MAULAVI HUSSEIN HAJI ABRAHAM UMARIversusSTATE OF GUJARAT AND ANR.

A              MA ULA VI HUSSEIN HAJI ABRAHAM UMARI
                                  v.
                    STATE OF GUJARAT AND ANR.

                                 JULY 29, 2004

B               [S.N. VARIAVA AND ARIJIT PASAYAT, JJ.)

        Prevention of Terrorism Act, 2002; Sections 3 and 49(2)/Code of
    Criminal Procedure, 1973; Sections 73 and 167:


c 30 days
       Charges under POTA-Petitionfor extending police remand beyond
          period-Allowed by trial Court-Affirmed by High Court-On
    appeal, Held: Court could interpret the law but cannot legislate it-
    Legislature casus omissus should neither be supplied by judicial
    interpretation nor should it be readily inferred to make it a consistent
    enactment-However, a casus omissus, if occurs, must be disposed of
D   according to law as existed before enactment of the statute-Provision for
    extending police custody specifically provided-Adequate safeguards
    provided under Section 49(2)(b) against its misuse-Apprehension of
    accused about likelihood ofmisuse ofthe provision without any substance-
    Interpretation of Statutes.
E
         Proviso to Section 49(2) POTA-Scope of-Held: It was introduced
    by way of exception in relation to proviso to Section 167(2)(b) and not in
    respect of Section 167(2) of the Cr. P.C.-A proviso can not be interpreted
    as stating a general rule but creates an exception to an enactment.
F        Legal Maxims:




G
         Maxims- 'Ad ea quae frequentius accidunt Jura adapatantur' and
    'casus omissus et oblivioni datus dispositioni Communis Juris relinquitur '-
    Applicability of-Discussed.                                                    .
          Accused-appellant and others allegedly attacked a train and set
    it ablaze, which has resulted in the death of some passengers and injury
    to several others. A case was registered against accused for commission
    of offences under various provisions of Indian Penal Code, Indian
H   Railways Act, Prevention of Damage to Public Property Act and

                                        202
            MAULAVI HUSSEIN v. STATE OF GUJARAT                       203
Bombay Police Act. Subsequently, Sections 3(1)(a)(b) and 3(2) of the A
Prevention of Terrorism Act were added with the permission of the
Court. Accused was arrested and remanded to police custody. Later,
an application in terms of section 49(2) of POT A for extension of police
custody was filed before the POTA Court. The Court extended police
remand of accused beyond a period of 30 days. Appeal was dismissed B
by High Court. Hence the present appeal.

     It was contended by the accused-appellant that Section 49(2) of
POTA is not intended to give unbridled power to the investigating
agency to seek police custody beyond a period of 30 days as it would
negate the statutory limit of police custody provided in section 167 C
Cr.P.C.; and that keeping the accused in police custody for a period
beyond 30 days could never be the ,!~gislative intent, and that Section
49(2), POTA could not be given an extended meaning which would
frustrate the legislative intent.
                                                                            D
     Respondent-State submitted that by restricting the scope of
Section 49(2) of POTA, the investigating officer could not seek police
custody of the accused beyond 30 days period for further investigating
the matter, which could never be the legislative intent.

    ·Dismissing the appeal, the Court                                       E
     HELD: I.I. The normal function ofa proviso is to except something
out of the enactment or to qualify something enacted therein which but
for the proviso would be within the purview of the enactment. The
proper function of a proviso is to except and to deal with a case which F
would otherwise fall within the general language of the main enactment
and its effect is confined to that case. It is a qualification of the preceding
enactment which is expressed in terms too general to be quite accurate.
As a general rule, a proviso is added to an enactment to qualify or create
an exception to what is in the enactment and ordinarily, a proviso is not
interpreted as stating a general rule. Normally, a proviso does not G
travel beyond the provision to which it is a proviso. It carves out an
exception to the main provision to which it has been enacted as a proviso
and to no other. [2ll-B-C-D-E]

     Shah Bhoraj Kuverji Oil Mills and Ginning Factory v. Subhash H
    204                SUPREME COURT REPORTS (2004) SUPP. 3 S.C.R.

