Case ID: 3999

Judgment:
: Criminal Appeal No. 57 of 1972. Appeal by Special Leave from the Judgment and Order dated 5 3 1971 of the Calcutta High Court in Crl. Revision No. 35/71. P. K. Chatterjee and G. section Chatterjee for the Appellant. D. N. Mukherjee for the Respondent. The Judgment of the Court was delivered by SARKARIA	 J. This appeal by special leave is directed against a judgment	 dated March 5	 1971	 of the High Court of Calcutta. The facts are as follows: Abani Maity	 respondent herein	 and three other persons were tried by the Magistrate	 First Class	 Alipore	 District 24 Parganas	 in respect of a charge under Section 46(a) of the Bengal Excise Act	 1909 (hereinafter referred to as the Act). On the night of July 29	 1963	 at about 7.30 p.m.	 the Excise staff intercepted Motor Car No. WBD 8169 at village Rajpur	 Police Station Sonarpur. The car was searched and thereupon 199 kgs. 700 grams contraband Ganja was recovered from inside the car. The respondent	 Abani Maity	 who was the registered owner of the car	 and held a driving licence was himself on the steering wheel. Abani Maity and the three other occupants of the car were arrested. After completing the investigation	 a charge sheet was submitted against Abani Maity and his companions in respect of an offence under Section 46(a) of the Act. During the trial	 out of the accused	 Robin	 died Kalipada absconded; and the case proceeded only against Abani Maity and his coaccused	 Mihir Bose. The Magistrate	 ultimately	 by his order dated August 21	 1970	 convicted both the accused persons under Section 46(a) of the Act and sentenced each of them to pay a fine of Rs. 800/ 	 and	 in default	 to suffer six months ' rigorous imprisonment. The Magistrate	 however	 failed to pass orders for the disposal of the contraband Ganja	 and the confiscation of the seized car. In the course of the trial	 it was established by evidence that the respondent	 Abani Maity	 was the registered owner of the car and he was driving the vehicle at the time of its interception. It was further 474 established that some packets of contraband Ganja were seized from underneath the driver 's seat and some from the luggage boot which was opened with a key produced by the respondent. Thus	 the evidence on record indubitably established that the car (Registered No. WBD 8169) was used for the transport of this contraband Ganja by its owner	 Abani Maity	 respondent. After his conviction	 on November 16	 1970	 Abani Maity made an application to the Magistrate	 praying for return of the car and the other articles seized by the Excise Staff. On the same day	 the Magistrate	 without issuing any notice to the prosecution	 passed an ex parte order directing return of the seized car and other articles to the accused respondent. Against that order	 dated November 16	 1970	 of the Magistrate	 the State preferred a Revision in the High Court	 which was finally heard by a Division Bench	 who	 by an order dated March 5	 1971	 affirmed the Magistrate 's order relating to the return of the car to the accused respondent	 but directed confiscation of the Ganja. Mr. Chatterjee	 appearing for the appellant State	 does not now request the Court to pass an order of confiscation of the aforesaid car	 obviously because the passing of such an order after a lapse of about 16 years from the date of its seizure	 will be an exercise in futility. The learned counsel	 however	 submits that this Court should for the guidance of the courts below	 clarify the law on the point so that the efficacy of the provisions contained in Sections 63 and 64 of the Act as an instrument for combating and preventing such anti social crime is not undermined due to misinterpretation or misunderstanding in regard to their import	 nature and application. It is contended that as soon as Abani Maity	 the owner driver of this car was found guilty of using this car for transport of contraband Ganja	 the Magistrate was bound in addition to the conviction of Abani Maity for that offence	 to pass an order for confiscation of the car	 or to give its owner	 Abani Maity	 an option to pay in lieu of confiscation a fine	 as the Magistrate thought fit. The point sought to be made out is that the words "shall be liable to confiscation" occurring in Section 63(1) read with sub section (1) of Section 64	 make it obligatory on the Magistrate in the event of the conditions laid down in these provisions being satisfied	 to adopt either of the two alternatives	 namely	 to confiscate the car	 or	 in lieu of confiscation	 to impose a fine at the option of its owner. In support of this contention	 reliance has been placed upon certain observations of 475 this Court in Indo China Steam Navigation Co. Ltd. vs Jasjit Singh	 Additional Collector of Customs & Ors(1). As against this	 learned counsel for the respondent	 submits that the words "liable to" used in the context of "confiscation"	 in Section 63(1) of this Act or in some other penal statutes	 do not convey an absolute imperative; they are merely directory and leave it to the discretion of the Magistrate to confiscate or not to confiscate the vehicle by means of which such offence has been committed. Section 63 of the Act defines the things liable to confiscation	 while Section 64 indicates when the order of confiscation is to be passed by the Magistrate or Collector. Section 63 and 64 read as