Supreme Court of India
DEPARTMENT OF CUSTOMSversusSHARAD GANDHI
- Citation
- 2019 INSC 282
- Decided
- 27 February 2019
- Disposal
- Appeal(s) allowed
- Bench
- ASHOK BHUSHAN
Holding
Prosecution under Customs Act Sections 132 and 135(1)(a) is not barred; the Customs Act applies to antiquities except where its provisions are inconsistent with the Antiquities Act, and Section 30 does not bring the Customs Act within its ambit.
Summary
The appellant Department of Customs appealed against the discharge of Sharad Gandhi, who was accused of attempting to export a sand‑stone Buddha head classified as an antiquity. The prosecution relied on Sections 132 and 135(1)(a) of the Customs Act, 1962 for false declaration and fraudulent evasion of a prohibition. The respondent argued that the Antiquities and Art Treasures Act, 1972 barred any customs prosecution, invoking Section 30’s phrase “any other law”. The Supreme Court examined the statutory scheme, applying the principle of ejusdem generis and the saving clause in Section 4 of the Antiquities Act. It held that the Customs Act applies to antiquities unless its provisions are inconsistent with the Antiquities Act, and that Section 30 does not bring the Customs Act within its scope. Consequently, the offences under the Customs Act are distinct from those under the Antiquities Act, and prosecution under Sections 132 and 135(1)(a) is permissible. The appeal was allowed, setting aside the lower court’s order.
Issues considered
- Whether prosecution under Customs Act ss.132 and 135(1)(a) for export of antiquities is barred by the Antiquities and Art Treasures Act, 1972.
- Whether the words ‘any other law’ in Section 30 of the Antiquities Act, read ejusdem generis, include the Customs Act.
- Whether Section 4 of the Antiquities Act permits the application of the Customs Act except to the extent of inconsistency.
- Whether a prosecution under the Customs Act conflicts with Sections 25 and 26 of the Antiquities Act.
- Whether the offences under the two statutes constitute the same offence for purposes of double jeopardy or repugnancy.
Legislation cited
- Ancient Monuments and Archaeological Sites and Remains Act, 1958
- Ancient Monuments Preservation Act, 1904
- Antiquities and Art Treasures Act, 1972s. 25, s. 26, s. 3, s. 30, s. 4
- Constitution of Indias. Art.20, s. Art.254
- Customs Act, 1962s. 11, s. 125, s. 132, s. 135(1)(a), s. 137, s. 4, s. 50
- Foreign Trade (Development & Regulation) Act, 1992s. 3
Subjects
statutory interpretationejusdem generisrepugnancycustoms lawantiquitiesdouble jeopardypenaltyexport prohibition
Judgment
[2019] 4 S.C.R. 273 273
DEPARTMENT OF CUSTOMS A
v.
SHARAD GANDHI
(Criminal Appeal No. 174 of 2019)
FEBRUARY 27, 2019 B
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Customs Act, 1962: ss.132 and 135(1)(a) – Prosecution under,
in regard to the antiquities or art treasures – Held: Prosecution
under ss.132 and 135(1)(a) of the Customs Act, 1962, is not barred
C
in regard to the antiquities or art treasures – Antiquities and Art
Treasures Act, 1972.
Antiquities and Art Treasures Act, 1972: s.30 – Whether the
words ‘any law in force’ must be construed ejusdem generis with
the two laws indicated in s.30 namely, the Ancient Monuments
D
Preservation Act, 1904 and the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 – Held: The 1904 Act
and the 1958 Act indicate a one common genus – It is, inextricably
intertwined with the heritage and history of the nation – These two
enactments which are specifically embodied in s.30 are followed by
general words which allow the application of the principle of ejusdem E
generis – For the said reason, the words “any other law for the time
being in force” are employed – The intention behind s.30 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
Antiquities Act – The applicability of Customs Act through the
F
mechanism provided under s.30 would bring it into conflict with s.4
of the Act and this certainly would not be the legislative intention –
The words ‘any other law’ in s.30 would not include Customs Act –
Doctrines/Principles – Principle of ejusdem generis – Interpretation
of statutes – Ancient Monuments Preservation Act, 1904 – Ancient
Monuments and Archaeological Sites and Remains Act, 1958. G
Doctrines/Principles: Principle of ejusdem generis –
Applicability of – Held: In order to apply the principle of ejusdem
generis, the court must find the existence of enumerated things before
general words – In other words, specified categories must have a
H
273
274 SUPREME COURT REPORTS [2019] 4 S.C.R.
A common golden thread of commonality running through them –
Antiquities and Art Treasures Act, 1972 – s.30.
