Department Of Customes vs Sharad Gandhi Proprietor

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO(S).174 OF 2019 (Arising out of SLP(Crl.) No.9159 of 2015)

DEPARTMENT OF CUSTOMS ...APPELLANT(S) VERSUS SHARAD GANDHI ...RESPONDENT(S) JUDGMENT

K.M. JOSEPH, J.

1. The appeal maintained by Special Leave is

directed against the judgment of Learned Single Judge

of High Court of Delhi upholding the dismissal of the

complaint filed by the appellant herein against the

respondent and discharging him of offences under

Sections 132 and 135 of the Customs Act, 1962. The

Additional Chief Metropolitan Magistrate allowed the

application for discharge filed by the respondent

accepting the contention of the respondent that there Signature Not Verified Digitally signed by ARJUN BISHT

is a complete bar with regard to the prosecution under Date: 2019.02.27 15:41:44 IST Reason:

the Customs Act, 1962, and under the 2 Customs Act, and the Collector of Customs has power

only to confiscate the goods and impose penalty for

having committed breach of Section 3 of the Antiquities

and Art Treasures Act, 1972 (hereinafter referred to as

“the Antiquities Act”). The Magistrate purported to

follow the judgment of Learned Single judge of the High

Court of Delhi in Dr. V.J.A. Flynn vs. S.S. Chauhan &

Another. The High Court by the impugned order has come

to endorse the said view.

2. We have heard Mr. Aman Lekhi, learned

Additional Solicitor General appearing for the

appellant and also learned counsel appearing on behalf

of the respondent.

3. It must be noted that the Special Leave

Petition out of which this appeal arise was ordered to

be tagged with SLP(Crl.) No. 1525 of 1996. The said

Special Leave Petition was filed against the judgment 3

of learned Single Judge of High Court of Delhi which

has been relied upon by the Court’s below for

discharging the accused. As it turns out, the said

Special Leave Petition has been closed by order dated

09.05.2016 by reason of the death of the respondent in

the said case. The learned Additional Solicitor General

would contend that there is a clear error in the

reasoning of the Court by which it has concluded that

prosecution is not maintainable under Sections 132 and

135 of the Customs Act, 1962. The error stems from a

misapprehension both of the scheme of the Act and also

the principles of law which govern the situation.

4. The scheme of the Antiquities and Art Treasures Act, 1972.

Section 3 forbids the export of Antiquities and Art

Treasures. It reads as follows:-

“3. Regulation of export trade in antiquities and art treasures. – (1) On and from the commencement of this Act, it shall not be lawful for any person, other than the Central Government or any authority or agency authorized by the Central Government in this behalf, to export any antiquity or art treasure.

4 (2) Whenever the Central Government or any authority or agency referred to in sub-section (1) intends to export any antiquity or art treasure such export shall be made only under and in accordance with the terms and conditions of a permit issued for the purpose by such authority as may be prescribed.”

5. Section 4 is another material provision and

hence we advert to the same. It reads as follows: -

“4. Application of Act 52 of 1962. – The Customs Act, 1962, shall have effect in relation to all antiquities and art treasures, the export of which by any person (other than the Central Government or any authority or agency authorized by the Central Government) is prohibited under Section 3 save in so far as that Act is inconsistent with the provisions of this Act and except that (notwithstanding anything contained in section 125 of that Act) any confiscation authorized under that Act shall be made unless the Central Government on an application made to it in this behalf, otherwise directs.”

6. Section 24 reads as follows:-

“24. Power to determine whether or not an article, etc., is antiquity or art treasure. – If any question arises whether any article, object or thing or manuscript, record or other document is or is not an antiquity or is or is not an art treasure for the purposes of this Act, it shall be referred to the Director General, Archaeological Survey of India, or to an officer not below the rank of a Director in the Archaeological Survey of India authorized by the Director General, Archaeological Survey of India and the decision of the Director General, Archaeological Survey of India or such officer, 5

as the case may be, on such question shall be final.”

7. The next important provision is Section 25. It

reads as follows:-

25. Penalty.— (1) If any person, himself or by any other person on his behalf, exports or attempts to export any antiquity or art treasure in contravention of section 3, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962 (52 of 1962) as applied by section 4, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine.

(2) if any person contravenes the provisions of section 5 or section 12 or sub-section (2) or sub-section (3) of section 13 or section 14 or section 17, he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both and the antiquity in respect of which the offence has been committed shall be liable to confiscation.

(3) If any person prevents any licensing officer from inspecting any record, photograph or register maintained under section 10 or prevents any officer authorized by the Central Government under sub-section (1) of section 23 from entering into or searching any place under that sub- section, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.” 6

8. Section 26 is a companion section of Section 25

and must necessarily be addressed. It reads as

follows:-

“26. Cognizance of offences. – (1) No prosecution for an offence under sub-Section (1) of Section 25 shall be instituted except by or with the sanction of such officer of Government as may be prescribed in this behalf.

(2) No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) or section 25 except upon complaint in writing made by an officer generally or specially authorized in this behalf by the Central Government.

(3) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence punishable under this Act.”

9. The last provision which has been impressed

upon us and which will throw light upon the scheme of

the Act is Section 30. It reads as follows: -

“30. Application of other laws not barred. – The provisions of this Act shall be in addition to, and not in derogation of, the provisions of the Ancient Monuments Preservation Act, 1904 (7 of 1904) or the Ancient Monuments and Archaeological Sites and Remains Act, 1958, (24 of 1958) or any other law for the time being in force.” 7

10. Mr. Aman Lekhi, Additional Solicitor General of

India would contend that the prosecution was launched

under Sections 132 and 135 of the Customs Act, 1962 on

the basis that the ingredients of offences under

Sections 132 and 135 were present. He makes it clear

that this is not a case of prosecution within the

meaning of Section 25(1) of the Act. There is no bar in

prosecuting the respondent under Sections 132 and 135

of the Customs Act, he forcefully submitted. As far as

Section 4 is concerned, he points out that in fact it

saves proceedings under the Customs Act. The only taboo

is that, to the extent, any inconsistency between the

Customs Act and the Act exists, the provisions of the

Antiquities Act will hold sway. He points out that

there is no inconsistency involved in maintaining the

prosecution under Sections 132 and 135 of the Customs

Act, 1962. Passing on to Section 25 of the Act, he

would point out that the present case is not a

prosecution under Section 25 read with Section 3 of the

Act. One set of facts may occasion the committing of

more than one offence. The key question to be posed and 8

considered is what are the elements which make an

offence under an enactment. A transaction may involve

a person in the committing of two or more distinct

offences. This is neither contrary to Article 20 of the

Constitution of India nor Section 300 of the Code of

Criminal Procedure. In this regard, he drew our

attention to the following cases:

(i) 1988 (3) SCC 467

(ii) 1983 (3) SCC 529

(iii) 2012 (7) SCC 621

11. The next argument based on Section 25 is that a

perusal of the heading of the section reveals that it

relates to penalty. The reason which has found favour

with the High Court both in the judgment which was

relied upon and the impugned one is that under Section

25 of the Act after the amendment, [Actually, the High

Court was having in mind, the provisions of Section 4

of the Antiquities (Export Control) Act, 1947

(hereinafter referred to as “the 1947 Act”)], what is

permissible under the Customs Act, 1962, is only the 9

confiscation proceedings and penalty proceedings.

Penalty proceedings have been understood as exaction of

a monetary component. The learned Additional Solicitor

General takes exception to the reasoning. In other

words, it is his contention that even proceeding on to

basis of the interpretation placed by the High Court

that after the amendment, under Section 25 what is

permitted under the Customs Act, is only confiscation

and imposition of penalty, the imposition of penalty is

not to bear a narrow connotation as was contemplated by

the High Court. On the other hand, a penalty would

include the penal consequence after a prosecution and

such prosecution would include prosecution under

Sections 132 and 135 of the Customs Act.

12. Further, he would complain that the High Court

has lost sight of the true import of Section 30 of the

Act. Section 30 as we have noticed declares that the

provisions of the Act shall be in addition to the

specific laws which are mentioned therein but it does 10

not end there. It also provides that it shall be in

addition to any other existing law in force. He

complains that High Court erred in applying the

principles of ejusdem generis, in the interpretation of

Section 30 and holding that the Customs Act will not be

an Act which will be embraced within the scope of

Section 30 under the last limb and therefore, it will

not be an existing law.

13. Per contra, learned counsel appearing on behalf

of the respondent would support the order of the High

Court. He would point out that the Antiquities Act

which is actually enacted in the year 1972 is later in

point of time than the Customs Act. The Act must

prevail over the Customs Act. The Act is a special Act

and it will prevail over the general law which is

contained in the Customs Act.

14. Firstly, we will deal with the contention of

the appellant that the Customs Act is also an existing 11

law in force within out of the meaning of Section 30 of

the Antiquities Act. The High Court has proceeded to

take the view that the words ‘any law in force’ must be

construed ejusdem generis with the two laws which are

indicated in Section 30 namely, The Ancient Monuments

Preservation Act, 1904 and the Ancient Monuments and

Archaeological Sites and Remains Act,1958.

