the basis of vague allegation? For seeking an answer we must note what is a crime and an offence. In Ferdico's Criminal Law and Justice Dictionary 'crime' and 'offence' have been defined as follows :
Crime - An act committed or omitted in violation of a law specifically prohibiting or commanding it, for which the possible penalties for an adult upon conviction include a fine and incarceration, for which a corporation can be penalized by fine or forfeiture, or for which a juvenile can be adjudged delinquent or transferred to criminal court for prosecution. Crimes are usually divided into felonies and misdemeanors, but may be otherwise classified in some modern statutory schemes. Generally, a crime consists of conduct that violates the duties a person owes to the community or society, as distinguished from a private wrong.
Offence - An act committed or omitted in violation of a law forbidding or commanding it. The term offence is sometimes used restrictively as a synonym of Crime. In its broadest usage, however, offence may include crimes, delinquent acts, status offences, infractions, civil violations, and private wrongs and injuries.
60. There can be no crime without a statute that quite specifically forbids the behaviour involved (nullum crimen sine lege). According to William Blackstone, a crime is an act committed or omitted in violation of a public law either forbidding or commanding. In Smith and Hogan's Criminal Law (5th Edn) as regards moral wrong as a characteristic of crime it is noticed that the enforcement of criminality as such by the criminal law is losing ground. In Kenny's Outlines of Criminal Law (19th Edn) it is stated thus:
So long as crimes continue (as would seem inevitable) to be created by government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.
61. Kenny's definition of 'crime' was commented upon in Smith and Hogan's Criminal law in the following terms:
Kenny finally seized upon the degree of control exercised over the two types of proceedings by the Crown as the criterion, and define 'crimes' as 'wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all'.
He thought it necessary to bring in the elements of punishment only to exclude action for the recovery of the Crown's debts or other civil rights; and the italicized words were included so as not to exclude certain crimes which cannot be pardoned.
Kenny's definition has been criticized. Winfield thought it led to a vicious circle:
'What is a crime? Something that the Crown alone can pardon.
What is it that the Crown alone can pardon? A crime.'
Winfield thought it advisable not to accept this part of Kenny's definition; and he concentrated on the question, what is punishment? The answer he arrived at is that: 'The essence of punishment is its inevitability ... no option is left to the offender as to whether he shall endure it or not'; whereas, in a civil case, 'he can always compromise or get rid of his liability with the assent of the injured party'. Thus we seem to arrive back at the just rejected test of who can remit the sanction.
More substantial is the point made by Williams. If we are going to define crime by reference to procedure, we ought to make use of the whole law of procedure, not just one item of it - the power to remit the sanction. If a court has to decide whether a particular act which has been prohibited by Parliament is a crime, it may be guided by a reference in the statute to any element which exists only in civil, or only in criminal, procedure as the case may be. A crime is:
'an act that is capable of being followed by criminal proceedings, having one of the types of outcome (punishment, etc.) known to follow these proceedings.'
This definition is by no means so unhelpful as at first sight may appear; for there are many points of distinction between civil and criminal procedure, and the specification in a statute of any one procedural feature which is peculiar either to the civil or the criminal law will therefore point to the nature of the wrong. The question in issue may well be whether a rule of criminal, or a rule of civil, procedure should be followed. While it may be that no statute or decision gives guidance on this precise point, the procedure test may yet supply the answer if a statute or decision indicates, as the appropriate procedure, some other rule which is peculiar either to civil or to criminal proceedings. Of course, the definition tells us nothing about what acts ought to be crimes, but that is not its purpose. Writers who set out to define a crime by reference to the nature of the act, on the other hand, inevitably end by telling us not what a crime is, but what the writer thinks it ought to be; and that is not a definition of a crime,
62. It is trite that a penal law must be clear and unambiguous. In the event a statute is not clear, recourse to strict interpretation must be made for construction thereof. In his classic work 'The Interpretation and Application of Statutes' Reed Dickerson states:
(1) The court will not extend the law beyond its meaning to take care of a broader legislative purpose. Here, 'strict' means merely that the court will refrain from exercising its creative function to apply the rule announced in the statute to situations not covered by it, even though such an extension would help to advance the manifest ulterior purpose of the statute. Here, strictness relates not to the meaning of the statute but to using the statute as a basis for judicial law making by analogy with it.
(2) The court will resolve an evenly balanced uncertainty of meaning in favour of a criminal defendant, the common law, the 'common right,' a tax payer, or sovereignty.
(3) The court will so resolve a significant uncertainty of meaning even against the weight of probability.
(4) The court will adhere closely to the literal meaning of the statute and infer nothing that would extend its reach.
(5) Where the manifest purpose of the statute, as collaterally revealed, is narrower than its express meaning, the court will restrict application of the statute to its narrower purpose. This differs from the Riggs situation in that the narrow purpose is revealed by sources outside the statute and its proper context.
63. In Section 263 of the Francis Bennion's Statutory Interpretation it is stated:
A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore bedescribed as a principle of legal policy formulated as a guide to legislative intention.
Maxwell in The Interpretation of Statutes (12th Edn) says:
The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.
64. In Craies on Statute Law (7th Edn., at p 529) it is said that penal statutes must be construed strictly. In TUCK v. PRIESTER, (1887) 19 QBD 629, which is followed in LONDON AND COUNTY COMMERCIAL PROPERTIES IN VESTMENTS v. ATT. GEN., (1953) 1 WLR 312, it is stated:
We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they arc not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive,
65. Blackburn J in WILLS v. THORP, (1875) LR 10 QB 383, said:
When the legislature imposes a penalty, the words imposing it must be clear and distinct.
66. In Craies on Statute Law (7th Edn at p 530) referring to U.S. v. WILTBERGER, (1820) 2 Wheat (US) 76, it is observed thus:
The distinction between a strict construction and a more free one has, no doubt, in modem times almost disappeared, and the questionnow is, what is the true construction of the statute? I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislature, and not in the judicial department, for it is the legislature, not the court, which is to define a crime and ordain its punishment.
67. On the own showing of the respondents, transportation and possession of the jaggery and alum is not an offence.
68. It is also well-known that there exists a principle against doubtful penalisation. In MOHD ALI KHAN AND ORS. v. THE C.W. TAX, NEW DELHI, : 2SCR658 , it is held:
It is a cardinal principle of construction that the words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest the contrary. It has been often held that 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. As a consequence a construction which requires for its support additional support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. Obviously the aforesaid rules of construction is subject to exceptions, just as it is not permissible to add words or to fill in a gap or lacuna. Similarly it is of universal application that effort should be made to give meaning to each and every word used by the legislature.
69. In P.K. UNNI v. NIRMALA INDUSTRIES AND ORS., : 1SCR483 , reference has been made to the decision of Denning, LJ., in SEAFORDCOURT ESTATES LTD v. ASHER, (1949) All. ER 155 at 164, wherein it was held:
'Where the language of the statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvious intention of the Legislature. In doing so 'a judge must not alter the material of which the Act is woven, but he can and should iron out the creases',
70. In GOODYEAR INDIA LTD AND ORS. v. STATE OF HARYANA AND ANR., , it is held: .It has always been said to be important to consider the mischief which the Act was apparently intended to remedy. The word mischief is traditional. ...In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supported to have intended to remedy by the Act.
71. Francis Bennion's Statutory Interpretation states that the principle of legal policy known as the principle against doubtful penalization, requires strict construction of penal enactments. Although often referred to as though limited to criminal statutes, the principle in fact extends to any form of detriment.
72. It is opined at Section 265: It is a principle of legal policy that a person should not be penalised except under clear law. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which penalises a person where the legislator's intention to do so is doubtful, or penalises him in a way which was not made clear.
73. One other aspect of the principle against doubtful penalisation is that by the exercise of State power the physical liberty of a person should not be interfered with except under clear authority of law.
74. We may usefully refer to Kenny's Outlines of Criminal Law at page 45 with respect to actus reus in statutory offences, which reads: In deciding what matter is prohibited by statute little difficulty need be found, since the ordinary rules of interpretation of statutes are of course, to be applied; it has been judicially laid down that a penal enactment is to be construed, like any other instrument, according to the fair common-sense 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 instrument.
75. When the law operating in the Field is clear, what is necessary for the Court is to find out is as to whether any offence has been committed. If not, the seizure and the first information report are to be quashed. For the purpose of ascertaining as to whether an offence has been made out or not, the golden rule of literal interpretation shall be adhered to. There is no scope, so far as penal statute is concerned, for exercise of interpretative role by the court as in case of doubt the same has to be construed in favour of the accused. Article 21 of the Constitution as interpreted by the apex court not only guarantees 'life but also liberty. The expression life' has been held to include within its purview right to live with dignity. Article 21 embraces within its fold human right and human dignity.
76. A person cannot be deprived of his liberty as also the right to property unless a law operates in the field. Such law must be clear and unambiguous. Such law must be given publicity so as to enable a person to know whether by reason of his carrying on business he is contravening the same. The court's jurisdiction of interpretation of a statute would arise provided the law is vague. Interpretative role of the court would vary from statute to statute and case to case. An interpretation which may be applicable in a case of beneficent legislation cannot be applied in a penal statute.
77. In Sutherland's Statutory Construction (Vol 2 at page 237) it is stated: 'In the case of criminal statutes the provisions are only strictly construed against the accused. They are liberally construed in his favour. [UNITED STATES v. NEW BEDFORD BRIDGE, Fed. Cas No. 15,867 (1847); MYERS v. STATE, 1 Conn. 502 (1816)]. This is a rather complicated way of saying the same thing - that when the individual faces the State in litigation, the courts will zealously protect the individual against the passions of the moment. They will make certain that a fair and conclusive case is made against the individual before the force of the State is applied to restrict his liberty. This desire to ensure a fair and conclusive trial is basic to our entire legal system; it does not justify, however, a restrictive interpretation of the objectives of the legislature. No presumption should apply in this case; the court should determine what the legislative intent was and follow it. If no clear legislative intent can be determined, then, and only then, should a restrictive interpretation be applied. But note that this procedure, though reaching the same result in many cases as the rule of penal and remedial construction is much more accurate. If the statute is first classified as penal and strictly construed from the start, the legislative intent may be wholly abrogated. [Note that the moderntendency is to avoid strict construction, particularly, if the result would be inconsistent with the legislative intent. [DONNELLEY v. UNITED STATES, 276US 505]'.
78. The more a particular construction is likely to damage a person's reputation, the stricter the interpretation a court is likely to give. Any conviction for a criminal offence imparts a stigma, even though an absolute discharge is given. If an offence carries a heavy penalty, the stigma will be correspondingly greater. (SWEET v. PARSLEY, 1970 AC 132 at 149). This is an important consideration in determining whether Parliament intended to require mens rea. [R v. PHEKOO, (1981) 1 WLR 1117].
79. In Section 286 of Bennion's it is stated: It is presumed to be the legislator's intention that the court when considering, in relation to the facts of the case, which of the opposing constructions of the enactment corresponds to its legal meaning, should assess the likely consequences of adopting each construction, both to the parties in the case and (where similar facts arise in future cases) for the law generally. If on balance the consequences of a particular construction are more likely to be adverse than beneficent this is a factor telling against that construction.
80. Lord Radcliff said 'it sometimes helps to assess the merits of a decision, if one starts by noticing its results and only after doing that allots to it the legal principles upon which it is said to depend [ICJ LTD v. SHATWELL, 1965 AC 656 at 675], Lord Radcliff went on to say that in the instant case he had begun by considering the consequences of the apparent meaning of the enactment, and found these disquieting. He went on:' I start then with the assumption that something must have gone wrong in the application of legal principles that produce such a result.
81. 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.
