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2005 DIGILAW 198 (KER)

Manoharan Pillai v. State

2005-03-10

J.B.KOSHY, V.RAMKUMAR

body2005
Judgment :- Koshy, J. Doubting the correctness of the ratio in Kunhimoideenkutty v. State of Kerala 1998 (2) KLT 128 a learned Single Judge of this Court referred this matter to the Division Bench. According to the learned Single Judge, the following issues arise for consideration in these appeals against a verdict of guilty, conviction and sentence imposed on the accused persons under Clause 16 of the Kerala Kerosene Control Order read with sections 3 and 7 of the Essential Commodities Act: Is the definition of 'Kerosene' in Clause 2 (f) of the Kerala Kerosene Control Order, 1968 comprehensive? Is it to be reckoned as exhaustive, explanatory, exclusive or inclusive? Even after the Chemical Examiner has opined that the contraband article seized is 'genuine kerosene', should the prosecution fail for the simple reason that the flame test has not been conducted? Does the decision in Kunhimoideenkutty v. State of Kerala [1988 (2 ) KLT 128] insist that there must be evidence of the length of the flame in all prosecutions for violation of the Kerosene Control Order? 2. The facts of the case are correctly and beautifully summarised by the learned Single Judge in the reference order. Therefore, we quote the same: "At 10.30 p.m. on 30-5-1990, P.W.4-a police official intercepted a jeep. The jeep was driven by one of the accused and the other was traveling in the jeep. There was no other person in the jeep. From the jeep, inter alia, 71 litres of kerosene were seized. According to the prosecution, other rationed articles were also available in the jeep. We are not now concerned with other articles. P.W.4 seized 71 litres of kerosene along with other articles under Ext.P-1 seizure mahazar. P.Ws. 2 and 3 are the witnesses to the seizure mahazar. One of them admitted his signature in Ext.P-1. Both of them tamed hostile to the prosecution. A sample of the kerosene seized was sent to the Chemical Examiner and the Chemical Examiner under Ext.P-6 report gave his opinion that the contraband article is 'genuine-kerosene', after conducting some tests which are given in detail in Ext.P-6. Cognizance was taken on the basis of the final report submitted by P.W.4. Consequent to the plea of not guilty raised by both the accused, P.Ws.1 to 4 were examined and Exts.P-1 to P-6 were marked on the side of the prosecution. No defence evidence was adduced. Cognizance was taken on the basis of the final report submitted by P.W.4. Consequent to the plea of not guilty raised by both the accused, P.Ws.1 to 4 were examined and Exts.P-1 to P-6 were marked on the side of the prosecution. No defence evidence was adduced. The accused took up a defence of total denial. The learned Special Judge, before whom the trial was held, came to the conclusion that the prosecution has succeeded in proving all the ingredients of the offence alleged against both of them." 3. According to the learned Single Judge only one of the contentions raised by the appellant that their, is no evidence to show that the article seized is 'kerosene' deserves serious consideration. 'Kerosene' is defined under Clause 2 (f) of the Kerala Kerosene Control Order in the following manner. "2 (f). 'Kerosene' shall have the meaning assigned to it in item No.7 of the First Schedule to the Central Excises and Salt Act, 1944 (Central Act I of 1944) and shall not include Aviation Turbine Fuel." 'Kerosene' is defined in item No.7 of the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to only as item 7) as it stood on the relevant date, i.e., the date of the Kerosene Control Order as follows: "7. KEROSENE Kerosene that is to say any mineral oil Five hundred rupees per kilolitre at fifteen (excluding mineral colza oil and degrees of Centigrade Thermometer. turpentine substituted which has a flame height eighteen millimetres or more and is ordinarily used as an illuminant in oil burning lamps. Explanation I: The expression 'mineral oil' has the meaning assigned to it in Explanation I to Item No. 6. Explanation II: 'Flame height' shall be determined in the apparatus known as the smoke point lamp in the manner prescribed in this behalf by the Central Government by notification in Official Gazette." 