2019 Supreme(SC) 229

SUPREME COURT OF INDIA
ASHOK BHUSHAN, K.M. JOSEPH, JJ.
DEPARTMENT OF CUSTOMS – APPELLANT(S)
Versus
SHARAD GANDHI – RESPONDENT(S)
CRIMINAL APPEAL NO. 174 OF 2019 (ARISING OUT OF SLP(CRIMINAL) NO. 9159 OF 2015)
Decided on : 27-02-2019

IMPORTANT POINT
Prosecution under Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barred in regard to the antiquities or art treasures.

Headnote:(a) Antiquities and Art Treasures Act, 1972 – Section 30 – ‘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’ – Act 1904 and Act 1958 dealing with cognate subjects namely ancient monuments and archaeological sites, having a common genus – Words 'any other law for the time being in force' must be construed as ejusdem generis to the two Acts or other similar laws – Held, the word "any other law" in Section 30 of the Antiquities Act, would not include the Customs Act, 1962. (Para 38, 41)

       (2015) 5 SCC 718 – Relied upon

       (b) Interpretation of statute – Every attempt must be made to place a harmonious construction on each and every provision of the enactment. (Para 37)

       (c) Interpretation of statute – Customs Act 1962 and Antiquities and Art Treasures Act, 1972 – In case of inconsistency of provisions of the two Acts, provisions of the Antiquity Act will prevail over the Customs Act – Customs Act would be applicable in the manner provided in Section 4 and 25, Antiquities Act. (Para 40, 41)

       (d) Antiquities and Art Treasures Act, 1972 – Sections 3 and 25 r/w Section 132, Customs Act, 1962 – Held, ingredients of section 25 r/w section 3 – Distinct and different from that of section 132 – Section 25 and section 132 give rise to two distinct offences even though the transaction is the same. (Para 66)

       (1983) 3 SCC 529; (1988) 3 SCC 467; (2017) 8 SCC 1; (2014) 9 SCC 772; AIR 1966 SC 955 – Relied upon

       (e) Customs Act, 1962 – Section 50 and section 3 r/w sections 25 and 26, Antiquities and Art Treasures Act, 1972 – Antiquities Act a law for the time being in force for the purposes of section 50(3)(C) – Restrictions or prohibition u/s 50(3)(C) would comprehend section 3 r/w sections 25 and 26, Antiquities Act – Section 132 not inconsistent with Section 25 or 26 of the Antiquities Act – Prosecution u/s 25 will not bar imposition of confiscation and penalty in the form of monetary exaction – Held, prosecution u/s 132 not prohibited – Prosecution u/s 132 can be maintained after proper sanction by competent authority and it would not violate either Section 25 or Section 26 of the Act. (Para 67, 80)

       (1979) 3 SCC 431; AIR 1959 SC 648; (2018) 1 SCC 407 – Relied upon

       (f) Antiquities and Art Treasures Act, 1972 – Section 25 and 26 r/w Rule 15, Antiquities and Art Treasure Rules 1973 – Director General, Archaeological Survey of India – Officer competent in terms of Section 26(1) to institute or to sanction institution of prosecution for offence u/s 25(1). (Para 70)

       (g) Customs Act, 1862 – Section 135(1)(a) and sections 3 and 25, Antiquities and Art Treasures Act, 1972 – Ingredients of offence u/s 3 and 25 consist of exporting or attempting to export antiquities or art treasures – In contrast, ingredients offence u/s 135(1)(a) additionally contain different element, namely, fraudulently evading or attempting to evade the prohibition in the matter of exporting the goods or attempting to export the prohibited goods – Prosecution u/s 135(1)(a) on basis of prohibition u/s 11 or section 13 can be sustained only if prosecution establishes that the accused fraudulently evaded or attempted to evade prohibition against export – Held, ingredients of the offences u/s 135(1) (a) and the offence u/s 3 r/w section 25 are different and distinct. (Para 77)

       (h) Antiquities and Art Treasures Act, 1972 – Section 24 – Prosecution under Customs Act in regard to the Antiquity or art treasure may be permissible – But, in deciding whether an article is an antiquity, decision of Director General of Archaeological Survey of India or his authorized nominee shall be final. (Para 78, 79)

       Facts of the case:

       The Additional Chief Metropolitan Magistrate allowed the application for discharge filed by the respondent accepting the contention of the respondent that there is a complete bar with regard to the prosecution under the Customs Act, 1962, and under the Customs Act, 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. 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.

       Finding of the Court;

       Prosecution under Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barred in regard to the antiquities or art treasures.

       Result: Appeal allowed.