Antiquities and Art Treasures Act, 1972: s.4 – Whether having
regard to the mandate of s.4 of the Antiquities Act, the prosecution
under ss.132/135 of the Customs Act for attempting to export
B antiquity would be inconsistent with s.25 r/w s.26 of the Antiquities
Act – Held: By virtue of s.4 of Antiquities Act, all the provisions of
the Customs Act except to the extent of inconsistency is provided
full play – By virtue of the same, prosecution under ss.132 and 135
would lie provided that the ingredients of the offence contained in
ss.132 and 135 are found to exist – The authority competent to
C 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 s.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
D either s.25 or s.26 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 s.132 of the
Customs Act, it cannot be said that he is being prosecuted for the
E same offence as contained in s.3 r/w s.25 of the Antiquities Act –
The ingredients of s.25 of the Act and s.132 of the Customs Act are
distinct and different from one another – Constitution of India –
Art.254 – Customs Act, 1962 – ss.132 and 135 – Foreign Trade
(Development & Regulation) Act 1992 – ss.3 and 5.
F Antiquities and Art Treasures Act, 1972: Legislative intent of
enactment – Discussed.
Ancient Monument Preservation Act, 1904: Legislative intent
of enactment – Discussed.
G Ancient Monument and Archeological Site and Remains Act,
1958: Legislative intent of enactment – Discussed.
Constitution of India: Art.254 – Concept of Inconsistency –
Inconsistencies between laws made by Parliament and laws made
by legislatures of the State – Discussed – Antiquities and Art
Treasures Act, 1972.
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 275
Allowing the appeal, the Court A
HELD: 1.1 In order to apply the principles of ejusdem
generis, 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. B
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 C
the object may be preferred. 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 furnish a lucid illustration of the said principles. The
legislature was fully conscious that the Customs Act, 1962 exists D
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. Accordingly 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 E
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. [Para 17][290-D-H]
1.2 The legislature has provided for penalty for F
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. Section 30 provides that
the provisions of the Act are not intended to override the Ancient G
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 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 H
276 SUPREME COURT REPORTS [2019] 4 S.C.R.
A other law’ for the time being in force must admit of a wider
meaning. [Para 18][291-C-F]
1.3 The statement of objects and reasons indicate, inter
alia, that the Ancient Monuments Preservation Act, 1904 and
the Ancient and Historical Monuments and Archaeological Sites
B and Remains (Declaration of National Importance) Act, 1951, were
two Acts in force relating to ancient monuments. The 1904 Act
and the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 indicate 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.
C All the laws reflect the legislation intention to protect the Ancient
Monuments and Archaeological Sites and remains as also
antiquities. These two enactments which are specifically embodied
in Section 30 are followed by general words which allow the
application of the principle of ejusdem generis. This is for the
D reason that the words “any other law for the time being in force”
are employed. The use of the word “any” preceding the words
“other law” interpreted literally may allow to declare that all laws
in force are intended to apply even after the passing of the
Antiquities Act. [Paras 27, 28, 36, 37][296-H; 297-A; 300-D-E;
301-C-D]
E
Principles of Statutory Interpretation by Justice G.P.