A Chandra Yograj Sinha, AIR (1961) SC 1596; Calcutta Tramways Co.Ltd.
  v. Corporation of Calcutta, AIR (1965) SC 1728; A.N Sehgal & Ors. v.
  Raje Ram Sheoram & Ors., AIR (1991) SC 1406; Tribhovandas Haribhai
  Tamboli v. Gujarat Revenue Tribunal & Ors., AIR (1991) SC 1538;
  Kera/a State Housing Board & Ors. v. Ramapriya Hotels (P) Ltd. & Ors.,
B [1994) 5 sec 672 and Ali MK. & Ors. v. State of Kera/a & Ors., (2003)
  4 SCALE 197, referred to.

        Mullins v. Treasurer of Survey, [1880) 5 QBD 170; West Derby
  Union v. Metropolitan Life Assurance Co., [1897) AC 647 HI; Forbes v.
  Git, [1922) I A.C. 256; R. v. Taunton, St. James, 9 B & C. 836; Re Barker,
C 25 Q.B.D and Jennings v. Kelly, [19401 A.C. 206, referred to.
          Coke upon Littleton, 18th Edition, 146, referred to.

       1.2. It is well settled principle in law that Court cannot read
  anything into a statutory provision which is plain and unambiguous.
D A statute is an edict of the Legislature. The language employed in a
  statute is the determinative factor of legislative intent. Words and
  phrases are symbols that stimulate mental references to referents. The
  object of interpreting a statute is to ascertain the intention of the
  Legislature enacting it. [212-D-E)
E
          Institute of Chartered Accountants of India v. Mis. Price Waterhouse
    & Anr., AIR (1998) SC 74, referred to.

         1.3. The intention of the Legislature is primarily to be gathered
    from the language used, which means that attention should be paid to
F   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. [212-F-G]

G        The State of Gujarat & Ors. v. Dilipbhai Nathjibhai Patel & Anr.,
    JT (1998) 2 SC 253, referred to.

         Crawford v. Spooner, [1846) 6 Moore PC 1 and Stock v. Frank
    Jones (Tiptan) Ltd., [19781 1 All ER 948 (HL), referred to.

H         1.4. Rules of interpretation do not permit Courts to do so, unless
            MAULAVI HUSSEIN v. STATE OF GUJARAT                      205

the provision as it stands is meaningless or of doubtful meaning. Courts A
are not entitled to read words into an Act of Parliament unless clear
reason for it is to be found within the four cormirs of the Act itself.
                                                               (213-A-B)

     Jamma Masjid, Mercara v. Kodimaniandra Deviah & Ors., AIR B
(1962) SC 847, referred to.

      Vickers Sons & Maxim Ltd. v. Evans, [1910) AC 445 HL, referred
to.

     1.5. While interpreting a provision the Court only interprets the C
law and cannot legislate it. If a provision of law is misused and
subjected to the abuse of process of law, it is for the legislature to
amend, modify or repeal it, if deemed necessary. (213-E-F)

     Union of India & Ors. v. Filip Tiago De Gama of Vedem Vasco De
Gama, AIR (1990) SC 891; Dr. R. Venkatachalam & Ors. Etc. v. Dy. D
Transport Commissioner & Ors. Etc., AIR (1977) SC 842 and Commissioner
of Sales Tax, MP. v. Popular Trading Company, Ujjain, (2000) 5 SCC
515, referred to.

      Lenigh Valley Coal Co. v. Yensavage, 218 FR 547, referred to.
                                                                           E
      2.1. Two principles of construction one relating to casus omissus
and the other in regard to reading the statute as a whole - appear to
be well settled. Under the first principle a casus omissus cannot be
supplied by the Court except in the case of clear necessity and when
reason for it is found in the four corners of the statute itself but at the p
same time a casus omissus should not be readily inferred and for that
purpose all the parts of a statute or section must be construed together
and every clause of a section should be construed with reference to the
context and other clauses thereof so that the construction to be put on
a particular provision makes a consistent enactment of the whole G
statute. This would be more so if literal construction of a particular
clause leads to manifestly absurd or anomalous results which could not
have been intended by the Legislature. (213-G-H; 214-A-B]

    Artemiou v. Procopiou, (1966] l WB 878; Luke v. /RC, [1966) AC
557 and Fenton v. Hampton, 11 Moore, P.C. 345, referred to.        H
    206                SUPREME COURT REPORTS [2004]SUPP. 3 S.C.R.

