Holding

The term "ivory" under the Wild Life (Protection) Act, 1972 includes mammoth fossil ivory, and the total ban on ivory trade is a constitutionally valid restriction under Article 19(6) that does not contravene Article 14.

Summary

The appellants, an importer of mammoth fossil ivory and a carver, challenged the ban on their ivory under the Wild Life (Protection) Act, 1972, arguing that mammoth ivory is not covered by the term "ivory" and that the prohibition violates Articles 14 and 19(6) of the Constitution. The Supreme Court examined the statutory language, dictionary definitions, and the legislative intent behind the Act, noting that Parliament intended a blanket ban on all ivory to curb elephant poaching. It held that "ivory" includes mammoth fossil ivory and that the complete prohibition is a reasonable restriction within the scope of Article 19(6) and does not offend Article 14. The Court rejected the doctrine of proportionality in this context and affirmed that the High Court’s interpretation was correct. Consequently, the appeals were dismissed.

Issues considered

Whether mammoth fossil ivory imported into India falls within the definition of "ivory" under the Wild Life (Protection) Act, 1972.
Whether the blanket prohibition on ivory trade under the Act violates Article 14 of the Constitution.
Whether the prohibition infringes the freedom of trade guaranteed under Article 19(6) of the Constitution.
Whether the doctrine of proportionality is applicable to the ban on mammoth ivory.
Whether the High Court erred in interpreting the statute by relying on plain and dictionary meanings.

Legislation cited

Constitution of Indias. Article 14, s. Article 19(6)
Wild Life (Protection) Act, 1972s. 49, s. 49(7)

Subjects

Wild Life (Protection) Activorymammoth fossil ivorystatutory interpretationconstitutional lawArticle 14Article 19(6)environmental protectionCITESprohibition

Judgment

A BALRAM KUMAWAT
v.
UNION OF INDIA & ORS.

AUGUST 27, 2003

B [V.N. KHARE, CJ., S.B. SINHA AND ARUN KUMAR, JJ.]

Wild Life (Protection) Act, 1972/Constitution of India, Articles 14
and 19:

Import ofMammoth Fossil Ivory-High Court holding that it conforms
.
C to description of banned ivory in India and hence banned-On appeal,
Held: Trade in ivory is completely prohibited to restrict poaching of
elephants-Hence such prohibition is a reasonable restriction in terms of
Clause (6) of Article 19-Not violative of Article 14-The law should be
interpreted having regard to the subject matter of the offence vis-a-vis
D purpose of law it seeks to achieve-Subject matter, if comes within the
purview of the law, the Court may not go farther to interpret the law
differently-When plain and dictionary meaning could be given effect in
consonance with the purpose and object ofthe Act, U should be given effect
to in preference to restricted meaning-Construing so, the High Court
E rightly invoked the provision of law banning the ivory of any description •
in India-Interpretation of Statutes.

Words and Phrases:

fossil ivory', 'mammoth fossil ivory '-Meaning of
F Doctrines:

Doctrines of 'proportionality'.

Legal Maxims-Maxim 'ut res magis valeat quam pereat '-Meaning
G of
The question which arose in these appeals was whether 'mammoth
ivory' imported in India conforms to the description of"lvory imported
in India" as contained in the Wild Life (Protection) Act

H It was contended for the appellant-Importer that trading of
,. BALRAMKUMAWATv. U.0.1.

mammoth fossil ivory as imported was not banned either under the Act
or under the International Convention on International Trade in
25
A

-
'Endangered Species'; that the purport and object of the Act could not
be sub-served by imposing ban on trade in mammoth ivory; that since
the mammoth ivory does not answer the description of wild animal,
the relevant provision of the Act would not be applicable; and that the B
intention of the Legislature could not be construed to ban any article
irrespective of the purport and object it seeks to achieve.

Dismissing the appeals, the Court

HELD: 1.1. There is a complete prohibition of trade in ivory. Such C
a complete prohibition is a reasonable restriction within the meaning of
Clause (6) of Article 19 of the Constitution of India. The impugned Act
being not unreasonable does not also attract the wrath of Article 14 of
the Constitution of India. The object of Parliament was not only to ban
trade in imported elephant ivory but ivory of every description so that D
poaching of elephant can be effectively restricted. [29-H, 30-A, E)

Indian Handicrafts Emporium & Ors. v. Union of India & Ors.,
[2003) 7 sec 589, relied on.