4. Ext.P-6 report of the Chemical Examiner shows that after conducting certain tests mentioned in the report, he came to the conclusion that the article in question is 'genuine kerosene'. But, it is not reported that Chemical Examiner has conducted the flame height test referred to in item 7. Flame height is also not mentioned in Ext.P-6 report. How flame height is to be determined is also mentioned in item 7. But, it is not reported that Chemical Examiner has conducted the flame height test referred to in item 7. Flame height is also not mentioned in Ext.P-6 report. How flame height is to be determined is also mentioned in item 7. The learned counsel for the appellant Shri Vijayabhanu contended that whatever be the concept of 'kerosene' in ordinary parlance, in legal parlance and in scientific parlance, kerosene, for the purpose of a prosecution under the Kerosene Control Order, is nothing but a liquid which answers the flame test with a flame height of 18mm. or more. In the absence of evidence that the liquid seized had a flame height of 18 mm. or more, there cannot be a valid prosecution under Clause 16 of the Kerala Kerosene Control Order. It is true that a technical definition is adopted in the Order. When a word is defined in a particular manner and it does not suffer from want of clarity or precision, Courts need not search for the meaning of the word from dictionaries or common parlance understanding. In support of the above proposition, he relied on the decision reported in Kunhimoideenkutty v. State of Kerala 1988 (2)KLT 128. In that case, the Court was considering the very same question whether, in the absence of a scientific test to ascertain the flame height, the liquid can be held to be kerosene for the purpose of prosecution under the Kerala Kerosene Control Order. In paragraph 6 of the above Judgment, Mr. K.T. Thomas, J. (as he then was) observed as follows: "6. The definition postulates that the liquid must have a particular standard, if it is to be treated as kerosene under the order. It shall not only be mineral oil of a particular variety mentioned therein, but its flame height shall be of a specified range. In other words, if the range of the flame height is seen one millimetre less than the standard fixed, the liquid would not be regarded as kerosene as defined in the order, even if it has the smell of kerosene and can be used as kerosene for any purpose. Is it possible to determine that the liquid involved in these cases had the standards prescribed for kerosene without conducting scientific analysis or chemical examination of its sample? ....................... Is it possible to determine that the liquid involved in these cases had the standards prescribed for kerosene without conducting scientific analysis or chemical examination of its sample? ....................... The Court further observed that: "9 The contention that such a strict approach may defeat the very purpose of the orders issued under the Act cannot be acceded to in cases where makers of the law lays down particular scientific standards for the commodity in respect of which regulation are made ................ 5. The learned Public Prosecutor Shri Sujith Mathew Jose contended that the expression 'kerosene; i.e., in the Kerala Kerosene Control Order must be read and understood reasonably consistent with the purpose and objects of the Statute. No artificial or technical meaning can be assigned to the said expression. According to the learned Public Prosecutor, such an interpretation must be given to the expression 'kerosene' which would advance the purpose of the Act particularly when the words defined are "unless the context otherwise requires". It was not the intention of the Legislature to introduce a definition which would militate against the concept of kerosene which is well understood, entrenched and known in language, law and life. The expression cannot be read in an artificial manner without considering the purpose and the context in the Statute. The learned Public Prosecutor contends that the dictum in Kunhimoideenkutty's case (cited supra) is inapplicable to the facts of this case. That was a case where the prosecution had not secured any authentic scientific data as to whether the liquid seized was kerosene or not. In the instant case, Ext.P-6 clearly shows that the sample was analysed by an expert and he gave the opinion that the sample is 'genuine kerosene'. He also contended that the definition in item No. 7 of the First Schedule to the Central Excises and Salt Act which is imported into the Kerala Kerosene Control Order by virtue of the definition in Clause 2 (f), extracted above, must be held to be explanatory and inclusive and not exhaustive or exclusive. The purpose was not at all to exclude kerosene which is well known in ordinary parlance and observations in Kunhimoideenkutty's case (cited supra) are erroneous. 6. Learned Single Judge, while not agreeing to follow the earlier decision, observed as follows in the reference order: "12. The purpose was not at all to exclude kerosene which is well known in ordinary parlance and observations in Kunhimoideenkutty's case (cited supra) are erroneous. 