82. In the aforementioned backdrop the observations of one of us (Goda Raghuram, J) in referring the matter to the Full Bench may be noticed:
Having regard to the huge quantity of blade jaggery seized, having regard to the averments in the counter-affidavit filed in support of the vacale stay petition that the jaggery is meant for utilization in manufacture of illicit liquor, having regard to the confession statements allegedly recorded as evidence from the Panchanama and having regard to the 'notice on illicitly distilled liquor' prepared by the Government Chemical examiner which has been presented for perusal by this Court and which asserts a proximate linkage between black jaggery and ID liquor, I am of the considered view that the question whether mere transport of black jaggery is not prohibited per se by any of the provisions of the Excise Act and whether a citizen or a trader is at liberty to transport any quantity of black jaggery even if, it is potentially capable of or intended for, utilization in the manufacture of illicit liquor, is a question that needs to be considered afresh by a Division Bench of this Court.
Having regard to the earlier decisions of this Court referred to hereinabove and as I am prima facie of the view that potential public mischief might ensue if the State were to be held denuded of regulatory powers in this area and as a purposive and dynamic interpretative analysis may posit some measure of regulatory power in the State, despite the facial silence of the Legislation, in particular as Article 21 rights of the general populace may have to be balanced against the asserted Article 19 rights of the traders and manufacturers of black jaggery, I consider it appropriate to refer the matter to a Division Bench includingthis application for vacation of the interim orders. Conscious as I am of the hierarchical discipline which constrains me to follow the earlier rulings yet the potential public injury considerations constrain me to refer the matter to a Division Bench.
83. With great respect to the learned Judge I am of the view that facial silence of the legislation cannot clothe the courts with a jurisdiction, even, having regard to Article 21 of the Constitution, to construe a provision in such a manner which would not only be violative of Article 19 of the Constitution but also violative of Articles 20 and 21 thereof. It is the duty of the State Legislature to make a law to prevent public mischief if it considers necessary to do so. If a legislator is attempting to remove some evil and cannot plainly identify the target at which his statute is directed, it is obvious he will have difficulty in making his laws clear.
84. In The Morality of Law by Lon L. Fuller it is stated: The internal morality of the law demands that there be rules, that the, be made known, and that they be observed in practice by those charged with their administration. These demands may seem ethically neutral so far as the external aims of law are concerned. Yet, just as law is a precondition for good law, so acting by known rule is a precondition for any meaningful appraisal of the justice of law. A 'lawless unlimited power' expressing itself solely in unpredictable and patternless intervention in human affairs could be said to be unjust only in the sense that it does not act by known rule. It would be hard to call it unjust in any more specific sense until one discovered what hidden principle, if any, guided its interventions. It is the virtue of a legal order conscientiously constructed and administered that it exposes to public scrutiny the rules by which it acts. The right of a citizen of India from being unnecessarily harassed and prosecuted is itself right under Article 21 ofthe Constitution. The fundamental right of a person without any law operating in the field cannot be taken away. On the other hand, as noticed hereinbefore, this Court consistently has held that possession and transportation of jaggery is not an offence. The doctrine of stare decisis has to be invoked so as to avoid any other construction.
85. In DISTRICT MINING OFFICER v. TATA IRON AND STEEL CO., : (2001)7SCC358 , it was stated: .. The courts, however, are always warned that they are not entitled to usurp legislative function under the disguise of interpretation and that they must avoid the danger of determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted.
86. It is well known that causus omissus cannot be supplied by court. Gray in The Nature and Sources of the Law (2nd ed. 1921 pp 172-73) observed thus:
Interpretation is generally spoken of as if its chief function was to discover what the meaning of the Legislature really was. But when a Legislature has had a real intention, one way or another, on a point, it is not once in a hundred times that any doubt arises as to what its intention was ... The fact is that the difficulties of so-called interpretation arise when the Legislature has had no meaning at all; when the question which is raised on the statute never occurred to it ... (In such cases) when the judges are professing to declare what the Legislature meant, they are in truth, themselves legislating to fill up casus omissi.
87. If there is a missing proximate linkage between black jaggery and ID liquor, the chain cannot be made complete by supplying the link by judicial interpretation.
88. In DADI JAGANNADHAM v. JAMMULU RAMULU, 2001 AIR SCW 3051, the Apex Court held:
The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction, which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court could not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not here, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.
89. The quantity of a commodity is irrelevant. It is also not a case where a word has to be interpreted with a view to cover development in science and technology not known at the time of passing of the statute.
90. In M. NARAYANA v. STATE OF KERALA, : (1963)IILLJ660SC , reference has been made to a decision of the Judicial Committee in DYKE v. ELLIOTT, THE GAUNTLET, 1872-4 AC 184, wherein it has been held:
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 intended to be included and would have been included if thought of. On the other hand, the person charged has aright 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 withinthe spirit, there a penal enactment to be construed, like any other instrument, according to the fair common-sense 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 instrument.
91. In UNITED STATES v. WINN, 3 Sumn 209, Fed Case No. 16, 740, which was referred in JOHNSON v. SOUTHERN PACIFIC COMPANY, 196 US 1 : 49 Law Ed. 362, and KANWAR SINGH v. DELHI ADMINISTRATION, : 1SCR7 , it is held:
Penal statutes are not to be enlarged by implication or extended to cases not obviously within their words and purport. But where the words are general, and include various classes of persons, I know of no authority, which would justify the court in restricting them to one class, or in giving them the narrowest interpretation, where the mischief to be redressed by the statute is equally applicable to all of them. And where a word is used in a statute, which has various known significations, I know of no rule, that requires the court to adopt one in preference to another, simply because it is more restrained, if the objects of the statute equally apply to the largest and broadest sense of the word.
92. In any event, even assuming that black jaggery was being transported for the purpose of illegal distillation unless some rule applies, it cannot be said that there has been an attempt to commit an offence.
93. In MALKIAT SINGH V. STATE OF PUNJAB, : 1970CriLJ750 , the Apex Court observed:
It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for thecommission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit a crime he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is the question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it...
94. Crime is an offence committed by an individual in society. Offence thus must be provided for under a statute. Only because, the law is inadequate, the Courts would not invent a crime which is not there in the statute book.
95. In ISHA MARBLES v. BIHAR STATE ELECTRICITY BOARD, : 1SCR847 , it has been observed:
No doubt, dishonest consumers cannot be allowed to play truant with the public property but inadequacy of the law can hardly be a substitute for over-zealousness.
96. The same principle applies with more force in the matter of a crime.
97. The question which now arises for consideration is whether this Court in its jurisdiction under Article 226 of the Constitution can quash the seizure and the criminal proceedings.
98. For the purpose of invoking the jurisdiction of Article 226 of the Constitution of India and/or Sections 397 and 482 of the Code of Criminal Procedure, the allegations made in the first information report or the complaint may be perused. If on a perusal thereof, it is found that' the allegations made therein even if read in their entiretyand taken to be correct do not disclose a cognizable offence, the courts may quash the proceedings. In R.P. KAPUR v. STATE OF PUNJAB, : 1960CriLJ1239 , it was held:
It is well established that the inherent jurisdiction of the High court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High court to hold that it would be manifestly unjust to allow the process of thecriminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would, not be open to any party to invoke the High court's inherent jurisdiction and' contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High court under S.561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar (1), Jagal Ohandra Mozumdar v. Queen Empress (2), Shanker Singh v. The State of Punjab (3), Nripendra Bhusan Ray v. Govind Bandhu Majumdar (4 ) and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar (5).
99. In CHARANJIT SINGH CHADHA AND ORS. v. SUDHIR MEHRA, : 2001CriLJ4255 , the apex court noticing a large number of earlier decisions while dealing with a case of hire purchase matter, considered the effect of the Hire Purchase Act, 1972 vis-a-vis the rights and obligations of the parties thereunder and held that as in terms of the hire purchase agreement a vehicle can be taken possessionof in the event of default on the part of the hirer, no offence has been committed even if such vehicle is forcibly taken away from his custody. It held:
The hire purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the properly to him have been fulfilled. Therefore, the repossession of goods as per the term of the agreement may not amount to any criminal offence. The agreement specifically gave authority to the appellants to re-possess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire purchase agreement, the appellants have continued to be the owners of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. The learned single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants. We, therefore, allow this appeal and set aside the impugned judgment. The complaint and any other proceedings initiated pursuant to such complaint are quashed.
100. In DELHI DEVELOPMENT AUTHORITY v. LILA D. BHAGAT, : AIR1975SC495 , it was observed:
In an appropriate case it may be rather, is permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in exercise of the inherent or revisional powers of the High Court.
101. In RAKESH RANJAN GUPTA V. STATE OF U.P., : 1999CriLJ3484 , observed that the question as to whether in a case where cause of death has been disclosed, an investigation can be directed to be issued in a case involving Section 304A of I.P.C. and held:
The above allegations do not disclose prima facie, a case of rash or negligent act, on the part of the appellant so as to attract the penal provisions under Section 304A IPC, If there was delay on the part of the Doctor to attend on the patient that may be at the worst be a case of civil negligence and not one of culpable negligence falling under the above section. That apart, the cause of death has now been disclosed, from the report of the chemical Examiner, as one of consuming poison. The viscera examined in the chemical laboratory showed that result. It is nobody's case that the appellant has administered poison to the patient. It is now apparently clear that the death was not on account of anything which the appellant did to the patient. It was primarily due to the poison being consumed by the deceased. Therefore, by no stretch of imagination, can it be said that death of the deceased was caused by any act done by the appellant.
Admitted facts being thus, this is not a case to proceed against the appellant in criminal court for offence under section 304A, IPC. The charge sheet is liable to be quashed or else the appellant is likely to be subjected to unnecessary harassment for facing the criminal prosecution. We quash it without prejudice to the deceased to resort to any other action permissible under the law.
102. The Supreme Court has gone to the extent of saying in SUPDT. & REMEMBRANCER, W.B. v MOHAN SINGH, : 1975CriLJ812 , as under:
Section 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends, of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked.
103. The seizure or prosecution of a person, as noticed hereinbefore, without there being any law, is not only without jurisdiction, but the same would amount toabuse of the process of the Court. The impugned orders are therefore set aside and the writ petitions are allowed. No costs.
G. Raghuram, J.
1. I had thebenefit of the draft opinions of My Lord the Chief Justice and of my learned brother Justice Rao upon this complex question,pregnant with conflicts - between the greater weal of the people nay their very right to life and pursuit of a healthy existence on the one hand and the asserted rights of the manufacturers and traders of 'Black Jaggery', on the other.
2. The relevant statutory provisions, the adversarial positions as also the core facts have been set out in the erudite opinions of My Lords the Chief Justice and Justice Rao.
3. Section 34 of the Andhra Pradesh Excise Act 1968 (for short 'the 1968 Act') prescribes the penalties, inter alia for the use, keeping and having in possession any materials ..... whatsoever for the purpose of manufacturing any intoxicant, in contravention of the provisions of the 1968 Act or of any rule, notification or order, issued or passed thereunder or of any licence or permit granted or issued under the said Act.
4. The essential question that falls for consideration in these cases is as to whether the use, keeping of or having in possession 'Black Jaggery' constitutes a contravention of the provisions of the 1968 Act and is thus liable to the regulatory architecture of the Act.
5. The Prohibition and Excise administrators of the State contend that 'Black Jaggery' is a material exclusively used for the manufacture of Illicit Liquor (ID Liquor) and that it has no other purpose whatsoever; that ID Liquor is a toxic product consumed predominantly by the economically poorer sections and that large scale availability of the product and its consumption is productive of grave injury to health including blindness and often death, of the consuming public.
6. In determining whether the provisions of the 1968 Act include the material 'Black Jaggery' within its regulatory framework, it is of little consequence that this is a material with which the framers of the legislation may not have been familiar or were not conscious of this material's exclusive use for manufacture of an intoxicant.