15. Learned Additional Solicitor General sought

support from the decision of this Court in Bharat Heavy

Electricals Limited v. Globe Hi-Fabs Limited reported

in 2015 (5) SCC 718 for the principle that the

principles of ejusdem generis must not be used to place

a narrow construction where a larger and purposive

construction is called for. We would advert to the

following discussion by this Court in paragraph 10. It

reads as under:

“10. In construing the words “a claim of set-off or other proceeding to enforce a right arising from contract”, occurring in Section 69 of the Partnership Act, 1932, the Supreme Court refused to limit the generality of “other proceeding” and to apply the ejusdem generis rule as the preceding phrase ‘a claim of set- off’, did not constitute a genus or category.

12 In that case, Hidayatullah, J., in explaining the principle that the rule cannot be applied unless there be “a genus constituted or a category disclosed”, gave the following illustration:

“In the expression `books, pamphlets, newspapers and other documents’, private letters may not be held included if `other documents’ be interpreted ejusdem generis with what goes before. But in a provision which reads `newspapers or other documents, likely to convey secrets to the enemy’, the words `other documents’ would include document of any kind and would not take their colour from newspaper.”

16. Still further we may profitably advert to the

statement of law made by this Court in paragraph 12.

The same reads as under:

“12. The rule of ejusdem generis has to be applied with care and caution. It is not an inviolable rule of law, but it is only permissible inference in the absence of an indication to the contrary, and where context and the object and mischief of the enactment do not require restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning. As stated by Lord Scarman:

“If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it, the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many other rules of statutory interpretation, is a useful servant but a bad master.” 13

So a narrow construction on the basis of ejusdem generis rule may have to give way to a broader construction to give effect to the intention of Parliament by adopting a purposive construction.”

17. The question would be whether the High Court is

right in applying the principles of ejusdem generis.

In order that it applies, the court must find the

existence of enumerated things before general words.

In other words, specified categories must have a common

golden thread of commonality running through them. The

specified words must be followed by general words.

Since the purpose of interpretation of statute is to

glean the legislative intention and purposive

interpretation being an important tool of statutory

interpretation, the demands made by the same may

overwhelm, the temptation to place a restrictive

interpretation by adopting the principles of ejusdem

generis unless it is warranted. Two views being

possible, a view which advances the object may be

preferred but the question arises whether the learned

Additional Solicitor General would be justified in 14

relying upon the principles relating ejusdem generis in

the facts. When the legislature makes a law, the

presumption is that it is aware of all existing laws.

The Court does not begin with a presumption of

ignorance. The Act in question, would indeed furnish a

lucid illustration of the aforesaid principles. The

legislature was fully conscious that the Customs Act,

1962 exists on the statute book. The legislature was

conscious of its operation and it wanted to articulate

the manner in which both laws were to co-exist. It is

accordingly that in Section 4 it has expressly provided

that the Customs Act shall apply in relation to all

antiquities and art treasures, the export of which by

any person other than the Central Government or

authorized or agency is prohibited under Section 3 of

the Act. The only area where it tabooed the

application of the Customs Act is where the Act

contains provisions which were irreconcilable being

inconsistent with the Antiquities Act. Equally, it

also expressly provided for the situation that any

confiscation, notwithstanding Section 125 of the 15 Customs Act thereof, shall be made in regard to

antiquities and art treasure unless on an application

made to the Central Government, it otherwise directs.

Section 125 of the Customs Act is a provision which

enables the officer adjudging the confiscation

proceedings to give an option to pay a fine in lieu of

confiscation. The obvious intention of the legislature

is to provide that once an order for confiscation is

passed under the Customs Act in respect of antiquities

or art treasure the powers ordinarily available under

Section 125 of the Customs Act will not be available.

18. Still further the legislative light is shone by

the words used in Section 25 of the Act. The

legislature has provided for penalty for contravention

of Section 3 of the Act with the rider that a

prosecution under Section 3 of the Act would not

deprive the competent authority under the Customs Act

to exercise its power of confiscation or imposition of

penalty. The question as to what is meant by the word

‘penalty’ in Section 25(1) is a separate matter which 16

we will advert to at the appropriate juncture. It is

thereafter that Section 30 provides that the provisions

of the Act are not intended to override the Ancient

Monument Preservation Act, 1904 or the Ancient Monument

and Archeological Site and Remains Act, 1958 or any

other law for the time being in force. The question

which we are to ponder upon and decide is whether the

expression ‘any other law’ which is cast in general

terms is to be influenced by the company it keeps or

the neighbourhood it is found in or is it possible to

accept the case of the appellant that the words ‘any

other law’ for the time being in force must admit of a

wider meaning. There can be no doubt that the

Antiquities Act is a special enactment. We may at this

juncture refer to the statement of objects and reasons

of The Antiquities and Art Treasures Act, 1972 which

reads as follows:

“At present Antiquities (Export Control) Act, 1947, provides for controlling the export of objects of antiquarian or historical interest or significance. Experience in the working of the Act has shown that in the modern set-up the 17

provisions contained therein are not sufficient with a view to preserving objects of antiquity and art treasures in India. It is proposed to make a comprehensive law to regulate the export trade in antiquities and art treasures and to provide for the prevention of smuggling of, and fraudulent dealings in antiquities. It is also considered necessary to make provision in such law for the compulsory acquisition of antiquities and art treasures for preserving in public places. The present Bill is intended to achieve the above objectives.” (Emphasis supplied)

19. Firstly, we must ascertain whether there is a

common genus contained in the specific enumeration of

two laws namely the Ancient Monuments Preservation Act,

1904 and the Ancient Monuments and Archaeological Sites

and Remains Act, 1958.

20. Let us examine the historical perspective which

led to the passing of these two aforesaid enactments.

21. The statement of objects and reasons for the

enactment of the Ancient Monuments Preservation Act,

1904 is as follows:

18

“"The object of this measure is to preserve to India its ancient monuments in antiquities and to prevent the excavation by unauthorised persons of sites of historic interest and value.

2. In 1898 the question of antiquarian exploration and research attracted attention and the necessity of taking steps for the protection of monuments and relics of antiquity was impressed upon the Government of India. It was then apparent that legislation was required to enable the Government to discharge their responsibilities in the matter and a Bill was drafted on the lines of the existing Acts of Parliament modified so as to embody certain provisions which have found a place in recent legislation regarding the antiquities of Greece and Italy. This draft was circulated for the opinions of local Governments and their replies submitted showed that the proposals incorporated in it met with almost unanimous approval, the criticism received being directed, for the most part, against matters of detail. The draft has since been revised, the provisions of the Draft Bill prepared by the Government of Bengal have been embodied so far as they were found suitable and the present Bill is the result.

3. The first portion of the Bill deals with protection of "Ancient monuments"

an expression which has been defined in clause 2 (now section 2). The measure will apply only to such of these as are from time to time expressly brought within its contents though being 19

declared to be "protected monuments". A greater number of more famous buildings in India are already in possession or under the control of the Government; but there are others worthy of preservation which are in the hands of private owners. Some of these have already been insured or are fast falling into decay. The preservation of these is the chief object of the clause of the Bill now referred to and the provisions of the Bill are in general accordance with the policy enunciated in section 23 of the Religious Endowments Act, 1863 (20 of 1863), which recognises and saves the right of the Government "to prevent injury to and preserve buildings remarkable in their antiquity and for their - historical or architectural value or required for the convenience of the public". The power to intervene is at present limited to cases to which section 3 of the Bengal Regulation 19 of 1810 or section 3 of the Madras Regulation VII of 1817 applies. In framing the present Bill the Government has aimed at having the necessity of good will and securing the cooperation of the owners concerned and it hopes that the action which it is proposed to take may tend rather to the encouragement than to the suppression of private effort. The Bill provides that the owner or the manager of the building which merits greater care than it has been receiving may be invited to enter into an agreement for its protection and that in the event of his refusing to come to terms the collector may proceed to acquire it compulsorily or take proper course to secure its application.

20 It has been made clear that there is to be no resort to compulsory acquisition in the case the monument is used in connection with religious observances or in other case until the owner has had an opportunity of entering into an agreement of the kind indicated above; and it is expressly provided that the monument maintained by the Government under the proposed Act, shall not be used for any purpose inconsistent with its character or with purpose of its foundation, and that, so far as is compatible with the object in view the public shall have access to it free of charge. By the 4th proviso of clause 11 (now section 10) it is laid down that in assessing the value of the monument for the purpose of compulsory acquisition under the Land Acquisition Act, 1894 (1 of 1894) its archaeological, artistic or historical merits shall not be taken into account. The object of the Government as purchaser being to preserve at the public expense and for the public benefit an ancient monument with all its associations, it is considered that the value of those associations should not be paid for. [Note:- As the 4th proviso of clause 11 was the subject of unfavourable comment, it was omitted by the Select Committee.]

