LexMAULAVI HUSSEIN HAJI ABRAHAM UMARI versus STATE OF GUJARAT AND ANR.
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A B c D E F G MA ULA VI HUSSEIN HAJI ABRAHAM UMARI v. STATE OF GUJARAT AND ANR. JULY 29, 2004 [S.N. VARIAVA AND ARIJIT PASAYAT, JJ.) Prevention of Terrorism Act, 2002; Sections 3 and 49(2)/Code of Criminal Procedure, 1973; Sections 73 and 167: Charges under POTA-Petitionfor extending police remand beyond 30 days period-Allowed by trial Court-Affirmed by High Court-On appeal, Held: Court could interpret the law but cannot legislate it- Legislature casus omissus should neither be supplied by judicial interpretation nor should it be readily inferred to make it a consistent enactment-However, a casus omissus, if occurs, must be disposed of according to law as existed before enactment of the statute-Provision for extending police custody specifically provided-Adequate safeguards provided under Section 49(2)(b) against its misuse-Apprehension of accused about likelihood of misuse of the provision without any substance- Interpretation of Statutes. Proviso to Section 49(2) POTA-Scope of-Held: It was introduced by way of exception in relation to proviso to Section 167(2)(b) and not in respect of Section 167(2) of the Cr. P.C.-A proviso can not be interpreted as stating a general rule but creates an exception to an enactment. Legal Maxims: Maxims- 'Ad ea quae frequentius accidunt Jura adapatantur' and 'casus omissus et oblivioni datus dispositioni Communis Juris relinquitur '- Applicability of-Discussed. Accused-appellant and others allegedly attacked a train and set it ablaze, which has resulted in the death of some passengers and injury to several others. A case was registered against accused for commission of offences under various provisions of Indian Penal Code, Indian H Railways Act, Prevention of Damage to Public Property Act and 202 .. MAULAVI HUSSEIN v. STATE OF GUJARAT 203 Bombay Police Act. Subsequently, Sections 3(1)(a)(b) and 3(2) of the A Prevention of Terrorism Act were added with the permission of the Court. Accused was arrested and remanded to police custody. Later, an application in terms of section 49(2) of POT A for extension of police custody was filed before the POTA Court. The Court extended police remand of accused beyond a period of 30 days. Appeal was dismissed B by High Court. Hence the present appeal. It was contended by the accused-appellant that Section 49(2) of POTA is not intended to give unbridled power to the investigating agency to seek police custody beyond a period of 30 days as it would negate the statutory limit of police custody provided in section 167 C Cr.P.C.; and that keeping the accused in police custody for a period beyond 30 days could never be the ,!~gislative intent, and that Section 49(2), POTA could not be given an extended meaning which would frustrate the legislative intent. Respondent-State submitted that by restricting the scope of Section 49(2) of POT A, the investigating officer could not seek police custody of the accused beyond 30 days period for further investigating the matter, which could never be the legislative intent. ·Dismissing the appeal, the Court D E HELD: I.I. The normal function ofa proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. The proper function of a proviso is to except and to deal with a case which F would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. [2ll-B-C-D-E] G Shah Bhoraj Kuverji Oil Mills and Ginning Factory v. Subhash H 204 SUPREME COURT REPORTS (2004) SUPP. 3 S.C.R. A Chandra Yograj Sinha, AIR (1961) SC 1596; Calcutta Tramways Co.Ltd. v. Corporation of Calcutta, AIR (1965) SC 1728; A.N Sehgal & Ors. v. Raje Ram Sheoram & Ors., AIR (1991) SC 1406; Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal & Ors., AIR (1991) SC 1538; Kera/a State Housing Board & Ors. v. Ramapriya Hotels (P) Ltd. & Ors., B [19
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