Shorter Oxford Dictionary and Collins English Dictionary, referred E
to.

1.2. The law would have to be interpreted having regard to the
subject matter of the offence and the object of the law it seeks to
achieve. The purpose of the law is not to allow the offender to sneak F
out of the meshes of law. Criminal Jurisprudence does not say so. A
statute must be construed as a workable instrument. 'ut res magis valeat
quam pereat' is a well-known principle of law. [31-H, 32-A, 34-CJ

-
State of West Bengal v. Union of India, AIR (1963) SC 1241 and
~
R.S. Raghunath v. State of Karnataka & Anr., AIR (1992) SC 81, relied G
on.

LalitaJalan&Anr. v.BombayGasCo. Ltd. & Ors., (2003)4SCALE
52 and Tinsukhia Electric Supply Co. Ltd. v. State of Assam, AIR (1990)
SC 123, referred to. H
26 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A 1.3. 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
B 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 reasoning that the same is not so
created. [39-H, 40-A-B)

c and dictionary
1.4. In view of the well-settled principles of law that where plain
meaning can be given, reference to preamble or ·a
heading may not be of much use. A restrictive meaning cannot be
attributed to the word 'ivory' as the dictionary meaning should be
adhered to for the purpose of giving effect to the purport and object
of the Act. (40-D-E)
D
1.5. Parliament has enacted the Amending Acts of 1986, 1991 and
2003 not only for the purpose of banning trade in elephant ivory but
with a view to create a blockade of the activities of poachers and others

E
so that a complete prohibition in trade in ivory is achieved. By reason
of the Amending Acts, Parliament was anxious to plug the loop-holes
and impose a ban on trade in ivory so that while purporting to trade
--
in imported ivory and carvings therefrom, poaching oflndian elephants
and resultant illegal trade by extracting their tusks may not continue.
The doctrine of proportionality cannot be applied in a case of this
F nature. [40-H, 41-A-B)

Indian Handicraft Emporium & Ors. v. Union ofIndia & Ors., (2003]
7 sec 589, relied on.

Union of India v. Garware Nylons Ltd, AIR (1996) SC 3509 and
G Om Kumar & Ors. v. Union of India, (2002) 2 SCC 386, referred to. ~

Unwin v. Hanson, (1891] 2 QB 115, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7536 of
H 1997.
BALRAMKUMAWATv. U.0.1. [SINHA,J.] 27
• From the Judgment and Order dated 20.3.97 of the Delhi High Court A
in W.P. No. 1964 of 1993.

WITH

C.A. No. 7537 of 1997.
B
G.L. Sanghi, P.P. Malhotra, Sanjay Parikh, Abinash K. Misra, A.N.
Singh, Rajiv Nanda, Prateek Jalan, C.V. Subba Rao, P.Parmeswaran, Ms.
... Anil Katiyar, Ranji Thomas, Ms. Bharati Upadhyaya, Javed M. Rao, Raj
Panjwani and Vijay Panjwani for the appearing parties. C

The Judgment of the Court was delivered by

S.8. SINHA, J. : QUESTION

Whether 'mammoth ivory' imported in India answers the description D
of the words 'ivory imported in India' contained in Wild Life (Protection)
Act, 1972 (hereinafter referred to as 'the said Act') as amended by Act No.
44 of 1991 is the question involved in these appeals which arise out of a
.. common judgment and order dated 20.3.1997 passed by a Division Bench
of the Delhi High Court. E

FACTUAL BACKGROUND :

The appellants Mis Unigems had imported mammoth fossil said to
be of an extinct species in the year 1987. The stock of mammoth fossil F
held by the appellants is said to be periodically checked by the statutory
authorities. The appellant in the other case Bairam Kumawat is a carver.