4. The second portion of the Bill deals with movable objects of historical or artistic interest and these may be divided into two classes: the first consists of ornaments, enamels, silver and copper vessels, Persian and Arabian Manuscripts, and curios general. These 21

are for the most part portable and consequently difficult to trade; they are as a rule artistic; are of historic interest and it would be impracticable even were it desirable to prevent a dealer from selling and a traveller from buying them. The sculptural carvings, images, bas-reliefs inscriptions and the like form a distinct class by themselves, in that their value depends upon their local connection. Such antiquities may as in the case of those of Swat, be found outside India or in Native States and this the Legislature cannot reach directly; while as the regards the British territory and under the existing law, it is impossible to go beyond the provisions of the Indian Treasure Trove Act, 1878 (6 of 1878). (In these circumstances, it is proposed, by clause 18 of the Bill to take power to prevent the removal from British India of any antiquities which it may be deemed desirable to retain in the country, and at the same time to prevent importation. By thus putting a stop on draft in such articles it is believed that it will be possible to protect against spoliation a number of interesting places situated without and beyond British territory. Clause 19 aims at providing for antiquities such as sculptures and inscriptions which belong to another place and ought therefore to be kept in situ or deposited in local museums. The removal of these, it is proposed to enable the local Government to prohibit by notification and the clause also provides that, if the object is moveable, the owner may require the Government to purchase it outright and 22

that, if it is immovable the Government shall compensate the owner for any loss caused to him by the prohibition. Clause 20 (now section 19) deals with the compulsory purchase of such antiquities if that is found to be necessary for their preservation and the owner is not willing on personal or religious grounds to part with them. In such cases it is proposed that the price to be paid should be assessed by the Collector, subject to a right of appeal to the local Government but it is for consideration whether the Land Acquisition Act of 1894should be followed and reference to the Courts allowed.

5. The third portion of the Bill deals with excavations and gives power to make rules to prohibit or regulate such operations.

6. The general power to make rules is given by clause 22 (now section 23), and clause 23 (now section 24) is intended to protect acts done or in good faith intended to be done, under the law which it is now proposed to enact"

22. Section 2, inter alia, provides as follows:-

“2. DEFINITIONS - In this Act, unless there is anything repugnant in the subject or context,-

(1) "ancient monument" means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic 23

interest, or any remains thereof, and includes-

(a) the site of an ancient monument;

(b) such portion of land adjoining the site of an ancient monument as may required for fencing or covering in or otherwise preserving such monument; and

(c) the means of access to and convenient inspection of an ancient monument;

(2) "antiquities" include any moveable objects which[the Central Government], by reason of their historical or archaeological associations, may think it necessary to protect against injury, removal or dispersion;

(3)”Commissioner” includes any officer authorized by the [Central Government] to perform the duties of a Commissioner under this Act;

(4)”maintain” and “maintenance” include the fencing, covering in, repairing, restoring and cleansing of a protected monument, and the doing of any act which may be necessary for the purpose of maintain a protected monument or of securing convenient access thereto;

(5) “land” includes a revenue-free estate, a revenue-paying estate, and a permanent transferable tenure, whether such an estate or tenure by subject to incumbrances or not; and

(6) “owner” includes a joint owner invested with power of management on behalf of himself and other joint owners, and any manager or trustee exercising powers of management over an ancient monument, and the successor in title of any such owner and the successor in office of any such manager or trustee:

Provided that nothing in this Act shall be deemed to extend the powers which may lawfully be exercised by such manager or trustee.

24 23. Section 17 deals with the transfer of

Antiquities:-

“17. Transfer of ownership, etc., of antiquities to be intimated to the registering officer. – Whenever any person transfers the ownership, control or possession of any antiquity specified in any notification issued under sub-section (1) of Section 14 such person shall intimate, within such period and in such form as may be prescribed the fact of such transfer to the registering officer.”

24. Section 22 reads as follows:-

“22. Jurisdiction – A Magistrate of the third class shall not have jurisdiction to try any person charged with an offence against this Act.”

25. It may be noticed that the Antiquity (Export

Control) Act, 1947 came into force. The said Act has

been repealed by the Antiquities Act but we will refer

to certain provisions contained in the Act in

connection with one of the contentions of the

appellant.

25 26. It is thereafter that the Ancient Monuments and

Archaeological Sites and Remains Act, 1958 which is

another enactment specifically enumerated in Section 30

of the Act in question came to be enacted.

27. The statement of objects and reasons would

indicate, inter alia, that the Ancient Monuments

Preservation Act, 1904 and the Ancient and Historical

Monuments and Archaeological Sites and Remains

(Declaration of National Importance) Act, 1951, were

two Acts in force relating to ancient monuments.

It is further stated as follows :

“While the Constitution has distributed the subject-matter under three different heads the Act of 1904 governs all ancient monuments whether falling the Central field or the State field, and vests all executive power in the Central Government. The position of the existing law relating to ancient monuments is far from satisfactory. The present Bill purports to be a self-

contained law at the Centre which will apply exclusively to ancient monument, etc. of national importance falling under Entry 67 of List 1 and to archaeological sites and remains falling under Entry 40 in the Concurrent List. 26

Simultaneously, the State Governments would be advised to enact a similar law in respect of ancient monument etc., falling under Entry 12 in the State List. In this manner, the Central and State fields will be clearly demarcated and the existing confusion and overlapping of jurisdiction arising from the Act of 1904 will be eliminated.”

28. Section 2(b) defines antiquity in similar terms

as antiquity has been defined under the Antiquities

Act. The two differences are as follows:

The word “painting” is also included in the Act in

question before us, whereas the word “painting” was

not included specifically in the first part of the

definition. Besides the same the definition did not

contain the words in Clause 2 which deals with

manuscript, record or other documents as it is

contained in the present enactment. The words “art

treasure” was not included in the enactment. The

Act deals with monuments, protected areas,

prohibited and regulated areas. It has created a

National Monuments Authority (w.e.f. 29.3.2010) vide 27

Section 20F. There are specific provisions dealing

with antiquity contained in Sections 25 and 26 of

the Act, which read as follows :

“25. Power of Central Government to control moving of antiquities.- (1) If the Central Government considers that any antiquities or class of antiquities ought not to be moved from the place where they are without the sanction of the Central Government, the Central Government may, by notification in the Official Gazette, direct that any such antiquity or any class of such antiquities shall not be moved except with the written permission of the Director General.

(2) Every application for permission under sub-section (1) shall be in such form and contain such particulars as may be prescribed. (3) Any person aggrieved by an order refusing permission may appeal to the Central Government whose decision shall be final.

26. Purchase of antiquities by Central Government.- (1) If the Central Government apprehends that any antiquity mentioned in a notification issued under sub-section (1) of section 25 is in danger of being destroyed, removed, injured, misused or allowed to fall into decay or is of opinion that, by reason of its historical or archaeological importance, it is desirable to preserve such antiquity in a public place, the Central Government may make an order for the [compulsory acquisition of such antiquity] and the Collector shall thereupon give notice to the owner of the antiquity [to be acquired].

(2) Where a notice of [compulsory acquisition] is issued under sub-section (1) in respect of any antiquity, such antiquity shall vest in the Central Government with effect from the date of the notice.

28

(3) The power of [compulsory acquisition] given by this section shall not extend to any image or symbol actually used for bona fide religious observances.”

29. Section 30 provides for penalties and it reads

as follows :

“30. Penalties.- (1) Whoever—

(i) destroys, removes, injures, alters, defaces, imperils or misuses a protected monument, or

(ii) being the owner or occupier of a protected monument, contravenes an order made under subsection (1) of section 9 or under sub- section (1) of section 10, or

(iii) removes from a protected monument any sculpture, carving, image, bas-relief, inscription, or other like object, or

(iv) does any act in contravention of sub-

section(1) of section 19, shall be punishable with [imprisonment which may extend to two years], or with [fine which may extend to one lakh rupees], or with both.

(2) Any person who moves any antiquity in contravention of a notification issued under sub-section (1) of section 25 shall be punishable with [imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both] and the Court convicting a person of any such contravention may by order direct such person to restore the antiquity to the place from which it was moved.” (Emphasis supplied) 29

30. Section 39 is a repealing provision and it

reads thus:

“39. Repeals and saving.- (1) The Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (71 of 1951), and section 126 of the States Reorganisation Act, 1956 (37 of 1956), are hereby repealed.

(2) The Ancient Monuments Preservation Act, 1904 (7 of 1904), shall cease to have effect in relation to ancient and historical monuments and archaeological sites and remains declared by or under this Act to be of national importance, except as respects things done or omitted to be done before the commencement of this Act.”

31. Now the time is ripe to look at the

Constitution in order to find out the division of

legislative field in regard to the subject.

32. Entry 67 of the Union List reads as follows:

“Entry 67, Union List-Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.

33. Entry 12 of the State List provides for ancient

and historical monuments and records other than those 30

declared by or under law made by Parliament to be of

national importance.

34. Entry 40 of the Concurrent List provides for

archaeological sites and remains other than those

declared by or under law made by Parliament to be of

national importance.

35. There are laws enacted by state legislature. We

have noticed that in the Statement of Objects and

Reasons for the passing of the Act and providing for

the repeal of the earlier law based in the year 1947

was to provide for comprehensive law relating to

antiquities. Antiquities made their appearance in the

law which was made in the year 1904 as we have already

noticed. Broadly the heritage of the nation can be said

to be contained in immovable properties in the form of

ancient monuments. Antiquities on the other hand would

be essentially moveable objects. What makes it an 31

antiquity is the historical or archaeological value

which is associated with the object.

36. The 1904 Act and The Ancient Monuments and

Archaeological Sites and Remains Act, 1958 indicate,

therefore, a one common genus. The context for the

commonality is provided essentially by history. It is,

inextricably intertwined with the heritage and history

of the nation. All the laws reflect the legislation

intention to protect the Ancient Monuments and

Archaeological Sites and remains as also antiquities.

