@JUDGMENTTAG-ORDER
N.K. Balakrishnan, J
1. Common questions of law have been raised by the learned counsel appearing for the parties and hence, these matters are disposed of by a common judgment. One of the contentions raised by the petitioners in these cases is that in order to attract section 6 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (34 of 2003), the sale of tobacco products should be to a person who is under 18 years of age and the sale must also be in an area within a radius of one hundred yards of any educational institution.
2. Section 6 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (34 of 2003) reads as follows:
No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product-
(a) to any person who is under eighteen years of age, and
(b) in an area within a radius of one hundred yards of any educational institution.
3. The petitioners contend that since the word ''and'' is used conjunctively those two conditions should be satisfied to hold that a person has committed the offence u/s 6 of the Act. Its penal provision is contained in section 24 of that Act.
4. The learned Public Prosecutor, Sri. Rajesh Vijayan, would submit that though the word ''and'' is used, it can be discerned in the particular context, that it is used disjunctively.
5. The learned counsel for the petitioners would submit that while the language of the statute is plain and clear then the literal rule of interpretation has to be applied and if so, ordinarily there would be no scope for interpreting words differently than giving effect to the natural meaning. A close reading of section 6 would, according to the prosecution, leave no doubt that the word ''and'' is used in this particular provision in a disjunctive sense. The two portions of section 6 can be severed and understood as follows. The first part can be read as: No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product to any person who is under eighteen years of age. That means irrespective of the place of sale, if the aforesaid products are sold to a person who is under eighteen years of age, then certainly it would be an offence u/s 6 of the Act. The second part of section 6 can be read as-no person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product in an area within a radius of one hundred yards of any educational institution. That means irrespective of the age of the customer, if any such tobacco product is sold in an area within a radius of hundred yards of any educational institution, then it will attract the offence u/s 6 of the Act. That means, the first part of the section makes it an offence focusing on the age of the purchaser irrespective of the place of sale; the second part of the section makes sale in that prohibited area an offence irrespective of the age of that person. Thus the section takes in two offences; both are distinct and separate. It can never be the intention of the legislature that tobacco products can be sold to a person under 18 years of age at a place beyond hundred yards of the educational institution, nor could have been the intention that one can sell such products in that prohibited area to a person above the age of 18 years.
6. The Act was introduced since the need for a comprehensive legislature to prohibit advertising and regulation of production, supply and distribution of cigarettes and tobacco products was felt by the Parliament. It is to achieve the avowed object of reducing the exposure of people to tobacco smoke (passive smoking) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisements, the various provisions were incorporated, the learned Prosecutor submits. Healthier life style and the protection of the right to life enshrined in the Constitution was felt to be of paramount consideration. As it was expedient to prohibit the advertisement of and to provide for regulation of trade and commerce, production, supply and distribution of cigarettes and other tobacco products and for matters connected therewith or incidental thereto the aforesaid Act (Act 34 of 2003) was passed by the Parliament.
7. It is also worthwhile to refer Section 24 also which reads thus:
(1) Any person who contravenes the provisions of section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees.
(2) All offences under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973.
8. It is important to note that the two parts of section 6 are shown separately as (a) and (b). That also is indicative of the fact that word ''and'' is used only disjunctively.
9. In Maxwell''s Interpretation of Statutes, (A.I.R. 1969 pg. 149), in dealing with conjunctions ''or'' and ''and'', it is said:
To carry out the intention of the legislature, it is occasionally found necessary to read conjunctions ''or'' and ''and'' one for the other.
The word ''and'' is normally conjunctive and the word ''or'' is normally disjunctive. But sometimes they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context.
10. In
11. In
12. In
''And'' may legitimately be construed as ''or'' when the intention of the Legislature is clear & when any other construction would tend to defeat such intention.
13. While interpreting sub clauses (a) to (g) of Section 5(2) of Rajasthan Nathdwara Temple Act, it was held by the Constitution Bench of the Supreme Court in
14. The decision in Mukteshwar Rai and Others V. Ramkewal Rai AIR 1962 Patna 28 has been relied upon by the learned Public Prosecutor, where it was held:
Not only in statutes but also in documents, the two words ''and'' and ''or'' are sometimes used as synonyms and in the same sense. That would depend upon the context and meaning of other provisions in the same statute or document.