Mammoth is said to be pre-historic animal which disappeared due to
climatic conditions prevailing in Alaska and Siberia. According to the G
appellants the distinction between mammoth and elephant ivory is that
whereas mammoth belongs to an extinct species, the ivory of elephant is
of an extant living animal. The appellants state that mammoth ivory is
distinguishable by visual and non-destructive means vis-a-vis elephant
ivory and even in Convention on International Trade in Endangered H

...
28 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A Species (CITES) their distinguishing features have been pointed out.

SUBMISSIONS :

Mr. Sanghi and Mr. Parikh, the learned counsel would contend that
B trade in mammoth fossil ivory is not banned either under the said Act or
under the CITES and, thus, the impugned judgment of the High Court
cannot be sustained.

The learned counsel would take us through the history of CITES as
C mentioned in the impugned judgment of the High Court and would urge
that the purport and object of the Act cannot be sub-served by placing a
ban on trade in mammoth ivory. Taking us to the provisions of the said
Act, the learned counsel would argue that as mammoth ivory does not
answer the description of 'wild animal', the provisions contained in
D Chapter VA of the said Act would not be attracted.

As Mammoth is an extinct species and as what is being used for
carving is its fossil which is called ivory because it has white and hard
dentine substance which is also available in other animals, namely, Whale,
E Walrus, Hippos and Warthog; it was urged, they cannot be included in the •
term 'ivory' within the meaning of the provisions of the said Act.

It was contended that the High Court committed a manifest error in
passing the impugned judgment insofar as it failed to take into consideration
F that mammoth ivory being deceptively similar to elephant ivory to the
naked eye, the impugned Act would be applicable in relation thereto also.
The learned counsel would contend that if this is taken to its logical
conclusion, then even trade in plastic articles which would be deceptively
similar to elephant ivory may also be held to have been banned. It was
G argued that the intention of the Legislature cannot be to ban any article
irrespective of the purport and object it seeks to achieve only on the ground
that the same is deceptively similar to the banned item. There exists
scientific procedure, it was urged, whereby and whereunder mammoth
ivory can be distinguished from elephant ivory and with a view to buttress
H the said argument, a large number of literature had been placed before us.

....
BALRAMKUMAWATv. U.0.1. [SINHA,J.) 29
The preamble of the Act as also the 'Headings', the learned counsel A
would contend, should be taken into consideration for the purpose
interpreting the provisions of the said Act.

FINDINGS:
B
In the connected matter in Indian Handicrafts Emporium & Ors. v.
Union of India & Ors. (Civil Appeal No. 7533 of 1997) disposed of this
... date, this Court upheld the constitutional validity of the provisions of the
said Act. This Court held that in terms of Sub-Section (7) of Section 49-
C of the Act all persons in general and traders in particular have become C
disentitled from keeping in their control any animal article including ivory
imported in India.

This Court further held that as a logical corollary to the said finding,
the statutory authorities would be entitled to take possession of such ivory D
in terms thereof; the purport and object of the Act being to impose a
complete ban on trade in ivory. A complete prohibition has been imposed
in the trade of ivory (whether imported in India or extracted by killing
Indian elephants) for the purpose of protecting the endangered species.
Trade in ivory imported in India has been prohibited further with a view E
to give effect to the provisions contained in Article 48A as also Article
5 lA(g) of the Constitution of India.

Why despite passage of time the trade in stock could not be disposed
of within a period of four years has not been disclosed by the appellants. F
It is not in dispute that even in terms of Act 44of1991, six months' time
was granted for disposing the stock of ivory.

For the reasons stated hereinafter, it may not be necessary for: us to
go into the question as to whether scientifically mammoth ivory can be G
deciphered from elephant ivory.

What has been banned is ivory. There is complete prohibition of trade
in ivory. Such a complete prohibition is a reasonabk "estriction within the
meaning of Clause (6) of Article 19 of the Constitution of India. The H
30 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R. .....
A impugned Act being not unreasonable does not also attract the wrath of
Article 14 of the Constitution of India.