7. For the setting up of an enduring regulatory framework the legislation undertook to carry out for the indefinite future and in all vicissitudes of the changing affairs of the society those fundamental purposes, which the Act itself discloses. It is thus the duty of this court to consider the litera scripta with a view to discover and act upon the sententia legis. The words of a statute are not static. They are subject to constant revision with the changing course of events and must be understood as the revelation of the great social purposes which were intended to be achieved by the Act, in this case as a continuing instrument for regulation of a product and its trade that is conceived to be res extra commercium. We cannot possibly prefer, of the possible meaning of its words, that which will defeat rather than effectuate the legislative purposes of the 1968 Act.
8. None of the users, keepers, possessors, traders or transporters of 'Black Jaggery' and none of the subjects of the search and seizure of this commodity are seen to assert with any degree of verisimilitude that 'Black Jaggery' is used, kept possessed, traded or transported for any other legitimate purpose or even that this material has potentially any other non-pejorative utility.
9. It is in this environment that this court is called upon by the petitioners, to hold that the facial silence of the 1968 Act in specifically prohibiting 'Black Jaggery' must of necessity posit the inference that it is beyond the regulatory pale of the law.
10. Constitutional and statutory prescriptions rarely have a linear or singular signification; value pregnant areas of these instruments rarely still. Interpretive dialectics have undergone a paradigmatic shift. The original intent of the legislation has hitherto been the beacon for the interpreter. This has in abundant measure given place to identification of the contemporaneous content of the legislation. The accelerating pace of change of societies and the dynamics of its activities, obligate the modern interpreter of legislative instruments to a heuristic analysis - the identification of the current meaning of the legislative phraseology.
11. Justice Holmes expressed this view in his incomparable prose in Missouri vs Holland, 252 US 416 (433) :
'When we are dealing with words that also are a constituent act, like the Constitution ofthe United States, we must realize that they have called into life a being the development of which could not have been foreseen complelely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism, it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.'
12. Justice Frankfurter elucidated the interpretive role in 'Some Reflections on the Reading of Statues'':
'There are varying shades of compulsion for judges behind different words, differences that are due to the words themselves, their setting in a text, their setting in history. In short, judges are not unfettered glossators. They are under a special duty not to overemphasize the episodic aspects of life and not to undervalue its organic processes -its continuities and relationships.'
13. Statutory prescriptions, of a regulatory character or those enunciatingvalue pregnant social ideals, are Intentionally incomplete and often deliberately indeterminate, intended for the participatory evolution of emerging social complexities:
'In the interpretation of a Constitutional document words are but the framework of concepts and concepts may change more than the words themselves. The significance of the change of concepts themselves is vital and constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the lines of their growth.' - Venkatachalaiah, J in R.C. Poudyal vs Union of India, AIR 1983 SC 1804.
14. What has been said of Constitutional interpretation is equally validfor interpretation of Statutes.
'Legislative standards are couched in general terms purposefully designed to embrace circumstances unforeseen at the time of enactment ..... Since Legislation is addressed to the future, information about contemporaneous and post enactment facts and developments is relevant to a determination of legislative intent because legislature must have contemplated the interaction of the new law with such facts and developments even though it could not foresee their precise character Contemporaneous and practical construction involves judgment and responses of adminisirative authorities, enforcement officials, and others closely involved in the ongoing operation of a statute.'-- Sutherland - Statutory Construction Seventh Edition Vol.2B-49.01.
15. Bennion states the principle of statutory presumption that updating construction be given to statutes, thus:
'Each generation lives under the law it inherits. Constant formal updating is not practicable, so an Act takes on a life of its own. What the original framers intended sinks gradually into history. While their language may endure as law, its current subjects are likely to find that law more andmore ill-fitting. The intention of the originators, collected from an Act's legislative history, necessarily becomes less relevant as time rolls by. Yet their words remain law. Viewed like this, the ongoing Act resembles a vessel launched on some one-way voyage from the old world to the new. The vessel is not going to return, nor are its passengers. Having only what they set out with, they cope as best they can. On arrival in the present, they deploy their native endowments, under conditions originally unguessed at.
In construing an ongoing Act, the interpreter is to presume that Parliament intends the Act to be applied at any future time in such a way as to give effect to the true, original intention. Accordingly the interpreter is to make allowances for any relevant changes that have occurred, since the Acts passing, in law, social, conditions, technology, the meaning of words and other matters.' - Francis Bennion Statutory Interpretation - 2nd Edition p 618.
16. It is trite that a Judge too is a legislator who uses the law's inevitable ambiguities to promote justice. Legislation is the organised civil society's structured response to perceived social demands. Regulatory legislation targets deviant behaviour of some members of the social composite, behaviour that is perceived to subvert the equilibrium of the society. Some identified factors that upset the equilibrium may be specified in the legislation. The legislation may also, in recognition of the dynamics of the society, the technological and other advances perceived at the time of the enactment, including the creative propensities of depredators and their potential to discover, explore or create novel means to disturb the social harmony, bring within the expressed regulatory frame work such evolving mischief too, by employing broad terms definitional or substantive. If the legislation has set for itself a broad regulatory charter, specifying the core and including a dynamic penumbra, the judicial branchought not to subvert the charter by a pedantic or a lexicographic analysis. If a construction of the broad legislative terms, on accepted interpretive principles, permits the regulatory architecture of the Act to encompass and regulate current versions of the mischief which the Act is intended to curb, the legislation must be permitted the full sway of its amplitudinous reach.
17. From the lofty ramparts of Part III of the Constitution, Article 21 guarantees that no person shall be deprived of his life except in accordance with the procedure established by law. This guarantee is not a creation of the Constitution. It is the recognition in our founding document of the inalienable and transcendent norm of every civilised society. This guarantee is not dependent on any transient choice expressed in a majoritarian instrument nor needs sustenance by a legislative edict. The guarantee is not a guarantee against mere State action. It is a guarantee against the whole of the society and every member of it is a guarantee that encompasses manufacturers of products that inexorably and tortuously choke a consumer of the product, to excruciating death or physical disability. This is the broad charter of Art 21 itself and of the 1968 Act too in so far as intoxicants are concerned.
18. In none of the writ petitions the purpose for which 'Black Jaggery' is being transported, stored or possessed is stated. The only challenge is on the ground that 'Black Jaggery' is not a prohibited commodity under the provisions of the 1968 Act On the other hand the State asserts that this commodity is only used for manufacture of ID Liquor. Relying upon a technical note prepared by the Chemical Examiner of the Department of Prohibition & Excise, the State also asserts that the 'Black Jaggery' is unfit for human consumption and has no other legitimate or established use other than for themanufacture of ID Liquor. The State clearly asserts that 'Black Jaggery' is possessed, transported and used exclusively for manufacture of ID Liquor and that such unscientifically manufactured intoxicant contains many impurities and highly toxic ingredients, which clearly result in premature death and serious health hazards. It is also stated that this pernicious substance (ID Liquor) is consumed only by economically poor and downtrodden sections of the population.
Analysis of the provisions of the 1968
19. I shall now analyse the relevant provisions of the 1968 Act 4 on a dynamic interpretive platform whose contours are culled out from the principles emanating from the informed doctrines set out in the preceding paras.
20. Section 13 of the 1968 Act prohibits, except under a licence, any person from using, keeping or having in his possession, inter alia, 'any materials' whatsoever for the purpose of manufacturing any intoxicant other than toddy except under the authority and subject to the terms and conditions of a licence granted by such officer, not below the rank of an Excise Superintendent, as may be prescribed.
21. Section 34 of the 1968 Act, sets out the penalties for contravention of the provisions of the 1968 Act or of any rules, notification or order made, issued or passed or of any licence or permit granted or issued thereunder. This provision extends the penalties to the user, keeper or possessor of any materials whatsoever for the purpose of manufacturing any intoxicant other than toddy. We are not concerned with the spectrum of penalties specified. That is not in issue.
22. In its generic connotation 'material' may, in the context, mean - relating to orconsisting of matter corporeal; physical; substance or substances or parts, goods, stock, or the like of which anything is composed or may be made; the apparatus of implements necessary for doing of anything.
23. This broad term statutoryprescription, in the generic amplitude expressed coupled with the expression 'whatsoever' would certainly include 'Black Jaggery'. Of this there can be no doubt. The question is whether 'Black Jaggery' is material for the purpose of manufacturing an intoxicant That illicit distilled liquor is an intoxicant, is also not in dispute.
24. What appears to be in issue however, is the identification of the material expressed to be 'Black Jaggery'. Is it jaggery otherwise fit for human consumption but black in colour; is it jaggery that is black in colour and though not fit for human consumption is fit for use in other lawful areas excluding or including manufacture of an intoxicant or is it a material having no other use except in the manufacture of unscientifically distilled liquor?
25. Having regard to the penal consequences of contravention of the provisions of the 1968 Act, the provisions of Section 13 must receive a restrictive interpretation. The expressions broad, liberal and purposive or narrow, strict and constricted are adjectival expressions as imprecise as the Chancellors Foot. Each of these expressions, encompasses a spectrum of interpretive positions. A balance has to be struck between the rights and liberties of the manufacturers and traders and the equally cherished rights, to life and healthy existence of the general populace.
26. Consistent with the aforesaid need, to the balancing of competing interests,it requires to be held that the prescriptions in Section 13 of the 1968 Act target a person who, without a licence, uses, keeps or has in his possession any material whatsoever that could be used for the manufacture of an intoxicant, other than toddy, only when such material is proved to have no other purpose except for such potential manufacture. If such restricted meaning were not to be implicated into the silences of Section 13, any material that is also capable of being used for the manufacture of an intoxicant would come within the ambit of the regulatory framework of the Statute. Water, barely, wheat, grapes, other fruit, rice and a whole lot of commodities and material would otherwise, be fair game for the investigative and inquisitorial prerogatives under the Act. The public mischief of the Act would then outweigh its socially redeeming underpinnings.
27. Even this processed interpretation may be productive of substantive inconvenience to the manufacturers, traders and dealers of 'Black Jaggery' as it is only on analysis of a specific sample of the material that the conclusion is possible that it is ''Black Jaggery'' that has no other use except potentially for manufacture of an intoxicant But in my considered view this is not a disproportionate burden on the manufacturers or traders of 'Black Jaggery' that outweighs the dear and present danger of leaving this material totally unregulated.
28. The rigour of the burdens could however be substantially mitigated by directing the executive to forthwith engender a specific regulatory framework to define and specify, in precise terms, the character and composition of the material 'Black Jaggery' that could be used only for the purpose of manufacturing any intoxicant. Such regulatory framework should contain substantive and procedural prescription for analysis of the 'Black Jaggery' seized:specify the authority or agency to conduct the analysis and submit a report of such analysis within a fixed time frame and may further specify that on the failure of determination that the seized material is the prohibited 'Black Jaggery', the seized material is liable to be returned and the case closed. Prescription of such ameliorative procedures would go a long way in mitigating the harshness of the regulatory regime and would also inform the manufacturers and traders as to what constitutes 'Black Jaggery' within the meaning of the 1968 Act, so as to enable them to steer dear of commerce in this material.
29. A direction of the above nature is now well within the ambit and province of the judicial branch. In many areas of core constitutional values the Superior Courts have issued guidelines, directions or enunciated schemes liable to be characterised, in a classical judicial era, as trenching upon the powers of the Legislative or the Executive branch. To recall a few instances: Guidelines to condemn the menace of ragging in educational institutions - Vishwa Jagriti Mission v. Central Government, : 3SCR540 ; Expansion of the right to life and personal liberty under Article 21 of the Constitution by implicating:
(i) Right to travel - Maneka Gandhi v. Union of India, : 2SCR621
Satwant Singh v. A.P.O., New Delhi, : 3SCR525 .