A       2.2. A casus omissus ought not to be created by inte;pr~tation, save
  in some case of strong necessity. Where, however, a casus omissus does
  really occur, either through the inadvertence of the legislature, or on
  the principle quod semel aut bis existit proetereunt legislators, the rule is
  that the particular case, thus left unprovided for, must be disposed of
B according to the law as it existed before such statute - Casus omissus et
  oblivioni datus dispositioni communis Juris relinquitur. At this juncture, it
  would also be necessary tG take note of a maxim 'Ad ea quae frequentius
  accidunt Jura adaptantur' which means the laws are adapted to those
  cases which more frequently occur. [214-E-F-G; 215-C]

C         Jones v. Smart, I.T.R. 52, r"ferred to.

         3. One thing which is specifically to be noted_ in the present case
    is that the proviso inserted by Section 49(2)(b) of POTA is in relation
    to the proviso to Section 167(2) Cr.P.C. and not in respect of Section
    167(2). Therefore, what is introduced by way of an exception by
D   Section 49(2)(b) of POTA is in relation ta the proviso to Section
    167(2)(b). It is to be noted that the acceptance of application for police
    custody when an accused is in judicial custody is not a matter of course.
    Section 49(2)(b), POTA provides inbuilt safeguards against its misuse
    by mandating filing of an affidavit by the investigating officer to justify
E   the prayer and in an appropriate case the reason for delayed motion.
    Special Judge, POTA Court before whom such an application is made
    ha~ to consider the prayer in its proper perspective and in accordance
    with law keeping in view the purpose for which POT A was enacted,
    the reasons and/or explanation offered thereto and pass necessary
F   order. Hence, the apprehension of the appellant that there is likelihood
    of misuse of the provision is without substance. In any event, that
    cannot be a ground to give an extended meaning to the provision in ·
     the manner suggested by the appellant. [215-D-E-F-G]

          CR IMTN AL APPELLATE JURISDICTION : Criminal Appeal No.
G 759 of 2003.
         From the Judgment and Order dated 8.5.2003 of the Gujarat High
    Court in Cr!. A. No. 552 of 2003.

          Colin Gonsalves, Ms. Aprana Bhat and Vipin M. Benjamin for the
H Appellant.
   MAULAVI HUSSEIN v. STATE OF GUJARAT [PASAYAT, J.] 207

     U. U. Lalit, Aruna Gupta and Mrs. Hemantika Wahi for the Respondent. A

     The Judgment of the Court was delivered by

     ARIJIT PASA YAT, J. : The scope and ambit of Section 49(2) of
the Prevention of Terrorism Act, 2002 (in short the 'POTA') fall for B
consideration in this appeal. Since the legal issue involved in this appeal
relates to the question as to during what period prayer for police custody
can be made, brief reference to the factual aspects is sufficient.

      On 27 .2.2002 some person died at Godhra in the State of Gujarat and C
several person were injured when allegedly a train was attacked and set
ablaze. The first information report was lodged and various persons were
arrested .in connection with the alleged occurrence.

      Initially, the case was registered for alleged commission of offences D
punishable under various provisions of Indian Penal Code, 1860 (in short
the '!PC'), Indian Railways Act, 1989 (in short the 'Railways Act') and
the Prevention of Damage to Public Property Act, 1984 (in short the 'Public
Property Act') read with Section 135 of the Bombay Police Act, 1951 (in
short the 'Bombay Act'). Subsequently, an application was filed in the        ·
Court of judicial Magistrate, First Class, Railway seeking addition of E
offences punishable under Section 3(l)(a), (b) and 3(2) of the POTA. The
appellant was arrested on 6.2.2003. He was remanded to police custody
till 11.2.2003 and subsequently the police custody was extended till
13.2.2003. As the application for addition of offences covered by POTA
was not pressed earlier, a subsequent application was filed and the F
Additional Sessions Judge accepted the prayer.

