DEPARTMENT OF CUSTOMS versus SHARAD GANDHI on 27 February 2019

[2019] 4 S.C.R. 273

DEPARTMENT OF CUSTOMS

v.

SHARAD GANDHI

(Criminal Appeal No. 174 of 2019)

FEBRUARY 27, 2019

[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: Prosecutionunder ss.132 and 135(1)(a) of the Customs Act, 1962, is not barredin regard to the antiquities or art treasures – Antiquities and ArtTreasures Act, 1972.

Antiquities and Art Treasures Act, 1972: s.30 – Whether thewords ‘any law in force’ must be construed ejusdem generis withthe two laws indicated in s.30 namely, the Ancient MonumentsPreservation Act, 1904 and the Ancient Monuments andArchaeological Sites and Remains Act, 1958 – Held: The 1904 Actand the 1958 Act indicate a one common genus – It is, inextricablyintertwined with the heritage and history of the nation – These twoenactments which are specifically embodied in s.30 are followed bygeneral words which allow the application of the principle of ejusdemgeneris – For the said reason, the words “any other law for the timebeing in force” are employed – The intention behind s.30 is to providefor any other law which deal with antiquity to continue to haveforce and declare its enforceability even after passing of theAntiquities Act – The applicability of Customs Act through themechanism provided under s.30 would bring it into conflict with s.4of 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 – Interpretationof statutes – Ancient Monuments Preservation Act, 1904 – AncientMonuments and Archaeological Sites and Remains Act, 1958.

Doctrines/Principles: Principle of ejusdem generis –Applicability of – Held: In order to apply the principle of ejusdemgeneris, the court must find the existence of enumerated things beforegeneral words – In other words, specified categories must have a

A

B

C

DE

F

G

H

Acommon golden thread of commonality running through them –Antiquities and Art Treasures Act, 1972 – s.30.

Antiquities and Art Treasures Act, 1972: s.4 – Whether havingregard to the mandate of s.4 of the Antiquities Act, the prosecutionunder ss.132/135 of the Customs Act for attempting to exportBantiquity would be inconsistent with s.25 r/w s.26 of the AntiquitiesAct – Held: By virtue of s.4 of Antiquities Act, all the provisions ofthe Customs Act except to the extent of inconsistency is providedfull play – By virtue of the same, prosecution under ss.132 and 135would lie provided that the ingredients of the offence contained inss.132 and 135 are found to exist – The authority competent toCsanction prosecution under the Customs Act is the exclusive authorityto countenance prosecution for offences under the Customs Act –So, there can be no conflict if a prosecution under s.132 of theCustoms Act is maintained after proper sanction by the competentauthority under the Customs Act – It would not in any way violateDeither s.25 or s.26 of the Act – When a person exports or attempt toexport an antiquity, it is but essential that he would be having atransaction with relation to the customs – If in his transaction withthe customs in regard to export or attempted export of any antiquityor art treasure he does any of the acts contained in s.132 of theCustoms Act, it cannot be said that he is being prosecuted for theEsame 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 aredistinct 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 ofenactment – Discussed.

Ancient Monument Preservation Act, 1904: Legislative intentof enactment – Discussed.

GAncient Monument and Archeological Site and Remains Act,1958: Legislative intent of enactment – Discussed.

Conclusion

Constitution of India: Art.254 – Concept of Inconsistency –Inconsistencies between laws made by Parliament and laws madeby legislatures of the State – Discussed – Antiquities and ArtTreasures Act, 1972.