(ii) Right to privacy - Kharak Singh v. State of U.P., : 1963CriLJ329
(iii) Right to speedy trial - Common Cause, a Registered Society v. Union of India, AIR 1997 S.C 1538
(iv) Right of prisoners to interview -Prabha Dutt v. Union of India, : 1982CriLJ148
(v) Right to a fair trial - Police Commissioner, Delhi v. Registrar, Delhi High Court, : 1997CriLJ90
(vi) Right against torture and custodial violence - D.K. Basu v. State of West Bengal, : 1997CriLJ3525
(vii) Right to free legal aid - State of Maharastra v. M.P. Vashi, : AIR1996SC1
(viii) Right to education - Mohini Jain v. State of Karnataka, : 3SCR658 ; Unnikrishnan v. State of A.P., : 1SCR594 .
(ix) Right to health and medical care -CERC v. Union of India, : (1995)IILLJ768SC , State of Punjab v. M.S. Chawla, : AIR1997SC1225
(x) Right to pollution-free environment -M.C. Mehta v. Union of India, : 1SCR312
(xi) Right to Safe drinking water - APPCB v. M.V. Naidu, AIR 1999 SC 822
(xii) Sexual harassment of working women -- Visakha v. State of Rajasthan, : AIR1997SC3011 , AEPC v. A.K. Chopra, : (1999)ILLJ962SC .
30. Dynamic and creative interpretive doctrines have often been recoursed to reconstruct the relationships between the three branches of the State, on a perception of the fundamental values of the Constitution. Expression 'posts' in any civil service of the State ..... the Civil Posts under the State occurring in Clause (3) of Article 371D has been interpreted as excluding services falling under Chapters V and VI (part IV) of the Constitution - Chief Justice of A.P. v. Dixitulu, : 1SCR26 . The expression 'consultation' occurring in Articles 124 and 217 has been interpreted as involving primacy to the opinion of the cunsultee -Supreme Court Advocates-on-RecordAssociation v. Union of India, : AIR1994SC268 . Service conditions of Members of Judicial service have been prescribed by dicta of the Judicial Branch including in the areas of provision of accommodation, library and enhancement of age of superannuation
-- All India Judges Association and Ors. v. Union of India and Ors., : (1993)IILLJ776SC .
31. On the analysis above 1 hold that 'Black Jaggery' which has no other legitimate, established or demonstrable purpose and utility except for the manufacture of an intoxicant, is comprehended within the meaning of the expression 'materials' in Section I3(f) and as such is susceptible to the regulatory framework and to the penalties set out in the 1968 Act including Section 34 thereunder.
32. As potential hardship and grave inconvenience would ensue in the absence of a clear prescription as to what constitutes 'Black Jaggery' within the meaning of the 1968 Act, the State Government is directed to prescribe, by an appropriate instrument, the description, character and composition of 'Black Jaggery' that would have no other use except for the manufacture of an intoxicant; prescribe procedures for prompt and speedy analysis of 'Black Jaggery' seized, duly specifying the authority or agency for conduct of such analysis; prescribe the time frame within which the report of such an analysis should be submitted to the regulatory agency and shall further specify that on such report recording that the commodity seized is not 'Black Jaggery' within the meaning of the 1968 Act as interpreted by this court above, the seized material and the vehicles carrying the same shall be released forthwith and further proceedings dropped.
33. As 'Black Jaggery' in general may include 'Black Jaggery' within the meaning of the 1968 Act and as the question is whether a specific sample of Black Jaggery includes 'Black Jaggery' as comprehended within the meaning of the 1968 Act and as this identification is possible only after the analysis of the sample, I hold that the satisfaction of the regulatory agency/authority under the Act that a specific material is 'Black Jaggery' within the meaning of this Act, would justify the seizure thereof for the purpose of further proceedings, which shall of course, be subject to the result of the analysis.
34. Subject to the reasons and directions above, I am in agreement with the conclusions recorded by my learned brother Justice Rao in these writ petitions and I record with regret my inability to concur with the conclusions of My Lord the Chief Justice. The Writ Petitions are dismissed. No order as to costs.
V.V.S. Rao, J.
1. These three Writ Petitions raise common question for consideration and therefore it is convenient to dispose of them by a common judgment. W.P.N0.3S4 of 2001 is filed by five persons. The fifth petitioner is the owner of lorry bearing No. ABT 5508 and petitioners 2 to 4 are either drivers or drivers' clerks. They prayed for a declaration that the action of the respondents in seizing the lorry bearing No. ABT 5508 and jaggery of 10176 Kgs on 13.1.2001 under Crime No. 417/2000-2001 is illegal and arbitrary and for a further direction to set aside the same. W.P.No. 19706 of 2000 is filed by M/s. Ganesh Traders, Dharmapuri, seeking a declaration that the action of the respondents in preventing the petitioner from carrying on business in all varieties of jaggery and alum, including transporting of the same is illegal, void ab initio and for a further direction to the respondents not to interfere with day to day business of the petitioner at the business premises House No. 15-33, Dharmapuri. The Other Writ Petition being W.P.No. 22705 of 2000 is filed seeking a Writ of Certiorari to quash the proceedings in P.R.No. 247 of 2000-2001 dt.28.9.2000 of Excise Station, Metpally pending on the file of Judicial Magistrate of First Class, Metpally and declare the seizure of jaggery of 44.10 quintals is illegal and void.
FACTUAL CONTEXTS PLEADINGS:
2. The factual matrix leading to filing of these cases is simple. All the petitioners in W.P.N0.354 of 2001 are accused in Crime No. 417/2000-2001 of Excise Station, Bhongir. The fifth petitioner in W.P.No. 354 of 2001 is owner of lorry bearing No. ABT 5508. On 13.1.2001 the said lorry was engaged by the second petitioner for transporting black jaggery to be delivered at Bhongiri and Suryapet Mandals upon the orders of some merchants. The respondents, namely, the Inspector and the Sub-inspectorof Excise Department, Bhongiri seized the vehicle and registered a crime being Crime No. 417/2000-2001 under Sections 34(e) and 34(a) of A.P. Excise Act, 1968 ('the Excise Act' for brevity). It was alleged therein that black jaggery is being transported for the purpose of manufacturing illicitly distilled intoxicating liquor (ID liquor). The petitioners contend that there is no prohibition for sate of jaggery nor there is restriction on transportation of the jaggery, that no permit or licence is required to deal with jaggery and as such the seizure of the jaggery is illegal and arbitrary. The very registration of case under Sections 34(e) and 34(a) is arbitrary and unauthorized. The lorry was also seized and petitioners 1 to 4 were arrested on 13.1.2001. Challenging the same the Writ Petition is filed.
3. In W.P.No. 19706 of 2000 the petitioner claims to be a Kirana and General Merchant of Dharmapuri. He alleged that he is selling jaggery and alum to the needy persons in and around the village for last ten years. He alleges that in September, 2000 respondents 7 and 9, the Inspector and the Sub-Inspector of Excise Department, Karimnagar, visited the shop of the petitioner and threatened him not to sell jaggery and alum. Therefore, he apprehends that the respondents might prevent him from carrying on business. Admittedly, no seizure has been 'made but the petitioner submits that the respondents are preventing him from carrying on business in all varieties of jaggery and alum.
4. The petitioner in W.P.No. 22705 of2000 is an accused in P.R.No. 247 of 2000-2001 on the file of the Court of the Judicial Magistrate of First Class, Metpally. It is his case that he is running kirana business selling all items including jaggery. On 27.9.2000 he purchased 83.70 quintals of jaggery from M/s. Vindya Trading Company, Nizamabad and carried the same in the lorry on the same day. By 4.00 p.m.on 28.9.2000 he sold 39.60 quintals and a balance of 44.10 quintals remained in the shop. At that time, the mobile task force staff of Excise Department along with the Inspector and the Sub-Inspector of Excise Department. Karimnagar, raided the petitioner's shop and seized 441 jaggery lumps weighing 44.10 quintals and registered a case being P.R.No. 247 of 2000-2001 under Sections 34(2), 41 and 50 of the Excise Act.
5. In all the cases, the concerned Inspector has filed counter-affidavits. We, however, need to refer counter-affidavit filed in W.P.No- 354 of 2001 to notice the defence of the Government. The Government has imposed a ban on sale of arrack (country liquor including arrack) with effect from 1.10.1993. As per Section 7 clause (a) of A. P. Prohibition Act, 1995 ('the Prohibition Act' for brevity) production, manufacture, storage, possession, collection, purchase, sale and transport of arrack is prohibited. Black jaggery is raw material, which is used for manufacture of ID liquor. Under Section 34(e) of the Excise Act whoever in contravention of provisions of the Excise Act, Rules, Notifications, orders made thereunder, keeps or has in possession of 'materials for the purpose of manufacture of intoxicants' other than toddy is liable for punishment with imprisonment which shall not be less than six months, but which may extend to one year and with fine which may extend to Rs. 10,000/-. The Commissioner of Prohibition and Excise issued a Circular bearing C.R. No. 3095/95/ DPE/B3/14-7-95 laying guidelines to take appropriate action in seizing black jaggery if there is reason to believe that the said material is intended to be used for manufacture of ID liquor. The said circular was issued keeping in view the Memo issued by the Government dt.22.6,1995. The High Court also in its judgment dt.26.12.1995 in W.P.No. 29074 of 1995 directed the authorities to take appropriate action ifthe Department has any evidence that the jaggery is used for illicit distillation. In accordance with the judgment, the Commissioner issued another Circular dt-25.1.1997 directing the subordinate officers to book cases where it is found that the jaggery sales are intended for manufacture of illicit distillations. The Director of Prohibition and Excise (Enforcement) also issued a circular dt. 6.10.2000 to all the Excise Superintendents and Assistant Commissioners to identify merchants who are dealing with black jaggery which is used in illicit distillation and submit reports fortnightly. Therefore, various Government instructions issued in the light of the judgment of the High Court in W.P.No. 29074 of 1995 were taken into consideration while seizing the lorry and the black jaggery of the petitioners.
6. On 13.1.2001 the respondents conducted a route watch at Turkapalli X Roads and intercepted the lorry while transporting 10,176 Kgs of black jaggery. On examination of first petitioner it was found that black jaggery is being transported from Kamareddy of Nizamabad District to the villages of Suryapet, Tirumalagiri and Tungaturthi in Nalgonda District for manufacturing ID liquor. Therefore, the said lorry was seized along with 10,176 kgs of black jaggery. A case under Sections 34(a) and 34(e) of the Excise Act being P.C.R.NO. 417/2000-2001 was duly registered. The petitioners also admitted that they purchased black jaggery at the rate of Rs.7/- per Kg without any permit and selling the same at the rate of Rs. 11 to 12/-to persons who manufacture ID liquor in various villages of Suryapet, Tirumalagiri and Tungaturthi. In view of this, there is clear contravention of Sections 34(e) and 34(a) of the Excise Act and therefore the seizure was effected.
7. In the counter-affidavit filed in W.P.No. 19706 of 2000 it is stated that theInspector and the Sub-Inspector, respondents 6 and 8, neither interfered with the business of the petitioner nor prevented him from carrying on business. At the allegations are denied.
8. In the counter-affidavit filed in W.P.No. 22705 of 2000 it is stated that on one day the petitioner sold 39.60 quintals of jaggery and failed to give the list of customers who purchased jaggery. The very indiscriminate selling of black jaggery without maintaining account leads to reasonable suspicion that the petitioner is encouraging manufacture of ID liquor in the surrounding villages. Jaggery samples seized from the petitioner were analysed by Government chemical examiner who by report No-631/2000 dt. 6.11.2000, opined that black jaggery seized is not fit for human consumption and that it is fit for fermentation for producing alcohol. The petitioner was in possession of the material intended for manufacture of intoxicants and therefore is liable for punishment under Section 34(e) of the Excise Act.