      As an application for extending the police remand was rejected a
Criminal Revision was filed before t~e Sessions, Judge, Panchamahal,
Godhra. The Special Court was constituted under Section 23 of the POTA G
on 6.3.2003. Sanction order as required under Section 50 of POTA was
also passed so far as the appellant is concerned. The revision application
which was filed questioning rejection of the prayer for police custody was
withdrawn and an application in terms of Section 49(2)(b) of POTA was
filed on 24.4.2003. The prayer was acc<:pted by the learned Special Judge, H
    208                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A POTA. Questioning legality of the said order, an appeal under Section
    34(1) of POTA was filed before the High Court of Gujarat which came
    to be dismissed by the impugned judgment.

          Mr. Colin Gonsalves, learned senior counsel appearing for the
B   appellant submitted that true import of Section 49(2) has not been kept in
    view by the Special Court and High Court. The same is not intended to
    give unbridled power to the investigating agency to seek pol ice custody.
    That would negate the statutory limit provided in Section 167 of the Code
    of Criminal Procedure, 1973 (in short the 'Code'). For harmonizing
C   construction of the provisions it has to be held that Section 49(2)(b) has
    application only for the period of 30 days and not beyond it. If the
    construction put by the High Court is accepted, it would mean that for
    a period slightly less than 180 days the accused can be in police custody
    which can never be the legislative intent. Section 49(2)(b) is at the most
    a procedural provision intended to aid the operation of Section 167(2) of
D   the Code and it cannot be given an extended meaning which would
    frustrate the legislative intent to restrict the period of police custody.

          Great emphasis is laid on the expression "in police custody for a term
    not exceeding 15 days in the whole" in sub-section (2) of Section 167 and
E   "otherwise than in the custody of the police, beyond the period of 15 days"
    in the first proviso of sub-section (2) of Section 167. It is submitted that
    in Section 49(2)(a) the period of"15 days" in Section 167(2) of the Code
    has been substituted to be "30 days". Therefore, according to learned
    counsel for the appellant, Section 49(2)(b) can be resorted to only during
F the period of 30 days.
          In response, learned coun~el for the respondents submitted that if the
    interpretation suggested by learned counsel for the appellant is accepted
    it would make the se'fond proviso to Section 49(2Xb) redundant in the
    sense that even i(beyond the period of 30 days the custody of the accused
G   is judicial custody yet the investigating officer will have no scope to seek
    for police custody beyond t~e 30 days period: The same can never be the
    legislative intent.

         In order to appreciate the rival submissions, the provisions of Section
H   167(2) of the Code of Section 49(2)(b) of POTA need to be extracted.
        MAULA VI HUSSEIN v. STATE OF GUJARAT [PASA YAT, J.] 209

     Section 167(2) along with its proviso reads as follows :                       A
                    "Section 167(2): The Magistrate to whom an accused person
             is forwarded under this section may, whether he has or has not
             jurisdiction to try the case, from time to time, authorize the
             detention of the accused in such custody as such Magistrate thinks B
             fit, a term not exceeding fifteen days in the whole; and if he has
             no jurisdiction to try the case or commit it for trial, and considers
             further detention unnecessary, he may order the accused to be
             forwarded to a Magistrate having such jurisdiction:

                   Provided that-                                                   c
             (a)   the Magistrate may authorize the detention of the accused
                   person, otherwise than in the custody of the police, beyond
                   the period of 15 days, if he is satisfied that adequate grounds
                   exist for doing so, but no Magistrate shall authorize the D
                   detention of the accused person in custody under this
                   paragraph for a total period exceeding-

                   (i)   ninety days, where the investigation relates to an
                         offence punishable with death, imprisonment for life or
                         imprisonment for a term not less than ten years;        E
                   (ii) sixty days, where the investigation relates to any other
                        offence,

             and, on the expiry of the said period of ninety days, or sixty days,   F
             as the case may be, the accused person shall be released on bail
             if he is prepared to and does furnish bail, and every person
             released on bail under this sub-section shall be deemed to be
             released under the provisions of Chapter XXXIII for the purposes
             of that Chapter;
                                                                                    G
             (b)   No magistrate shall authorize detention in any custody under
                   this section unless the accused is produced before him;

             (c)   No magistrate of the second class, not specially empowered
                   in this behalf by the High Court, shall authorize detention H
.(
    210                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A                 in the custody of the police.