For the purpose of determination of the question, we need to considEr
only the dictionary meaning of the term 'ivory'. Commercial meaning or
B technical meaning of an object or article is required to be taken recourse
to when the same is necessary for the purpose of meeting the requirements
of law. The law in no uncertain terms says that no person shall trade in
ivory. It does not say that what is prohibited is trade in elephant ivory or
other types of ivory. The purport and object of the Act, as noticed in the
C judgment in Indian Handicrafts Emporium (supra), is that nobody can
.carry on business activity in imported ivory so that while doing so, trade
in ivory procured by way of poaching of elephants may be facilitated. The
Parliament, therefore, advisedly used the word 'ivory' instead of elephant
ivory. The intention of the Parliament in this behalf, in our opinion, is
D absolutely clear and unambiguous. We cannot assume that the Parliament
was not aware of existence of different types of ivory. If the intention of
the Parliament was to confine the subject matter of ban under Act 44 of
1991 to elephant ivory, it would have said so explicitly.
..
E As noticed hereinbefore, the object of the Parliament was not only
to ban trade in imported elephant ivory but ivory of every description so
that poaching of elephant can be effectively restricted. An article made
of plastic would by no means resemble ivory.

F In the Shorter Oxford Dictionary, the meaning of 'ivory' is stated as
under:

(i) The hard, white, elastic and fine grain substance (being
dentine of exceptional hardness) composing the main part of
the tusks of the elephant, mammoth (fossil) ...
G
(ii) A substance resembling ivory or made in imitation of it.

In Collins English Dictionary, 'ivory' has been defined as:

H (i) A hard smooth creamy white variety of dentine that makes
BALRAM KUMA WAT v. U.O.I. [SINHA, J.] 31
I

up a major part of the tusks of elephants, walruses, and A
similar animals.

(ii) A tusk made of ivory.

(iii) A yellowish-white colour; cream
B
(iv) A substance resembling elephant tusk.

... (Emphasis supplied)

'Ivory', therefore, even as per dictionary meaning is not confined to C
elephant ivory.

At this stage, we are not concerned with a criminal trial. The
appellants are not being proceeded against in a criminal case. Their civil
rights, if any, are only required to be dealt with. The appellants in these D
matters complain of civil injuries only.

Contextual reading is a well-known proposition of interpretation of
statute. The clauses of a statute should be construed with reference to the
context vis-a-vis the other provisions so as to make a consistent enactment E
of the whole statute relating to the subject-matter. The rule of 'ex visceribus
actus' should be resorted to in a situation of this nature.

In State of West Bengal v. Union of India, AIR (1963) SC 1241 at
p. 1265, the learned Chief Justice stated the law thus :
F
"The Court must ascertain the intention of the Legislature by directing
its attention not merely to the clauses to be construed but to the entire
statute; it must compare the clause with the other parts of the law,
and the setting in which the clause to be interpreted occurs."
G
The said principle has been reiterated in R.S. Raghunath v. State of
Karnataka and Anr., AIR (1992) SC 81 at p. 89.

Furthermore, even in reiation to a penal stat"'e any narrow and
pedantic, literal and lexical construction may not always be given effect H
32 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.
A to. The law would have to be interpreted having regard to the subject
matter of the offence and the object of the law it seeks to achieve. The
purpose of the law is not to allow the offender to sneak out of the meshes
of law. Criminal Jurisprudence does not say so.

B G.P. Singh in his celebrated treatise 'Principles of Statutory
Interpretation' distinguished between strict construction of penal statutes
which deals with crimes of aggravated nature vis-a-vis the nature of the
activities of the accused which can be checked under the ordinary criminal
law stating :
c
"In Joint Commercial Tax Officer, Madras v. YMA, Madras,
Shah, J. observed : "In a criminal trial or a quasi-criminal
proceeding, the court is entitled to consider the substance of the
transaction and determine the liability of the offender. But in a
D taxing statute the strict legal position as disclosed by the form and
not the substance of the transaction is determinative of its
taxability." With great respect the distinction drawn by Shah, J.
does not exist in law. Even in construing and applying criminal
statutes any reasoning based on the substance of the transaction
E is discarded.

