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TMI Blog2007 (9) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... I of the Act, trading in which is strictly prohibited under Section 49B of the Act. Against assessee. - 71 of 1997 and Crl. M.No. 10870 of 2006 - - - Dated:- 3-9-2007 - Mukul Mudgal and P.K. Bhasin, JJ. S/Shri P.V. Kapur, Sr. Advocate with Ms. Malvika Rajkotia, Sanjay Parikh, Sr. Advocate with Saurabh Sharma and Jitin Sahni, Advocates, for the Petitioner. S/Shri Altaf H. Nayak, Advocate General with Anis Suhrawardy, Advocate, Ms. Mukta Gupta, Standing Counsel with Rajat Katyal, Raj Panjwani, Anil Nag and Dalip Mehra, Advocates, for the Respondent. [Judgment per : Mukul Mudgal, J.]. - This writ petition challenges the criminal proceedings initiated by the officers of the Customs under the provisions of the Customs Act, 1962 and by the officers of the Wildlife Department under the provisions of Wildlife (Protection) Act, 1972 (hereinafter referred to as the Act) and seizure of 12 pieces of shawls, suspected to be made of Shahtoosh wool . The main question raised in this petition is whether the phrase animal article excludes animal hair . The petitioner No. 1 Cottage Industries Exposition Ltd., is an incorporated company under the provisions of the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al were detained and seized pending an enquiry in the matter on the ground that the shawls which are made of shahtoosh wool are liable to be confiscated under the Customs Act, under the Wildlife Act and the remaining export material was used for concealment of the seized shawls and at present are in the custody of the respondents. 3. The learned Counsel for the Petitioner No. 1 submitted as follows : (a) The Wildlife (Protection) Act prohibits dealing with Animal Article or Trophy which are defined as under : Section 2(2) Animal Article Animal Article means an article made from any captive animal or wild animal, other than vermin, and includes an article or object in which the whole or any part of such animal (has been used and ivory imported into India and an article made therefrom). Section 2(31) Trophy Trophy means the whole or any part of any captive animal or wild animal, other than vermin, which has been kept or preserved by any means, whether artificial or natural, and includes, - (a) rugs, skins, and specimens of such Animals mounted in whole or in part through a process of taxidermy, and (b) antler, bone carapace, shell, horn, rhinoceros, hor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the definition of animal article . (d) Therefore, hair is not clearly a part of the definition of animal article for the following reasons : (i) Since the word hair has specifically been included within the definition of the trophy there would have been no need for the legislature to include it specifically if it was a part of an animal. (ii) If the legislative intent was only to clarify that hair was part of an animal it would have manifested in the definition of animal and part of the animal in both the definitions of animal article under Section 2(2) of the Wildlife (Protection) Act and the definition of trophy under Section 2(31) of the Wildlife (Protection) Act. (iii) Where the word mean is employed it implies a restriction. In Feroz N. Dotivala v. P.M. Wadhwani (2003) 1 SCC 433, the following position of law was laid down by the Hon ble Supreme Court : 13. It can also restrict the meaning of a word by defining it in that manner. Generally, when the definition of a word beings with means it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the normal standard sense, to a mean compromise of or consists of or means and includes depending on the context. 4. Sh. Dalip Mehra, the learned Counsel appearing for the respondent 1, 2 and 5 in reply to the petitioner s plea submitted as under : (a) The Central Government by a Notification No. FJ11012/31/36 FRY(WL), dated 5th October, 1977 added Tibetan Antelope or Chiru (Panthelops hodgsoni) . The Parliament by an amendment to the Wildlife (Protection) Act incorporated Chapter VA by which it imposed a complete prohibition on the trade inter alia in trophies and animal articles derived from Scheduled animals listed in Schedule I and Part II of Schedule II to the said Act on expiry of two months from the date of commencement, i.e., 25th November, 1986. Section 49A(a) defines Scheduled Animals as under : 49A(a) an animal specified for the time being in Scheduled-I or Part II of Schedule II. Scheduled Animal Article has been defined in Section 49A(b) of the Act which reads as follows : to mean an article made from any scheduled animal and includes an article or object in which the whole or any part of such animal has been used but does not include tail feather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wl are the articles which have been made by use of hair, i.e., the wool made of a Scheduled wild animal. (b) The learned Counsel for the petitioner submitted that since the term hair fell within the inclusive part of definition of trophy , it would not fall within the definition of Scheduled animal article unless a similar inclusive provision as provided for in the definition of trophy is incorporated in the definition of Scheduled animal article. The above submission of the petitioner was untenable as it would defeat the object and purpose of the Act, because the animal part enumerated in the inclusive clause of Section 2(31) lists almost all the parts that can be possibly derived from the animal except meat which has been defined separately. Thus, if the contention of the petitioner is accepted then no part of the animal would fall within the meaning of Scheduled animal . (c) The petitioner has also contended that the words and ivory imported into India and an article made therefrom as found in the definition of the animal article in Section 2(2) of the Act in the absence of a similar provision for hair, would imply that hair is not included in the definition of animal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 modern 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 similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully in 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intment of a President would be possible even at the initial constitution thereof. 