             Explanation I - For the avoidance of doubts, it is hereby declared
             that, notwithstanding the expiry of the period specified in paragraph
             (a), the accused shall be detained in custody so long as he does
             not furnish bail.
B
             Explanation II - If any question arises whether an accused person
             was produced before the Magistrate as required under paragraph
             (b), the production of the accused person may be proved by his
             signature on the order authorizing detention."
c
          Section 49(2) of POTA reads as follows :

                   "Section 49(2) : Section 167 of the Code shall apply in
             relation to a case involving an offence punishable under this Act
D            subject to the modification that in sub-section (2), -

                   (a) the references to "fifteen days'', "ninety days" and "sixty
             days", wherever they occur, shall be construed as references to
             "thitty days", "ninety days" ancl "ninety days", respectively, and

E
                 (b) after the proviso, the following provisos shall be inserted,
             namely :-

                  "Provided further that if it is not possible to complete the
             investigation within the said period of ninety days, the Special
F            Court shall extend the said period up to one hundred and eighty
             days, on the report of the Public Prosecutor indicating the progress
             of the investigation and the specific reasons for the detention of
             the accused beyond the said period of ninety days:


G                 Provided also that ifthe police office making the investigation
             under this Act, requests, for the purposes of investigation, for
             police custody from judicial custody of any person from judicial
             custody, he shall file an affidavit stating the reasons for doing so
             and shall also explain the delay, if any, for requesting such police
             custody."
H
    MAULAVI HUSSEIN v. STATE OF GUJARAT (PASAYAT, J.] 211

     If the arguments of learned counsel for the appellant is accepted it A
would mean that what is specifically prov'ded in Section 49(2)(b) would
be controlled by Section 167(2) of the Code.

      The normal function of a proviso is to except something out of the
enactment or to qualify something enacted therein which but for the
proviso would be within the purview of the enactment. As was stated in B
Mullins v. Treasurer of Survey, (1880] 5 QBD 170, (referred to in Shah
Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj
Sinha, AIR(l961) SC 1596 and Calcutta Tramways Co. Ltd. v. Corporation
of Calcutta, AIR (1965) SC 1728); when one finds a proviso to a section
the natural presumption is that, but for the proviso, the enacting part of the C
section would have included the subject matter of the proviso. The proper
function of a proviso is to except and to deal with a case which would
otherwise fall within the general language of the main enactment and its
effect is confined to that case. It is a qualification of the preceding
enactment which is expressed in terms too general to be quite accurate. As D
a general rule, a proviso is added to an enactment to qualify or create an
exception to what is in the enactment and ordinarily, a proviso is not
interpreted as stating a general rule. "If the language of the enacting part
of the statute does not contain the provisions which are said to occur in
it you cannot derive these provisions by implication from a proviso." Said
Lord Watson in West Derby Union v. Metropolitan Life Assurance Co., E
[l 897] AC 647 HL. Normally, a proviso docs not travel beyond the
provision to which it is a proviso. It carves out an exception to the main
provision to which it has been enacted as a proviso and to no other. (See
A.N Sehgal and Ors. v. Raje Ram Sheoram and Ors., AIR (1991) SC 1406,
Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors., F
AIR (1991) SC 1538 and Kera/a State Housing Board and Ors. v.
Ramapriya Hotels (P) Ltd. and Ors., (1994] 5 SCC 672).

     "This word (proviso) hath divers operations. Sometime it worketh a
qualification or limitation; sometime a condition; and sometime a covenant" G
(Coke upon Littleton 18th Edition 146).

      "If in a deed an earlier clause is followed by a later clause which
destroys altogether the obligation created by the earlier clause, the later
clause is to be rejected as repugnant, and the earlier clause pre~ails ..... But
if the later clause does not destroy but only qualifies the ear4Jer, then the H
    212                SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A two are to be read together and effect is to be given to the intention of the
    parties as disclosed by the deed as a whole" (per Lord Wrenbury in Forbes
    v. Git, [1922) 1 A.C. 256.