But the application of the rule does not permit the court in
restraining comprehensive language used by the Legislature, the
wide meaning of which is in accord with the object of the statute.
F The principle was neatly formulated by LORD JUSTICE JAMES
who speaking for the Privy Council stated : "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
G 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 included if thought of. On the other hand, the person
charged has a right to say that the thing charged although within
the words, is not within the spirit of the enactment. But where
H the thing is brought within the words, and within the spirit, there
BALRAM KUMA WAT v. U.0.1. [SINHA, J.] 33

a penal enactment is to be construed, like any other instrument, A
according to fair commonsense 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
enactment." The above fonnulation has been cited with approval B
by the House of Lords and the Supreme Court. In the last-
mentioned case, SUBBARAO, J., referring to the Prevention of
Corruption Act, 1947, observed : "The Act was brought in to
purify public administration. When the Legislature used
comprehensive tenninology - to achieve the said purpose, it C
would be appropriate not to limit the content by construction when
particularly the spirit of the statute is in accord with the words
used there." Similarly, the Supreme Court has deprecated a
narrow and pedantic construction of the Prevention of Food
Adulteration Act, 1954 likely to leave loopholes for the adulterator D
to escape. And on the same principle the court has disapproved
of a narrow construction of section 135 of the Customs Act, 1962,
Section 489A of the Penal Code, Section 12(2) of the Foreign
Exchange Regulation Act, 1947, section 630(J)(b) of the
Companies Act, 1956, section 52A of the Copy Right Act, 1957, E
and section 138 of the Negotiable Instruments Act, 1881. So,
language pennitting a penal statute may also be construed to avoid
a lacuna and to suppress the mischief and advance the remedy in
the light of the rule in Heydon 's case. Further, a commonsense
approach for solving a question of applicability of a penal F
enactment is not ruled out by the rule of strict construction. In
State of Andhra Pradesh v. Bathu Prakasa Rao, rice and broken
rice were distinguished by applying the commonsense test that at
least 50% must be broken in order to constitute what could pass
off as marketable 'broken rice' and any grain less than 3/4th of G
the whole length is to be taken as broken.

The rule of strict construction does not also prevent the court
in interpreting a statute according to its current meaning and
applying the language to cover developments in science and H
34 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A technology not known at the time of passing of the statute. Thus
psychiatric injury caused by silent telephone calls was held to
amount to 'assault' and 'bodily hann' under sections 20 and 47
of the Offence Against the Person Act, 1861 in the light of the
current scientific appreciation of the link between the body and
B psychiatric injury."

(See also Lalita Jalan & Anr. v. Bombay Gas Co. Ltd. & Ors. reported
in (2003) 4 SCALE 52].

C A statute must be construed as a workable instrument. Vt res magis
valeat quam pereat is a well-known principle oflaw. In Tinsukhia Electric
Supply Co. Ltd. v. State of Assam, AIR (1990) SC 123, this Court stated
the law thus :

D "The courts strongly lean against any construction which
tends to reduce a statute to a futility. The provision of a statute
must be so construed as to make it effective and operative, on the
principle "ut res magis valeat quam pereat". It is, no doubt, true
that if a statute is absolutely vague and its language wholly' .
E intractable and absolutely meaningless, the statute could be
declared void for vagueness. This is not in judicial review by
testing the law for arbitrariness or unreasonableness under Article
14; but what a court of construction, dealing with the language
of a statute, does in order to ascertain from, and accord to, the
F statute the meaning and purpose which the legislature intended for
it. In Manchester:- ip Canal Co. v. Manchester Racecourse Co.
(1900) 2 Ch 352, Farwell J. said: (pp. 360-61)

"Unless the words were so absolutely senseless that I
G could do nothing at all with them, I should be bound to
find some meaning and not t0 declare them void for
uncertainty."

In Fawcett Properties Ltd. v. Buckingham County Council, (1960) 3 All
H ER 503 Lord Denning approving the dictum of Farwell, J. said :
.... BALRAM KUMA WAT v. U.O.I. [SINHA, J.] 35
"But when a Statute has some meaning, even though it A
is obscure, or several meanings, even though it is little
to choose between them, the courts have to say what
meaning the statute to bear rather than reject it as a
nullity."
B
It is, therefore, the court's duty to make what it can of the
statute, knowing that the statutes are meant to be operative and
not inept and that nothing short of impossibility should allow a
court to declare a statute unworkable. In Whitney v. Inland
Revenue Commissioners, (1926) AC 37 Lord Dunedin said : C