SUBMISSIONS OF THE LEARNED COUNSEL:
9. The learned counsel for the petitioners Sri A.Prabhakar Rao and Sri M.A. Bhari submit that there is no law prohibiting sale or transportation of jaggery. There is also no law regulating production, manufacturing and sale of black jaggery and therefore the action of the respondents in seizing black jaggery on mere surmises and assumptions that it may be used for manufacturing intoxicants is impermissible and violates Article 20(1) of the Constitution of India.
10. On the other hand, Sri G. Chandraiah, learned Government Pleader placed reliance on various provisions of the Excise Act, Prohibition Act and various Government orders issued from time to time by the Government of Andhra Pradeshas well as Commissioner of Excise and submits that black jaggery is 'a material which is fit for fermentation of alcohol' and not fit for human consumption and therefore department officials seized the lorry as well as black jaggery wherever there are pointing circumstances and wherever there is suspicion that black jaggery might be used for manufacture of ID liquor and therefore the seizure in the two writ petitions is not illegal. He also submits that W.P.No. 19706 of 2000 is filed on mere apprehension. The excise officials have never prevented the petitioner from carrying on business and that a general direction as prayed for is impermissible under law.
ISSUE FOR CONSIDERATION:
11. In the light of the rival submissions, the question that arises for consideration by this Full Bench is whether it is not permissible to seize black jaggery and the vehicles carrying black jaggery when the same is for manufacture of ID liquor.
12. In W.P.No. 354 of 2001 the second respondent, Sub-Inspector of Prohibition & Excise, Bhongiri registered a crime being Crime No. 417/2000-2001 on 13.1.2001 at 10.45 a.m. The F.I.R. reads as under :
On 13.1.2001, received a reliable information regarding illegal transportation of black jaggery. The Sub-Divisional Task Force of Bhongir Division have conducted the route watch at Thurkapally Cross Road of Thurkapally Mandal on 13.1.2001 and intercepted the Ashok Leyland Lorry bearing No.ABT 5508 while transporting (636) black jaggery bags each about (16) kgs, total (10,176) kgs of black jaggery (raw material). On interrogation the accused have disclosed that they are transporting the above black jaggery from Kamareddy to the places of Suryapet, Thungathoorthy and Tirumalagiri of Nalgonda Dist. For the purpose of sale to persons who are manufacturing the ID liquor. The officers have drawn two samples from the abovestock and seized the samples and the above lorry under cover of panchanama and arrested the above (4) accused. The above (4) accused persons are sending for judicial remand for a period of (15) days.
13. On 13.1.2001 the second respondent conducted a panchanama, took the samples, sent the accused to remand and seized the lorry as well as materials. Panchanama was conducted in the presence of Sri Yerra Satyanarayana and Sri Koru Yadagiri. The Panchanama discloses the following state of affairs at the time of seizure.
On questioning the lorry driver by name Khalid has stated that last two months back he purchased the above lorry second person Kondal Rao and third person Mahender Reddy have financed the amount to purchase the jaggery at Kamareddy to transport the same to Suryapet, Thungaturti and Tirumalagiri of Nizamabad District for selling to the persons who are manufacturing the illicitly distilled liquor. Remaining three persons are accepted the facts stated by the lorry driver Mohd. Khalid. Further, the above four persons have stated that they have purchased the above jaggery at the rate of Rs. 7/- per kg. in Kamareddy and they are going to sell the same at the rate of Rs. 11/- to Rs. 12/- per kg to (he persons who are manufacturing the I.D. Liquor. The Officer and ourselves find out that the jaggery is mixed with sand and it is not (it for human consumption. The officer has stated that without having any valid documents the transportation of black jaggery which can be used in manufacturing of I.D. Liquor is an offence.
14. Petitioners 1, 2, 3 and 4 herein gave a statement before the task force officials, which is as under :
We, the above persons giving statement that we the first person is Driver-cum-owner of Ashok Leyland Lorry. 4th person is cleaner of the vehicle and 2nd and 3rd persons are financiers. We all are felt to earn money by easy way and bought 636 bags of black jaggery each about 16 kgs totally 10,176 kgs at the rate of Rs. 7/- per kg at Kamareddy to Nizamabad without any permit and transporting the same to sell the same at the rate of Rs. 11/- to Rs. 12/- per kg to the persons who are manufacturing the illicitly distilled liquor at Suryapet, Tirumalagiri and Thungaturthi of Nalgonda District and we decided to share the profit equally. This jaggery consists of sand and ask and it is not fit for human consumption and cattle feed. We four of us combinedly admitting the truth wilfully without any coercion and made the statement.
l.Sd/- Md. Khalid; 2. Sd/-V. Kondal Rao; 3. Sd/- Mahender Reddy; 4.LTI of Sher Khan Mohd.
15. It is interesting to note that the affidavit accompanying the Writ Petition was filed by one Ch. Laxmaiah, a resident of Bhongiri and who is neither the person arrested nor the owner of the lorry. Later on, additional affidavit deposed by the second petitioner was filed stating that he, his brother and his father jointly own an extent of Ac. 5.00 guntas in S.Nos. 236, 241/ AA, 242, 260, 318/A and 541/AA of Kanchanapally village of Koudipally Mandat in Medak District, that they raised sugarcane in the above said lands, that they prepared jaggery by crushing sugarcane and that while transporting 636 pieces of black jaggery weighing 10176 kgs which is agricultural produce to sell the same to jaggery merchants in Bhongiri and Suryapet of Nalgonda Districts, the lorry was seized by the respondents together with jaggery on the allegation that he is transporting jaggery for the purpose of manufacturing ID liquor. The averments in the additional affidavit are improvement over the original sworn statement made in the affidavit accompanying Writ Petition. Be that as it may, the tact remains that a F.I.R. has been registered by the respondents being Crime No. 417/2000-2001 on 13.1.2001 and this Writ Petition was filed on 16.1.2001 praying for a declaration that registration of crimeand seizing the vehicle and jaggery is illegal and arbitrary.
16. In WP.No. 22705 of 2000 mobile task force staff along with Inspector and Sub-Inspector of Excise went to petitioner's shop and seized 441 lumps of jaggery weighing 44.10 quintals and registered a crime being P.R.No. 247/2000-2001 under Section 34(2), 50 and 41 of the Excise Act. The F.I.R. is as follows:
On 28.9.2000 the Mobile Task Force Staff, Karimnagar conducted search of Ms. Sri Balaji Trading Company at Metpalli. During the search found (441) lumps of black jaggery in the shop. Each lump is of 10 Kgs. Total quantity of black jaggery in the shop is 4410 kgs. Udulhula Raja Gangarain owner of the shop is present in the shop. The dealer failed to produce accounts books and list of retail purchasers. The raid party has come to conclusion that the dealer has kept the black jaggery for sale to I.D. manufacturers. The officers conducted panchanama and seized the contraband and drawn sample for chemical analysis. On receipt of case papers and the accused in the station registered the case. Original panchanama and remand report for judicial remand.
17. The petitioner filed the Writ Petition on 21.11.2000 praying for a Writ of Certiorari to quash the proceedings beingP.R.N0. 247 of 2000-2001 dated 28.9.2000 of Excise Station, Metpally.
18. In both the Writ Petitions the competent authority under the Excise Act has seized the black jaggery on the ground that the petitioners have kept or have in their possession black jaggery, a material used for the purpose of manufacturing I.D. Liquor. Even before the investigation could be completed and proper charge-sheet filed before the criminal court the petitioners have approached this Court. This Court in W.P.M.P.No. 408 of 2001 in W.P.No. 354 of 2001 has passed interim orders on 17.1.2001 directing release of vehicle. The Government filed W.V.M.P.No. 361 of 2001 in W.P.No. 354 of 2001 praying this Court to vacate the interim order.
REFERENCE TO FULL BENCH:
19. The petitioners plated reliance on judgments of learned Single Judges of this Court in W.P. No. 26983 of 1998 dt. 12.10.1998 and judgment dt. 23.7.1997 in Crl.P.No. 3137 of 1998 in support of their contention that in the absence of any Legislative prohibition transport of jaggery simpliciter is not illegal. The learned Judge (Goda Raghuram, J) having noticed the statement of the petitioners in W.P.No. 354 of 200] thought it fit to refer the matter to a Division Bench. The observations of the learned Single Judge in the reference order are as follows :
Having regard to the huge quantity of black jaggery seized, having regard to the averments in the counter-affidavit filed in support of the vacate stay petition that the jaggery is meant for utilization in manufacture of illicit liquor, having regard to the confession statements allegedly recorded as evident from the Panchanama and having regard to the 'notice on illicitly distilled liquor prepared by the Government Chemical Examiner which has been presented for perusal by this Court and which asserts a proximate linkage between black jaggery and ID liquor, I am of the considered view that the question whether mere transport of black jaggery is not prohibited per se by any of the provisions of the Excise Act and whether a citizen or a trader is at liberty to transport any quantity of black jaggery even if, it is potentially capable of or intended for, utilization in the manufacture of illicit liquor, is a question that needs to be considered afresh by a Division Bench of this Court.
Having regard to the earlier decisions of this Court referred to hereinabove and as I am prima facie of the view that potential public mischief might ensue if the State were to be held denuded of regulatory powers in this area and as a purposive and dynamic interpretive analysis may posit some measure of regulatory power in the State, despite the facial silence of the Legislation, in particular as Article 21 rights of the general populace may have to be balanced against the asserted Article 19 rights of the traders and manufacturers of black jaggery, I consider it appropriate to refer the matter to a Division Bench including this application for vacation of the interim orders. Conscious as I am of the hierarchical discipline which constrains me to follow the earlier rulings yet the potential public injury considerations constrain me to refer the matter to a Division Bench.
20. In view of the importance of question raised in these cases, the Hon'ble the Chief Justice referred the matter to the Full Bench.
21. In the facts and circumstances of the case we need to address the question whether 'possession of materials for manufacture of intoxicants is not an offence in accordance with the provisions of the Act.' Two supplemental questions would also arise that whether in the facts and circumstances of the case the excise officials are justified in seizing the lorry and/or black jaggery from the concerned petitioners and whether in these petitions under Article 226 of the Constitution of India this Court can declare that the excise officials cannot seize black jaggery and/or vehicles transporting black jaggery in any situation and in all circumstances.
EXCISE AND PROHIBITION LAWS IN ANDHRA PRADESH:
22. Before 1968 there were different statutes dealing with 'abkari' and 'intoxicating substances' in two different regions of the State which merged in 1956 to form State of Andhra Pradesh. In 1968 so as to consolidate the law relating to production, manufacture, possession,transport, purchase and sale of intoxicant liquors and drugs, the levy of duties of excise and countervailing duties on alcohol liquors for human consumption, the State Legislature enacted A.P. Excise Act, 1968. Chapter IV contains provisions, which deal with manufacture, possession and sale of excisable articles and intoxicating liquors and substances. Chapter VII of the Act provides for offences and penalties. The provisions for detection, investigation and trial of offences under the Act are contained in Chapter VIII of the Act. Before we extract two important related provisions for the purpose of these cases, we may notice the powers and functions of excise officials for detection, investigation and trial of offences.
23. Under Section 51 of the Act landlords of land and building, Sarpanchs and all officers are bound to give notice to Magistrate or officers of excise, police or revenue department wherever any intoxicant is manufactured or collected or any excise tree is tapped or any hemp plant is cultivated. All excise officials are also bound to give information to superior officer of breaches of any provisions of the Act. Under Section 52 of the Act, the Commissioner, Collector or any Excise Officer or any Police Officer may enter and examine the accounts and registers, and examine test, measure or weigh any 'materials, stills, utensils, implements, apparatus or intoxicant found in any place in which anyone manufactures or stores any intoxicants.'