Singh – referred to
1.4 Though the words ‘any other law for the time being in
force’ has been used, the context for the use of the provision is
F not to be overlooked. The relevant provisions of the two specific
enactments show 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
G 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. The
intention behind Section 30 was to provide for any other law which
deal with antiquity to continue to have force and declare its
H enforceability even after passing of the Antiquity Act. In that view
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 277
of the matter, the words ‘any other law for the time being in force’ A
must be construed as ejusdem generis. [Para 38][301-E-G;
302-D]
1.5 Section 4 of the Antiquities Act already provided for
the applicability of the Customs Act. In other words, the Customs
Act is applicable subject to two qualifications. Firstly, it will apply B
except where the provisions of the Customs Act are inconsistent
with the provisions of the Antiquities Act. 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 provided in
Section 4 of the Act. Still further legislature has taken care to C
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 D
of the extant provisions of the Customs Act when it passed the
Antiquities 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.
The application of Customs Act through the mechanism provided
under Section 30 of the Act will bring it into conflict with the E
Section 4 of the Act and this certainly would not have been the
legislative intention. 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.
The word “any other law” in Section 30 of the Antiquities Act, F
would not include the Customs Act, 1962. [Paras 40, 41]
[302-G-H; 303-A, D-E]
2. 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
G
Sections 25 and 26 of the Antiquities Act. By virtue of Section 4,
all the provisions of the Customs Act 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. Contrasting Section 132 of the Customs Act H
278 SUPREME COURT REPORTS [2019] 4 S.C.R.
A with Section 25 of the Act, it can 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
B
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,
it cannot 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 ingredients of Section 25 of the Act and Section 132 of
C the Customs Act are distinct and different from one another. It
may be true that it may be the same acts or transaction which
gives rise to the two distinct offences but that may not matter.
[Paras 42, 65, 66][303-F; 318-G-H; 319-D-F]
Bharat Heavy Electricals Limited v. Globe Hi-Fabs
D Limited (2015) 5 SCC 718; Shiv Dutt Rai Fateh Chand
& Ors. v. Union of India & Anr., (1983) 3 SCC 529 :
[1983] 3 SCR 198; V. K. Agarwal, Assistant Collector
of customs v. Vasantraj Bhagwanji Bhatia And Others
(1988) 3 SCC 467 : [1988] 3 SCR 450; State of
Jharkhand v. Lalu Prasad Yadav (2017) 8 SCC 1 :
E [2017] 3 SCR 630; State (NCT of Delhi) v. Sanjay
(2014) 9 SCC 772 : [2014] 9 SCR 1063 – referred to.
3.1 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
F 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. At any rate, Section 25 apart from providing for
prosecution for the export or attempted export, declares that
the person concerned can be visited with a confiscation
G 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, 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
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 279
bar the imposition of confiscation and penalty in the form of A
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
B
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 C
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. [Para 67] [320-B-G]
3.2 In the instant complaint filed by the appellant, it was D
mentioned that one wooden box was intercepted. 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.
The respondent had stated in his statement recorded under E
Section 108 of the Customs Act that he was only a commission
agent and he had prepared a declaration as given by his client. It
was finally stated that the accused attempted to export the seized
antique piece i.e. Sand Stone head of Buddha illegally. Section
135(1)(a) of the Customs Act penalises fraudulently evading or F
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. Now, in regard to the last part in
the complaint inter alia there was reference to the export of
antiquity being prohibited under Section 3 of the Antiquities Act,
read with Section 3 of the Foreign Trade (Development & G
Regulation) Act 1992 by virtue of 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
H
280 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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. Thus, the prosecution
is maintained under Sections 132 and 135(1)(a) of the Customs
Act, 1962. [Paras 69, 71, 72][321-C-E; 323-A, C]
B 3.3 Sub section 3 of Section 3 purports to declare that all
goods to 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. 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
C persons authorised. 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
D Section 11 of the Customs Act. [Paras 74, 75] [324-B-C, E-G]
3.4 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
E in force with respect to such goods. On the basis of the Import-
Export Policy for the year 1992-1997 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 antiquity and art treasures became prohibited by the deeming
F 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
G 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
H law for the time being in force. The said prohibition in the facts of
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 281
this case would attract the prohibition contained in Section 3 of A
the Antiquities Act. 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 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
B
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 C
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
D
the Antiquities Act are different and distinct. [Para 76][324-G-H;
325-A-F]
4.1 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 E
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 F
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. [Para 77][325-G, H]
4.2 Section 24 deals with the power to decide whether an
G
article is an antiquity or art treasure. It declares 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 H