Therefore, in the light of these decisions there can be no doubt that the word ''and'' used in between section 6(a) and 6(b) should be read disjunctively.
15. The learned counsel for the petitioners would submit that there should be strict construction of penal statutes that the language should be expressed for the creation of an offence; in interpreting strictly words setting out the elements of an offence. Maxwell in the Interpretation of Statutes (12th Edn.) says:
The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.
16. It is also argued that in a criminal statute one must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the principle that the law is always intended to protect the rights of individuals, and on the plain principle that the power of punishment is vested in the legislature, and not in the judicial department, for, it is the legislature, not the court, which is to define a crime and ordain its punishment. The Court should be careful in construing the section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, that construction which is favourable to the accused should be adopted. In other words, unless penalties are imposed on clear terms they are not enforceable. Thus, according to the learned counsel, section has to be interpreted to hold that both the limbs are used conjunctively and that, in order to constitute an offence the ingredients required under both the limbs have to be satisfied. In support of the submission that penal statutes must receive strict construction, the learned counsel has relied upon the decision of the apex Court in
17. In Tuck & Sons v. Priester (1887) 19 QBD 629 (CA), which was followed in London and Country Commercial Properties Investments Ltd. v. Attorney General (1953) 1 WLR 312, it is stated:
We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive.
The aforesaid decision was followed by the apex Court in R. Kalyani v. Janak C. Mehta and others, cited supra.
18. It was held in
where the language is clear, the intention of the legislature is to be gathered from the language used and the attention should be paid to what has been said as also to what has not been said. In that case the Jharkhand High Court held that even though there is no specific provision in section 52(3) of the Forest Act, 1927 as amended by Bihar Act 9 of 1990, a vehicle seized for alleged involvement in commission of forest offence can be released on payment of fine in lieu of confiscation.
It is axiomatic that if there is no ambiguity or obscurity and the intention of the legislature is clear then there is no scope for the court to undertake any exercise to read something into the provision which the legislature in its wisdom consciously omitted. Such an exercise may amount to amending or altering the statutory provisions, the learned counsel for the petitioners argues. But here section 6 of Act 34 of 2003 is unambiguous and is clear that the two limbs of that section are distinct and separate.
19. The decision of the apex Court in
It is a well-settled principle in law that the court cannot add anything into a statutory provision, which is plain and unambiguous. Language employed in a statute itself determines and indicates the legislative intent. If the language is clear and unambiguous it would not be proper for the court to add any words thereto and evolve some legislative intent not found in the statute.
20. Sri. Mathew Kuriakose, learned counsel for the petitioner vehemently argued that the court cannot rewrite or recast or reframe the legislation when there is no ambiguity at all. In support of that submission, the learned counsel has relied upon the decision in
21. It was held by the Apex Court in
The other important rule of interpretation is that the court cannot rewrite, recast or reframe the legislation because it has no power to do so. The court cannot add words to a statute or read words which are not there in it Even if there is a defect or an omission in the statute, the court cannot correct the defect or supply the omission.
22. Sri. Mathew Kuriakose has also relied upon the decision in
It is by now well settled that the cannons of purposive interpretation must be followed in attempting to ascertain whether two reasonable views are possible or not in the interpretation of a penal provision also. Merely because it is possible for the counsel to argue a proposition it cannot be reckoned as a possible reasonable view. Interpretation is the process of ascertaining the mind of the Legislature. The ascertainment of the mind cannot be done sitting in an island, where only the cannons of interpretation in favour of the accused, will inform the interpreter. The nature of the mischief which the Legislation seeks to prevent, the scheme and purpose of the Act, the methodology employed to prevent such mischief, will all have to be taken into consideration to decide whether the competing view is reasonable and possible.
23. In
In our opinion, when the language of the statute is plain and clear then the literal rule of interpretation has to be applied and there is ordinarily no scope for consideration of equity, public interest or seeking the intention of the legislature. It is only when the language of the statute is not clear or ambiguous or there is some conflict, etc. or the plain language leads to some absurdity that one can depart from the literal rule of interpretation.