40. Such a construction is permissible by taking recourse to the doctrine of strained construction, as has been succinctly dealt with by Francis Bennion in his Statutory Interpretation. At Section 304, of the treatise; purposive construction has been described in the following manner :- A purposive construction of an enactment is one which gives effect to the legislative purpose by - (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction) In Balram Kumawat v. Union of India and Ors. (2003) 7 SCC 628, the Hon ble Supreme Court held as under : 25. A statute must be construed as a workable instrument. Ut res magis valeat quam pereat is a well-known principle of law. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam (1989 ) 3 SCC 709, this Court stated the law thus : 118. The courts strongly lean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eluctant to hold that the Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve. (See BBC Enterprises v. Hi-Tech Xtravision Ltd., [(1990) 2 All ER 118 at 122-3)] 37. We are, however, not oblivious of the fact that potential public mischief cannot be a ground to invoke the court s Interpretative role to make a new offence. Making of legislation is not the job of the judiciary. Making of a penal legislation by the Judiciary is strictly out of its bound. However, when the law working in the field is clear then what is necessary for it is to find out as to whether any offence has been created or not. Once it is held that the subject matter comes within the purview of the law, the Court may not go further and say by interpretive reasonings that the same is not so created. 38. We do not think that in a case of this nature where the principles of law as enunciated hereinbefore as also the doctrine of purposive construction, which have been discussed in details in India Handicraft Emporium (supra), any useful purpose would be served by referring to a large number of decisions relied upon by Mr. Parikh as regards efficacy of referrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a living animal. Further, the definition of trophy and uncured trophy was not brought to the attention of the Madras High Court. It is also submitted that the decision of the Hon ble Supreme Court in Balram Kumawat s case (supra) was not noticed by the Madras High Court which held that trade in ivory derived from mammoth which is a prehistoric extinct animal species which disappeared due to climatic conditions prevailing in Alaska and Siberia, is prohibited under the provision of Chapter V of the Wildlife (Protection) Act. (e) Section 49B(1)(a) (i) and (ii) state that after the specified date, no person shall commence or carry on the business as a manufacturer of, or as dealer in scheduled animal articles , or as a dealer in trophy or uncured trophy derived from any scheduled animal . Section 2(11) defines dealer to mean in relation to any captive animal, animal article, trophy, uncured trophy, meat or specified plant, means a person, who carried on the business of buying or selling any such animal or article, and includes a person who undertakes business in any single transaction. Section 49C(7) defines that no person, other than a person who has been issued a certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osh shawls was not hit by the bar prescribed under Section 49(B) of the Act. The principal plea of the learned Counsel for the petitioner that hair is not part of the definition of animal article, is postulated on the premise that the fact that hair has been included within the definition of trophy clearly shows that it was not intended by the legislature to be included in the definition of animal article. 6. It has been contended that as laid down by the Hon ble Supreme Court in Feroz N. Dotivala s case (supra), whenever the word mean is used it indicates that meaning of the word has been restricted. Thus in essence, the petitioner wants this Court to hold that hair is not a part of the animal Chiru. In our view to construe the above Section, it is necessary to look at the preamble of the Act which provides for protection of wild animal, birds and plants and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country. The statement of objects and reasons of the Act is instructive and reads as follows :- Statement of Objects and Reasons The rapid decline of India s wild animals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several times in the years 1982, 1986, 1991, 1993, 2003 and 2006 and the amendment in 1986 has a direct bearing on the issue involved in the present writ petition and reads as follows :- Amendment Act 28 of 1986. Statement of objects and Reasons The Wild Life (Protection) Act 28 of 1972 provides for the protection of wild animals and birds and for matters connected therewith or ancillary thereto. 2. Under the scheme of the Act, trade or commerce in wild animals, animal articles and trophies within the country is permissible and is regulated under Chapter V. Since there is hardly any market within the country for wild animals or articles and derivatives thereof, the stocks acquired for trade within the country are smuggled out to meet the demand in foreign markets. This clandestine trade is abetted by illegal practices of poaching which have taken a heavy toll of our wild animals and birds. The stocks declared by the traders at the commencement of the Wild Life (Protection) Act, 1972 are still used as a cover for such illicit trade. Attempts to acquire the declared stocks of skins of some wild species have also not met with the desired success, mainly because most traders are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement of Wild Life; (viii) to provide that no construction of commercial tourist lodges, hotels, zoos and safari parks shall be allowed inside the national parks and sanctuaries except with the prior approval of the National Board for Wild Life; (ix) to empower the officer to evict encroachment from the national parks and sanctuaries; (x) to provide for the creation and management of community reserves as well as conservation reserves; (xi) that zoos shall not acquire, or dispose of any wild or captive animals to any organization other than a recognized zoo; (xii) to provide that captive animals and wild animals included in Schedule I and Part II of Schedule II of the Wild Life Act and their parts and products can be acquired only by way of inheritance; (xiii) to enhance and rationalize penalties prescribed under the Act including the making of suitable provisions on the lines of the provisions of Chapter V-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 in cases of offences pertaining to wild animals included in Schedule I and Part II of Schedule II of the Act; (xiv) to enhance the amount of rewards payable to persons rendering assistance in dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o