H

Allowing the appeal, the Court

HELD: 1.1 In order to apply the principles of ejusdemgeneris, the court must find the existence of enumerated thingsbefore general words. In other words, specified categories musthave a common golden thread of commonality running throughthem. The specified words must be followed by general words.Since the purpose of interpretation of statute is to glean thelegislative intention and purposive interpretation being animportant tool of statutory interpretation, the demands made bythe same may overwhelm, the temptation to place a restrictiveinterpretation by adopting the principles of ejusdem generis unlessit is warranted. Two views being possible, a view which advancesthe object may be preferred. When the legislature makes a law,the presumption is that it is aware of all existing laws. The Courtdoes not begin with a presumption of ignorance. The Act inquestion furnish a lucid illustration of the said principles. Thelegislature was fully conscious that the Customs Act, 1962 existson the statute book. The legislature was conscious of its operationand it wanted to articulate the manner in which both laws were toco-exist. Accordingly in Section 4, it has expressly providedthat the Customs Act shall apply in relation to all antiquities andart treasures, the export of which by any person other than theCentral Government or authorized or agency is prohibited underSection 3 of the Act. The only area where it tabooed theapplication of the Customs Act is where the Act containsprovisions which were irreconcilable being inconsistent with theAntiquities Act. [Para 17][290-D-H]

1.2 The legislature has provided for penalty forcontravention of Section 3 of the Act with the rider that aprosecution under Section 3 of the Act would not deprive thecompetent authority under the Customs Act to exercise its powerof confiscation or imposition of penalty. Section 30 provides thatthe provisions of the Act are not intended to override the AncientMonument Preservation Act, 1904 or the Ancient Monument andArcheological Site and Remains Act, 1958 or any other law forthe time being in force. The question is whether the expression‘any other law’ which is cast in general terms is to be influencedby the company it keeps or the neighbourhood it is found in or isit possible to accept the case of the appellant that the words ‘any BC

D

E

F

GH

Aother law’ for the time being in force must admit of a widermeaning. [Para 18][291-C-F]

1.3 The statement of objects and reasons indicate, interalia, that the Ancient Monuments Preservation Act, 1904 andthe Ancient and Historical Monuments and Archaeological SitesBand Remains (Declaration of National Importance) Act, 1951, weretwo Acts in force relating to ancient monuments. The 1904 Actand the Ancient Monuments and Archaeological Sites andRemains Act, 1958 indicate a one common genus. The contextfor the commonality is provided essentially by history. It is,inextricably intertwined with the heritage and history of the nation.CAll the laws reflect the legislation intention to protect the AncientMonuments and Archaeological Sites and remains as alsoantiquities. These two enactments which are specifically embodiedin Section 30 are followed by general words which allow theapplication of the principle of ejusdem generis. This is for theDreason 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 lawsin force are intended to apply even after the passing of theAntiquities 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 inforce’ has been used, the context for the use of the provision isFnot to be overlooked. The relevant provisions of the two specificenactments show that the said legislation also deals withantiquities as it deals with cognate subjects namely ancientmonuments and archaeological sites. The common genus ismanifest. The legislative intention was to declare that theAntiquities Act should not result in the provision contained inGallied or cognate laws being overridden upon passing of theAntiquity Act. Full play was intended for the provisions containedin relation to antiquities contained in the two engagements. Theintention behind Section 30 was to provide for any other law whichdeal with antiquity to continue to have force and declare itsHenforceability even after passing of the Antiquity Act. In that view of the matter, the words ‘any other law for the time being in force’must be construed as ejusdem generis. [Para 38][301-E-G;302-D]

1.5 Section 4 of the Antiquities Act already provided forthe applicability of the Customs Act. In other words, the CustomsAct is applicable subject to two qualifications. Firstly, it will applyexcept where the provisions of the Customs Act are inconsistentwith the provisions of the Antiquities Act. The second limitationon the applicability of the Customs Act is as regards the specificprovisions contained in Section 125 and an option ordinarily madeavailable under Section 125 is not to be extended as provided inSection 4 of the Act. Still further legislature has taken care toincorporate certain aspects under the Customs Act under Section25. The provision that a prosecution under Section 25 will nottake away the power to confiscate or impose a penalty under theCustoms Act is explicitly provided. It has provided for sanctionfor prosecution in Section 26. The legislature was fully consciousof the extant provisions of the Customs Act when it passed theAntiquities Act, 1972. It was conscious of the interplay of thetwo enactments and it accordingly made the Customs Actapplicable in the manner provided in Section 4 and Section 25.The application of Customs Act through the mechanism providedunder Section 30 of the Act will bring it into conflict with theSection 4 of the Act and this certainly would not have been thelegislative intention. Legislature has taken care to provide forthe saving of powers to impose penalties and order confiscationdespite the prosecution under Section 25 of the Antiquities Act.The word “any other law” in Section 30 of the Antiquities Act,would not include the Customs Act, 1962. [Paras 40, 41][302-G-H; 303-A, D-E]

