IMPORTANT POINT
`Mammoth ivory imported in India answers the description of the words `ivory imported in India contained in Wild Life (Protection) Act, 1972 as amended by Act No. 44 of 1991 as the object of the Parliament is not only to ban trade in imported elephant ivory but ivory of every description.

Headnote:(i) Wild Life (Protection) Act, 1972 as amended by Act No. 44 of 1991-Section 49-C(7)-Ivory imported in India-Complete prohibition has been imposed in trade of ivory-Whether `mammoth ivory imported in India answers the description of words `ivory imported in India contained in the Act.
       Held : For the purpose of determination of the question, we need to consider only the dictionary meaning of the term ivory . Commercial meaning or technical meaning of an object or article is required to be taken recourse to when the same is necessary for the purpose of meeting the requirements of law. The law in no uncertain terms says that no person shall trade in ivory. It does not say that what is prohibited is trade in elephant ivory or other types of ivory. The purport and object of the Act, as noticed in the judgment in Indian Handicrafts Emporium (supra), is that nobody can carry on business activity in imported ivory so that while doing so, trade in ivory procured by way of poaching of elephants may be facilitated. The Parliament, therefore, advisedly used the word ivory instead of elephant ivory. The intention of the Parliament in this behalf, in our opinion, is absolutely clear and unambiguous. We cannot assume that the Parliament was not aware of existence of different types of ivory. If the intention of the Parliament was to confine the subject matter of ban under Act 44 of 1991 to elephant ivory, it would have said so explicitly. As noticed hereinbefore, the object of the Parliament was not only to ban trade in imported elephant ivory but ivory of every description so that poaching of elephant can be effectively restricted. An article made of plastic would by no means resemble ivory. (Paras 14 and 15)
       The submission of Mr. Parikh that in a case of this nature a restrictive meaning should be attributed to the word ivory cannot be acceded to inasmuch as, in our opinion, the dictionary meaning should be adhered to for the purpose of giving effect to the purport and object of the Act. (Para 38)
       The Parliament has enacted the Amending Acts of 1986, 1991 and 2003 not only for the purpose of banning a trade in elephant ivory but with a view to create a blockade of the activities of poachers and others so that a complete prohibition in trade in ivory is achieved. By reason of the Amending Acts, the Parliament was anxious to plug the loop-holes and impose a ban on trade in ivory so that while purporting to trade in imported ivory and carvings therefrom, poaching of Indian elephants and resultant illegal trade by extracting their tusks may not continue. (Para 40)
       (ii) Interpretation of Statute-Contextual reading, principle of-Rule of `ex visceribus actus -Applicability.
       Held : Contextual reading is a well-known proposition of interpretation of statute. The clauses of a statute should be construed with reference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject-matter. The rule of ex visceribus actus should be resorted to in a situation of this nature. (Para 20)
       (iii) Interpretation of Statutes-Penal Statute-Narrow and pedantic, literal and lexical construction may not always be given effect to-Law would have to be interpreted having regard to subject matter of offence and object of the law it seeks to achieve.
       Held : The rule of strict construction of a regulatory/penal statute may not be adhered to, if thereby the plain intention of the Parliament to combat crimes of special nature would be defeated. (Para 36)
       We are, however, not oblivious of the fact that potential public mischief cannot be a ground to invoke the court s interpretative role to make a new offence. Making of legislation is not the job of the judiciary. Making of a penal legislation by the Judiciary is strictly out of its bound. However, when the law working in the field is clear then what is necessary for it is to find out as to whether any offence has been created or not. Once it is held that the subject matter comes within the purview of the law, the Court may not go further and say by interpretive reasonings that the same is not so created. (Para 37)

JUDGMENT

S.B. Sinha, J.-

QUESTION :

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

FACTUAL BACKGROUND :

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

3. Mammoth is said to be pre-historic animal which disappeared due to climatic conditions prevailing in Alaska and Siberia. According to the appellants the distinction between mammoth and elephant ivory is that whereas mammoth belongs to an extinct species, the ivory of elephant is of an extant living animal. The appellants state that mammoth ivory is distinguishable by visual and non-destructive means vis-a-vis elephant ivory and even in Convention on International Trade in Endangered Species (CITES) their distinguishing features have been pointed out.

SUBMISSIONS :

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

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

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

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

8. The preamble of the Act as also the Headings , the learned counsel would contend, should be taken into consideration for the purpose interpreting the provisions of the said Act.

FINDINGS :

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

10. This Court further held that as a log