Apart from the same no doubt under the Antiquities Act,

art treasures being human work of art which are not

antiquities but which become art treasures by way of

notification declaring them to be art treasures are

also dealt with. One of the questions to be answered

before the principle of ejusdem generis is applied is

whether the genus is already exhaustively enumerated in

the specified categories. See in this regard the 32

following discussion in Principles of Statutory

Interpretation by Justice G.P. Singh (page 512):

“…If the preceding words do not constitute mere specifications of a genus but constitute description of a complete genus, the rule has no application. In a policy of insurance, the insurance were given as option to terminate the policy if they so desired `by reason of such change or from any other cause whatever’; the words `by reason of such change’ in the context referred to any and every act done to the insured property whereby the risk of fire was increased; the Privy Council in these circumstances refused to construe the words `or from any other cause whatever’ by the rule of ejusdem generis. Lord Watson said: “In the present case, there appears no room for its application. The antecedent clause does not contain a mere specification of particulars but the description of a complete genus…”

37. But the aforesaid principle may not have

application as after enumerating enactments which we

have already held constituted one genus there is

nothing to indicate that the categories of genus are

exhausted. Rather these two enactments which are

specifically embodied in Section 30 are followed by

general words which allow the application of the 33

principle of ejusdem generis. This is for the reason

that the words “any other law for the time being in

force” are employed. A wide interpretation or narrow

interpretation can be placed on the words ‘any other

law’. In particular, the use of the word “any”

preceding the words “other law” interpreted literally

may allow us to declare that all laws in force are

intended to apply even after the passing of the

Antiquities Act. The other view would be to bear in

mind the context of the Act and still further the

object which is sought to be achieved by the enactment.

It is also well settled that every attempt must be made

to place a harmonious construction on each and every

provision of the enactment.

38. We would think that though the words ‘any other

law for the time being in force’ has been used, the

context for the use of the provision is not to be

overlooked. We have referred to the relevant

provisions of the two specific enactments which show 34

that the said legislation also deals with antiquities

as it deals with cognate subjects namely ancient

monuments and archaeological sites. The common genus

is manifest. The legislative intention was to declare

that the Antiquities Act should not result in the

provision contained in allied or cognate laws being

overridden upon passing of the Antiquity Act. Full

play was intended for the provisions contained in

relation to antiquities contained in the two

engagements. Despite the passage of the Antiquity Act,

a prosecution for instance would be maintainable if a

case is otherwise made out under the two enactments in

relation to antiquity. The Antiquities Act in other

words is not to be in derogation of those provisions.

They were to supplement the existing laws. It is

therefore in the same context that we should understand

the words ‘any other law for the time being in force’.

For instance, there may be laws made by the State

legislatures which relate to antiquity. There may be

any other law which deal with a subject with a common

genus of which the specific law would be an integral 35

part. It is all such laws which legislature intended

to comprehend within the expression ‘any other law for

the time being in force’. Take for example, a case

where there is a theft of an antiquity. Can it be said

that the prosecution under Section 379 of the IPC would

not be maintainable. The answer will be an emphatic

No. Certainly, the prosecution will lie. The Sale of

Goods Act which relate to movable items generally will

be applicable, to the extent that it is not covered by

any provision in the Acts in question. The Contract

Act may continue to applicable. But it is not the

question of applying general laws that engage the

attention of the legislature. The intention behind

Section 30 was as noted is to provide for any other law

which deal with antiquity to continue to have force and

declare its enforceability even after passing of the

Antiquity Act. In that view of the matter we are of the

view that the words ‘any other law for the time being

in force’ must be construed as ejusdem generis. 36

39. More importantly, a wider import may be

negatived by other evidence available in the Act

itself.

40. Section 4 of the Antiquities Act, it must be

remembered, has already provided for the applicability

of the Customs Act in the manner which we have already

explained. In other words, the Customs Act is

applicable subject to two qualifications. Firstly, it

will apply except where the provisions of the Customs

Act are inconsistent with the provisions of the

Antiquities Act. In other words, if there are

provisions in the Antiquity Act, which are inconsistent

with the Customs Act, the provisions of the Antiquity

Act will prevail over the Customs Act.

41. The Second limitation on the applicability of

the Customs Act is as regards the specific provisions

contained in Section 125 and an option ordinarily made

available under Section 125 is not to be extended as 37

provided in Section 4 of the Act. Still further

legislature has taken care to incorporate certain

aspects under the Customs Act under Section 25. The

provision that a prosecution under Section 25 will not

take away the power to confiscate or impose a penalty

under the Customs Act is explicitly provided. It has

provided for sanction for prosecution in Section 26.

The legislature was fully conscious of the extant

provisions of the Customs Act when it passed the

Antiquity Act, 1972. It was conscious of the interplay

of the two enactments and it accordingly made the

Customs Act applicable in the manner provided in

Section 4 and Section 25. Now with Section 4 and

Section 25 as it stands, if we were to accept the

argument of the learned Additional Solicitor General

that the Customs Act must be also included as ‘any

other law for the time being in force’ under Section 30

and therefore we are persuaded to hold that the

Antiquity Act is in addition and not in derogation of

the Customs Act 1962 the result will be as follows : 38

The Customs Act will apply with all force and

what would be the effect of such application on

Section 4 of the Antiquities Act? On the one hand

Section 4 declares that the Customs Act will apply

except where it is in consistent with the

Antiquities Act. The Antiquities Act will,

therefore, prevail over the Customs Act in case of

an inconsistency. So also there is a modified

application of the Customs Act qua Section 125

thereof. The application of Customs Act through

the mechanism provided under Section 30 of the Act

will thus bring it into conflict with the Section

4 of the Act and this in our view certainly would

not have been the legislative intention. Equally

as we have noted that legislature has taken care

to provide for the saving of powers to impose

penalties and order confiscation despite the

prosecution under Section 25 of the Antiquities

Act. In view of the clear provisions contained in

the Act, we are of the view that the word “any 39

other law” in Section 30 of the Antiquities Act,

would not include the Customs Act, 1962.

42. The next question, is whether prosecution under

Sections 132 and 135(1)(a) of the Customs Act, 1962 is

permitted under Section 4 of the Antiquities Act and

what is the impact of Sections 25 and 26 of the

Antiquities Act. Before we examine the relevant

provisions of the Customs Act, we may advert to a few

decisions about the maintainability of more than one

prosecution.

43. In Shiv Dutt Rai Fateh Chand & Ors. Vs. Union

of India & Anr., 1983 (3) SCC 529, the matter arose

under the Central Sales Tax Act, 1956. We think it

appropriate to advert to paragraphs 25 and 26 which

read as follows:

25. The contention of the petitioners is that any act or omission which is considered to be a default under the Act for which penalty is leviable is an offence, that such act or omission was not an offence and no penalty 40

was payable under the law in force at the time when it was committed and hence they cannot be punished by the levy of penalty under a law which is given retrospective effect. They principally rely on Article 20 (1) in support of their case. Article 20 (1) is modelled on the basis of section 9 (3) of Article 1 of the Constitution of the United States of America which reads: "No bill of attainder or ex post facto law shall be passed.” This clause has been understood in the United States of America as being applicable only to legislation concerning crimes. (See Calder v. Bull 3 Dall 386 : IL Ed. 648(1798)). The expression 'offence' is not defined in the Constitution. Article 367 of the Constitution says that unless the context otherwise provides for words which are not defined in the Constitution, the meaning assigned in the General Clauses Act, 1897 may be given. Section 3 (38) of the General Clauses Act defines 'offence' as any act or omission made punishable by any law for the time being in force. The marginal note of our Article 20 is 'protection in respect of conviction for offences'. The presence of the words 'conviction' and 'offences', in the marginal note 'convicted of an offence', 'the act charged as an offence' and 'commission of offence' in clause (1) of Article 20, 'prosecuted and punished' in clause (2) of Article 20 and 'accused of an offence' and 'compelled to be a witness against himself' in clause (3) of Article 20 clearly suggests that Article 20 relates to the constitutional protection given to persons who are charged with a crime before a criminal court. [See H.M. Seervai: Constitutional Law of India (3rd Edition) Vol. 1, page 759]. The word 'penalty' is a word of wide significance.

Sometimes it means recovery of an amount as a penal measure even in a civil proceeding. An exaction which is not of compensatory character is also termed as a penalty even though it is not being recovered pursuant to 41

an order finding the person concerned guilty of a crime. In Article 20 (1) the expression 'penalty' is used in the narrow sense as meaning a payment which has to be made or a deprivation of liberty which has to be suffered as a consequence of a finding that the person accused of a crime is guilty of the charge.

26. In Maqbool Hussain v. The State of Bombay 1953 SCR 730, the question for consideration was whether when the Customs authorities confiscated Certain goods under the Sea Customs Act there was a prosecution and the order of confiscation constituted a punishment within the meaning of clause (2) of Article 20. Negativing the said plea, this Court observed at SCR pages 738-739:

"The very wording of Article 20 and the words used therein:- "convicted”, "commission of the act charged as an offence", "be subjected to a penalty", "commission of the offence”, "prosecuted and punished", "accused of any offence", would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure."