2. The next question, is whether prosecution underSections 132 and 135(1)(a) of the Customs Act, 1962 is permittedunder Section 4 of the Antiquities Act and what is the impact ofSections 25 and 26 of the Antiquities Act. By virtue of Section 4,all the provisions of the Customs Act except to the extent ofinconsistency is provided full play. By virtue of the same,prosecution under Sections 132 and 135 would lie provided thatthe ingredients of the offence contained in Sections 132 and 135are found to exist. Contrasting Section 132 of the Customs Act A

BC

DE

F

G

H

[2019] 4 S.C.R.

Awith Section 25 of the Act, it can be seen that the offence underSection 25 of the Antiquity Act lies in exporting or attempting toexport any antiquity or art treasure by violating Section 3 of theAct. When a person exports or attempt to export an antiquity itis but essential that he would be having a transaction with relationto the customs. If in his transaction with the customs in regardBto export or attempted export of any antiquity or art treasure hedoes any of the acts contained in Section 132 of the Customs Act,it cannot be said that he is being prosecuted for the same offenceas contained in Section 3 read with Section 25 of the AntiquityAct. The ingredients of Section 25 of the Act and Section 132 ofCthe Customs Act are distinct and different from one another. Itmay be true that it may be the same acts or transaction whichgives 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-FabsDLimited (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 Collectorof customs v. Vasantraj Bhagwanji Bhatia And Others(1988) 3 SCC 467 : [1988] 3 SCR 450; State ofJharkhand 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 doesprecisely that by making false declaration as provided thereinFpunishable. It is inconceivable as to how such a provision namelySection 132 would be inconsistent with Section 25 or 26 of theAntiquities Act. At any rate, Section 25 apart from providing forprosecution for the export or attempted export, declares thatthe person concerned can be visited with a confiscationGproceedings and penalty. Even accepting the contention of therespondent that what is permitted under Section 25 is impositionof penalty in the sense of monetary exaction, this is in connectionwith the prosecution for the offence under Section 25 read withSection 3 of the Antiquities Act. In other words, when there is aprosecution under Section 25 of the Antiquities Act, it will notH

bar the imposition of confiscation and penalty in the form ofmonetary exaction but that does not mean that prosecution for adistinct and separate offence as contained in Section 132 of theCustoms Act is in any way prohibited as being inconsistent withSection 25. In this regard though for prosecution under theCustoms Act, the sanctioning authority is different from theauthority to sanction prosecution under the Antiquities Act, theauthority to sanction prosecution under Section 26 is only quathe offence under Section 25 of the Antiquities Act. The authoritycompetent to sanction prosecution under the Customs Act is theexclusive authority to countenance prosecution for offences underthe Customs Act. So, there can be no conflict if a prosecutionunder Section 132 of the Customs Act is maintained after propersanction by the competent authority under the Customs Act. Itwould not in any way violate either Section 25 or Section 26 ofthe Act. [Para 67] [320-B-G]

