Point of Law : Section 53A of Act reads as penalty for possession of property believed to have been stolen.

ORDER :

Two idols claimed to be owned and possessed by the revision petitioner landed him in a criminal case which he has been fighting for the last thirteen years. He was convicted terming it as possession not accounted for. Challenging his conviction for the offence under Section 53A of the Kerala Police Act, 1960 ('the Act' for short), this revision petition has been preferred.

2. Prosecution alleged that on 18.11.2009, at around 4.30 p.m., while the revision petitioner was travelling in his car through a public road, the Sub Inspector of Mala Police Station, while on his routine vehicle inspection duty, found two idols of quinary metal kept beneath the back seat of his car. Asserting that he was unable to give a satisfactory explanation for the two idols, petitioner was alleged to have committed the offence under Section 53A of the Act of keeping in possession stolen property or property that could not be accounted for.

3. During the trial of the case, the prosecution examined PW1 to PW4 and marked Ext.P1 to Ext.P3 apart from the two idols which were marked as MO1 and MO2. On the basis of the evidence of PW2, the trial court came to the conclusion that the idols seized from the possession of the accused were 'incredible archaeological properties' belonging to the 18th century'. The learned Magistrate also held that the idols were rare and unique pieces, not usually used in houses for worship and that the accused failed to account for his possession. After finding that the idols are antique pieces and that the accused had not taken any steps to prove his ownership or right to them, the court found the accused guilty under Section 53A of the Act and sentenced him to undergo imprisonment till the rising of the court.

4. On appeal in Crl.A.No.56 of 2014, the Additional Sessions Court-IV, Thrissur, confirmed the conviction and sentence by its judgment dated 28.03.2016. The Appellate Court also relied upon the evidence of PW2 and came to the conclusion that the idols fall within the category of “archaeological section and precious”. The Appellate Court also held that PW2 was a competent person to examine the idols and that the accused had not taken any steps to prove his right to own or possess the idols by examining the necessary witnesses.

5. Sri. T.N. Manoj, the learned counsel for the petitioner submitted that both the courts had gone on a wrong tangent in finding the accused guilty. It was further argued that the courts had proceeded on the assumption that the burden of proof is on the accused and on that basis convicted him. It was further argued that the provisions of the Antiquities and Art Treasures Act, 1972 (for brevity ‘the Antiquities Act’), does not prohibit a person from possessing an idol which is an antiquity and also submitted that PW2 was not a competent person at all to depose about the nature of the antiquity. It was therefore submitted that the revision petitioner ought to have been acquitted.

6. Sri. Noushad K.A., the learned Public Prosecutor, on the other hand, submitted that as a revisional court, the concurrent findings of fact entered into by the trial court as well as the Appellate Court ought not to be interfered with. It was further submitted that the burden of proving that a property is validly possessed or owned by the accused under Section 53A of the Act is on the person who claims such ownership and when such a question arises, in the absence of any evidence adduced by that person, it can only be assumed that the idols were stolen. It was also submitted that in any event, the sentence imposed upon the revision petitioner was only imprisonment till the rising of the court and therefore, no prejudice is caused to the accused.

7. I have considered the rival contentions.

8. In order to appreciate the contentions advanced by the learned counsel, it is necessary to refer to the definition in Section 2(a) of the Antiquities Act, which reads as follows : (a) “antiquity” includes—

(I) (i) any coin, sculpture, pa