"A statute is designed to be workable, and the
interpretation thereof by a court should be to secure that
object, unless crucial omission or clear direction makes
that end unattainable." D
The Courts will therefore reject that construction which will defeat
the plain intention of the Legislature even though there may be some
inexactitude in the language used. [See Salmon v. Duncombe, (1886) 11
AC 627 at 634]. Reducing the legislation futility shall be avoided and in E
a case where the intention of the Legislature cannot be given effect to, the
Courts would accept the bolder construction for the purpose of bringing
about an effective result. The Courts, when rule of purposive construction
is gaining momentum, should be very reluctant to hold that the Parliament
has achieved nothing by the language it used when it is tolerably plain what F
it seeks to achieve. [See BBC Enterprises v. Hi-Tech Xtravision Ltd.,
(1990) 2 All ER 118 at 122-3].

In Mohan Kumar Singhania and Ors. v. Union ofIndia and Ors. AIR
(1992) SC I, the law is stated thus : G

"We think, it is not necessary to proliferate this judgment by citing
all the judgments and extracting the textual passages from the
various textbooks on the principles of Interpretation of Statutes.
However, it will suffice to say that while interpreting a statute the H
36 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A consideration of inconvenience and hardships should be avoided
and that when the language is clear and explicit and the words
used are plain and unambiguous, we are bound to construe them
in their ordinary sense with reference to other clauses of the Act
or Rules as the case may be, so far as possible, to make a
B consistent enactment of the whole statute or series of statutes/
rules/regulations relating to the subject matter. Added to this, in
construing a statute, the Court has to ascertain the intention of the
law making authority in the backdrop of the dominant purpose •
and the underlying intendment of the said statute and that every
c statute is to be interpreted without any violence to its language
and applied as far as its explicit language admits consistent with
the established rule of interpretation."

In Murlidhar Meghraj Loya v. State of Maharashtra. [1976] 3 SCC
D 684, while dealing with the provisions of Food Adulteration Act it was
stated :

"5. It is trite that the social mission of food laws should inform
the interpretative process so that the legal blow may fall on every
E adulterator. Any narrow and pedantic, literal and lexical
construction likely to leave loopholes for this dangerous criminal
tribe to sneak out of the meshes of the law should be discouraged.
For the new criminal jurisprudence must depart from the old
canons, which make indulgent presumptions and favoured
F constructions benefiting accused persons and defeating criminal
statut~- calculated to protect the public health and the nation's
wealth."

In State of U.P. v. Chandrika, [1999] 8 SCC 638, this Court held that
G in matters involving economic crime, food offence and other cases, the
doctrine of plea bargaining should 'lot be applied. While holding so it
referred with approval Madan/al Ramchandra Daga v. State ofMaharashtra,
AIR (1968) SC 1267 = [1968] 3 SCR 34, Murlidhar Meghraj Loya (supra),
Ganeshmal Jashraj v. Government of Gujarat, [1980] 1 SCC 363,
H Thippaswamy v. State of Karnataka, [1983] 1 sec 194 and Kasambhai
BALRAM KUMA WAT v. U.0.1. [SINHA, J.] 37
>
Abdulrehmanbhai Sheikh v. State of Gujarat, [1980] 3 sec 120. A

Yet again in Superintendent and Remembrancer of Legal Affairs to
Govt. of West Bengal v. Abani Maity, AIR (1979) SC 1029: [1979] 4 SCC
85 the law is stated in the following terms:
B
"19. Exposition ex visceribus actus is a long recognised rule of
construction. Words in a statu<e often take their meaning from the
context of the statute as a whole. They are therefore, not to be
construed in isolation. For instance, the use of the word "may"
would normally indicate that the provision was not mandatory. C
But in the context of a particular statute, this word may connote
a legislative imperative, particularly when its construction in a
permissive sense would relegate it to the unenviable position, as
it were, "of an ineffectual angel beating its wings in a luminous
void in vain". "If the choice is between two interpretations", said. D
Viscount Simon L.C. in Nokes v. Doncaster Amalgamated
Collieries, Ltd., (1940) AC 1014, 1022 "the narrower of which
would fail to achieve the manifest purpose of the legislation, we
should avoid a construction which would reduce the legislation
to futility and should rather accept the bolder construction based E
on the view that Parliament would legislate only for the purpose
of bringing about an effective result."