44. In V.K. Agarwal, Assistant Collector of customs

v. Vasantraj Bhagwanji Bhatia And Others 1988 (3) SCC

467, the Court was faced with an acquittal of the 42

accused person under Section 111 and 135 of the Customs

Act and yet he was sought to be prosecuted under

Section 85 of the Gold (Control) Act, 1968. The Court

inter alia held as follows:

8. We have also concluded that a separate charge could have been framed in respect of the distinct offence under Gold Control Act Under the circumstances the plea raised by the defence cannot succeed. The two conclusions reached by us brings the matter squarely within the parametres of the law settled by this Court decades ago in S. L. Apte's case 1961 (3) SCR 107. In that case the element of 'dishonesty' was required to be established under section 409 of Indian Penal Code whereas it was not required to be established under Section 105 of the Indian Insurance Act. In this backdrop this Court has enunciated the law in the context of the plea based on Article 20(2) of the Constitution, Section 26of General Clauses Act and section 403(2) of the Criminal Procedure Code in no uncertain terms:

"If, therefore, the offences were distinct there is no question of the rule as to double-jeopardy as embodied in Art. 20(2) of the Constitution, being applicable. The next point to be considered is as regards the scope of s. 26 of the General Clauses Act. Though s. 26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which 43

refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. It therefore follows that in the present case as the respondents are not being sought to be punished for "the same offence"

twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable.

In passing, it may be pointed out that the construction we have placed on Art. 20(2) of the Constitution and s. 26 of the General Clauses Act is precisely in line with the terms of s. 403(2) of the Criminal Procedure Code which runs:

403(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1)".

There is no manner of doubt that section 403(1) does not come to rescue of the respondents 1 to 3 whereas section 403(2) of the Code clearly concludes the matter against them.”

45. In a recent judgment of this Court reported in

State of Jharkhand V. Lalu Prasad Yadav 2017 (8) SCC 1

this Court conducted a survey of earlier case law and

this is what the court inter alia held: 44

“40.8 In Monica Bedi v. State of A.P.;2011 (1) SCC 284, this Court considered the meaning of the expression “same offence” employed in Article 20(2) and observed that second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable. This Court has observed thus: (SCC pp. 293 & 295, paras 26 & 29) “26. What is the meaning of the expression used in Article 20(2) “for the same offence”?

What is prohibited under Article 20(2) is, that the second prosecution and conviction must be for the same offence. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.

29. It is thus clear that the same facts may rise to different prosecutions and punishment and in such an event the protection afforded by Article 20(2) is not available. It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence.”

46. In State (NCT of Delhi) V. Sanjay 2014 (9) SCC

772, a criminal prosecution was launched under the

Indian Penal Code and/or Mines and Minerals

(Development & Regulation) Act 1957 (hereinafter called

‘MMDR Act’) for mining from river beds without valid

licence and permits under the latter Act. There was no

complaint from the authorised officer under the Act. 45

This Court took the view that the ingredients

constitute the offence under the MMDR Act and the

ingredients of dishonestly removal of sand and gravel

from the river bed without the consent which is the

property of the State is a distinct offence under the

Indian Penal Code, therefore, the Magistrate on receipt

of the Police Report for the commission of the offence

under Section 378 IPC can take cognizance without

awaiting the complaint which may be filed by the

authorised officer under the MMDR Act. The court inter

alia held as follows:

“52. It is a well-known principle that the rule against double jeopardy is based on a maxim nemo debet bis vexari pro una et eadem causa, which means no man shall be put in jeopardy twice for one and the same offence. Article 20 of the Constitution provides that no person shall be prosecuted or punished for the offence more than once. However, it is also settled that a subsequent trial or a prosecution and punishment has no bar if the ingredients of the two offence are distinct.”

47. Now let us examine the scheme of the Customs

Act, 1962.

46 The Customs Act, 1962 purports to consolidate and amend

the law relating to customs. Section 11 of the Customs

Act provides as follows:

11. Power to prohibit importation or exportation of goods.— (1) If the Central Government is satisfied that it is necessary so to do for any of the purposes specified in sub-section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any specified description.

(2) The purposes referred to in sub-section (1) are the following:—

(a) the maintenance of the security of India;

(b) the maintenance of public order and standards of decency or morality;

(c) the prevention of smuggling;

(d) the prevention of shortage of goods of any description;

(e) the conservation of foreign exchange and the safeguarding or balance of payments;

(f) the prevention of injury to the economy of the country by the uncontrolled import or export of gold or silver;

(g) the prevention of surplus of any agricultural product or the product of fisheries;

(h) the maintenance of standards for the classification, grading or marketing of goods in international trade;

(i) the establishment of any industry; 47

(j) the prevention of serious injury to domestic production of goods of any description;

(k) the protection of human, animal or plant life or health;

(l) the protection of national treasures of artistic, historic or archaeological value;

(m) the conservation of exhaustible natural resources;

(n) the protection of patents, trade marks and copyrights;

(o) the prevention of deceptive practices;

(p) the carrying on of foreign trade in any goods by the State, or by a Corporation owned or controlled by the State to the exclusion, complete or partial, or citizens of India;

(q) the fulfilment of obligations under the Charter of the United Nations for the maintenance of international peace and security;

(r) the implementation of any treaty, agreements or convention with any country;

(s) the compliance of imported goods with any laws which are applicable to similar goods produced or manufactured in India;

(t) the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign State or is derogatory to national prestige;

(u) the prevention of the contravention of any law for the time being in force; and

(v) any other purpose conducive to the interests of the general public.” 48

48. Chapter IV-B came to be inserted with effect

from 03/01/1969. It contains Section 11H. Section

11H(a) provides that unless the context otherwise

requires “illegal export” means the export of any goods

in contravention of the provisions of this Act or any

other law for the time being in force. Section 11(i)

deals with the powers of Central Government to specify

goods having regard to the magnitude of illegal export

of certain class of goods or description in which case

it would become specified goods for which there are

separate restrictions contained in Section 11J, 11K and

11M. Section 11N falling under Chapter IVC provides

the Central government with power to exempt. It reads

as follows:

“11N. Power to exempt.- If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally, either absolutely or subject to such conditions as may be specified in the notification, goods of any class or description from all or any of the provisions of chapter IVA or Chapter IVB.” 49

49. There are various provisions which relate to

levy of duty, assessment of duty, remission of duty

etc. with which we need not be detained. Section 39 of

the Customs Act provides that the master of a vessel

shall not permit the loading of any export goods, other

than baggage and mail bags, until an order has been

given by the proper officer granting entry-outwards to

such vessel. Section 40 of the Customs Act

contemplates that export goods are not be loaded unless

duly passed by the proper officer. Section 50 deals

with the procedure for clearance of export goods. Sub-

section (2) & (3) of Section 50 reads as follows:

“50. (2) The exporter of any goods, while presenting a shipping bill or bill of export, shall make and subscribe to a declaration as to the truth of its contents.

(3) The exporter who presents a shipping bill or bill of export under this section shall ensure the following, namely:-

(a) the accuracy and completeness of the information given therein;

50

(b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.”

50. Chapter XIII containing Section 100 to 110A

provides for searches, seizure and arrest. Section 100

deals with power to search suspected persons entering

or leaving India, etc. Section 103 provides power to

screen or X-ray bodies of suspected persons for

detecting secreted goods. Section 104 confers the

power to arrest by an officer of the Customs empowered

in this regard. Section 108 which is subject matter of

many judgments of courts provides for power to summon a

person to give evidence and produce documents.

51. Chapter XIV has the chapter heading

“Confiscation of Goods and Conveyances and Imposition 51

of Penalties”. Section 113 provides for confiscation

of goods attempted to be improperly exported etc.

52. Section 114 AA provides for penalty for use of

false and incorrect material. It came to be inserted

by Act 25 of 2006 only with effect from 30/07/2006.

Section 117 deals with penalties for contravention etc.

which are not expressly provided. Section 119 deals

with confiscation of goods used for concealing smuggled

goods. Section 121 deals with confiscation of sale-

proceeds of smuggled goods. The word ‘smuggling’ has

been defined in Section 2 (39) reads as follows:

2(39) “smuggling”, in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113;

53. Section 125 provides for the power to give an

option to pay fine in lieu of confiscation. 52

54. Chapter XIVA deals with settlement of cases.

Various powers of the Settlement Commission are set out

in the provisions falling under the Chapter. Section

127(h) provides for granting immunity from prosecution

and penalty.

55. Chapter XVI provides for ‘Offences and

Prosecutions’. It is thereunder that Sections 132 and

135 appears:

“132. False declaration, false documents, etc.— Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.”

“135. Evasion of duty or prohibitions. — (1) Without prejudice to any action that may be taken under this Act, if any person—

(a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or

(b) acquires possession of or is in any way concerned in carrying, removing, depositing, 53

harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or section 113, as the case may be;

or

(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113; or

(d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable, —

(i) in the case of an offence relating to,—

(A) any goods the market price of which exceeds one crore of rupees; or

(B) the evasion or attempted evasion of duty exceeding thirty lakh of rupees; or

(C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or

(D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds thirty lakh of rupees, with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year;

(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.

(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be 54

punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine:

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year.

(3) For the purposes of sub-section (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely: —

(i) the fact that the accused has been convicted for the first time for a reference under this Act;

(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;

(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;

(iv) the age of the accused.”