6. Learned Single Judge, while not agreeing to follow the earlier decision, observed as follows in the reference order: "12. The observations in para 6 in Kunhimoideenkutty's case which I have extracted above clearly show and suggest that unless the flame height of the liquid is ascertained in the manner referred to in Explanation II of item No.7 of the First Schedule to the Central Excises and Salt Act, no successful prosecution can follow." After elaborate reasoning and reference to various decisions of the Apex Court, learned Single Judge did not accept the contentions of the appellant that the dictum in Kunhimoideenkutty's case (cited supra) must be followed. The learned Single Judge observed as follows: "24. I am unable to accept this contention. Item No.7 of the First Schedule to the Central Excises and Salt Act is only inclusive in character and that definition has been incorporated in the Kerala Kerosene Control Order with the same intention. It is crucial to note Clause 2 (f). It only says that kerosene 'shall have the meaning' in item No.7. It does not militate against the common concept of kerosene or suggest that kerosene shall have only the meaning given in item No.7 of the First Schedule to the Central Excises and Salt Act. 25. Considering the purpose, purport and the scheme of the E.C. Act and the Kerosene Control Order, I am of opinion that the definition of 'kerosene' in Clause 2 (f) read with Entry No. 7 of the First Schedule to the Central Excises and Salt Act must be read reasonably to include genuine kerosene also even when the flame test is not conducted. It has to be reckoned as inclusive. It does not at all imply that genuine kerosene will cease to be kerosene if the flame test is not concluded." Hence, these appeals were referred to the Division Bench for reconsideration of the dictum laid down in Kunhimoideenkutty's case (cited supra). 7. It has to be reckoned as inclusive. It does not at all imply that genuine kerosene will cease to be kerosene if the flame test is not concluded." Hence, these appeals were referred to the Division Bench for reconsideration of the dictum laid down in Kunhimoideenkutty's case (cited supra). 7. Learned Public Prosecutor also argued that First Schedule to the Central Excises and Salt Act was repealed and, therefore, Clause 2 (f) has no application and the question now to be considered is only whether mineral oil seized from the accused is kerosene as understood by the common people in ordinary parlance. But, as held by the learned Single Judge, we are concerned with the definition of 'kerosene' in item No.7 of the First Schedule to the Central Excises and Salt Act as it stood on the relevant date when Kerosene Control Order is passed. Definition of 'kerosene' in the First Schedule as existed on that date was bodily lifted and incorporated in Clause 2 (f) of the Kerala Kerosene Control Order. It is not a mere reference to the First Schedule. It is adoption of the definition in First Schedule by incorporation. The Apex Court in Mahindra and Mahindra Limited v. Union of India and another AIR 1979 SC 798 held that a mere reference or mere citation of one enactment in another enactment without incorporation and the repeal and re-enactment of the provision referred to or cited has the effect set out in that section and the reference to the provision repealed is required to be construed as reference to the provision as re-enacted as held in Collector of Customs, Madras v. Nathella Sampathu Chetty AIR 1962 SC 318. The Court further observed as follows: “ ....... But where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. The effect of incorporation is as if the provision incorporated were written out in the incorporating statute and were a part of it. Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute." Lord Justice Brett observed in Clarke v. Bradlaugh (1881) 8 BD 63 at page 69 as follows: “....... there is a rule of construction that, where a statute is incorporated by reference into a second statute, the re-peal of the first statute by a third statute does not affect the second." The Apex Court in Gauri Shankar Gaur and others v. State of U.P. and others AIR 1994 SC 189 observed as follows: "31. It would thus be clear that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of the legislature enacting the later Act. It is not by reference. Logically when provisions in the former Act were repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal." Therefore, repeal of First Schedule of the Central Excises and Salt Act, 1944, subsequently will not make any difference as when Clause 2 (f) was drafted, definition of 'kerosene' in item 7 of First Schedule as existed on that date was incorporated. We also note that even when First Schedule was repealed and in its place the Schedule to the Central Excise Tariff Act, 1985 was substituted for the purpose of reference in any Central Act, no substantive changes were made to the definition of 'kerosene' in the Schedule to the later enactment. As per item 27.10.19 of the Schedule to the Central Excise Tariff Act, to be kerosene, it must have a "smoke point of eighteen millimetres or more". As per item 27.10.19 of the Schedule to the Central Excise Tariff Act, to be kerosene, it must have a "smoke point of eighteen millimetres or more". But, minimum height was not tested for finding out the flame/smoke point in this case. In Indian Standards, specification of 'kerosene' also requiring minimum smoke point of 18 millimetres is prescribed. 