24. As per dictionary clause - the word manufacture as per clause (22) of Section 2 of the Excise Act, includes every process, whether natural or artificial, by which any fermented spirituous or intoxicating liquor or intoxicating drug is produced, prepared or blended and also redistillation and every process for rectification of liquor. Section 53 empowers officers to arrest without warrant any person for offencepunishable under Sections 27, 34, 35, 36, 37, 37-A. 40-A, 50 or 50-A and 'seize any excisable or other article which he has reason to believe to be used for intoxication under the Act and other raw for the time being in force relating to excise and revenue.' This Section also empowers the excise officers to detain and search any person, any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, when there is reasonable cause to seize. Under Section 55 of the Act the excise officials are empowered to search without warrant at any place at any time when the officer has reason to believe that 'offence under Sections 34, 35, 36, 37 or 37-A has been or is being likely to be committed' and also empowers to detain and search and arrest such person found in the place of search. Under Section 61 of the Act, the Magistrate shall take cognizance of the offence punishable under any Section of the Act except under Section 48, on his own knowledge or suspicion or on the complaint of report of an excise or police officer. Keeping these provisions contained in Chapter-VIII, we may now deal with Sections 13 and 34 of the Act insofar as they are relevant for the purpose.
13. Manufacture etc., of excisable articles prohibited except tinder a licence :--(1) No person shall,--
(a) manufacture or collect an intoxicant;
(b) cultivate hemp plant;
(c) tap an excise tree or draw toddy from any such trees;
(d) construct or work a distillery or brewery;
(e) bottle liquor for sale; or
(f) use, keep or have in his possession, any materials, stills, utensils, implements of apparatus, whatsoever for the purpose of manufacturing any intoxicant other than toddy: except under the authority and subject to the termsand conditions of a licence granted by such officer, not below the rank of an Excise Superintendent, as may be prescribed.
(2) A licence granted under this section shall extend and cover servants and other persons employed by the licensee and acting on his behalf,
(3) Notwithstanding anything in Subsection (1) the Government may by notification, direct that in such areas as may be specified therein it shall not be necessary to take out 'a licence for the manufacture of liquor for bona fide home consumption of the manufacturer,
Section 34 of the Excise Act, insofar as the same is relevant reads as under.
34. Penalties for illegal import etc. :--Whoever, in contravention of this Act or of any rule, notification or older made, issued or passed thereunder or of any licence or permit granted or issued under this Act,--
(a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or
(b) taps any excise tree; or
(c) draws toddy from any excise tree; or
(d) constructs or works any distillery or brewery; or
(e) uses, keeps, or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than toddy; or
Shall on conviction be punished:
(2) in the case of an offence other than an offence falling under clause (a) with imprisonment which shall not be less than six months but which may extend to one year and with fine which may extend upto rupees ten thousand,
25. For appreciating the controversy inthese cases we need to read Section 13(1)(f) and Section 34 (e) in juxta position with Sections 53 and 55 of the Act which read as under.
53. Powers to arrest without warrant, to seize articles liable for confiscation and to make searches :--(1) Any officer of the Government employed in the Prohibition and Excise, Police or Revenue Department of the State subject to such restrictions as may be prescribed and any other person duty empowered, may,--
(a) arrest without warrant any person for an offence punishable -under Section 27 or Section 34 or Section 35 or Section 36, or Section 37 or Section 37-A or Section 40-A or Section 50 or Section 50A;
(b) seize and detain any excisable or other article which he has reason to believe to be liable to confiscation under this Act, or and other law for the time being in force, relating to Excise, revenue; and
(c) detain and search any person upon whom and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be.
(2) When any person is accused or is reasonably suspected of committing an offence under this Act, other than an offence under Section 34, Section 35, Section 36, Section 37, Section 37-A or Section 50 and on demand of any such officer as aforesaid, refuses to give his name and residence or gives a name and residence which such officer has reason to believe is false, he may be arrested by such officer in order that his name and residence may be ascertained.
55. Powr to search without warrant :--Whenever the Commissioner or a Collector or any police officer not below the rank of an officer-in-charge of a police station or any Prohibition and Excise Officer not below the rank of an Excise Sub-inspector has reason to believe that an offence under Section 34, Section 35, Section 36, Section 37, Section 37-A has been, is being or is likely to be, committed and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief,--
(a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act; and
(b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.
26. At this stage we shall consider Sections 13, 34, 53 and 55 together to restate the principles of interpretation of statute.
RULES OF INTERPRETA TION:
27. Until recently 'Golden Rule' of interpretation of statutes was that statutes are to be interpreted according to grammatical and ordinary sense of the word in grammatical or liberal meaning unmindful of consequences of such interpretation. It was predominant method of reading the statutes. More often than not, such grammatical and literal interpretation leads to unjust result which Legislature never intended. The golden rule of giving undue importance to grammatical and literal meaning of late gave place to 'rule of legislative intent'. The world over, the principle of interpretation according to the legislative intent is accepted as more logical principle. We need to refer to CHIEF JUSTICE OF A.P. v. L.V.A. DIKSHITULU, : 1SCR26 , KEHAR SINGH v. STATE (DELHI ADMN.), : 1989CriLJ1 and a latest judgment of the Supreme Court in DISTRICT MINING OFFICER v. TATA IRON & STEEL CO., : (2001)7SCC358 .
28. In DIKSHITULU'S case (supra) a Constitution Bench of the Supreme Court observed as under:
The primary principle of interpretation is that a constitutional or statutory provision should be construed 'according lo the intent of they that made if (Code). Normally, such intent is gathered from the language of the provision. If the language of the phraseology employed by the legislation is precise and plain and thus by itself, proclaims the legislative intent in unequivocal terms, (he same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean, or evocative or can reasonably bear meaning more than one, the rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the court to go beyond the arid literal confines of the provision and to call in aid other well-recognised rules of construction such as its legislative history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved and the consequences that may flow from the adoption of one in preference to the other possible interpretation.
In KEHAR SINGH'S case (supra) it was held:
During the last several years, the 'golden rule' has been given a goby. We now look for the 'intention' of the legislature or the 'purpose' of the statute. First we examine the words of the statute. If the words areprecise and cover the situation on hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the act as a whole. We examine the necessity which gave rise to the Act. We took at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences,
29. In TATA IRON & STEEL COMPANY case (supra) the Supreme Court considered the question whether Cess and Other Taxes on Minerals (Validation) Act, 1992 validated only the taxes on minerals already realized under invalid law or validated the right to levy tax and realize the same. A three-Judge Bench of the Supreme Court considered the question with reference to object for which the Act for the purpose of which it was enacted. After referring to the earlier judgments of the Supreme Court in STATE OF H.P. v. KAILASH CHAND MAHAJAN, 1992 Supp. (2) SCC 351, RESERVE BANK OF INDIA v. FEARLESS GENERAL FINANCE AND INVESTMENT COMPANY, : 2SCR1 , the Apex Court reiterated the principles thus:
A statute is an edict of the Legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of thecourt is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises the difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modem State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover simitar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e., the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed,
1NTERPRETATION OF A. P. EXCISE ACT:
30. While interpreting the provisions of Sections 13 and 34 and provisions inChapter-VII of the Excise Act the above principle should be borne in mind. In doing so, it is always necessary to notice the necessity which gave rise to the Act and the mischiefs which the legislature intended to redress. Interpreting the law and enforcing the law cannot be done without having an eye with the object and motive behind the legislation. In JAGRITI v. STATE OF A.P., 0043/1994 : AIR1994AP225 , a Division Bench of this Court considered the interrelationship between the Excise Act and A.P. (Andhra Area) Prohibition Act (since repealed by A.P. Prohibition Act. 1995). The Division Bench held that A.P. Excise Act is intended to achieve same purpose contemplated under Article 47 of the Constitution of India and the Excise Act and the Prohibition Act are complementary to each other, the former aiding the achieving of the objectives of the later. It is apposite to extract the following observations from the judgment.
The restrictive provisions contained in the A.P. Excise Act enable the State to effectively control these various aspects of the liquor trade. For the only reason that successive governments had ignored their duly to respect and implement the constitutional directives, we are not in a position to hold that the Excise Act is entirely ante-thetic to Ihe Prohibition Act, in that the former promoted the production, manufacture, distribution and consumption of alcoholic beverages whereas the latter prohibits such activities altogether. As a matter of fact, the Excise Act contains many provisions which, if intelligently devised and implemented, will result in prohibition at least partially...We understand Ihe A.P. Excise Act to contain provisions enabling the State to gradually control and monitor liquor trade if the provisions thereof are intelligently and honestly enforced. The promise of the total prohibition may be a distant dream, but we cannot but hold that steps which are being taken under the A.P. Excise Act do regulate and control the trade and also the production, distribution, sale and consumption of liquor. In thatsense though there may not be complete realisation of the directive principles contained in Article 47 of the Constitution of India, the Excise Act does contain provisions which enable effective Control of all activities related to alcoholic liquors,
31. A Full Bench of this Court in MC. DOWELL AND CO. LTD. v. STATE OF A.P., 1995 (2) ALT 514 (FB), held that Section 7 of the A.P. Prohibition Act did not prohibit manufacture of liquor though it prohibited consumption, sale and possession thereof. The Supreme Court reversed the decision of this Court in STATE OF A.P. v. Mc. DOWEL COMPANY, : 3SCR721 . The Supreme Court while observing that imposition of prohibition has to be treated as reasonable restriction in view of directive principle in Article 47 to bring about prohibition and that it is always open to the State to impose prohibition in stages, held as under.
An enactment cannot be struck down on the ground that Court minks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz.(i) unreasonableness, which can more appropriately be called irrationality, (ii)illegality and (iii)procedural impropriety (See Council of Civil Services Union v. Minister for the Civil Services (1985 AC 374), which decision has been accepted by this Court as well). The applicability of doctrine of proportionality even in administrative taw sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for the Home Department Ex-parte Brind. (1991 AC 696 at 766-7 and 762). It would be rather odd if an enactment were to be struck down by applying the saidprinciple when its applicability even in administrative law sphere is not fully and finally settled.
32. We may passingly refer to (he approach adopted by the Courts in the cases of this nature. In SHAW v. DIRECTOR OP PUBLIC PROSECUTIONS, (1961) 2 AII.ER 446, Lord Simond held that Courts have residuary power to enforce supreme and fundamental purpose of the law even by identifying new contraventions of law which can be related to and brought under a penal provision attracting retribution and deterrence. It was held:
1 entertain no doubt about there remains in the Courts of Law a residua! power to enforce the supreme and fundamental purpose of law, to conserve not only the safety and order, but also the moral welfare of the State and that it is their duty to guard against attacks which may be more insidious because they are novel and unprepared for.
33. The Supreme Court in NALLA THAMPY THERA v. UNION OF INDIA, : 1SCR709 , quoted the above observations with approval.
WHETHER SECTION 34(e) of the EXCISE ACT ATTRACTED:
34. The learned Single Judge (Raghuram. J) referred the matter to a Bench of higher composition observing that 'potential public mischief might ensue if the State were to be held denuded of regulatory powers in this area and as a purposive and dynamic interpretive analysis may posit some measure of regulatory power in the State'. We, with respect, agree with the observations and hold that possession, transport, sale, purchase etc., of jaggery which conforms to I.S. Specification 12923 of 1990 (para. 4.1), does not attract offence under Section 34(e) of the Excise Act. However, if a person keeps or posseses black jaggery, which does not conform to I.S. specification referred to hereinabove and is mainly used for manufacture of ID liquor must be held to attract offence under the said provision. Authorities under the Act have power under Sections 53 and 55 of the Excise Act to seize any material including black jaggery, which is kept or possessed for the purpose of manufacturing ID liquor. Prevention of manufacturing of ID liquor is not only the mischief that was to be redressed by the Act but it is referable to the duty of State to protect the health of citizens.