24. The learned Public Prosecutor would also draw the attention of the court to another aspect as well. Section 6(a) of Act 34 of 2003 came into force with effect from 01.05.2004 as per S.O. 238(E), dated 25.02.2004. The second part; section 6(b), came into force with effect from 18.09.2009 as per notification G.S.R. 687(E), dated 18.09.2009. That also gives another indication to hold that the Parliament introduced that provision with two separate and distinct limbs, each being punishable and that was why section 6(a) came into force on an earlier date and notification in respect of section 6(b) was issued on a later date.
25. One more point was also canvassed by Sri. Rajesh Vijayan, the learned Public Prosecutor. Rule 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004, deals with prohibition of sale to minors which is the rule pertaining to section 6 of the Act, which separately deals with sale to minors and as to the place where tobacco products are sold. The Rule stipulates that the owner or the manager or in-charge of the affairs of a place where cigarettes or other tobacco products are sold shall ensure that no tobacco product is sold through a vending machine or is handled or sold by a person below the age of eighteen years. Rule 5(2) makes it clear that the seller, in case of doubt, can request the tobacco purchaser to provide appropriate evidence of having reached eighteen years of age. In regard to the place of sale; Rule 5(1) deals separately with the place of sale of Cigarettes and other tobacco products.
26. It is argued by the learned Public Prosecutor that though the punishment prescribed u/s 24 of the Act is only fine which may extend to Rs. 200/-, the other consequences; namely the seizure and confiscation of the goods as provided under sections 13 and 14 of the Act, would also follow. Section 14 empowers confiscation of such tobacco products and other products mentioned in that section, in regard to which the provisions of the Act have been found contravened. Even if it is found that the person from whose possession it was seized was not responsible for the contravention of the provisions of the Act, the Court is given discretion to make such other order instead of making an order for the confiscation of such package and make such other order authorised by the Act against the person guilty of breach of the provisions of the Act.
27. Further, section 15 of the Act says that whenever any confiscation of any package of cigarettes or any other tobacco products is authorised by that Act, the court adjudging it may, subject to such conditions as may be specified in the order adjudging the confiscation, give to the owner thereof an option to pay, in lieu of confiscation, costs which shall be equal to the value of the goods confiscated. Section 17 of the Act says that it is the Principal Civil Court of original jurisdiction which has to adjudicate on the confiscation of cigarettes and other tobacco products. These provisions would make it clear that though the punishment prescribed for the offence is only fine which may extend to Rs. 200/-, the provision regarding confiscation of the goods or payment of cost in lieu of confiscation would sufficiently safeguard the interest of the society, the learned Public Prosecutor submits.
28. So far as the case on hand is concerned there is no ambiguity at all. It is crystal clear that section 6 of the Act has got two distinct limbs that both are independent offences. There is no ambiguity or obscurity. The intention of the legislature is clear. Therefore, the arguments advanced on behalf of the petitioner that there is no scope for the court to innovate or undertake the task of amending or altering the statutory provision is misplaced. The inevitable conclusion is that the word ''and'' is used in Section 6 of the Act in a disjunctive sense.
29. Section 24 is the penal provision pertaining to the offence u/s 6 only. The learned Public Prosecutor, Sri. Rajesh Vijayan, would submit that if as a matter of fact there was only one category of offence in Section 6 as the petitioners contend, then plurals like ''provisions'' and ''all offences'' as seen in sub sections 1 and 2 of Section 24 would not have been used by the legislature and therefore, that also would strengthen the view that sub sections (a) and (b) of Section 6 are distinct and different.
30. It is also important to note that there is a ''comma'' occurring just before the word ''and'' in the aforesaid section. It may be argued that punctuation is only a minor element in the construction of a Statute, and therefore, usually very little attention is paid to it. But at the same time, when a statute is carefully punctuated and there is doubt about its meaning, weight should undoubtedly be given to the punctuation as well. If the attention of the legislature was to construe the word ''and'' conjunctively, then there would not have been a comma occurring just before the word ''and''. Therefore, in the present case, the position of ''comma'' occurring just before the word ''and'' is also of considerable importance.