This decision was followed in State ofKarnataka and Ors. v. Saveen
Kumar Shelly, [2002] 3 sec 426. F

In State of Himachal Pradesh v. Pirthi Chand and Anr., [1996] 2
SCC 37, this Court while dealing with a case of contraband article
following amongst others in Abani Maity (supra) stated :
G
"It would be seen that the organised traffic in contraband
generates deleterious effect on the national economy affecting the
vitals of the economic life of the community. It is settled law that
illegality committed in investigation does not render the evidence
obtained during that investigation inadmissible. In spite of illegal H
38 SUPREME COURT tlEPORTS [2003] SUPP. 3 S.C.R.

A search property seized, on the basis of said search, it still would
form basis for further investigation and prosecution against the
accused. The manner in which the contraband is discovered may ·
affect the factum of discovery but if the factum of discovery is
otherwise proved then the manner becomes immaterial."
B
The said principle has been reiterated in Khet Singh v. Union ofIndia,
[2002) 4 sec 380 stating :
"Law on the point is very clear that even if there is any sort
C of procedural illegality in conducting the search and seizure, the
evidence collected thereby will not become inadmissible and the
court would consider all the circumstances and find out whether
any serious prejudice had been caused to the accused."

D In State of Maharashtra v. Natwarlal Damodardas Soni, AIR (1980)
SC 593 : [1980] 4 SCC 669 this Court was concerned with search and
seizure of gold under the Customs Act and the Defence of India Rules. The
Court was dealing with smuggling of gold into India affecting the public
economy and financial stability of the country and in that context the Court
E applied the Mischief Rule. While interpreting the words 'acquires ..
possession' or 'keeping' in Clause (b) of Section 135(1) of the Customs
Act, this Court observed that they are not to be restricted to 'possession' or
'keeping' acquired as an owner or a purchaser of the goods observing :

F "Such a narrow construction - which has been erroneously
adopted by the High Court - in our opinion, would defeat the
object of these provisions and underrn ine their efficacy as
instruments for suppression of the mischief which the legislature
had in view. Construed in consonance with the scheme of the
G statute, the purpose of these provisions and the context, the
expression "acquires possession" is of very wide amplitude and
will certainly include the acquisition of possession by a person in
a capacity other than as owner or purchaser. This expression takes
its colour from the succeeding phrase commencing with the word
H "or", which is so widely worded that even the temporary control
BALRAM KUMAWATv. U.0.1. [SINHA, J.) 39

or custody of a carrier, remover, depositor, harbourer, keeper or A
dealer of any goods which he knows or has reason to believe to
be smuggled goods or prohibited goods (liable to confiscation
under Section 111 ), cannot escape the tentacles of clause (b). The
expressions "keeping" and "concealing in the second phrase of
clause (b) also cover the present case." B
This Court while setting aside a judgment of acquittal passed in
favour of the Respondents therein on the basis of the interpretation of the
.,. Customs Rules observed:

"The High Court has held that those rules do not apply because
c
the accused-respondent had not acquired possession of these gold
biscuits by purchase or otherwise within the meaning of these
rules. Such a narrow construction of this expression, in our
opinion, will emasculate these provisions and render them D
ineffective as a weapon for combating gold smuggling. As was
pointed out by this Court in Balkrishna Chhaganlal v. State of
West Bengal, AIR (1974) SC 120, Rule 126-P(2)(ii) penalises a
person who has in his possession or under his control any quantity
of gold in contravention of any provision of this Part, and the court E
( " cannot cut back on the width of the language used, bearing in
mind the purpose of plenary control the State wanted to impose
on gold, and exempt smuggled gold from the expression "any
quantity of gold" in that sub-rule. These provisions have, therefore,
to be specially construed in a manner which will suppress the
mischief and advance the object which the legislature had in view. F
The High Court was in error in adopting too narrow a construction
which tends to stultify the law. The second charge thus had been
fully established against the respondent."