56. Section 137 provides inter alia that no court can

take cognizance of any offence under Section 132, 133,

134 or Section 135 or Section 135A except with the

previous sanction of the Principal Commissioner of

Customs or Commissioner of Customs. Sub-Section(3) 55

provides for compounding of the offence by the officers

mentioned. Section 137 reads as under:

“137. Cognizance of offences. — (1) No court shall take cognizance of any offence under section 132, section 133, section 134 or section 135 or section 135A, except with the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs.

(2) No court shall take cognizance of any offence under section 136,—

(a) where the offence is alleged to have been committed by an officer of customs not lower in rank than Assistant Commissioner of Customs or Deputy Commissioner of Customs, except with the previous sanction of the Central Government;

(b) where the offence is alleged to have been committed by an officer of customs lower in rank than Assistant Commissioner of Customs or Deputy Commissioner of Customs, except with the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs.

(3) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Principal Chief Commissioner of Customs or Chief Commissioner of Customs on payment, by the person accused of the offence to the Central Government, of such compounding amount and in such manner of compounding as may be specified by rules. Provided that nothing contained in this sub- section shall apply to—

(a) a person who has been allowed to compound once in respect of any offence under sections 135 and 135A;

56

(b) a person who has been accused of committing an offence under this Act which is also an offence under any of the following Acts, namely:—

(i) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985);

(ii) the Chemical Weapons Convention Act, 2000 (34 of 2000);

(iii) the Arms Act, 1959 (54 of 1959);

(iv) the Wild Life (Protection) Act, 1972 (53 of 1972);

(c) a person involved in smuggling of goods falling under any of the following, namely:—

(i) goods specified in the list of Special Chemicals, Organisms, Materials, Equipment and Technology in Appendix 3 to Schedule 2 (Export Policy) of ITC (HS) Classification of Export and Import Items of the Foreign Trade Policy, as amended from time to time, issued under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992);

(ii) goods which are specified as prohibited items for import and export in the ITC (HS) Classification of Export and Import Items of the Foreign Trade Policy, as amended from time to time, issued under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992);

(iii) any other goods or documents, which are likely to affect friendly relations with a foreign State or are derogatory to national honour;

(d) a person who has been allowed to compound once in respect of any offence under this Chapter for goods of value exceeding rupees one crore;

57

(e) a person who has been convicted under this Act on or after the 30th day of December, 2005.”

57. Section 140 of the Customs Act which deals with

offence by Companies is identically worded as Section

28 of the Antiquities Act.

58. At this juncture we may notice the provisions

of the 1947 Act in some greater detail. Section 3

provided that no person shall export any antiquity

except under the authority of a licence granted by the

Central Government. Section 4 read as follows:

“4. Application of Act VIII of 1878.- All antiquities the export of which is prohibited under section 3 shall be deemed to be goods of which the export has been prohibited under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that, the provisions of section 183 of that Act notwithstanding, any confiscation authorised under that Act shall be made, unless the Central Government, on application to it in such behalf, otherwise directs.”

59. Section 5 of the 1947 Act dealt with Penalty

and Procedure. It read as follows:

58

“5. Penalty and Procedure.- (1) If any person exports or attempts to export an antiquity in contravention of Section 3, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878, as applied by Section 4, be punishable with imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both.

(2) No Court shall take cognizance of an offence punishable under this section except upon complaint in writing made by an officer generally or specially authorised in this behalf by the Central Government, and no Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any such offence.”

60. Under Section 4 of the 1947 Act, all

antiquities, the export of which is prohibited under

Section 3 were to be deemed as goods which were

prohibited Section 19 of the Sea Customs Act where all

the provisions of the Sea Customs Act were to have

effect except Section 183 which correspond to Section

125 of the present customs Act. Section 19 of the Sea

Customs Act, 1878 read as follows:

“19. The Central Government may from time to time, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any 59

customs frontier as defined by the Central Government.”

61. We may also notice that Section 5 of the 1947

Act is pari materia with Section 25 of the Antiquities

Act in regard to the crucial elements namely `without

prejudice to any confiscation or penalty’ both in

Section 5 of the 1947 Act and in Section 25 of the

Antiquities Act.

62. In Section 5 of the 1947 Act, the legislature

has employed the very same words namely confiscation or

penalty as has been employed in Section 25 of the

Antiquities Act. In the Sea Customs Act, 1878, in

Chapter XVI under the heading “Offences and Penalties”

Section 167 provided for various offences and the

penalties were in the form of monetary exaction or

confiscation and penalties by way of monetary exaction.

However, besides the same we notice that in respect of

some offences it is provided that such persons shall on

conviction before a Magistrate, be liable to a fine not 60

exceeding certain limits (See Sections 167(72) & (74)).

Section 167 (75) deal with cases where on conviction

before a Magistrate, sentence of imprisonment or fine

or both were provided. The extent of punishment

varied. The scheme of the Sea Customs Act, 1878 thus

differs from the present Customs Act 1962. In other

words, in Section 167 of the Sea Customs Act, penalty

in the sense of monetary exaction, confiscation, or

both and lastly imprisonment and/or fine were all

classified under common heading ‘penalties’.

63. In fact, we find that this Court in the

Assistant Collector of Customs, Calcutta vs. Sitaram

Agarwala and Another AIR 1966 SC 955 considered the

scheme of Sea Customs Act, 1878 as contained in

Section 167. Section 167 (8) contemplated the levy

of penalty by way of liability to confiscation and

penalty of three times not exceeding the value of

goods or not exceeding one thousand rupees. The 61

Court contrasted the said provision with Section 167

(81). The provision read as follows:

Offences Section of Penalties this Act to which offence has reference "(81). If any person knowingly, and General such person shall on with intent to defraud the conviction before a Government of any duty payable Magistrate be liable to thereon, or to evade any imprisonment for any prohibition or restriction for the terms not exceeding two time being in force under or by years or to fine or to virtue of this Act with respect both; thereto acquires possession of, or is in any way concerned in

carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid; or

If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods,”

The penalty provided in Column III for the same was

that on confiscation before a Magistrate he will be

liable to imprisonment for a term not exceeding two 62

years or to fine or both. This is what the Court had

to declare in regard to the aforesaid penalties :

“Then comes Ch. XVI dealing with offenses and penalties. Offence enumerated in Ch. XVI are of two kinds; first there are contraventions of the Act and rules thereunder which are dealt with by Customs officers and the penalty for which is imposed by them. These may be compendiously called customs offences. Besides these there are criminal offences which are dealt with by Magistrates and which result in conviction and sentence of imprisonment and/or fine. These two kinds of offences have been created to ensure that no fraud is committed in the matter of payment of duty and also to ensure that there is no smuggling of goods, without payment of duty or in defiance of any prohibition or restriction imposed under Ch. IV of the Act.”

Thus, this Court has held that there are custom

offences and criminal offences. The criminal

offences were dealt with by the Magistrate which may

culminate in conviction and imposition of

imprisonment and or fine. Thus, this being the

scheme of the Sea Customs Act, when Section 5 of the

Antiquity (Export Control) Act, 1947 provided that

prosecution for contravening Section 3 of the said

Act would be without prejudice to the imposition of

penalties and ordering confiscation the word 63

‘penalty’ could take in both the customs offences and

also the criminal offences. If it is interpreted as

embracing the criminal offences then the word

‘penalty’ would also embrace within its scope penalty

by way of imprisonment or fine imposed for the

commission of a criminal offence after a prosecution

before the Magistrate.

64. We may notice that under the Customs Act

1962, penalties and confiscation fall under Chapter

XIV. Penalties as contained in Chapter XIV would

correspond to customs offences in the Sea Customs

Act, 1878. As far as the criminal offences are

concerned, they are separately dealt with under

Chapter XVI. Yet the legislature has, in fact,

chosen to repeat the word ‘confiscation and penalty’

when it drafted Section 25 of the Antiquities Act.

65. There are two submissions we need to address

which are made on behalf of the appellant. By virtue

of Section 4, all the provisions of the Customs Act 64

except to the extent of inconsistency is provided full

play. By virtue of the same prosecution under Sections

132 and 135 would lie provided that the ingredients of

the offence contained in Sections 132 and 135 are found

to exist. The second submission is even the word

‘penalty’ which is contained in Section 25 should be

interpreted in a broader sense so as to encompass

prosecution as contemplated under Sections 132 and 135

of the Customs Act besides the penalty in the form of

monetary exaction.

66. In order to arrive at an appropriate conclusion

in this regard we must cull out the ingredients of the

offences under Sections 132 and 135 of the Act. The

ingredients of Section 132 are as follows:

1) Making, signing or using or causing to be made, signed or used any declaration statement or document;

2) The aforesaid act must be in transaction of any business relating to the customs;

65 3) The acts mentioned above must be done with the knowledge or having reason to believe that such a declaration statement or document is false in any material particular.

If we contrast Section 132 of the Customs Act with

Section 25 of the Act, it will be seen that the offence

under Section 25 of the Antiquity Act lies in exporting

or attempting to export any antiquity or art treasure

by violating Section 3 of the Act. When a person

exports or attempt to export an antiquity it is but

essential that he would be having a transaction with

relation to the customs. If in his transaction with

the customs in regard to export or attempted export of

any antiquity or art treasure he does any of the acts

contained in Section 132 of the Customs Act, can it be

said that he is being prosecuted for the same offence

as contained in Section 3 read with Section 25 of the

Antiquity Act. The answer is, No. Quite clearly the

ingredients of Section 25 of the Act and Section 132 of

the Customs Act are distinct and different from one

another. It may be true that it may be the same acts 66

or transaction which gives rise to the two distinct

offences but that may not matter.