follows: "63 (1). Whenever an offence has been committed which is punishable under this Act	 the (intoxicant) materials	 steel	 utensils	 implement and apparatus in respect of or by means of which such offence has been committed shall be liable to confiscation. (2) Any (intoxicant) lawfully imported	 transported	 manufactured; had in possession or sold along with	 or in addition to	 any (intoxicant) which is liable to confiscation under sub section (1) and the receptacles	 packages and coverings in which any such (intoxicant) as first aforesaid	 or any such materials	 steel	 utensils	 implement or apparatus as aforesaid	 is found	 and the other contents	 if any	 of such receptacles or packages	 and the animals	 carts	 vessels	 rafts or other conveyances used in carrying the same shall likewise be liable to confiscation: Provided that no animal	 cart	 vessel	 raft or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence. Explanation. For purpose of this Section "owner" includes	 in relation to any animal car	 vessel	 raft or other conveyance. (a) which is the subject of a hire purchase agreement	 the person in possession thereof under that agreement." "64(1). When in any case tried by him	 the Magistrate decides that anything is liable to confiscation under Section 476 63	 he may either order confiscation or give the owner of such an option to pay	 in lieu of confiscation	 such fine as the Magistrate thinks fit: Provided that the Magistrate shall in cases order confiscation of the intoxicants decided by him to be liable to confiscation under Section 63. (2) Whenever anything is liable to confiscation under Section 63	 and the offender or the person entitled to possession is not known or cannot be found	 the case shall be inquired into and determined by the Collector	 who may order confiscation: Provided that no such order shall be made until the expiration of two months from the date of seizing the thing intended to be confiscated	 or	 without giving such person as may	 before such expiration	 claim any right thereto	 an opportunity of being heard and of producing such evidence as he may like to produce in support of his claim: Provided further that if the thing in question is liable to speedy and natural decay	 or if the Collector is of opinion that its sale would be for the benefit of its owner	 the Collector may at any time direct it to be sold	 and the provisions of this sub section shall	 as early as may be practicable	 apply to the net proceeds of the sale. " It will be seen that the liability to confiscation of a conveyance	 such as	 a car or cart or vessel under Section 63 is incurred only if two conditions are established	 namely: (a) that the conveyance was used in carrying the contraband intoxicant	 (b) the owner of that conveyance is implicated in the commission of the offence. In the instant case	 both these conditions were established. It has been found by all the courts below that the car in question (WBD 8169) was used in carrying and transporting contraband Ganja and it was being driven by its owner	 Abani Maity	 who was convicted of the offence of possessing and transporting the contraband Ganja in this car. The liability to confiscation of the car had	 therefore	 been incurred. It may be further marked that in sub section (2) of section 63 the Legislature has used the words "shall be" in the context of "liable to confiscation". Even	 in the proviso to sub section (2) the expression "shall be liable to confiscation" has been reiterated. Once 477 the facts essential for incurring the liability to confiscation are established	 the Magistrate has no option but to adopt any of the two alternative courses indicated in sub section (1) of Section 64	 that is to say	 he may either order confiscation of that conveyance; or give its owner an option to pay in lieu of confiscation	 such fine as the Magistrate thinks fit. The Magistrate cannot just ignore to adopt any of these alternatives. Since sub section (1) of Section 64 talks of the imposition of fine in lieu of confiscation	 it appears that such an order of confiscation or fine in lieu of confiscation	 is to be passed at the conclusion of the trial	 when after conviction	 a sentence for the commission of the offence is awarded. It is true that ordinarily	 the word "liable" denotes: (1) "legally subject or amenable to"	 (2) "Exposed or subject to or likely to suffer from (something prejudicial)"	 (3) "Subject to the possibility of (doing or undergoing something undesirable)" (See Shorter Oxford Dictionary). According to Webster 's New World Dictionary	 also	 the word "liable" denotes "something external which may befall us". Accordingly	 the word "liable" occurring in many statutes	 has been held as not conveying the sense of an absolute obligation or penalty but merely importing a possibility of attracting such obligation	 or penalty	 even where this word is used along with the words "shall be". Thus	 where an American Revenue Statute declared that for the commission of a certain act	 a vessel "shall be liable to forfeiture"	 it was held that these words do not effect a present absolute forfeiture but only give a right to have the vessel forfeited under due process of law. (See Kate Haron	 14 Fed. 139	 141 6 Sawy. 106) quoted in Words and Phrases	 Vol. 25 page 109. Permanent Edition	 West Publishing Co.) Similarly	 it has been held that in