282 SUPREME COURT REPORTS [2019] 4 S.C.R.
A and his decision for the purpose of the Act on such question shall
be final. 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
B
officers and reference has been made specifically to Section 24
of the Antiquities Act. In 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
C 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
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
D
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
E 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,
full play can be given 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. [Paras 78, 79][326-B-E, G,
H; 327-A-C]
F
5.1 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 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
G 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
H provision of Section 4 which speaks about inconsistency between
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 283
the Customs Act, 1962 and the Antiquities Act. [Para 80] A
[327-C-E]
5.2 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 B
legislative power between two legislatures. In this case both the
Customs Act 1962 and Antiquities Act have been made by
Parliament. [Para 83][329-D, E]
6. Full play is given to the Customs Act to the extent that it
is not inconsistent with the Antiquities Act as contemplated under C
Section 4. 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. Prosecution
under Sections 132 and 135(1)(a) of the Customs Act, 1962, is
not barred in regard to the antiquities or art treasures. D
[Paras 84, 85][329-E-H]
K. Karunanidhi v. Union of India and Another (1979)
3 SCC 431 : [1979] 3 SCR 254 – relied on.
Innoventive Industries Limited v. ICICI Bank and E
Another (2018) 1 SCC 407 : [2017] 8 SCR 33; Assistant
Collector of Customs, Calcutta v. Sitaram Agarwala and
Another AIR 1966 SC 955 : [1966] SCR 1 – referred
to.
Case Law Reference F
(2015) 5 SCC 718 referred to Para 15
[1983] 3 SCR 198 referred to Para 43
[1988] 3 SCR 450 referred to Para 44
[2017] 3 SCR 630 referred to Para 45 G
[2014] 9 SCR 1063 referred to Para 46
[1966] SCR 1 referred to Para 63
[1979] 3 SCR 254 relied on Para 80
[2017] 8 SCR 33 referred to Para 82 H
284 SUPREME COURT REPORTS [2019] 4 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
174 of 2019
From the Judgment and Order dated 27.03.2015 of the High Court
of Delhi at New Delhi in Crl. Rev. P. No. 41 of 2006.
Aman Lekhi, ASG, Harish Pandey, Ms. Binu Tamta, B. Krishna
B Prasad, Advs. for the Appellant.
Dr. Sushil Balwada, Srilok Nath Rath, Y. P. Singh, Advs. for the
Respondent.
The Judgment of the Court was delivered by
C 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
D 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, 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,
E 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
F 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 of
G 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
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 285
[K. M. JOSEPH, J.]
not maintainable under Sections 132 and 135 of the Customs Act, 1962. A
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:- B
“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. C
(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.” D
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
E
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 F
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 G
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
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286 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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, as the case may be, on such question shall be
final.”
B 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
C 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
D 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.
E (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
F fine, or with both.”
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
G
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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 287
[K. M. JOSEPH, J.]
complaint in writing made by an officer generally or specially A
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 B
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 C
the Ancient Monuments and Archaeological Sites and Remains
Act, 1958, (24 of 1958) or any other law for the time being in
force.”
10. Mr. Aman Lekhi, Additional Solicitor General of India would
contend that the prosecution was launched under Sections 132 and 135 D
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 E
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 F
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 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 G
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
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288 SUPREME COURT REPORTS [2019] 4 S.C.R.
A (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
B 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 confiscation proceedings and penalty
C 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
D 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
E 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 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
F 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
G 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.
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 289
[K. M. JOSEPH, J.]
14. Firstly, we will deal with the contention of the appellant that A
the Customs Act is also an existing 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
B
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 Limitedv. Globe
Hi-Fabs Limitedreported 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. C
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 D
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. 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 E
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 F
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: G
“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
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290 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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.
B 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.”