67. The complaint in this case also adverts to

Section 50 of the Customs Act. Section 50 declares it

to be a duty on the part of the exporter to make and

subscribe to a declaration as to the truth of the

contents of the shipping bill or bill of export. The

exporter is to ensure the accuracy and completeness of

information given by him. He has also to ensure

compliance with Section 50(3)(c) in law. Section

50(3)(C) of the Customs Act, it may be noticed declares

that the exporter shall ensure compliance with the

restriction or prohibition if any relating to the goods

under the Customs Act or under any other law for the

time being in force. Certainly, the restrictions or

prohibition within the meaning of Section 50(3)(C)

would comprehend Section 3 read with Sections 25 and 26

of the Antiquities Act as Antiquities Act would

certainly be inter alia a law for the time being in 67

force within the meaning of Section 50(3)(c).

Certainly, such provisions are complementary and not

antithetical to or inconsistent with Section 25 of the

Antiquities Act. If an exporter gives a false

declaration or information, should not the law

effectively deal with him? Section 132 does precisely

that by making false declaration as provided therein

punishable. It is inconceivable as to how such a

provision namely Section 132 would be inconsistent with

Section 25 or 26 of the Antiquities Act. It is to be

noted at any rate that Section 25 apart from providing

for prosecution for the export or attempted export,

declares that the person concerned can be visited with

a confiscation proceedings and penalty. Even accepting

the contention of the respondent that what is permitted

under Section 25 is imposition of penalty in the sense

of monetary exaction, it is to be noted this is in

connection with the prosecution for the offence under

Section 25 read with Section 3 of the Antiquities Act.

In other words, when there is a prosecution under

Section 25 of the Antiquities Act, it will not bar the 68

imposition of confiscation and penalty in the form of

monetary exaction but that does not mean that

prosecution for a distinct and separate offence as

contained in Section 132 of the Customs Act is in any

way prohibited as being inconsistent with Section 25.

In this regard though for prosecution under the Customs

Act the sanctioning authority is different from the

authority to sanction prosecution under the Antiquities

Act, the authority to sanction prosecution under

Section 26 is only qua the offence under Section 25 of

the Antiquities Act. The authority competent to

sanction prosecution under the Customs Act is the

exclusive authority to countenance prosecution for

offences under the Customs Act. So, there can be no

conflict if a prosecution under Section 132 of the

Customs Act is maintained after proper sanction by the

competent authority under the Customs Act. It would

not in any way violate either Section 25 or Section 26

of the Act.

69

68. Section 133 deals with obstruction of officers

of custom. It provides that if any person obstructs

any person of the customs in exercise of the power

under the Act he is liable for punishment. Section 134

penalizes resistance or refusal to allow a radiologist

to screen or to take X-ray picture of his body as per

the order of the Magistrate under Section 103 by

resisting or refusing to allow action on the basis of

advice of a registered medical practitioner for

bringing out goods secreted inside his body as provided

under Section 103. Take a situation where a person

secretes an antiquity in his body and incurs the wrath

of section 134. Can he be heard to say that

prosecution under the Customs Act is barred? Since the

case does not involve prosecution under these sections,

we are not making any final pronouncement in regard to

the same.

70

69. The time is now ripe for us to look at the

complaint which has been filed by the appellant. The

complaint inter alia appears as follows:

One wooden box was intercepted on suspicion on

18/02/1995. In the courier manifest the contents of

the said wooden box were declared as ‘Stone Figure

Handicrafts’. Suspecting it to be an antiquity, the

officers of the Archaeological Survey of India were

called and it was declared to be an antiquity and

was identified as a sand stone head of Buddha.

Respondent’s statement was recorded under Section

108 of the Customs Act. The respondent had stated

that he was only a commission agent and he had

prepared a declaration as given by his client Mr.

Robert Jaeger. There are other allegations. It is

finally stated further as follows:

“……….

m. From the aforementioned facts, it is clear that the accused, attempted to export the seized antique piece. I.e. Sand Stone Head of Buddha illegally as elaborated below :

71 (i) The accused used a fictitious name viz. Mr. Robert Jaeger to book the antique piece in his name for `whom he failed to provide any identification particulars/ reference details. He also failed to produce any evidence to prove that the said antique piece was handed over to him by the said Robert Jaeger. In fact, had Mr. Robert Jaeger existed in reality the accused would have obtained a receipt from him showing the purchase of the seized antique piece and also he would have obtained as encashment certificate from him which he failed to obtain/ produce-the accused also did not obtain any written authority/ declaration from the said Mr. Robert Jaeger authorising him to export the parcel on his behalf. (ii) The accused himself/ prepared the false proforma Invoice in his own handwriting and signed the declaration on the proforma invoice and also signed the airway bill knowingly that the 72

said piece was an antique. (iii) The ace used deliberately and knowingly concealed the facts and issued a false certificate to the effect that the Sand Stone Head of Buddha was new and a non-antiquity. n. Export, of the Antiquities is

prohibited until and unless authorised by the Central Govt. by (virtue of Section 3 of the Antiquities & Art: Treasures Act, 1962 read with Section 3 of the Foreign Trade (Development & Regulation) Act, 1992 by Virtue of which the restrictions are deemed to be issued under Section 11 of the Customs Act, 1962 para 123 (Chapter

xi) of the export and Import policy 1992-97 (which is deemed to be issued under Section 5 of the Foreign Trade (Development & Regulation) Act, 1992) specifically prohibits the export of goods, which are restricted under any other law for the time being in force.”

70. Under Section 26 of the Act, a prosecution

under Section 25(1) can be instituted only by or with

the sanction of an officer of the Government as

prescribed in this behalf. The antiquities and Art

Treasure Rules 1973 came to be published on 31st August 73

1973 in the Gazette. Rule 15 which was inserted with

effect from 30/11/1978 declared that the Director

General of Archaeological Survey of India shall be the

officer competent in terms of Section 26(1) to

institute or to sanction institution of prosecution for

the offence under Sub-section (1) of Section 25 of the

Act.

71. Coming finally to Section 135(1)(a) of the

Customs Act, the third limb which alone is invoked in

this case, penalises fraudulently evading or attempting

to evade any prohibition for the time being imposed

under the Customs Act or any other law for the time

being in force in regard to such goods.

72. Now, in regard to the last part in the

complaint inter alia there is reference to the export

of antiquity being prohibited under Section 3 of the

Antiquities Act, read with Section 3 of the Foreign

Trade (Development & Regulation) Act 1992 by virtue of 74

which the restrictions are deemed to be issued under

Section 11 of the Customs Act, 1962 issued in paragraph

123 of Chapter XI of the Export And Import Policy 1992-

1997 which is deemed to be issued under Section 5 of

the Foreign Trade (Development & Regulation) Act 1992

specifically prohibiting the export of goods which are

restricted under any law for the time being in force.

Thereafter, what follows is crucial: -

“4. The accused did not declare the recovered and seized antiquity as required under Section 50 of the Customs Act, 1962 and was knowingly concerned in fraudulent evasion/ attempt at evasion of the prohibitions imposed on the export of the above said recovered and seized antiquity. The accused has, thus, committed offences punishable under Sections 132 and 135 (1)(a) of the Customs Act, 1962.”

Thus, the prosecution is maintained under Sections 132

and 135(1)(a) of the Customs Act, 1962.

73. Section 3 of the Foreign Trade (Development and

Regulation) Act, 1992 reads as follows: -

75 “3. Powers to make provisions relating to imports and exports. -(1) The Central Government may, by Order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports.

(2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods or services or technology:

Provided that the provisions of this sub- section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies.

(3) All goods to which any Order under sub-

section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly.

(4) without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act, or rules or orders made thereunder.”

74. Of relevance to this case is sub section 3 of

Section 3. It purports to declare that all goods to 76

which any order under sub-section (2) applies are to be

deemed as goods the import and export of which is

prohibited under Section 11 of the Customs Act. Para

123 of the Import-Export policy 1992-1997 read as

follows:

“123. All goods may be exported without any restriction except to the extent such exports are regulated by the Negative List of Exports or any other provision of this Policy or any other law for the time being in force. The Director General of Foreign Trade may, however, specify through a Public Notice the terms and conditions according to which any goods not included in the Negative List of Exports may be exported without a licence. Such terms and conditions may include Minimum Export Price (MEP), registration with specified authorities, value addition, quantitative ceilings and compliance with other laws, rules, regulations.”

Goods placed in the negative list are those goods which

are completely prohibited items. It is to be borne in

mind that Section 3 of the Antiquities Act does not

completely prohibit export of antiquity or art treasure

and it countenances export by the Central Government or

by persons authorised.

77 75. Therefore, the prosecution is launched in

regard to Section 135(1)(a) on the basis that Section 3

of the Antiquities Act prohibits export of antiquity

and this is read with Section 3 of the Foreign Trade

and Development Act 1992 read with Export and Import

Policy for the year 1992-1997 bringing in Section 11 of

the Customs Act.