          A statutory proviso "is something engrafted on a preceding enactment"
B (R. v. Taunton, St James, 9 B. & C. 836).                    ·

          "The ordinary and proper function of a proviso coming after a general
    enactment is to limit that general enactment in certain instances" (per Lord
    Esher in Re Barker, 25 Q.B.D. 285).

C       A proviso to a section cannot be used to import into the enacting part
    something which is not there, but where the enacting part is susceptible
    to several possible meanings it may be controlled by the proviso (See
    Jennings v. Kelly, [1940] A.C. 206).

          The above position was noted in Ali MK. & Ors. v. State of Kera/a
D and Ors., (2003) 4 SCALE 197.
          It is well settled principle in law that the Court cannot read anything
    into a statutory provision which is plain and unambiguous. A statute is an
    edict of the Legislature. The language employed in a statute is the
E   determinative factor of legislative intent.

           Words and phrases are symbols that stimulate mental references to
    referents. The object of interpreting a statute is to ascertain the intention
    of the Legislature enacting it. (See Institute of Chartered Account.mis of
    India v. Mis. Price Waterhouse and Anr. AIR (1998) SC 74. The intention
F 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. As observed in Crawford v.
G    Spooner, [1846) 6 Moore PC 1, Courts, cannot aid the Legislatures'
     defective phrasing of an Act, we cannot add or mend, and by construction
     make up deficiencies which are left there. (See The State of Gujarat and
     Ors. v. Dilipbhai Nathjibhai Patel and Anr., JT (1998) 2 SC 253). It is
     contrary to all rules of construction to read words into an Act unless it is
H absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd.,
    MAULAVI HUSSEIN v. STATE OF GUJARAT [PASAYAT, J.] 213

[1978] 1 All ER 948 HL. Rules of interpretation do not permit Courts to A
do so, unless the provision as it stands is meaningless or of doubtful
meaning. Courts are not entitled to read words into an Act of Parliament
unless clear reason for it is to be found within the four comers of the Act
itself. (Per Lord Lorebum L.C. in Vickers Sons and Maxim Ltd. v. Evans,
[1910] AC 445 HL, quoted in Jamma Masjid, Mercara v. Kodimaniandra              B
Deviah and Ors., AIR (1962) SC 84 7).

    The question is not what may be supposed and has been intended but
what has been said. "Statutes should be construed not as theorems of
Euclid". Judge Learned Hand said, "but words must be construed with C
some imagination of the purposes which lie behind them". (See Lenigh
Valley Coal Co. v. Yensavage, 218 FR 547). The view was re-iterated in
Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De
Gama, AIR (1990) SC 981.

     In Dr. R. Venkatchalam and Ors. Etc. v. Dy. Transport Commissioner D
and Ors. Etc., AIR (1977) SC 842, it was observed that Courts must avoid
the danger of a priori determination of the meaning of a provision based
on their own pre-conceived notions of ideological structure or scheme into
which the provision to be interpreted is somewhat fitted. They are not
entitled to usurp legislative function under the disguise of interpretation. E

       While interpreting a provision the Court only interprets the law and
cannot legislate it. If a provision of law is misused and subjected to the
abuse of process of Jaw, it is for the legislature to amend, modify or repeal
it, ifdeemed necessary. (See Commissioner of Sales Tax, MP. v. Popular          F
Trading Company, Ujjain, [2000] 5 SCC 515). The legislative casus
omissus cannot be supplied by judicial interpretative process.

      Two principles of construction - one relating to casus omissus and
the other in regard to reading the statute as a whole - appear to be well
settled. Under the first principle a casus omissus cannot be supplied by the G
Court except in the case of clear necessity and when reason for it is found
in the four comers of the statute itself but at the same time a casus omissus
should not be readily inferred and for that purpose all the parts of a statute
or section must be construed together and every clause of a section should
be construed with reference to the context and other clauses thereof so that H
     214                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A the construction to be put on a particular provision makes a consistent
  enactment of the whole statute. This would be more so ifliteral construction
  of a particular clause leads to manifestly absurd or anomalous results which
  could not have been intended by the Legislature. "An intention to produce
  an unreasonable result", said Danackwerts, L.J in Artemiou v. Procopiou,
B [1966] I QB 878, "is not to be imputed to a statute if there is some other
  construction available". Where to apply words literally would "defeat the
  obvious intention of the legislature and produce awholly unreasonable
  result" we must "do some violence to the words" and so achieve that
  obvious intention and produce a rational construction. (Per Lord Reid in
C Luke v. /RC, [1966] AC 557 where at p. 577 he also observed: "this is not
  a new problem, though our standard of drafting is such that it rarely
  emerges".