8. It is well-settled law that when a word is defined in the Statute, Court is bound by the definition. Only if the definition is not clear or capable of two interpretations, Courts need to find out whether a restricted or extensive meaning has to be adopted depending upon the context and object of the legislature. As held by the Apex Court in Kishanlal v. State of Rajasthan AIR 1990 SC 2269 (at page 2270), the legislature has power to define a word even artificially. Normal presumption is that Legislature has been precise and careful in its choice of language in a definition section. If the definition is 'inclusive', we can assume that the definition is, prima facie, extensive. Apart from the normal meaning, it will also include the things mentioned in the definition. Here, definition of clause 2 (f) of Kerala Kerosene Control Order or item 7 are not inclusive. 9. It is argued by the learned counsel for the appellants that while interpreting a penal statute, strict construction should be adopted. It is well-settled law that a statute or rule enacting an offence or imposing a penalty must be strictly construed. Pollock, CB, in A.G. v. Sillem (1864) 33 L.J. Ex 92 observed that "I should say that in a criminal statute you must be quite sure did the offence charged is within the letter of the law". According to Lord Esher, MR in Tuck & Sons v. Priester (1887) 19 QBD 629: "if there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one." Our Apex Court followed the above principle in a number of cases. In Tolararn v. State of Bombay AIR 1954 SC 496, the Supreme Court observed as follows: "If two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. In Tolararn v. State of Bombay AIR 1954 SC 496, the Supreme Court observed as follows: "If two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature." The Apex Court in Sakshi v. Union of India and Others AIR 2004 SC 3566, after referring to "Principles of Statutory Interpretation'.' by Justice G.P. Singh, Ninth Edition, observed as follows: "19. It is well-settled principle that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition; or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well-settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitation before ascribing to phrases used in it a meaning broader than that they would ordinary bear." Therefore, it was held by the Apex Court as follows: ... ....... The first and foremost requirement in criminal law is that it should be absolutely certain and clear. An exercise to alter the definition of rape, as contained in section 375 I.P.C. by a process of Judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment, is bound to result in good deal of chaos and confusion, and will, not be in the interest of society at large." 10. After considering the dicta in Khemka and Co. (Agencies) (P) Ltd. v. State of Maharashtra (1975) 2 SCC 397 the Apex Court in Krishi Utpadan Mandi Samiti and others v. Pilibhit Pantnagar Beej Ltd. and another (2004) 1 SCC 391 held as follows: "59. After considering the dicta in Khemka and Co. (Agencies) (P) Ltd. v. State of Maharashtra (1975) 2 SCC 397 the Apex Court in Krishi Utpadan Mandi Samiti and others v. Pilibhit Pantnagar Beej Ltd. and another (2004) 1 SCC 391 held as follows: "59. The matter maybe considered from another angle: 'expressio unius personae velreiest exclusio alterius' is a well-known maxim which means the express intention of one person or thing is the exclusion of another." The said maxim is applicable in this case and what should be kerosene for the purpose of the order is clearly mentioned in the definition and there cannot be a context requiring otherwise. In this connection, we also refer to the judgment of the Apex Court in Suresh Lohiya v. State of Maharashtra and another (1996) 10 SCC 397 where Apex Court observed as follows: "7. The legislature having defined 'forest-produce', it is not permissible to us to read in the definition something which is not there. We are conscious of the fact that forest wealth is required to be preserved; but, it is rot open to us to legislate, as what a court can do in a matter like at hand is to iron out creases; it cannot weave a new texture. If there be any lacuna in the definition it is really for the legislature to take care of the same." But even after the meaning of 'kerosene' as used in the Order was explained by the Court in Kunhimoideenkutty's case (cited supra), the rule making authority thought I that no amendment is necessary and the interpretation given by the Court has now held the field for nearly 17 years. 11. Now we will consider some of the decisions referred to by the Public Prosecutor and referred to in the reference order. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1, the Apex Court held that even though a word is defined in the Act Courts may be justified by interpreting the same considering the subject or context in which that word is used as the definition clause itself is prefixed by the word "unless there is anything repugnant in the subject or context". In that case, Apex Court was considering the definition of 'Tribunal' in the Trade and Merchandise Marks Act, 1958. In that case, Apex Court was considering the definition of 'Tribunal' in the Trade and Merchandise Marks Act, 1958. The word 'Tribunal' has been defined under section 2 (1) (x) as under: “2(1) (x) 'Tribunal' means the Registrar or, as the case may be the High Court, before which the proceeding concerned is pending." This definition treats "High Court” and "Registrar" both as "Tribunal" for purposes of this Act. Section 56 confers some power to the registry to rectify the register; but it is curtailed by section 107 which provides that in certain situations, it can be done by the High Court only. So, Tribunal for purpose of section 56 is Registrar and for section 107, it is High Court. The words 'as the case may be' in the definition section was also considered. Section 111 of the Act refers to pending suits. The Apex Court held that: "the phrase 'before which the proceeding concerned is pending' stands out prominently to convey the idea that if the proceeding is pending before the 'Registrar', it becomes the 'Tribunal'. Similarly, if the proceeding is pending before the 'High Court', then the High Court has to be treated as the 'Tribunal'. The Apex Court further observed as follows: “...... Any other interpretation of the definition of 'Tribunal 'would not be in consonance with the scheme of the Act or the contextual background set out therein and may lead to conflicting decisions on the same question by the Registrar and the High Court besides generating a multiplicity of proceedings." But, in Kerala Kerosene Control Order the word 'kerosene' is used only in one meaning and the contention that the word 'kerosene' is having different meaning in the same 'Order' depending upon the context is fallacious and untenable. 12. In K.V. Muthu v. Angamuthu Arnmal AIR 1997 SC 628 the Apex Court was considering section 2 (6A) of the Tamil Nadu Buildings (Lease and Rent Control) Act which is as follows: '2(6A) 'member of his family' in relation to a landlord means his spouse, son, daughter, grandchild or dependent parent." The Apex Court held that the word 'means' has been used to specify the members and it is conclusive. But, it also observed as follows: "11. But, it also observed as follows: "11. While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it 'should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted." After observing so, the Court held that considering the context, the word 'son' mentioned in the definition section will include 'foster son' also and court also held that 'family' is a word of great flexibility and is capable of different meanings. But, the word 'son' was not defined in that Act. The Apex Court held that in view of the definition of 'son' in section 3 (57) of the General Clauses Act and the decision of the Privy Council in Adit Narayan Singh v. Mahabir Prasad Tiwari AIR 1921 PC 53 in legal parlance 'son' has a little wider connotation and it may include not only the natural son but also an adopted son, if the personal law permits. But, if the word ‘son' is defined as natural son or legitimate son born in marital relationship, or the word 'son' is prefixed with the Word 'natural' in the definition of 'family', position is different and a wider interpretation cannot be given even though context warrants it. 13. In Special Officer and Competent Authority, Urban Land Ceilings, Hyderabad and another v. P. S. Rao (2000) 2 SCC 451, Court was considering the meaning of expression 'to hold' as defined in section 2 (1) of the Urban Land (Ceiling and Regulation) Act, 1976. Apex Court held that definition of the word 'to hold' is relevant at the time of computation of the ceiling area and final determination etc. but for considering exemption under section 20 and statutory deductions that meaning cannot be adopted as it is against the context and make the Act unworkable especially the definition section itself starts with the words "unless the context otherwise requires". Therefore, a wider meaning was given to the word 'to hold' when it was used in the latter part of the Statute so that a meaningful and workable meaning can be given. Therefore, a wider meaning was given to the word 'to hold' when it was used in the latter part of the Statute so that a meaningful and workable meaning can be given. In this case, the word 'kerosene' is used only in one sense throughout the order and a different meaning that is unfavourable to the accused cannot be adopted for the purpose of prosecution merely because the words "unless the context otherwise requires" is mentioned in clause 2 of the Kerala Kerosene Control Order. Since flame test can be done whenever 'kerosene' is seized, it cannot be stated that unless a different meaning is taken, the order will become unworkable. In NEPC Micon Ltd. and others v. Magma Leasing Ltd. AIR 1999 SC 1952 the Supreme Court held that if the account is closed, it will satisfy the words in section 138, 'insufficiency of funds' and the money standing to the credit of the account was 'nil' by the closure of account after issuance of the cheque. Apex Court held as follows: "15. In view of the aforesaid discussion we are