These decisions are authorities for the proposition that the rule of G
strict construction of a regulatory/penal statute may not be adhered to, if
thereby the plain intention of the Parliament to combat crimes of special
nature would be defeated.

We are, however, not oblivious of the fact that potential public H
40 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A 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
B 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.

We do not think that in a case of this nature where the principles of
C law as enunciated hereinbefore as also the doctrine of purposive construction,
which have been discussed in details in Indian 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 referring to
the preamble of a statute or its heading, in view of the well-settled
D principles of law that where plain and dictionary meaning can be given,
reference to preamble or a heading may not be of much use. The
submission of Mr. Parikh that in a case of this nature a restrictive meaning
should be attributed to the word 'ivory' cannot be acceded to inasmuch
as, in our opinion, the dictionary meaning should be adhered to for the ...
E purpose of giving effect to the purport and object of the Act.
It is no doubt true that normally a technical meaning should be
attributed rather than a common meaning to a word if the same relates to
a particular trade, business or profession, art or science or words having
p a special meaning as has been held in Union of India v. Garware Nylons
Ltd., AIR (1996) SC 3509 and Unwin v. Hanson, [1891] 2 QB 115. But
we are not dealing with an ordinary/taxing statute. We are dealing with
a law which has been enacted in larger public interest and in consonance
with Articles 48A and 51 A(g) of the Constitution of ·India as also
G International Treaties and Conventions.
As pointed out hereinbefore, the Parliament has enacted the Amending
Acts of 1986, 1991 and 2003 not only for the purpose of banning a trade
in elephant ivory but with a view to create a blockade of the activities of
H poachers and others so that a complete prohibition in trade in ivory is
BALRAM KUMA WAT v. U.O.l. [SINHA, J.] 41

achieved. By reason of the Amending Acts, the Parliament was anxious A
to plug the loop-holes and impose a ban on trade in ivory so that while
purporting to trade in imported ivory and carvings therefrom, poaching of
Indian elephants and resultant illegal trade by extracting their tusks may
not continue.
B
The submission of Mr. Parikh that the doctrine of proportionality
should be applied in a case of this nature cannot also be acceded to.

In Om Kumar and Ors. v. Union ofIndia, [2001] 2 SCC 3 86, to which
a pointed reference has been made, this Court made a distinction between C
the primary and secondary review of administrative orders. As indicated
in Indian Handicraft Emporium (supra), this Court while construing the
provisions of the Act vis-a-vis restrictions imposed in terms of clause (6)
of Article 19 of the Constitution of India has come to the conclusion that
the provisions of the Amending Acts satisfy even the strict scrutiny test. D
In Om Kumar (supra), this Court pointed out that the area of discretion of
administrator would vary in different situations stating :

- "While the courts' level of scrutiny will be more in case of
restrictions on fundamental freedoms, the courts give a large
amount of discretion to the administrator in matters of high-level
economic and social policy and may be reluctant to interfere : R.
E

v. Secy ofState for the Environment, exp Nottinghamshire County
Council (1986) AC 240: (1986) I All ER 199: (1986) 2 WLR
I (HL); R. v. Secy. of State for Environment, exp Hammersmith F
and Fulham London Borough Council, (1991) I AC 521 : (1990)
3 All ER 589: (1990) 3 WLR 898: AC at p. 597. Smith speaks
of "variable margin ofappreciation". The new Rule 1 of the Civil
Procedure Rules, 1999 permits the courts to apply "proportionality"
but taking into account the financial issues, complexities of the G
matter and the special facts of the case."

In Papanasam Labour Union v. Madura Coats, [1995] I SCC 501,
whereupon Mr. Parikh has placed reliance, this Court held that while a
power has been conferred upon a higher authority, a presumption can be H
42 SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A raised that he would be conscious of its duties and obligations and so would
act promptly and reasonably.

There is also no quarrel on the proposition of law laid down therein
for the purpose of judging the constitutionality of the statutory provisions
B in the light of Article 19 of the Constitution of India. The impugned acts
fulfill the said criteria.

For the reasons aforementioned, we are of the opinion that the
impugned judgment cannot be faulted. Accordingly, the appeals are
C dismissed but without any order as to costs.
S.K.S. Appeals dismissed.

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