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TMI Blog1992 (2) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the truck is not merited and so we suggested that in lieu of confiscation we propose to impose fine. This suggestion was given keeping in view the judgments of this Court rendered in O.J.C. No. 3105 of 1988 (Narendra Singh v. Authorised Officer, disposed of on 15-11-1988), which was followed in O.J.C. No. 3265 of 1988 (N.V. Gopalaswamy v. Assistant Conservator of Forests) disposed of on 11-9-1990 and O.J.C. No. 4224 of 1989 (State of Orissa v. Laxmidhar Rath, disposed of on 17-10-1990), in all of which cases fine was imposed in lieu of confiscation of the vehicle. Shri Mohanty appearing for the petitioner faintly submitted that as Section 56(2a) of the Orissa Forests Act, 1972, which is the relevant provision, only permits confiscation and does not speak of imposition of fine, it would not be permissible for this Court to impose fine in a case attracting the aforesaid provision. Though in the aforesaid cases fine had been imposed after setting aside the order of confiscation, but as the permissibility of the same had not been questioned, this Court had not applied its mind to this aspect of the case, which has become necessary to do so in the present case in view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then, as the Kendu leave begs had admittedly been booked from Purjanb, which in the district of Dhenkanal, and as the. detection was in the district of Sambalpur, we entertain no doubt about the fact of interdistrict movement of the Kendu leaves. The aforesaid case cannot, therefore, assist the petitioner. In this connection we may note another submission of Shri Mohanty that from the fact that the petitioner had 'intended' transportation of the Kendu leaves from Purjang to Bombay as observed by the learned District Judge in para 4 of the impugned judgment, a case of commission of the forest offence in question is not made out. In support of this contention, Shri Mohanty referred us to Md. Akram v. State AIR 1951 gau 17 in which it was held that the fact of attempting to export certain things out of India would not attract the operation of Section 5 of the imports and Exports, (Control) Act, read with Section 511 of the Indian Penal Code. This view was taken because the Bench felt that unless an attempt of committing an offence under a special or local law has been expressly made punishable by that law, aid of Section 511 of the Indian Penal Code cannot be taken. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the commission of the forest offence. This is lacking in the present case. So, the order of confiscation cannot be faulted with on this ground urged by Shri Mohanty. 7. This takes us to the question as to why we felt that it is a fit case where in lieu of confiscation fine may be imposed. We came to this conclusion having noted that the fact of forgery of the permit could not have been reasonably known to the driver of the vehicle, whosoever he might have been, inasmuch as the same came to light after a lot of enquiry by the forest officials. This feature of the case made us to feel that the petitioner may not lose his truck valued presently at about ₹ 4 lakhs when the Kendu leaves being illegally transported were worth about ₹ 60,000/-, as stated from the bar. This view was taken by us keeping in mind the decision in the afore-noted O.J.Cs wherein, keeping in view the valuation of the commodities sought to be illegally transported, the order of confiscation was substituted by imposition of fine. 8. We shall now examine the all important questions posed at the threshold. Now, there is no dispute that Section 56(2-a) of the Forests Act permits confiscation alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 :-- 3. Perhaps, with the passage of time, what may be described as the extension of a method resembling the armchair rule in the construction of wills, Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state. In M. Pentiahv. Verramallappa Sarkar, J. approved of the reasoning, set out above, adopted by Lord Denning. And, I must say that in a case where the definition of industry is left in the state in which we find it, the situation perhaps calls for some judicial heroics to cope with the difficulties raised. 11. A reference to the case of M. Pentiah noted in the aforesaid quotation shows that apart from drawing upon the aforesaid observations of Lord Denning, Sarkar, J. mentioned about the following proposition of law finding place in Maxwell on Statutes (10th Edition) at page 229 :-- Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and duty to apply the existing law in a form more conducive to the independence of the judiciary. Being of this view, the two Hon'ble Judges read much in the Prevention of Corruption Act, 1947 which was not to be found in the Act. We are conscious of the fact that the aforesaid observations can be pressed into service only in very exceptional cases; and the judiciary would clothe itself with the power of law making, even interstitially, by donning this robe, where non-supply of words in a statute would result in so unjust a result which the Court's conscience would not permit. While taking this view, we may state that though the aforesaid observations related to the power of the Supreme Court, we entertain no doubt that the same power would be available to this Court also in appropriate cases. It may also be stated that though the observations were made in connection with a case relatable to the independence of the judiciary, this facet of the case has no relevance. 15. Being thus assured that it is not beyond the competence of this Court to read words in a statute which are not there, let us see whether the present case warrants exercise of this power. We have given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iews of the House of Lords relating to this judgment in which it was inter alia, described as a naked usurpation of the legislative function are thereafter noted. But then, the same principle was restated after 30 years in Nothman v. Barnet London Brough Council (1978) I WLR 220. Reference is finally made to International Convention, and it is stated at page 21 that the European courts fill in gaps quite unashamedly, without hesitation. They ask simply : what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation? They lay down the law accordingly....... To our eyes -- shortened by tradition -- it is legislation, pure and simple. But, to their eyes, it is fulfilling the true role of the courts. They are giving effect to what the legislature intended, or may be presumed to have intended . So, what was being once discussed in low voice in a drawing room is now being talked loudly. 17. Having deeply reflected over the question at hand, we are of the firm view that if the deficiency in Section 56 (2-a), of which reference has been made above, would have come to the knowledge of the legislature, it would have definitel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle. While fixing this amount, we have borne in mind the submission of Shri Mohanty that the petitioner may not be fastened with the heavy liability because of some illegal act done by his driver. We have not felt inclined to give much importance to this submission, first because, as per the authorities below the petitioner himself was driving the vehicle, and secondly because, even if the case of the petitioner be accepted in this regard that the vehicle was being driven by Mahadeb Singh of Jammu Kashmir, this cannot be a relevant factor to determine the quantum of fine because in that case all the truck owners whose vehicles are driven by others would claim the benefit of leniency, which would not be advisable in the larger interest of the society which consists in curbing these anti-social activities. 19. The petition is accordingly disposed of by setting aside the order of confiscation and instead, awarding a fine of ₹ 60,000/-. The vehicle which is in the custody of the forest authorities shall be released forthwith in favour of the petitioner on his paying in cash the aforesaid amount., Bichitra Nanda Dash, J. 20. I agree. - - TaxTMI - TMITax - I ..... 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