absurd with reference to the other words of the statute as to amount to a repugnance. Absurdity , said LORD GREENE, M.R., like public policy, is a very unruly horse. In Mohd. A.H. Khan v. CWT, (1997) 3 SCC 51, the Hon ble Supreme Court held as under : 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 addition or substitution of words or which results in rejection of words as meaningless has to be avoided. Obviously the aforesaid rule 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, 1993 Suppl (1) SCC 730 it was reiterated by the Hon ble Supreme Court that : Every word, phrase or sentence in the statute and all the provisions read together shall be given full force and effect and no provision shall be rendered surplus age or nugatory. Where the intention of statutory amendment is clear and expressive, words cannot be interpolated. In the first place they are not, in this case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the Legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect to and the question of interpretation does not arise. The mere fact that the result of a statute may be unjust, does not entitle the court to refuse to give effect t it. However, if two reasonable interpretations are possible, the court would adopt that construction which is just, reasonable or sensib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s based on the premise that Shahtoosh derived from the fallen hair of Chiru once woven into a shawl ceased to be preserved or kept in its natural form and also does not find a specific mention in the definition of animal article . Therefore such a shawl does not fall within the ambit of the prohibition under the Act extended to animal articles . The petitioner contented that as the term hair falls within the inclusive part of the definition of trophy , it would not fall within the definition of the term Scheduled animal article , unless a similar inclusive provision as provided for in the definition of trophy is incorporated in the definition of scheduled animal article . 12. The petitioner further in support of his contention relied upon the words ........and ivory imported into India and an article made therefrom as found in the definition of animal article in Section 2(2) of the Act to contend that in the absence of a similar provision of hair , it would imply that hair is not included in the definition of animal article . 13. In our view, this contention is totally misplaced as trade in ivory derived from Indian Elephant stood prohibited upon the expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business as : (i) a manufacturer of, or dealer in, scheduled animal articles; or (i-a) a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or] (ii) a taxidermist with respect to any scheduled animals or any parts of such animals; or (iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or (iv) a dealer in any captive animals being scheduled animals; or (v) a dealer in any captive derived from any scheduled animal; or (b) cook or serve meat derived from any scheduled animal in any eating-house. A perusal of the above provisions demonstrates without doubt that the Act prohibits trade or commerce in trophies, animal articles derived from certain animals which leads to the following inevitable conclusion : Prohibition on Trade and Commerce of- (i) Articles made from any scheduled animal; (ii) Includes an article or object in which the whole or any part of such animal has been used. (Emphasis supplied) (iii) What has been specifically excluded from the ambit of this Section includes: (a) a tail feather of peacock or an article, trophy made therefrom and; (b) snake venom o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any means that hair has been specifically left out of the definition of animal articles merely because it is mentioned in the definition of trophy . Over emphasis on inclusion of the word hair in the definition of the trophy would defeat the very object of the Act. The raw wool of Chiru after treating and processing would in fact fall within the meaning of the trophy. In our view, the definitions of uncured trophy , trophy and Scheduled animal article are not separate, distinct and exclusive compartments but are complementary to one another. Any other construction would defeat the object of the Act and the intention of the legislature. Secondly, the raw hair under the wool of chiru after treatment and processing would admittedly fall within the meaning of trophy . The thread made from such processed wool including the shawl woven from such thread would be covered by the definition of animal article as defined in Section 49A(b) in as much as both the thread and the shawl are articles which have been made by use of hair (wool) of a scheduled wild animal. 20. We hold that if the legislative intent was to exclude naturally shed animal parts including hair , it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing observations/findings in the said judgment are important : CITES in its report prepared on 2nd to 14th October, 2004 has also noticed that despite the fact that the State of Jammu and Kashmir had enacted a law, the legislation was not being enforced. This 2004 report had also endorsed an earlier report given by CITES in which it had categorically stated that though a case had been made out by the State that no animals were being killed as the wool of Chiru which got stuck on bushes was gathered was incredible. It was said : Anyone who cared to visit the terrain of the Tibetan Plateau, observe the lack of bushes, view the piles of skinned Carcases discovered by antipoaching personnel of examine the heaps of skins and bundles of wool seized by Forest Police and Customs in China and India would immediately realize such explanations to be falsehoods, designed to reassure and dupe potential customs in countries far distant from where the slaughter of the Chiru was taken place. 24. The law laid down by the Hon ble Supreme Court in Indian Handicraft Emporium s case (supra) is directly relevant on the question involved in this petition and bears reiteration :- The Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither 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 a whole and then section 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 any 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 . (emphasis supplied) 25. We also derive sustenance from the position of law laid down in Balram Kumavat s case (supra) which reads as follows :- The courts strongly ..... 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