of the opinion that even though section 138 is a penal statute, it is the duty of the Court to interpret it consistent with the legislative intent and purpose so as to suppress the mischief and advance the remedy. As stated above, Section 138 of the Act has created a contractual breach as an offence and the legislative purpose is to promote efficacy of banking and of ensuring that in commercial or contractual transactions cheques are not dishonoured and credibility in transacting business through cheques is maintained. The above interpretation would be in accordance with the principle of interpretation quoted above 'brush away the cobweb varnish, and show the transactions in their true light' (Wilmot, C.J.) or (by Maxwell) 'to 'carry out effectively the breach, of the statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or; circuitous manner that it has prohibited'. Hence, when the cheque is returned by a bank with an endorsement 'account closed', it would amount to returning the cheque unpaid because 'the amount of money standing to the credit of that account is insufficient to honour the cheque' as envisaged in section 138 of the Act." Court was not considering a case where the meaning of the words were restricted by the statutory definition. If the word was not defined even in penal prosecution, a wider view can be taken to achieve the purpose of the Act. Similar view can be taken while interpreting a penal provision in the Statute considering the object of the Legislature as held by the Apex Court in Lalita Jalan and another v. Bombay Gas Co. Ltd. and others (2000) SCC (Crl) 1281. But, Court has no power to overlook the specific meaning of the words assigned to a particular word in the definition section. 14. In Assistant Commissioner, Assessment-II, Bangalore and others v. M/s Velliappa Textiles Ltd. and others AIR 2004 SC 86, the question considered by the Apex Court was when mandatory term of imprisonment coupled with fine is provided under sections 276 C, 277,278 read with section, 278 B of the Income Tax Act, can a company, a juristic person be prosecuted under those sections. Full Bench of the Delhi High Court in Municipal Corporation of Delhi v. J.B. Bottling Company (1975) 1 Crl. LJ 1148 and Full Bench of the Allahabad High Court in Oswal Vanaspati and Allied Industries v. State Of U.P. (1993) 1 CLJ 172 took the view that when a Statute imposes a minimum sentence of imprisonment plus fine, the Court cannot imprison a juristic person like company; but can impose fine by using discretionary power and prosecution of the 'company' is valid. The Apex Court over-ruled the above decisions and held that: "where the Legislature has granted discretion to the Court in the matter of sentencing, it is open to the Court to use its discretion. Where, however, the Legislature, for reasons of policy, has done away with this discretion, it is not open to the Court to impose only a part of the sentence prescribed by the Legislature, for that would amount to rewriting the provisions of the statute." The Apex Court further observed as follows: "27. Where, however, the Legislature, for reasons of policy, has done away with this discretion, it is not open to the Court to impose only a part of the sentence prescribed by the Legislature, for that would amount to rewriting the provisions of the statute." The Apex Court further observed as follows: "27. I am of the view that the Court should be slow in interpreting a penal statute in a manner which would amount to virtual rewriting of the statute to prejudice the accused." "29. A Court cannot breach a causus omissus and no canon of construction permits the Court to supply a lacuna in a statute; nor can Courts of law fill up the lacuna in an ill drafted and hasty legislation." "30. Whether the omission is intentional or inadvertent is no concern of the Court." After considering the earlier judgment of the Apex Court in Toraran Relumal and another v. The State of Bombay AIR 1954 SC 496, Bijaya Kumar Agarwala v. State of Orissa (1996) 1 SCC 1, Sanjay Dutt v. State through C.B.I., Bombay(II) (1994) 25 SCC 410 and Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Others (1990) 4 SCC 75, the Apex Court in Velliappa Textiles's case (cited supra) held that: "while interpreting a penal statute, if more than one view is possible, the Court is obliged to lean in favour of the construction which exempts a citizen from penalty than the one which imposes the penalty." The Apex Court also accepted the observation of Loreburn, J. in Bristol Guardians v. Bristol Waterworks Company (1914) AC 379 that: "After all, it is not our function to repair the blunders that are to be found in legislation. They must be corrected by the legislature." 