31. In
Punctuation is after all a minor element in the construction of a statute, and very little attention is paid to it by English Courts. Cockburn C.J. said in Stephenson V. Taylor, (1861) 1 B & S. 101 ''On the Parliament Roll there is no punctuation and we therefore, are not bound by that in the printed copies.'' It seems, however, that in the Vellum copies printed since 1850 there are some cases of punctuation, and when they occur they can be looked upon as a sort of contemporanea expositio, see Craies on Statute Law, p.185. When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to the punctuation, vide Crawford on Statutory Construction, p. 343. I need not deny that punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text, (ibid).
32. It is argued that the ''comma'' could not have been there when the section was drafted but it must have been put by the printer at the time when the Act was printed. But it may be more realistic to accept the Act as printed, as being the product of the whole legislative process and to give due weight on everything found in the printed Act. But so long as such punctuation marks are there in the printed Act and since the punctuation mark was not objected to at any time it can only be held that the punctuation mark (here the ''comma'') was there when the section was drafted and it was correctly printed. Therefore, the comma seen, which is before the word ''and'' as mentioned above, cannot be simply ignored. Of course, section 6 is not interpreted merely based on the comma seen immediately after section 6(a), but it is also used as an additional factor or aid to hold that the two provisions; (a) and (b) of section 6; are distinct and separate.
33. The learned Public Prosecutor, Sri. Rajesh Vijayan, would also submit that educational institutions and the distance from the educational institutions are dealt with in Cigarettes and Other Tobacco Products (Display of Board by Educational Institutions) Rules, 2009; where Rule 2(b) defines educational institution as:
In these rules, unless the context otherwise requires,-
(b) "educational institution" means any place or centre where educational institutions are imparted according to the specific norms and include any school/college and institution of higher learning established or recognized by an appropriate authority;
In elucidating section 6 of the Act in Rule 3(2) it is stated that the distance of one hundred yards referred to in sub-rule (1) shall be measured radially starting from the outer limit of the boundary wall or fence, as the case may be, of the educational institution. Now the next question for consideration is whether there is a conflict between the Union Law and the State Law, namely, whether Section 118(i) of Kerala Police Act, 2011 is in conflict with section 6 of Act 34 of 2003.
34. Article 246 of the constitution of India reads as follows:
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause
(3), Parliament, and, subject to clause
(1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
35. Sri. Rajesh Vijayan, the learned Public Prosecutor submits that public health and sanitation, hospital and dispensaries, as enumerated under category 6 of list II of the Schedule 7 would make it clear that State legislature has the power to make laws with respect to public health. The banning of sale of tobacco products which is concerning public health, comes under category 6 of list II of schedule 7. As such it would leave no doubt about the competence of State Legislature to enact or incorporate section 118(i) in Kerala Police Act 2011.
36. Section 118(i) of Kerala Police Act reads thus:
Any person who,
(i) gives or sells those who are below eighteen years any intoxicating substance or to children any articles or substances which are harmful for their physical and mental health or procure the same near school premises for that purpose.
(Other portions of the section are omitted as unnecessary.)
37. Article 254 of the Constitution reads thus:
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State [The words "specified in Part A or Part B of the First Schedule" were omitted by the Constitution (Seventh Amendment) Act, 1956, S.29 and Schedule (1-11-1956)] with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State
38. Sri. C.S. Manu, the learned counsel for one of the petitioners vehemently argued that as could be seen from its statement of objects and reasons, the Central Act 34 of 2003 is a piece of legislation passed by the parliament under Article 253 of the Constitution which says that notwithstanding anything in the forgoing provisions of Chapter XI of the Constitution, Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other county or countries or any decision made at any international conference, association or other body.