3.2 In the instant complaint filed by the appellant, it wasmentioned that one wooden box was intercepted. The contentsof the said wooden box were declared as ‘Stone FigureHandicrafts’. Suspecting it to be an antiquity, the officers of theArchaeological Survey of India were called and it was declared tobe an antiquity and was identified as a sand stone head of Buddha.The respondent had stated in his statement recorded underSection 108 of the Customs Act that he was only a commissionagent and he had prepared a declaration as given by his client. Itwas finally stated that the accused attempted to export the seizedantique piece i.e. Sand Stone head of Buddha illegally. Section135(1)(a) of the Customs Act penalises fraudulently evading orattempting to evade any prohibition for the time being imposedunder the Customs Act or any other law for the time being inforce in regard to such goods. Now, in regard to the last part inthe complaint inter alia there was reference to the export ofantiquity 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 aredeemed to be issued under Section 11 of the Customs Act, 1962issued in paragraph 123 of Chapter XI of the Export And ImportPolicy 1992-1997 which is deemed to be issued under Section 5

ABC

DE

F

G

H

Aof the Foreign Trade (Development & Regulation) Act 1992specifically prohibiting the export of goods which are restrictedunder any law for the time being in force. Thus, the prosecutionis maintained under Sections 132 and 135(1)(a) of the CustomsAct, 1962. [Paras 69, 71, 72][321-C-E; 323-A, C]

B3.3 Sub section 3 of Section 3 purports to declare that allgoods to which any order under sub-section (2) applies are to bedeemed as goods the import and export of which is prohibitedunder Section 11 of the Customs Act. Section 3 of the AntiquitiesAct does not completely prohibit export of antiquity or art treasureand it countenances export by the Central Government or byCpersons authorised. Therefore, the prosecution is launched inregard to Section 135(1)(a) on the basis that Section 3 of theAntiquities Act prohibits export of antiquity and this is read withSection 3 of the Foreign Trade and Development Act 1992 readwith Export and Import Policy for the year 1992-1997 bringing inDSection 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 CustomsAct, 1962, the ingredients of the offence are the fraudulent evasionor attempt at evading any prohibition for the time being imposedunder the Customs Act or under any other law for the time beingEin force with respect to such goods. On the basis of the Import-Export Policy for the year 1992-1997 read with Section 3 of TheForeign Trade (Development and Regulation) Act, 1992, therestriction as to export of antiquities is deemed to be issuedunder Section 11 of the Customs Act, 1962. Therefore, the exportof antiquity and art treasures became prohibited by the deemingFprovisions of Section 3(3) of The Foreign Trade (Developmentand Regulation) Act, 1992 under Section 11 of the Customs Act,1962. Section 135(1)(a), in so far as, the prosecution is concernedunder the third limb can be said to be under Section 11 of theCustoms Act read with Section 135(1)(a) no doubt with the aid ofGSection 3(1) of the Antiquities Act also. It would make it a case ofprosecution for fraudulently evading or attempting to evade aprohibition contained in the Customs Act, 1962 though invokingSection 3 of the Antiquities Act also. The second part of the lastlimb of Section 135(1)(a) permits prosecution for fraudulentevasion or attempt to evade the prohibition contained in any otherHlaw for the time being in force. The said prohibition in the facts of

this case would attract the prohibition contained in Section 3 ofthe Antiquities Act. As far as a prosecution under Section 25 ofthe Antiquities Act read with Section 3 of the said Act is concerned,the ingredients of the offence consist of exporting or attemptingto export antiquities or art treasures. In contrast to the same,the ingredients of the offence under Section 135(1)(a) containsan additional and different element, namely, fraudulently evadingor attempting to evade the prohibition in the matter of exportingthe goods or attempting to export the goods which are prohibited.Be it on the basis of deemed prohibition under Section 11 of theCustoms Act or on the basis of prohibition contained in Section 3of the Antiquities Act only to sustain a prosecution in the thirdlimb thereof of Section 135(1)(a), it is incumbent on theprosecution to establish that the accused fraudulently evaded orattempted to evade the prohibition against export. Therefore, inthe said sense, the ingredients of the offences under Section135(1)(a) and the offence under Section 3 read with Section 25 ofthe Antiquities Act are different and distinct. [Para 76][324-G-H;325-A-F]