15. The Apex Court in Nathi Devi v. Radha Devi Gupta 2005 AIR SCW 287 held that purposive construction has to be adopted by the Court when there exists some ambiguity in language or it is capable of two interpretations. But at the same time, Apex Court, after considering a number of decisions, observed as follows: "14. It is equally well-settled that in interpreting a statute, effort should be made to give effect to each and every word used, by the Legislature. But at the same time, Apex Court, after considering a number of decisions, observed as follows: "14. It is equally well-settled that in interpreting a statute, effort should be made to give effect to each and every word used, by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See - State of U.P. and others v. Vijay Anand Maharaj – AIR 1963 S.C. 946, Rananjaya Singh v. Baijnath Singh and others A.I.R. 1954 S.C. 749, Kanai Lal, Sur v. Paramnidhi Sadthukhan-A.I.R. 1957 S.C. 907, Nyadar Singh v. Union of India and others - A.I R. 1988 S.C. 1979, J.V_ Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P. A.I.R. 1961 S.C. 1170 and Ghanshyam Das v. Regional Assistant Commissioner, Sales Tax - A.I.R. 1964 S.C. 766.)" "15. It is well-settled that literal interpretation should be given to a statute if the same does not lead to an absurdity." In Nasiruddin and others v. Sita Ram Agarwal (2003) 2 SCC 577 Apex Court observed as follows: "37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from, the language used.” 16. Here, definition of the word' kerosene' is not defined ambiguously and two meanings are not possible in view of the clear definition given. By a process of 'ironing out the creases' to implement the alleged purpose of the legislation. Court cannot destroy or change the texture itself. Here, definition of the word' kerosene' is not defined ambiguously and two meanings are not possible in view of the clear definition given. By a process of 'ironing out the creases' to implement the alleged purpose of the legislation. Court cannot destroy or change the texture itself. It is the duty of the legislature to amend the definition if it is found that there is lacuna or defects in it. By judicial activism, Court cannot usurp the functions of the legislature or executive. Court need not be more royal than the King as the rule making authority has power to amend the Kerosene Control Order if the present definition of the word 'kerosene' is defective and blocks the intended purpose. They can also direct the officers who took the sample to conduct smoke test or flame test, as the case may be, as prescribed. 17. The House of Lords in Magor and St. Mellons Rural District Council v. New Port Corporation (1951) 2 All ER 839 held that Courts are warned that they are not entitled to usurp legislative function under the disguise of interpretation and that they must avoid the danger of an a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure. In the words of Cardozo, a Judge is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. (See: Cardozo: "The Nature of the Judicial Process", page 141.) When the words of a Statute are clear, plain or unambiguous, that is, they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of the consequences as held by the Supreme Court in Nelson Motis v. Union of India AIR 1992 SC 1981 When the language is plain and unambiguous and admits of only one meaning, no question of construction of a Statute arises, for the Act speaks for itself as held by the Apex Court in State of U.P. v. Vijay Anand Maharaj AIR 1963 SC 948 (at page 950 - per Subba, Rao, J.) Even though primary rule favours the literary interpretation, as early as in 1584, the mischief rule was laid down in Heydon's case (1584) 3 Co Rep. 7a Page 7b. (See also: Page 40 of Maxwell on "The Interpretation of Statutes". 7a Page 7b. (See also: Page 40 of Maxwell on "The Interpretation of Statutes". Twelfth edition), wherein it was held that it is the duty of all the Judges to make: "such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico." The above rule was accepted by the Apex Court in Bengal Immunity Co. v. State of Bihar AIR 1955 SC 861) (at page 674, per S.R. Das. C.J.). In fact, the purposive construction to fulfil the objective of the Act etc. is arising from this rule. This rule is applicable only when material words are capable of two or more constructions or there is ambiguity and not when the words used by the rule framing authority is capable of only one interpretation. If no definition is given in the Act or rule giving a particular meaning or if the words used in the definition clause are capable of two or more constructions, it should be interpreted in a way which would implement the object of the Act and cure and remedy the intended mischief and this is applicable to all statutes in general, penal or beneficial. But, legislature has the freedom to adopt an artificial or a technical meaning so long as it is not unconstitutional. When a definition is used in the statute or rule and the definition is capable of one meaning, Court has no power to adopt a different meaning especially in a penal statute to the detriment of the accused. In this case in view of the definition of 'kerosene' in the Kerala Kerosene Control Order adopting the definition in Item No.7 of the First Schedule to the Central Excises and Salt Act, 1944, we see no ground to disagree with the dictum laid down in Kunhimoideenkutty v. State of Kerala [1988 (2) K.L.T. 128]. 