           It is then true that, "when the words of a law extend not to an
D inconvenience rarely happening, but due to those which often happen, it
  is good reason not to strain the words further than they reach, by saying
  it is casus omissus, and that the law intended quae frequentius accidunt.''
  "But", on the other hand, "it is no reason, when the words of a Jaw do
  enough extend to an inconvenience seldom happening, that they should not
E extend to it as well as if it happened more frequently, because it happens
  but seldom" (See Fenton v. Hampton, 11 Moore, P.C. 345). A casus
  omissus ought not to be created by interpretation, save in some case of
  strong necessity. Where, however, a casus omissus does really occur, either
  through the inadvertence of the legislature, or on the principle quad semel
  aut bis existit proetereunt legislators, the rule is that the particular case,
F thus left unprovided for, must be disposed of according to the law as it
  existed before such statute - Casus omissus et oblivioni datus dispositioni
  communis juris relinquitur; "a casus omissus", observed Buller, J. in Jones
  v. Smart, l.T.R. 52, "can in no case be supplied by a court of law, for that
  would be to make laws."
G
           The golden rule for construing wills, statutes, and, in fact, all written
     instruments has been thus stated: "The grammatical and ordinary sense of
     the words is to be adhered to unless that would lead to some absurdity or
     some repugnance or inconsistency with the rest of the instrument, in which
·H   case the grammatical and ordinary sense of the words may be modified,
    MAULAVI HUSSEIN v. STATE OF GUJARAT [PASAYAT, J.] 215

so as to avoid that absurdity and inconsistency but no further' (See Grey A
v. Pearson, 6 H.L. Cas. 61). The latter part of this "golden rule" must,
however, be applied with much caution. "If', remarked Jervis, C.J., "the
precise words used are plain and unambiguous in our judgment, we are
bound to construe them in their ordinary sense, even though it lead, in our
view of the case, to an absurdity or manifest injustice. Words may be B
modified or varied where their import is doubtful or obscure. But we
assume the functions of legislators when we depart from the ordinary
meaning of the precise words used, merely because we see, or fancy we
see, an absurdity or manifest injustice from an adherence to their literal
meaning" (See Abley v. Dale, 11 C.B. 378).
                                                                           c
     At this juncture, it would be necessary to take note of a maxim "Ad
ea quae frequentius accidunt Jura adaptantur" (The laws are adapted to
those cases which more frequently occur).

      One thing which is specifically to be noted here is that the proviso D
inserted by Section 49(2)(b) of POTA is in relation to the proviso to Section
167(2) of the Code and not in respect of Section 167(2). Therefore, what
is introduced by way of an exception by Section 49(2)(b) of POTA is in
relation to the proviso to Section I 67(2)(b ). That being the position, the
interpretation suggested by learned counsel for the appellant cannot be
accepted. It is to be noted that the acceptance of application for· police E
custody when an accused is in judicial custody is not a matter of course.
Section 49(2)(b) provides inbuilt safeguards against its misuse by mandating
filing of an affidavit by the investigating officer to justify the prayer and
in an appropriate case the reason for delayed motion. Special Judge before
whom such an application is made has to consider the prayer in its proper F
perspective and in accordance with law keeping in view the purpose for
which the POTA was enacted, the reasons and/or explanation offered and
pass necessary order. Therefore, the apprehension of learned counsel for
appellant that there is likelihood of misuse of the provision is without
substance. In any event, that cannot be a ground to give an extended
meaning to the provision in the manner suggested by the learned counsel G
for the appellant.

     The appeal is sans merit and deserves dismissal, which we direct.

S.K.S.                                                Appeal dismissed.