So a narrow construction on the basis of ejusdem generis rule
may have to give way to a broader construction to give effect to
C 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
D 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
E 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 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
F 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
G 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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 291
[K. M. JOSEPH, J.]
expressly provided for the situation that any confiscation, notwithstanding A
Section 125 of the 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
B
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 C
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 we will advert to at the D
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 E
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 F
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 provisions contained therein are not G
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
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292 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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
B 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.
C
21. The statement of objects and reasons for the enactment of
the Ancient Monuments Preservation Act, 1904 is as follows:
““The object of this measure is to preserve to India its ancient
monuments in antiquities and to prevent the excavation by
D 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
E
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
F 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.
G
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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 293
[K. M. JOSEPH, J.]
being declared to be “protected monuments”. A greater number A
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
B
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”. C
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
D
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 E
acquire it compulsorily or take proper course to secure its
application. 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
F
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 G
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
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294 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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.]
B 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 are for the most part portable and consequently difficult to
C 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,
D 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
E 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
F 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
G may require the Government to purchase it outright and 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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 295
[K. M. JOSEPH, J.]
not willing on personal or religious grounds to part with them. In A
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 B
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” C
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 D
monument, or any tumulus or place of interment, or any cave,
rock-sculpture, inscription or monolith, which is of historical,
archaeological or artistic interest, or any remains thereof, and
includes-
(a) the site of an ancient monument;
E
(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; F
(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 G
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,
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296 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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
B 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
C 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.
23. Section 17 deals with the transfer of Antiquities:-
D
“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
E 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.”
F
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.
G 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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 297
[K. M. JOSEPH, J.]
and Historical Monuments and Archaeological Sites and Remains A
(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 B
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, C
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. 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 D
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: E
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 F
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 Section 20F. There
are specific provisions dealing with antiquity contained in Sections G
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
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298 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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.
B
(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
C 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
D 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
E 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.
F
(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 :
G “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
H under sub-section (1) of section 10, or
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 299
[K. M. JOSEPH, J.]
(iii) removes from a protected monument any sculpture, carving, A
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. B
(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 C
order direct such person to restore the antiquity to the place from
which it was moved.”
(Emphasis supplied)
30. Section 39 is a repealing provision and it reads thus:
D
“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.
E
(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.” F
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 G
records, and archaeological sites and remains, declared by or under
law made by Parliament to be of national importance.
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300 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 33. Entry 12 of the State List provides for ancient and historical
monuments and records other than those 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
B 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
C 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 antiquity is the historical or archaeological value which
is associated with the object.
D
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
E 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
F generis is applied is whether the genus is already exhaustively
enumerated in the specified categories. See in this regard the following
discussion in Principles of Statutory Interpretation by Justice G.P. Singh
(page 512):
“…If the preceding words do not constitute mere specifications
G 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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 301
[K. M. JOSEPH, J.]
every act done to the insured property whereby the risk of fire A
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
B
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 C
of the 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 D
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.
E
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 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. F
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 G
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
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302 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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
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
B
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
C 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
D
the time being in force’ must be construed as ejusdem generis.
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
E 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
F 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 provided in Section 4 of the Act. Still further legislature has taken
G 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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 303
[K. M. JOSEPH, J.]
Customs Act when it passed the Antiquity Act, 1972. It was conscious A
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’
B
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 :
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 C
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 D
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 other law” in Section 30 of the E
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 F
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 G
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
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304 SUPREME COURT REPORTS [2019] 4 S.C.R.
A offence and no penalty 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
B
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
C 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
D
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 20and ‘accused of an offence’ and ‘compelled to be a
E witness against himself’ in clause (3) of Article 20clearly suggests
that Article 20relates 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
F
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 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
G 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
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 305
[K. M. JOSEPH, J.]
authorities confiscated Certain goods under the Sea Customs Act A
there was a prosecution and the order of confiscation constituted
a punishment within the meaning of clause (2) ofArticle 20.