Section 302	 Indian Penal Code	 the phrase "shall also be liable to fine" does not convey a mandate but leave it to the discretion of the Court convicting an accused of the offence of murder to impose or not to impose fine in addition to the sentence of death or transportation for life. But a statute is not to be interpreted merely from the lexicographer 's angle. The court must give effect to the will and inbuilt policy of the Legislature as discernible from the object and scheme of the enactment and the language employed therein. Exposition ex visceribus actus is a long recognised rule of construction. Words in a statute often take their meaning from the context of the statute as a whole. They are therefore	 not to be cons 478 trued in isolation. For instance	 the use of the word "may" would normally indicate that the provision was not mandatory. 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 Viscount Simon L.C. in Nokes vs Doncaster Amalgamated Collieries	 Ltd	(1) "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 on the view that Parliament would legislate only for the purpose of bringing about an effective result". The provisions of Sections 63 and 64 of the Act are to be interpreted in the light of this principle. The language and scheme of the Excise Act	 taken as a whole	 show that the purpose of this legislation is not only to raise revenue but also to control and restrict the import	 export	 transport	 manufacture and sale of intoxicants. Free and unrestricted use of intoxicants and illicit trade in contraband intoxicants not only means a loss of revenue to the public exchequer but also has a harmful effect on public health and morals. Moreover	 illicit trade and smuggling of intoxicants is often committed in an organised and clandestine manner	 and is difficult to detect. We have	 therefore	 to adopt that construction of the expressions "shall be liable to confiscation" used in Section 3(2) and "may" in sub section (1) of Section 64	 which will preserve the efficacy of the provisions as an instrument for combating these anti social activities	 and reject the other which will render them ineffective. Thus considered	 it seems clear that the expressions "shall be liable to confiscation" and "may" in the aforesaid provisions were intended to have a compulsive force. We need not dilate on the topic further. We will close the discussion by noticing one decision of this Court which has been cited by the counsel for the appellant. That case is: Indo China Steam Navigation Co. Ltd. vs Jasjit Singh	 Additional Collector of Customs Ors. (ibid)	 wherein this Court was considering the interpretation of certain provisions of the Sea Customs Act. In dealing with an offence under Section 167(12A) of the 	 the Customs Officer has also to exercise his jurisdiction under Section 183 of that Act	 which expressly requires 479 the adjudicating Officer to give an option to the owner of the offending vessel to pay fine in lieu of confiscation. Question arose as to what was the nature of the responsibility prescribed by Section 167(12A). Gajendragadkar	 C.J.	 speaking for the Court elucidated the position	 thus: "We have already seen that Section 167(12A) provides that if a vessel contravenes Section 52A	 it shall be liable to confiscation and the master of such vessel shall be liable to a penalty not exceeding Rs. 1	000/ . Can it be said that the penalty prescribed by Section 167(12A) may in any given case not be imposed against the ship on the ground that the contravention proved against it is of a very trivial character	 or has been the result of an act on the part of a criminal who acted on his own contrary to the instructions of the master of the ship? The words used in the third column of Cl. (12A) are that "such vessel shall be liable to confiscation". The context seems to require that it is not open to the Customs Authority to refuse to confiscate the vessel on the ground that there are any extenuating circumstances surrounding the contravention of section 52A in a given case and that it would be unfair to impose the penalty of confiscation. Two penalties are prescribed	 one is the confiscation of the ship	 and the other is a fine against the master. In regard to the later penalty	 it is within the discretion of the Customs Authority to decide what amount of penalty should be imposed; just as in the case of the first penalty it is not open to it to say that it would not impose the penalty of confiscation against the offending ship	 so in the case of the second penalty it is not open to it to say that it will not levy any penalty against the master. In its discretion	 it may impose a very small fine against the master if it is satisfied that the master was innocent and despite his best efforts	 he could not prevent the contravention of section 52A. If the two penalties prescribed by cl. (12A) had been alternative	 the position may have been different	 but they are independent penalties	 one is against the ship and the other is against the master; and so	 there is no scope for contending that the Customs Authority may refuse to impose one penalty and impose the other	 or may refuse to impose either of the two penalties. It must be regarded as an elementary requirement of clause 12A that as soon as the offence referred to in column 1 of the said clause is 480 proved	 some penalty has to be imposed and