39. According to the learned counsel Kerala Police Act, 8 of 2011 did not receive the assent of the President of India and as such the provisions of that Act, which according to him is inconsistent with the provisions contained the Central Act 34 of 2003, cannot have any overriding effect. First of all public health does not come under the concurrent list but only under the State List, i.e. Clause 6 of list II of schedule 7. If only there was in existence a previous union law relating to the concurrent subject the assent of the President would be required for the State Act to have overriding effect or predominance over the union law in existence. As such the decision of the apex Court in
40. The power to legislate flows, amongst others, from Article 246 of the Constitution. It is argued that the entries in the State List (List II) are not the source of legislative power but they merely demarcate the topics or fields of legislation. The decision in
The courts have taken a consistent view and it is well-settled law that various entries in the three Lists are not powers of legislation but are fields of legislation. The power to legislate flows, amongst others, from Article 246 of the Constitution. Article 246(2), being the source of power incorporates the non obstante clause, "Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the legislature of any State" have power to make laws with respect to any of the matters enumerated in List III. Article 246 clearly demarcates the fields of legislative power of the two legislative constituents. It clearly states on what field, with reference to the relevant constitutional lists and which of the legislative constituents has power to legislate in terms of Article 246 of the Constitution. While the States would have exclusive power to legislate under Article 246(2) of the Constitution in relation to List II; the Concurrent List keeps the field open for enactment of laws by either of the legislative constituents.
41. It is argued by the learned counsel that if the State Legislature has enacted a law with reference to a particular entry in respect of which, parliament has to enact a law and if there is irreconcilable conflict between the two laws so enacted, the State Law will be a stillborn law and it must yield in favour of the Central Law. This argument has been countered by Sri. Rajesh Vijayan, the learned Public Prosecutor, pointing out that Section 118(i) of Kerala Police Act 2011, which has been challenged by the petitioner was enacted by the legislature as it comes under List II the State List, item no. 6 concerning public health.
42. It is also argued by Sri Rajesh Vijayan that the concept of Federal Supremacy laid down in Article 246(1) of the Constitution should normally be resorted to only when the conflict is so patent and irreconcilable that co-existence of two laws is not feasible. It was held by the Constitution Bench in
The Constitution of India delineates the contours of the powers enjoyed by the State Legislature and Parliament in respect of various subjects enumerated in the Seventh Schedule. The rules relating to distribution of powers are to be gathered from the various provisions contained in Part XI and the legislative heads mentioned in the three lists of the Schedule. The legislative powers of both the Union and State Legislatures are given in precise terms. Entries in the lists are themselves not powers of legislation, but fields of legislation. However, an entry in one list cannot be so interpreted as to make it cancel or obliterate another entry or make another entry meaningless. In case of apparent conflict, it is the duty of the court to iron out the crease and avoid conflict by reconciling the conflict. If any entry overlaps or is in apparent conflict with another entry, every attempt shall be made to harmonise the same.
It was held that the entries in the two lists, list I and list II must be construed in a manner so as to avoid conflict. The court has to decide first whether there is actually any conflict. If there is no conflict the question of application of the non-obstante clause in Article 246(2) of the Constitution would not arise at all.
43. If, prima facie, there is conflict then effort should be to see whether it is possible to effect reconciliation between the two entries so as to avoid such conflict. It is only when there is a clear and irreconcilable conflict between the Union Law and the law of the State legislature, it can be said that the law of the union would prevail. Even in such cases court can proceed to examine whether it is only an incidental encroachment upon another field of legislature which can be ignored.
44. In
It was held in
When a law is impugned on the ground that it is ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence.
The aforesaid decision was followed by the apex Court in
45. It was also held in
In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union Law.
Where there are three lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other legislature is of no consequence. The court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded.
The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be applied and if the impugned legislation substantially falls within the power expressly conferred upon the legislature which enacted it, an incidental encroaching in the field assigned to another legislature is to be ignored.
The aforesaid decision was followed by the apex Court in
46. In
While reading the three lists. List I has priority over Lists III and II and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in List I.
The learned Public Prosecutor submits that in view of the fact that public health falls entirely within the domain of the state legislature as has been referred to above there could be no conflict at all. Not only that section 118(i) of State Act operates in a different field and is a more comprehensive provision which deals with all intoxicating substances or other articles or substances which are harmful for the physical and mental health and as such it would make it indubitably clear that the incorporation of the provision in the Kerala Police Act is in consonance with the power conferred on the state legislature as per clause 6, list II of Schedule 7 of the Constitution. As such, according to the learned Public Prosecutor, the seeming conflict is well explainable and in any event it is too trivial to be ignored.
47. When there is no ambiguity and the intention of the legislature is clear, the court should not undertake any exercise to read something in to the provisions. Where the language is clear and the intention of the legislature is to be gathered from the language used, it is not the duty of the court either to enlarge the scope of legislation or intention of the legislature. The learned Public Prosecutor submits that in fact there is no necessity to dwell much on the principles of interpretation so far as the case on hand is concerned, since the provision impugned; namely, section 118(i) of Kerala Police Act, is well within the legislative competence.