18. Apart from the above, doctrine of 'stare decisis' meaning to standby decided cases, is applicable in this case. 18. Apart from the above, doctrine of 'stare decisis' meaning to standby decided cases, is applicable in this case. It rests upon the principle that law by which men are governed should be fixed, definite and known, and that, when the law is declared by a Court of competent jurisdiction authorised to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority. It requires that rules of law when clearly announced and established by a Court of last resort should not be disregarded and set aside but should be adhered to and followed. The principle of 'stare decisis' is stated in Halsbury's Laws of England. The above principles were accepted by the Apex Court in Muktul v. Manbhari AIR 1958 SC 918. The principle of 'stare decisis' is stated as follows: "Apart from any question as to the Courts being of co-ordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by Courts of higher authority than the court establishing the rule, even though the Court before whom the matter arises after words might not have given the same decision had the question come before it originally. But the Supreme Appellate Court will not shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain and no general course of dealing be altered by the remedy of a mistake." In Mishri Lal v. Dhierendra Nath (1999) 4 SCC 11 the Apex Court emphasized the above doctrine for the purpose of avoiding uncertainty and confusion. Here, in this case, as early as in 1988, this Court held that in view of the definition of 'kerosene' as per Kerala Kerosene Control Order adopting item No. 7 of the First Schedule liquid seized should be mineral oil which has a flame height of 18 mm. or more and unless that is proved, the liquid seized cannot be found as kerosene. or more and unless that is proved, the liquid seized cannot be found as kerosene. The State did not file any appeal against the above decision and the decision was followed subsequently for more than one and a half decades. Even after pronouncement of the above decision, the rule making authority did not amend the rules. For finding a person guilty for offences under the Order the substances seized should be kerosene as defined under the Order and the prosecution was not able to substantiate that they have conducted the test and found that sample taken from the liquid or mineral oil seized has got a flame height of 18 mm. or more. Law should be same for all. As corollary principle of 'stare decisis' in the case of taxation matter, Apex Court held that without challenging the decision interpreting a section in a particular way in respect of one assessee, a different view cannot be taken with respect to another assessee. Law should be same for all. A three member Bench of the Supreme Court in Union of India v. Kaumudini Narayan Dalal and another 2001 249 ITR 219, the Apex Court held as follows: "If the Revenue did not accept the correctness of the judgment in the case of Pradip Ramanlal Sheth [(1993) 204 I.T.R. 866 (Guj), it should have preferred an appeal there against and instructed counsel as to what the fate of that appeal was or why no appeal was filed. It is not open to the Revenue to accept that judgment in the case of the assessee in that case and challenge its correctness in the case of other assessees without just cause." The same was followed in Union of India v. Satish Panalal Shah (2001) 249 ITR 221. In exceptional cases, even if the interpretation given by the Court is not challenged in one case, it may be possible for the State to challenge the same on another occasion for valid and just cause. If the interpretation is totally unacceptable, merely because no appeal was filed in one case may not prevent the Government in contending otherwise in another case for valid reasons. We fully agree with the interpretation given by this Court in Kunhimoideenkutty's case (cited supra). In any event it is a reasonable and possible interpretation and a different interpretation is not warranted at this distance of time. We fully agree with the interpretation given by this Court in Kunhimoideenkutty's case (cited supra). In any event it is a reasonable and possible interpretation and a different interpretation is not warranted at this distance of time. Since the State did not file any appeal against the decision in Kunhimoideenkutty's case (cited supra) and it ruled the field for the last one and a half decades and the rule making authority did not amend the rules, we are of the view that it is not for this Court to fill up the alleged lacuna or assign a different meaning to 'kerosene' than that is mentioned in the definition clause. We see no reason to overrule the decision in Kunhimoideenkutty v. State of Kerala 1988 (2) KLT 128. Since it is not proved beyond doubt that what is seized from the appellant is kerosene and the offences are not proved, the appellants are acquitted. Appeals are allowed.