cl. (12A) indicates that two penalties have to be imposed and not one	 there being discretion in regard to the penalty imposable against the master as regards the amount of the said penalty. Therefore	 we do not think it would be possible to take the view that if there are extenuating circumstances attending the contravention of section 52A in a given case the Customs Authority can refrain from confiscating the vessel. Confiscation of the vessel is the immediate statutory consequence of the finding that an offence under cl. 12A is established	 just as the imposition of some penalty against the master is another statutory consequence of the same contravention. " The language of Section 167(12A) and 183 of the 	 is not in pari materia with those of Sections 63 and 64 of the Bengal Excise Act. It was on the language of these provisions	 as they then stood	 it was held that the penalties prescribed under Sections 167(12A) and 183 are independent and not alternative. The observations	 extracted above therefore	 are not applicable in their entirety. Nevertheless	 they are a useful guide inasmuch as the expression "shall be liable to confiscation" used in Section 167(12A) in the context of a vessel found in the Customs waters in circumstances that amounted to a contravention of Section 52A	 was held to cast on the Customs Authority an imperative duty to confiscate such vessel. For all that has been said above and keeping in view the purpose	 the scheme and the language of the provisions in question	 we are of opinion that as soon as on proof of the conditions necessary under Section 63	 a conveyance incurs the liability to confiscation	 the word "may" used in Section 64(1) acquires the force of "must"	 and the Magistrate is bound to abide by either of the two alternatives viz.	 confiscation of the conveyance or imposition of the fine in lieu thereof in accordance with that Section. Thus	 the discretion of the Magistrate is restricted to choice between these two alternatives. This limited discretion	 also	 is not to be exercised whimsically	 but judicially	 in a manner which will not emasculate these provisions or debilitate their potency as an instrument for suppressing the mischief which the Legislature had in view. In the circumstances of this case therefore	 it was imperative for the Magistrate	 to pass	 at the 481 conclusion of the trial	 in addition to the conviction of the accused respondent	 an order of confiscation of the car by means of which the offence was committed. With this clarification of the law on the point	 the appeal stands disposed of. P.B.R. Appeal allowed.

Summary:
Section 63(1) of the Bengal Excise Act	 1909 provides that whenever an offence punishable under the Act had been committed	 the intoxicant material and the means by which such offence had been committed "shall be liable to confiscation '. Section 64(1) provides that when the Magistrate decides that anything is liable to confiscation under section 63 he may either order confiscation or give the owner an option to pay in lieu of confiscation such fine as he thinks fit. The respondent was found carrying contraband ganja in a car of which he was the owner. The Magistrate passing the order of conviction and sentence against him	 did not pass orders for the disposal of the contraband goods and confiscation of the car which was seized. On the question whether the words "liable to" used in the context of "confiscation" in section 63(1) convey an absolute imperative or merely leave it to the discretion of the Magistrate to confiscate or not to confiscate the vehicle by means of which such offence had been committed. Allowing the appeal	 ^ HELD: 1. It is imperative for the Magistrate to pass	 at the conclusion of the trial	 in addition to the conviction and sentence	 an order of confiscation of the car by means of which the offence was committed. [481 A] 2. The expressions "shall be liable to confiscation" and "may" in the sections were intended to have a compulsive force. As soon as the conditions of section 63	 namely	 that the conveyance had been used for carrying the contraband intoxicant and that the owner of that conveyance was implicated in the commission of the offences are established the word "may" in section 64(1) acquires the force of "must". The discretion of the Magistrate is restricted to a choice between the two alternatives mentioned in section 64(1) namely	 confiscation of the conveyance or imposition of fine in lieu thereof. G H] 3. Ordinarily the word "liable" has been held as conveying not an absolute obligation or penalty but as merely importing a possibility of attracting such obligation or penalty even where it is used with the words "shall be. " But a statute is not to be interpreted merely from the lexicographer 's angle. Exposition ex visceribus actus is a long recognised rule of construction. Words in a statute often take their meaning from the context of the statute as a whole; they are not to be construed in isolation. The purpose of the Excise Act is not merely to raise revenue but also to stop free use of intoxicants and illegal 473 trade in them which has a deleterious effect on public health and morals. Thus considered both the expressions are intended to have a compulsive force. [477 E H] Indo China Steam Navigation Co. Ltd. vs Jasjit Singh	 Addl. Collector of Customs & Ors.	 ; ; held in applicable.