48. The petitioners in W.P (C) No. 35189/2011 contended that the second respondent seized the articles which were kept in the vehicle and that the second respondent did not actually see the petitioners selling tobacco products. But it is stated that the first petitioner is the salesman and that the second petitioner is the driver of vehicle of one Jaison Antony who is actually the proprietor of A.S. Agencies engaged in the wholesale distribution of products such as Hans Bombay etc.
49. According to the petitioners, the sale of the same was done in accordance with Central Act 34 of 2003. They contended that Hans and Bombay are not tobacco products. According to them, merely because the said product contains an element of tobacco, it cannot be said that Hans & Bombay are tobacco products. The term tobacco products is not defined anywhere in Kerala Police Act, 2011, but the products are specified in the schedule. According to the learned counsel for the petitioner, Hans Bombay is not an item shown in the Schedule. Item No. 8 in the Schedule is Pan Masala or any chewing material having tobacco as one of its ingredients (by whatever name called). Hans Bombay is only a trade name, the prosecution contends. Though Hans and Bombay may not be Pan masala it would come under the second category mentioned in item 8, because it is a material having tobacco as one of its ingredient by whatever name called. In other words, if Hans Bombay contains tobacco as one of its ingredients, then it can certainly be held to be a tobacco product.
50. The next argument that has been canvassed by the learned counsel for the petitioner is that the place from where Hans Bombay was seized does not fall within a radius of 100 yards from educational institutions. But in the F.I. statement, it was specifically mentioned that the place of incident is only 75 meters from Chelakkara SMT High School and 50 meters to the west of Little Flower school. Therefore, there cannot be any doubt that the offending act was done within 100 yards as mentioned in section 6 of Act 34 of 2003.
51. The contention that has been strenuously stressed by the learned counsel for the petitioners is that u/s 118(i) of Kerala Police Act 2011, the words used are "near school premises"; the distance as such is not specified. But the learned Public Prosecutor submits that the notification was subsequently issued specifying the distance. Even in the absence of the notification, it is reasonable to hold that the distance of 100 meters (from the outer limit or boundary of the school compound calculated radially) would certainly be school premises.
52. The next contention that has been projected by the learned counsel for the petitioners is that the averments in the FIR would only show that the packets containing such (Hans and Bombay) products from two gunny bags were being unloaded from the vehicle KL-8-AG 8655. This, according to the learned counsel for the petitioner, cannot attract the offence u/s 6 of Act 34 of 2003 or u/s 118(i) of Kerala Police Act, 2011. According to the learned counsel, it can only be said that the products were brought to that place and it cannot be said that the petitioners were found giving or selling those articles to children or to any other person. But section 6 of Act 34 of 2003 says that no person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product or permit to sell cigarettes or any other tobacco products. According to the prosecution it would include keeping possession of the same for sale. It is pointed out by the learned Public Prosecutor that the purchasing or bringing of any such tobacco products would attract the offence under one or more of the subsections of section 7 of the Act as well.
53. It is also argued by Sri. Rajesh Vijayan, that even supply of such goods or produces to shop owner would come within the meaning of ''sale'' as defined u/s 3(m) of Act 34 of 2003. Section 3(m) defines ''sale'' as:
sale, with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another, whether for cash or on credit, or by way of exchange, and whether wholesale or retail, and includes an agreement for sale, and offer for sale and exposure for sale;
Since section 3(m) defines sale to mean any transfer of property in goods by one person to another and even exposure for sale, the fact that such tobacco products were brought in a van to the retail shop and was being unloaded, would prima facie show that there was transfer of property in goods by the wholesaler to the retailer, whether for cash or on credit. Further, these tobacco products were actually exposed for sale, the prosecution contends. Section `gives an inclusive and more comprehensive definition to the term ''sale'' and as such the argument to the contrary advanced on behalf of the petitioners is unacceptable. In sale the buyer accepts the property/goods for the price to be paid whether to be paid then and there or deferred to a later date. When the wholesaler unloads such products to be taken to the retail shop there is actually a sale of the property/goods to the retailer, since the possession of the property passes to the buyer immediately on delivery of the / goods to the buyer. The contention that as there was no actual sale of those tobacco products to any person below 18 years, there was no sale coming within the inhibition clause contained in section 6 of the Act, is seen to be rather unsound and untenable. That apart, it falls in the area of appreciation of evidence and so it has to be agitated at the time of trial.