Negativing the said plea, this Court observed at SCR pages 738-
739:
“The very wording of Article 20 and the words used therein:- B
“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 C
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 D
with an acquittal of the 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 E
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 F
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: G
“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.
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306 SUPREME COURT REPORTS [2019] 4 S.C.R.
A The next point to be considered is as regards the scope ofs. 26of
the General Clauses Act. Though s.26in 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
B
the concluding portion of the section which 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
C “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
D 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
E 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
F 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:
“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
G 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)
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 307
[K. M. JOSEPH, J.]
“26. What is the meaning of the expression used in Article 20(2) A
“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. B
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 C
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 D
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. 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 E
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: F
“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 G
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.”
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308 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 47. Now let us examine the scheme of the Customs Act, 1962.
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
B 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.
C (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;
D (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;
E (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
F marketing of goods in international trade;
(i) the establishment of any industry;
(j) the prevention of serious injury to domestic production of goods
of any description;
G (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;
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 309
[K. M. JOSEPH, J.]
(n) the protection of patents, trade marks and copyrights; A
(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;
B
(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 C
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;
D
(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. Chapter IV-B came to be inserted with effect from 03/01/ E
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 F
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 G
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
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310 SUPREME COURT REPORTS [2019] 4 S.C.R.
A notification, goods of any class or description from all or any of
the provisions of chapter IVA or Chapter IVB.”
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
B 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:
C
“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
D under this section shall ensure the following, namely:-
(a) the accuracy and completeness of the information given
therein;
(b) the authenticity and validity of any document supporting it;
and
E
(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
F
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
G person to give evidence and produce documents.
51. Chapter XIV has the chapter heading “Confiscation of Goods
and Conveyances and Imposition of Penalties”. Section 113 provides
for confiscation of goods attempted to be improperly exported etc.
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 311
[K. M. JOSEPH, J.]
52. Section 114 AA provides for penalty for use of false and A
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
B
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 C
fine in lieu of confiscation.
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. D
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 E
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 F
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 G
time being in force with respect to such goods; or
(b) acquires possession of or is in any way concerned in carrying,
removing, depositing, harbouring, keeping, concealing, selling or
purchasing or in any other manner dealing with any goods which
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312 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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
B 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
C 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;
D 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
E 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
F 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 punishable for the
second and for every subsequent offence with imprisonment for
G 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.
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DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 313
[K. M. JOSEPH, J.]
(3) For the purposes of sub-section (1) and (2), the following shall A
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; B
(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 C
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.” D
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)
provides for compounding of the offence by the officers mentioned. E
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 orsection 135 or section 135A, except
F
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 G
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;
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314 SUPREME COURT REPORTS [2019] 4 S.C.R.
A (b)where the offence is alleged to have been committed by an
officer of customs lower in rank thanAssistant Commissioner
of Customs or Deputy Commissioner of Customs, except with
the previous sanction of thePrincipal Commissioner of Customs
or Commissioner of Customs.
B (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, ofsuch compounding amount and in such manner of
compounding as may be specified by rules.
C
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;
(b) a person who has been accused of committing an offence
D 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);
E
(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:—
F
(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
G (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
H and Regulation) Act, 1992 (22 of 1992);
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 315
[K. M. JOSEPH, J.]
(iii)any other goods or documents, which are likely to affect A
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; B
(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.
C
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 D
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 E
application to it in such behalf, otherwise directs.”
59. Section 5 of the 1947 Act dealt with Penalty and Procedure.
It read as follows:
“5. Penalty and Procedure.- (1) If any person exports or attempts
F
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. G
(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
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316 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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
B 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
C sea or by land goods of any specified description into or out of
India across any 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
D 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
E 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 exceeding certain limits (See Sections
F 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
G 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
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 317
[K. M. JOSEPH, J.]