76. In the last limb of Section 135(1)(a) of the

Customs Act, 1962, the ingredients of the offence are

the fraudulent evasion or attempt at evading any

prohibition for the time being imposed under the

Customs Act or under any other law for the time being

in force with respect to such goods. On the basis of

the Import-Export Policy for the year 1992-1997 which

we have referred to in para 123 thereof read with

Section 3 of The Foreign Trade (Development and

Regulation) Act, 1992, the restriction as to export

of antiquities is deemed to be issued under Section

11 of the Customs Act, 1962. Therefore, the export of 78

antiquity and art treasures became prohibited by the

deeming provisions of Section 3(3) of The Foreign

Trade (Development and Regulation) Act, 1992 under

Section 11 of the Customs Act, 1962. Section

135(1)(a), in so far as, the prosecution is concerned

under the third limb can be said to be under Section

11 of the Customs Act read with Section 135(1)(a) no

doubt with the aid of Section 3(1) of the Antiquities

Act also. It would make it a case of prosecution for

fraudulently evading or attempting to evade a

prohibition contained in the Customs Act, 1962 though

invoking Section (3) of the Antiquities Act also. The

second part of the last limb of Section 135(1)(a)

permits prosecution for fraudulent evasion or attempt

to evade the prohibition contained in any other law

for the time being in force. The said prohibition in

the facts of this case would attract the prohibition

contained in Section 3 of the Antiquities Act. It may

be noted that as far as a prosecution under Section

25 of the Antiquities Act read with Section 3 of the

said Act is concerned, the ingredients of the offence 79

consist of exporting or attempting to export

antiquities or art treasures. In contrast to the

same, the ingredients of the offence under Section

135(1)(a) contains an additional and different

element, namely, fraudulently evading or attempting

to evade the prohibition in the matter of exporting

the goods or attempting to export the goods which are

prohibited. Be it on the basis of deemed prohibition

under Section 11 of the Customs Act or on the basis

of prohibition contained in Section 3 of the

Antiquities Act only to sustain a prosecution in the

third limb thereof of Section 135(1)(a), it is

incumbent on the prosecution to establish that the

accused fraudulently evaded or attempted to evade the

prohibition against export. Therefore, in the said

sense, the ingredients of the offences under Section

135(1)(a) and the offence under Section 3 read with

Section 25 of the Antiquities Act are different and

distinct.

80 77. The question, however, would arise whether

having regard to the mandate of Section 4 of the

Antiquities Act, the prosecution under Section

135(1)(a) when it is on the basis of fraudulently

evading or attempting to evade the prohibition

contained in Section 3 of the Antiquities Act would

be inconsistent with Section 25 read with Section 26

of the Antiquities Act. A prosecution under Section

25 of the Antiquities Act is to be done on the basis

of sanction of Director General of Archaeological

Survey of India who is the statutory sanctioning

authority. Like a prosecution under Section 132 of

the Customs Act, a prosecution under 135(1)(a) must

be on the basis of sanction given by the competent

authority under the Customs Act, and not the

Antiquities Act.

78. The last aspect which may be necessary to

notice, the provision of Section 24 of the Antiquities

Act. Section 24 deals with the power to decide whether

an article is an antiquity or art treasure. It declares 81

that if any question arises whether under any article,

object or thing or manuscript record or other document

is or is not an antiquity or art treasure or is or is

not an art treasure, the matter must be referred to the

Director General of Archaeological Survey of India or to

an officer not below the rank of Director authorized by

the Director General and his decision for the purpose

of the Act on such question shall be final. Section 24

makes a declaration about the decision of the named

authorities being final for the purposes of this Act. A

perusal of the complaint, in fact, would show that

there is a case for the appellant that they have got

stone head of Buddha examined and there is an opinion

by authorized nominee of the Director General of

Archaeological Survey of India, finding it to be an

antiquity and on the basis of request made by the

appellant officers and reference has been made

specifically to Section 24 of the Antiquities Act.

Section 24 as noticed confers power on the Director

General or his authorized nominee to determine the

question as to whether the articles etc. is an 82

antiquity or not or an art treasure or not. This

determination which is to be treated as final is for

the purposes of the Act. Undoubtedly, one of the

purposes of the Act would be a prosecution under

Section 25 of the Act. In this case, the case of the

appellant is that the prosecution is under Sections 132

and 135(1)(a) of the Customs Act, 1962. Whether it is

necessary for the Customs Authorities to procure the

opinion of the Director General of Archaeological

Survey of India or his authorized officer for a

prosecution under the Customs Act?

79. We have noticed the contents of the complaint.

There is undoubtedly reference to the prohibition

contained against export of antiquity, inter alia,

under the Antiquities Act. Under Section 4 of the

Antiquities Act, the Customs Act has been made

applicable except to the extent of the inconsistency.

The inter play between two enactments, can be

understood as follows – while the prosecution under the

Customs Act in regard to the Antiquity or art treasure 83

may be permissible, when a question arises as to

whether an article is an antiquity or not or an art

treasure or not, the provisions contained under Section

24 of the Antiquities Act would be applicable and the

question must be decided by the Director General of

Archaeological Survey of India or his authorized

nominee and finality would be attached therewith. The

Director General or his authorized officers would be

the authorities who would have the necessary knowledge,

experience and could give an authoritative opinion in

the case of dispute as to whether an article is or is

not an antiquity or art treasure. By this process, we

would think that we can give full play on a harmonious

construction to both the provisions and what is more

giving the primacy to the antiquities Act where it is

called for accordingly.

80. It may be noticed that the concept of

‘inconsistency’ is found in Article 254 of the

Constitution of India. Article 254 has a marginal note

which speaks about inconsistencies between laws made by 84

Parliament and laws made by legislatures of the State.

The Article goes on to state that if the law made by

the State is repugnant to the law made the Parliament,

the law made by the Parliament to the extent of

repugnancy shall prevail. This is no doubt subject to

sub-Article (2). The said Article being a

constitutional provision dealing with the complex

subject of the quasi federal structure we have in India

in part may not be entirely apposite for interpreting

the provision of Section 4 which speaks about

inconsistency between the Customs Act, 1962 and the

Antiquities Act. However, we may only refer to a

Constitution Bench judgment of this Court in K.

Karunanidhi vs. Union of India and Another 1979 (3)

SCC 431. This Court proceeded to hold that the Tamil

Nadu Men (Criminal Misconduct) Act, 1973 was not

repugnant to the Indian Penal Code, Prevention of

Corruption Act and Criminal Law (Amendment) Act, 1952

and it was in addition to and not in derogation of any

law in force. The Court inter alia held in paragraph

24 as follows:

85

“24……..Before any repugnancy can arise, the following conditions must be satisfied:-

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.

81. Finally, it summed up with the conclusions in

paragraphs 35 which reads as under:

“35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:-

1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the 86

statutes continue to operate in the same field.

This Court also held:

36. In the light of the propositions enunciated above, there can be no doubt that the State Act creates distinct and separate offences with different ingredients and different punishments and it does not in any way collide with the Central Acts……”

No doubt the Court in the said case took note of the

provision which provided for saving of other laws and

came to the conclusion that the intention that the

State Act which was undoubtedly the dominant

legislation would only be “in addition and not in

derogation of any other law for the time being in

force” which manifestly included the Central Acts,

namely, the Indian Penal code, The Prevention of

Corruption Act and the Criminal Law (Amendment) Act,.

82. We may also notice the following test which has

been laid down in the decision of this court reported

in AIR 1959 SC 648 which has in fact been adverted in a 87

recent judgment of this Court in Innoventive Industries

Limited v. ICICI Bank and Another 2018 (1) SCC 407.

Paragraph 43 of the said judgment reads as under:

“43. In Deep Chand v. State of U.P., 1959 Supp. (2) SCR 8, this Court referred to its earlier judgments in Zaverbhai Amai Das v. State of Bombay 1955 (1) SCR 799 and Tika Ramji v. State of U.P. 1956 SCR 393 and held:

29….“Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:

(1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.”

83. While it may be true that the Antiquities Act

is a comprehensive law, it cannot be treated as a

complete or exhaustive code. Of course, the principles

relating to repugnancy have been expounded in the

context of conflicting claims to legislative power

between two legislatures. In this case both the

Customs Act 1962 and Antiquities Act have been made by

Parliament.

88 84. We have expounded the ingredients of Sections

132 and 135(1)(a) of the Customs Act. The view we are

taking would give full play to the Customs Act to the

extent that it is not inconsistent with the Act as

contemplated under Sector 4. The view which we are

declaring does not do violence to the provisions of

Section 25 of the Act. The contrary view which has

gained acceptance at the hands of the High Court, in

our view, fails to give meaning and full play as

intended to the Customs Act as provided in Section 4 of

the Act. Furthermore, the principle that a transaction

or the same set of facts can give rise to more than one

distinct offence provided the legislative intention in

this regard is clear from the provisions which creates

such offences cannot be lost sight of.

85. The upshot of the above discussion is as

follows:- Prosecution under Sections 132 and 135(1)(a)

of the Customs Act, 1962, is not barred in regard to

the antiquities or art treasures. Accordingly, we allow 89

the appeal and set aside the impugned order. The

complaint filed may be proceeded with as per law.

However, we make it very clear that pronouncement of

this order shall not come in the way of the Court

deciding the matter on its merits. The Court will

proceed to consider the matter on its own and shall not

be influenced by any observation which may have been

made in this order regarding merits.

…………………………….J. (Ashok Bhushan)

…………………………J. (K.M. Joseph)

New Delhi;

February 27, 2019