35. In furtherance of the objective of regulating production, manufacture, transport and sale of intoxicants and drugs, the Act in a comprehensive manner provides for grant of licences and cancellation of licences, levy of fees, taxes etc., and also creates offences which are not common law offences, but statutory offences. Section 13 inter alia declares that no person shall use, keep or have in his possession any materials etc., for the purpose of manufacture any intoxicant other than toddy. The law realizes the mischief and requires that any material for the purpose of manufacture of liquor can be kept only under licence. While so saying the statute also creates offences for contravention of legislation. Loudly and clearly Section 34(e) of the Act inter alia provides that if any person without any valid licence under the Act, Rule, Notification or order keeps or has in his possession any material for the purpose of manufacturing any intoxicant other than toddy would be punishable with imprisonment not less than six months but not exceeding one year.
36. For attracting offences a person need not actually be caught in process of manufacturing an intoxicant (ID liquor) as defined in Section 2 (19) of the Excise Act. As noticed above Sections 53, 54 and 55 of the Act which enable any officer of the Excise Department to arrest without any warrant for offences punishable under Section 34 and also search any place. Indeed,Section 55 empowers Commissioner. Collector, Police Officer or any excise official not below the rank of Excise Sub-Inspector to search any place and seize anything found therein on a mere suspicion (has reason to believe) that an offence under Section 34 is likely to be committed. The general principle of criminal law that preparation for committing offence is not offence, is not applicable to exceptional case under law dealing with intoxicants, for even preparation to manufacture liquor is made an offence under the statute. Indeed the Supreme Court in catena of decisions viz., STATE OF BOMBAY v. BALSARA, AIR 1951 SC 318, COVERJEE v. EXCISE COMMISSIONER, : 1SCR873 , ASSAM STATE v. SRISTIKAR, AIR 1957 SC 414, NAGENDRANATH v. COMMISSIONER OF HILLS DNISION, : 1SCR1240 , STATE OF ORISSA v. HARINARAYANA, : 3SCR784 , AMAR CHANDRA v. EXCISE COLLECTOR, TRIPURA, : 1SCR533 , NASHIWAR v. STATE OF M.P., : 2SCR861 , HARSHANVAR v. DY. EXCISE COMMISSIONER, : 3SCR254 , DOONGI v. STATE OF M.P, : 3SCR479 , MADRAS CITY WINE MERCHANTS ASSOCIATION v. STATE OF TAMILNADU, : 1992(60)ELT674(SC) , and KHODAY DISTILLERIES LTD., v. STATE OF KARNATAKA, : (1995)1SCC574 , has categorically held that no citizen has a right to deal and engage in business of manufacturing, sale of intoxicating substances which are dangerous and hazardous to health. Therefore, a person who keeps any material for the purpose of manufacturing ID Liquor would be committing offence under Section 34(e) of the Excise Act.
BLACK JAGGERY KEPT FOR MANUFACTURING ID LIQUOR:
37. Whether black jaggery is 'material' which can be used for manufacturing any intoxicating liquor. According to Law Lexicon - compiled and edited by Mr. P. Ramanatha Aiyar, Reprint Edn. 1987 material, as an adjective, means 'relating to or consisting of matter corporeal; not spiritual: physical; substantial as opposed to formal (Johnson Diet.):' and as a noun, it means 'the substance or matter of which anything is made (Webster Dict.); everything of which anything is made (Bouvier Law Dict); any article employed in the erection and completion of buildings; something that goes into and forms part of the finished structure.'
38. It is not denied before us that black jaggery seized from the petitioners is raw material for manufacturing ID Liquor. The learned Government Pleader has filed a note on ID Liquor, which is locally known as 'gudamba' and black jaggery. The name 'Gudamba' appears to have been derived from raw material used for manufacturing ID liquor i.e., gudu, which means jaggery. Black jaggery is left over or waste residue in jaggery industry. Fine quality jaggery is usually golden-yellow to light brown in colour, free from dirt, other extraneous matter like straw or sand and any other material deleterious to health (Indian Standard Specification 12923 of 1990, para 4.1). Black jaggery is not fit for human consumption and being left over residue settled at the bottom after removing fine quality jaggery, consists of a lot of dirt, sand, straw and other harmful materials deleterious to health. As per a note placed before us by the learned Government Pleader for Excise, black jaggery is mixed with water molasses and ammonium sulphate. Dangerous chemicals like alum are also added. Fermentation of alcohol is done in unscientific fashion and in unhygienic conditions.
39. Regular consumption of ID liquor causes many health problems which ultimately results in premature death of those who consume it. Manufacturing ofID liquor is a social evil, which prompted passing of Madras Prohibition Act, 1937 which is now replaced by A. P. Prohibition Act. These facts are not denied before us. The fact remains that black jaggery is used only for manufacturing ID liquor. In State of A.P., manufacturing, sale possession of arrack has been prohibited by virtue of the provisions of Sections 7 and 7-A of the Prohibition Act.
40. An argument was raised at the bar that in manufacturing I.D liquor, black jaggery, some acids, alum etc., are also used. If mere possession of these ingredients were held to attract Sections 13 and 34 of the Act, it would lead to enormous hardship to lorry transporters, small businessmen who deal in black jaggery. This argument is misconceived. If a substance or material including some chemicals 'can only be used' for manufacturing intoxicating substances and nothing else, we fail to understand as to how the principle of res ipsa loquitur is not attracted. Nobody keeps black jaggery only for the sake of keeping. It is 'reasonably believed' that black jaggery is 'kept' for manufacturing of ID liquor, the authorities can register a case under Section 34(e) of the Excise Act.
41. We may, however, hasten to add that unless the Commissioner, Collector, Police Officer or competent Excise Officer 'has reason to believe' that black jaggery is intended to manufacture ID liquor mere keeping and/or transporting any other material cannot be violation of law. In such an event, it is always open to the accused to prove before the competent criminal Court that black jaggery was material intended not for manufacture of liquor but was intended for other purpose. The learned counsel for the petitioners have not placed before us any evidence/ material to show that black jaggery can also be used for other purposes. Be that as itmay they only submitted that black jaggery or jaggery with which they were dealing was not intended for manufacturing liquor. In W.P.No. 354 of 2001 and W.P.No. 22705 of 2000 the learned Government Pleader has placed before us the report of the chemical examiner, which shows that the material seized from the petitioners contains debris, sand and other injurious substances.
VIOLATION OF ARTICLE 20 OF THE CONSTITUTION OF INDIA:
42. An argument is made that the action of the excise officials in seizing black jaggery and the vehicle involved, denies protection in respect of conviction for offences guaranteed by Article 20 of the Constitution of India. The said Article reads thus:
20(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
43. It is well settled that the competent legislature has power to make laws with retrospective effect. This sovereign power is subject to two constitutional limitations, namely, ex post facto criminal law is prohibited and there cannot be a greater penalty than what was prescribed when the offence was committed. These two safeguards are provided under Article 20 of the Constitution of India. It is also well settled that Article 20(1) prohibits conviction of offence and not investigation or trialthereof. In SHIV BAHADUR v. THE STATE OF VINDHYA PRADESH, : 1954CriLJ1480 , the Supreme Court considered various aspects of Article 20 and it was observed that a person accused of commission of offence has no fundamental right to trial by a particular Court or by a particular procedure except insofar as any constitutional objection by way of discrimination or violation of any other fundamental right may be involved. We have already held that keeping or being in possession of black jaggery for the purpose of manufacture of ID liquor is an offence under Section 34(e) of the Excise Act and such material can be seized by the excise officials in exercise of power under Sections 53 and 55 of the Excise Act. As on the dates when the black jaggery and/or vehicle were seized Section 34(e) of the Excise Act was very much on the statute book and therefore this Court cannot countenance any argument that Article 20(1) is violated.
44. In support of their contentions that mere preparation for committing a crime is not an offence and therefore on that premise the petitioners property in black jaggery cannot be seized, they relied on the judgments of the Supreme Court in NASU SHEIKH v. STATE OF BIHAR, : 1972CriLJ1039 and STATE OF B!HAR v. BHAGIRATH SHARMA, : 1973CriLJ1184 . In our considered opinion these two precedents do not lend any support to the petitioners' case in these Writ Petitions.
45. NASU SHEIKH'S case (supra) arose by way of criminal appeal before the Supreme Court. The appellants were convicted under Section 7 of the Essential Commodities Act, 1955 read with the provisions of Bihar Foodgrains (Control Movement) Order, 1957 and sentenced to undergo rigorous imprisonment for 18 months and pay a fine of Rs. 2500 each. The Sessions Court dismissed the appeal and the High Court in revision confirmed theconviction and sentence but set aside the fine. Before the Supreme Court it was contended that the appellants who were admittedly transporting 64 maunds of paddy in seven bullock carts were apprehended at a distance of from the Punjab-Delhi boundary and therefore the provisions of the control order which prohibited export of food grains without permit is not attracted. The Supreme Court after referring to earlier judgments in MULKIAT SINGH v. STATE OF PUNJAB, : 1970CriLJ750 , acquitted the appellants holding that:
We say this because the question of distance assumes importance in the light of the decision of this Court in Malkiat Singh v. State of Punjab. In that case also the question was whether an offence had been committed under Section 7 of the Essential Commodities Act read with paragraph 3 of the Punjab Paddy (Export Control) Order 1959. It was held that as the paddy was seized while inside the Punjab boundary there was no export of paddy outside the State of Punjab. It was observed that it was possible that the appellants might have changed their mind at any time between the place of seizure and the State Boundary. It is true that there the distance where the lorry containing the paddy was stopped was 18 miles from the Punjab Delhi boundary. In the present case the distance certainly appears to be much less but in the absence of proper contemporaneous documents which ought to have been prepared and the omission from the first information report of the distance we are not satisfied that the possibility that the appellants might have changed their minds between the place of seizure and the boundary of West Bengal can be excluded,
46. A reading of the decision referred to hereinabove shows that if the circumstances and the suspicions are properly mentioned in the First Information Report and other contemporaneous documents, even attempt to commit offencecomes within statutory web of the penalprovision.
47. BHAGIRATH SHARMA'S case (supra) arose out of criminal appeal. The respondents therein were charged under clauses 3, 4 and 5 of Bihar Essential Commodities other than Foodgrains- Prices and Stocks (Display and Control) Order, 1967. The Patna High Court quashed criminal case. The provision said to have been contravened by the accused read 'as components and accessories of automobiles' and it did not include tyres and tubes of motorcars and motorcycles. Indeed, by subsequent notification, the Government amended the relevant entry in the Control Order making tyres and tubes also controlled commodities. This fact weighed with the Supreme Court while dismissing the appeal opined:
But independently of this aspect the question may also be considered from another point of view. Viz., if the legal mandate contained in the Order is expressed with such certainty and clarity as to give reasonably precise and adequate guidance to those who want to be law-abiding. In other words, does the order lay down an ascertainabte standard of guilt by unambiguously specifying the Tyres and Tubes of Motor Cars as a scheduled item. We do not think it does. Unless the dealers are in a position to know with certainty that the items of Tyres and Tubes of Motors are included in the scheduled items of which the price list and the stock position are to be included, displayed in a conspicuous part of their business premises, in our opinion, they cannot be held guilty in a criminal Court of an offence under the Essential Commodities Act for violation of any such 'mandate. According to the fundamental principle of our criminal jurisprudence, which reflects fair play, the dealer must know with reasonable certainty and must have a fair warning as to what his obligation is and what act of commission of omission on his part would constitute a criminal offence before he can be calledupon to answer a charge and be liable to be convicted in a criminal Court for any violation of a legal mandate. This approach is in conformity with the general requirement that the act or default should be associated with a legally blameworthy condition of mind,
JUDICIAL REVIEW OF CRIMINAL JURISDICTION OF POLICE AND MAGISTRATES:
48. In the context of prayer for quashing charge sheet or F.I.R. as illegal, it is also appropriate to notice the ambit of powers of this Court under Article 226 of the Constitution, to quash criminal cases.