Section 167. Section 167 (8) contemplated the levy of penalty by way A
of liability to confiscation and penalty of three times not exceeding the
value of goods or not exceeding one thousand rupees. The Court
contrasted the said provision with Section 167 (81). The provision read
as follows:
O ffences Section of Penalties B
this Act to
which
offence has
reference
"(81). If any person knowingly, General such person shall
and with intent to defraud the on conviction C
befo
Government of any duty payable thereon, or to evade re a Magistrate
any
harbouring, keeping or be liable to
concealing or in an y manner imprisonment for
dealing with any goods which any terms not
have been unlawfully removed exceeding two
from a wareho use or which are years or to fine or D
chargeable with a duty which has to both;
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 E
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 F
of any such prohibition or
restriction as aforesaid or of any
provision of this Act applicable
to those goods,”
G
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 years or to fine or both. This is what the Court had to
declare in regard to the aforesaid penalties :
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318 SUPREME COURT REPORTS [2019] 4 S.C.R.
A “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
B
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
C 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
D 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 ‘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
E 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
F 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
G made on behalf of the appellant. By virtue of Section 4, all the provisions
of the Customs Act 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
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 319
[K. M. JOSEPH, J.]
‘penalty’ which is contained in Section 25 should be interpreted in a 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 B
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; C
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 D
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 E
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 F
true that it may be the same acts 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
G
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
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320 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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 force within the meaning of Section
50(3)(c). Certainly, such provisions are complementary and not
B
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
C 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
D
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 imposition of confiscation and penalty in the form of monetary
exaction but that does not mean that prosecution for a distinct and
E 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
F
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
G Section 25 or Section 26 of the Act.
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
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 321
[K. M. JOSEPH, J.]
X-ray picture of his body as per the order of the Magistrate under Section A
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?
B
Since the case does not involve prosecution under these sections, we
are not making any final pronouncement in regard to the same.
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 C
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 D
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:
“……….
E
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 :
(i) The accused used a fictitious name viz. Mr. Robert Jaeger
to book the antique piece in his name for ‘whom he failed F
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 G
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.
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322 SUPREME COURT REPORTS [2019] 4 S.C.R.
A (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 said piece was an antique.
(iii) The ace used deliberately and knowingly concealed the
B 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
C 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
D 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 1973 in the Gazette.
E 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.
F 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.
G 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 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-
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 323
[K. M. JOSEPH, J.]
1997 which is deemed to be issued under Section 5 of the Foreign Trade A
(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 B
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.”
C
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: -
“3. Powers to make provisions relating to imports and exports. - D
(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 E
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: F
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.
G
(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.
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324 SUPREME COURT REPORTS [2019] 4 S.C.R.
A (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.”
B 74. Of relevance to this case is sub section 3 of Section 3. It
purports to declare that all goods to 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:
C “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
D 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.”
E
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.
F
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.
G
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-
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 325
[K. M. JOSEPH, J.]
1997 which we have referred to in para 123 thereof read with Section 3 A
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 antiquity and art
treasures became prohibited by the deeming provisions of Section 3(3)
of The Foreign Trade (Development and Regulation) Act, 1992 under
B
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 C
(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
D
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 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 E
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
F
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.
77. The question, however, would arise whether having regard to
the mandate of Section 4 of the Antiquities Act, the prosecution under G
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
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326 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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.
B 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 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
C General of Archaeological Survey of Indiaor 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
D 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
E his authorized nominee to determine the question as to whether the articles
etc. is an 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
F 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
G 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 may be permissible, when
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 327
[K. M. JOSEPH, J.]
a question arises as to whether an article is an antiquity or not or an art A
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
B
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 C
in Article 254 of the Constitution of India. Article 254 has a marginal
note which speaks about inconsistencies between laws made by
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 D
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 E
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 F
force. The Court inter alia held in paragraph 24 as follows:
“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. G
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
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328 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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
B 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.
C
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
D 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 statutes continue
to operate in the same field.
E
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
F 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
G 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
H
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI 329
[K. M. JOSEPH, J.]
has in fact been adverted in a recent judgment of this Court in Innoventive A
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 B
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;
C
(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.”
D
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. E
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 F
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
G
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 the
H
330 SUPREME COURT REPORTS [2019] 4 S.C.R.
A 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.
B
Devika Gujral Appeal allowed.
C
D
E
F
G
H
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