54. It is pointed out by the learned Public Prosecutor that section 118(i) of Kerala Police Act, 2011, creates three sets of offences; first one holding any person who gives or sells those who are below eighteen years any intoxicating substances guilty. It pertains to any intoxicating substances. The second part concerns sale of any articles or substances which are harmful for the physical and mental health of the children below 18 years. It would include tobacco products as well. There would be ever so many harmful articles or substances which are harmful for the physical and mental health and though tobacco products may be one of such articles or substances, it cannot be said that there is inconsistency or at any rate which would be repugnant to any provisions of Act 34 of 2003. Similarly, if any person procures any article or substance or intoxicating substance near school premises for sale that also would attract the Penal Provision contained in section 118(i) of Kerala Police Act, 2011.
55. The learned Public Prosecutor would submit that the Court should always interpret the Constitutional Provisions bearing in mind the object of the legislation. The intention of the legislation in incorporating section 118(i) in Kerala Police Act was with a laudable object. Legislature was bearing in mind the pernicious and deleterious effect of intoxicating substances including tobacco products on the children, especially below 18 years and it was to remedy that malady sub section (i) was incorporated in section 118 of the Act. The Courts should always presume in favour of constitutionality of the Statute because there is always a presumption that the legislature understands and correctly appreciates the needs of its own people, as has been held by the apex Court in the decision in
56. The learned Public Prosecutor would also submit that though in the statement of objects and reasons, mention was made about the Resolution passed by the 39th World Health Assembly in its Fourteenth Plenary meeting held on 15.05.1986 and also about the 43rd World Health Assembly in its Fourteenth Plenary meeting held on 17.05.1990, it is not stated that Act 34 of 2003 was enacted by the Parliament invoking the special provision contained in Article 253 of the Constitution of India. Therefore, it is argued that the existing law passed by the Parliament namely Act 34 of 2003 cannot in any way affect the law enacted by the state legislature in respect of the subject which falls under the State List concerning public health sanitation etc. It is further argued that incorporation of Section 118(i) of the Kerala Police Act, can only be construed as the provision introduced by the legislature because it is a subject which falls under the State List. Therefore, the contention raised by the petitioners that the State Legislature cannot pass an enactment to override the Central Statute and so section 118(i) is repugnant to Central Act 34 of 2003 appears to be untenable and misplaced.
57. In Writ Petition Nos: 29166/2011, 35189/2011 and 6318/2012, the prayer is to declare that section 118(i) of Kerala Police Act, 2011, is unconstitutional being hit by Article 254 of the Constitution of India and that the same be struck down. The other prayer is to direct the 2nd respondent to release the articles seized from the vehicle to the petitioner therein. It is submitted by the learned Public Prosecutor that there is no case in the writ petitions that section 118(i) of Kerala Police Act, 2011, is hit by Article 253 of the Constitution. Section 118(i) of Kerala Police Act was enacted by the State Legislature, as the subject matter falls in item no. 6 list II of Schedule 7. As such the prayer made in these petitions is unsustainable. Directions have already been issued by the Court regarding the interim release of the articles seized from the vehicle, which would be subject to the final order that may have to be passed in the case, which would also be subject to the order of confiscation, if any, passed in the matter.
58. The prayer in Crl.M.C. No: 4071/2011 is to quash Annexure C complaint filed by the Police Officer as per which the petitioner therein has been sought to be prosecuted under the provisions of Act 34 of 2003. In the light of the finding entered above, the prayer made in Crl.M.C. No: 4071/2011 is also unsustainable. The relief sought for in the three writ petitions- to declare section 118(i) of Kerala Police Act, 2011, unconstitutional, is also found to be devoid of any merit and as such those three petitions are also to be dismissed.
In the result, the three writ petitions and Crl.M.C. are dismissed.