49. The Supreme Court in R.P. KAPUR v. STATE OF PUNJAB, : 1960CriLJ1239 , after referring to some illustrative categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised under Section 561 A of Code of Criminal Procedure, 1898 (now Section 482 Cr.P.C, 1973) laid down:
(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.
(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged: if no such question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the change. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is nolegal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question.
50. The Apex Court in STATE OF HARYANA v BHAJAN LAL, : 1992CriLJ527 , after reviewing entire case law including R.P. KAPUR'S CASE (supra) on the subject of quashing of criminal complaint/investigation under Article 226 and/or Section 482 Cr.P.C. pointed out that the power under those provisions should be exercised either to prevent abuse of process of any Court or otherwise to secure ends of justice. The Supreme Court pointed out the following categories of quashable cases by way of illustration.
(!) Where the allegations made in the First Information Report of the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the F.I.R. or complaint are so absurd and inherentlyimprobable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to that institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
51. The Supreme Court in HARIDAYA RANJAN PRASAD VERMA v. STATE OF BIHAR, (2000) 4 SCC 168, and MAHAVIR PRASHAD GUPTA v. NCT OF DELHI, : 2000CriLJ4665 , reiterated the above principles.
52. We may now summarise our discussion on the main question whether keeping or being in possession of black jaggery material for the purpose of manufacture of liquor is an offence under the Excise Act.
(a) The provisions of the A. P. Excise Act including Sections 13(f) and 34(e) should be interpreted with reference to the objects of the Act and penal provisions dealing with excise offences should also receive broader interpretation having regard to the fact that the Excise Act is intended to achieve partially the objective of Article 47 of the Constitution of India;
(b) Having regard to the provisions of Sections 13, 34 and 53 and 55 of the Excise Act, we must hold that if Commissioner, Collector, Police Officer or Excise Officer 'has reason to believe' that black jaggery (material) is likely to be used for manufacture of ID liquor the same can be seized and persons can be arrested and subject to facts and circumstances of each case including any report of the chemical examiner a charge sheet can be filed under Section 34(e) of the Excise Act.
(c) In a situation such as (a) and (b) above, if the circumstances so warrant the person/accused is entitled to approach under Section 482 of Cr.P.C. and/or Article 226 of the Constitution of India and seek quashing of proceedings provided his case come within well settled principles for quashing F.I.R., charge sheet or criminal case. However, a Writ Petition in such an event at the stage of investigation is not permissible yhen there is prima facie material to show that black jaggery is not fit for human consumption and was intended for manufacture of ID liquor.
(d) As held by the Supreme Court in NASU SHEIKKS case (supra) if the F.I.R. shows the ingredients of offence under Section 34(e) read with Section 13(f) of the Excise Act, a person cannot be heard to say in High Court that he is carrying on business or transporting black jaggery either because he is an agriculturist or businessman. All such pleas are to be raised before appropriate criminal Court.
53. Applying these tests we have examined the facts of the two cases namely. W.P.No. 22705 of 2000 and W.P.No. 354 of 2001. In both the cases the P.I.R. shows that the excise officials intercepted/ inspected the vehicle/premises and on making enquiries had reasonable belief that black jaggery was intended for manufactureof ID liquor. The report of the Chemical Examiner shows that the material (black jaggery) seized is infested with debris, sand, straw and other deleterious substance and unfit for human consumption. Indeed, in W.P.No. 354 of 2001 the accused/petitioners 1 to 4 also gave a statement before the inspecting authority that having purchased 10,176 Kgs of black jaggery at Rs.7/- per kg at Kamareddy, Nizamabad District they intend to sell at Rs.ll/-to I2A per kg. to persons who are manufacturing ID liquor at Suryapet. Tirumalagiri and Tungathurti of Nalgonda District. It is the statement given to the investigating excise officers (not police officers) and hence it is permissible in evidence despite the provisions of Section 25 of the Indian Evidence Act, 1872. In a recent judgment in ASSISTANT COLLECTOR OF CENTRAL EXCISE v. DUNCAN AGRO INDUSTRIES LTD., : 2000CriLJ4035 , the Supreme Court after referring to earlier cases on the point held as under.
The ban contained in Section 25 of the Evidence Act is an absolute ban. But it must be remembered that there is no ban in regard the confession made to any person other than a police officer, except when such confession was made while he is in police custody. The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinized by the court in the same manner as confession made by an accused person to any non-police personnel. The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act.
54. Statements made to excise officials and customs officials who are not police officers cannot be held totally inadmissible in evidence. In any event, as per provisions of Section 27 of the Evidence Act when any fact is deposed to as discovered in consequence of information received from a person accused of offence can be used insofar as the same relates to the fact thereby discovered.
55. In W.P.No-22705 of 2000, the F.I.R. in P.R. No. 247/2000-2001 of Excise Police Station. Metpally shows that when the excise officials demanded production of accounts books and the list of retail producers the petitioner failed to produce the same. The report of chemical examiner also shows that black jaggery seized is not fit for human consumption. This gave credence to the suspicion of the excise officials that black jaggery lumps were being sold to ID liquor manufacturers. In view of this, we cannot hold the action of the respondents as high handed and unauthorized.
EARLIER DECISIONS OF THIS COURT:
56. The State is aware of the dangers of allowing black jaggery being used for manufacture of ID liquor. By their Memo No. 25779/PoI.F/A1/95-1 dt. 22.6.1995 Government issued guidelines that jaggery traders should not be unduly harassed and if the vehicle is travelling with valid documents it should be allowed free movement. This came to be considered by this Court in an unreported judgment in W.P. No. 29074 of 1995 wherein it was held:
The respondent authorities can take appropriate action if they have evidence that the jaggery is used for illicit distillation. However, in so far as seizure is concerned, the same is not tenable and the said jaggery has to be released after verification of the petitioner possesses the valid documents, namely way bill, purchase bill, the details of the person from whom the same is purchased and also the verification of the registration of the documents under the A.P.G.S.T. Act.
57. After this Court disposed of the Writ Petition, the Commissioner of Excise issued instructions in Cr. No. 402/97/DPE/B3 dt. 25.1.1997 directing all the subordinate officials that in case black jaggery sales are intended for manufacture of ID liquor cases should be booked and necessary action should be taken for confiscation and prosecution. We are only referring to this to show that the officials were acting in accordance with the judgment of this Court as well as various instructions issued by the Government as welt as Commissioner of Excise.
58. The learned counsel also referred to two judgments delivered by two learned Judges of this Court. In Pothuganti Venkateswarlu v. Circle Inspector, Suryapet in W.P. No. 26983 of 1998 dt. 12.10.1998 a learned Single Judge of this Court quashed F.I.R. after recording a finding that mere possession of jaggery and alum do not constitute any offence under the provisions of the Excise Act. It docs not appear from the judgment that the material seized therein was black jaggery. In yet another judgment, in Crl.P. No. 3137 of 1998 dt. 23.7.1998 learned Single Judge of this Court in exercise of powers under Section 482 Cr.P.C. quashed C.C. No. 1938 of 1997 on the file of Special Judicial Magistral of First Class on the ground that jaggery and alum are not prohibited and cannot be said to be contraband under the Excise Act This case has also no application to the facts on hand because what was seized was not black jaggery and the learned Single Judge was exercising discretion under Section 482 Cr.P.C. where circumstances are altogether different. Furthermore, a Division Bench of this Court in Crl.P. No. 1931 of 1996 and batch dated 10.10.1996 quashed the criminal proceedings only on the ground that the charge sheet did not record any connivance or conspiracy on the part of the accused neither purchasing jaggery or preparation of ID liquor. Asalready observed by us the Supreme Court in NASU SHEIKH'S case (supra) indicated that if F.I.R. records circumstances and ingredients of offence alleged, the Courts cannot midway interdict in the matter.
59. This brings us to the question of the relief. In W.P. No. 22705 of 2000 the petitioner prayed for a direction to the respondents to release the seized black jaggery to him without furnishing any security. Under Section 452(2) of Cr.P.C., pending trial of criminal offence, the criminal Court is competent to release any property subject to such person executing a bond. Be that as it may, when property is seized in connection with offence involving public health and other allied matters, the High Court should be slow to pass such orders. In DEPUTY COMMISSIONER (PROHIBITION AND EXCISE) v. SHOBALAL, : 1996(1)ALT915 (DB), dealing with a case of release of vehicle involved in excise offence a Division Bench of this Court held:
It, has become almost free for all that the moment there is a seizure, this Court's jurisdiction under Article 226 of the Constitution of India is invoked and on such ex parte statements which petitioners make, orders to release the vehicles/goods are passed. It is necessary in all such cases to ask the petitioner why he has not moved the competent court or the authority before whom the seized goods or vehicles have been produced and why he has chosen to move this Court directly. It will also be necessary in all such cases to see that a vehicle used in crime can be recycled and used again and again and unless there is some check created by the appropriate order in this behalf, release may contribute to the repetition of the crime than doing any justice. The Court cannot justify its order unless all these aspects are borne in mind. The power under Article 226 of the Constitution is undoubtedly very wide. But, the Courts exercise self-imposed restrictions and apply all relevant considerations which must operatein the mind of the Court while making a judicial order.
60. In STATE OF KARNATAKA v. KRISHNAN, : 2000CriLJ3971 , the Supreme Court observed that when the provisions of the Act are to be strictly complied with, generally a vehicle seized in connection with an offence should not be released. The Supreme Court deprecated the casual approach in quashing departmental orders rejecting release of vehicles under Section 482 Cr.P.C. It was held:
Generally, therefore, any forest produce and the tools, boats, vehicles, cattle, used in the commission of the forest offence, which are liable to forfeiture, should not be released. This, however, does not debar the officers and the authorities under the Act including the appellate authority from passing appropriate orders under the circumstances of each case but only after assigning valid reasons. The liberal approach in the matter would perpetuate the commission of more offences with respect to the forest and its produce, which, if not protected, is surely to affect mother earth and the atmosphere surrounding it. The courts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purposes of protecting and safeguarding both the forests and their produce. The forests are not only the natural wealth of the country but also protector of human life by providing a clean and unpolluted atmosphere. We are of the considered view that when any vehicle is seized on the allegation that it was used for committing a forest offence, the same shall not normally be returned to a party till the culmination of all the proceedings in respect of such offence, including confiscatory proceedings, if any.
61. We are bound by the apex ratio and are of considered opinion that in matters of excise offences, the authorities and Courts should insist strict compliance with the provisions of the Excise Act.
62. Therefore, in these proceedings the petitioners cannot be given any relief for release of either black jaggery or vehicles involved. It is open to them to approach criminal court for release of crime property and in such an event, without being influenced by any contra observations made herein above, any consideration shall be as per law.
63. For the reasons aforementioned, all the Writ Petitions are dismissed without any order as to costs.
V.V.S. Rao, J.
1. I gratefully acknowledge the opinion of Brother Raghuram, J., as a forceful concurrence on every point, with my opinion and expansion of the reasons in support of the conclusion. By way of postscript to my judgment, I also agree that the legislative vacuum on procedural aspects may be filled up by regulatory framework by the authorities entrusted with enforcing the Excise Act.
Satyabrata Sinha, C.J.
1. In view of the majority opinion, the Writ Petitions are dismissed without there being any order as to costs.