4.1 The question, however, would arise whether havingregard to the mandate of Section 4 of the Antiquities Act, theprosecution under Section 135(1)(a) when it is on the basis offraudulently evading or attempting to evade the prohibitioncontained in Section 3 of the Antiquities Act would be inconsistentwith Section 25 read with Section 26 of the Antiquities Act. Aprosecution under Section 25 of the Antiquities Act is to be doneon the basis of sanction of Director General of ArchaeologicalSurvey of India who is the statutory sanctioning authority. Likea prosecution under Section 132 of the Customs Act, a prosecutionunder 135(1)(a) must be on the basis of sanction given by thecompetent authority under the Customs Act, and not theAntiquities Act. [Para 77][325-G, H]

4.2 Section 24 deals with the power to decide whether anarticle is an antiquity or art treasure. It declares that if any questionarises whether under any article, object or thing or manuscriptrecord or other document is or is not an antiquity or art treasureor is or is not an art treasure, the matter must be referred to theDirector General of Archaeological Survey of India or to an officernot below the rank of Director authorized by the Director General AB

CD

E

F

GH

282SUPREME COURT REPORTS

Aand his decision for the purpose of the Act on such question shallbe final. A perusal of the complaint, in fact, would show that thereis a case for the appellant that they have got stone head of Buddhaexamined and there is an opinion by authorized nominee of theDirector General of Archaeological Survey of India, finding it tobe an antiquity and on the basis of request made by the appellantBofficers and reference has been made specifically to Section 24of the Antiquities Act. In the complaint, there is undoubtedlyreference to the prohibition contained against export of antiquity,inter alia, under the Antiquities Act. Under Section 4 of theAntiquities Act, the Customs Act has been made applicable exceptCto the extent of the inconsistency. The inter play between twoenactments, can be understood as follows – while the prosecutionunder the Customs Act in regard to the Antiquity or art treasuremay be permissible, when a question arises as to whether anarticle is an antiquity or not or an art treasure or not, the

Statutes

provisions contained under Section 24 of the Antiquities Act wouldDbe applicable and the question must be decided by the DirectorGeneral of Archaeological Survey of India or his authorizednominee and finality would be attached therewith. The DirectorGeneral or his authorized officers would be the authorities whowould have the necessary knowledge, experience and could giveEan authoritative opinion in the case of dispute as to whether anarticle is or is not an antiquity or art treasure. By this process,full play can be given on a harmonious construction to both theprovisions and what is more giving the primacy to the antiquitiesAct 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 254of the Constitution of India. Article 254 has a marginal note whichspeaks about inconsistencies between laws made by Parliamentand laws made by legislatures of the State. The Article goes onto state that if the law made by the State is repugnant to the lawGmade the Parliament, the law made by the Parliament to the extentof repugnancy shall prevail. This is no doubt subject to sub-Article(2). The said Article being a constitutional provision dealing withthe complex subject of the quasi federal structure we have inIndia in part may not be entirely apposite for interpreting theHprovision of Section 4 which speaks about inconsistency between the Customs Act, 1962 and the Antiquities Act. [Para 80][327-C-E]

A

5.2 While it may be true that the Antiquities Act is acomprehensive law, it cannot be treated as a complete orexhaustive code. Of course, the principles relating to repugnancyhave been expounded in the context of conflicting claims tolegislative power between two legislatures. In this case both theCustoms Act 1962 and Antiquities Act have been made byParliament. [Para 83][329-D, E]

B

6. Full play is given to the Customs Act to the extent that itis not inconsistent with the Antiquities Act as contemplated underSection 4. The principle that a transaction or the same set offacts can give rise to more than one distinct offence provided thelegislative intention in this regard is clear from the provisionswhich creates such offences cannot be lost sight of. Prosecutionunder Sections 132 and 135(1)(a) of the Customs Act, 1962, isnot barred in regard to the antiquities or art treasures.[Paras 84, 85][329-E-H]

C

D

K. Karunanidhi v. Union of India and Another (1979)

3 SCC 431 : [1979] 3 SCR 254 – relied on.

Innoventive Industries Limited v. ICICI Bank andAnother (2018) 1 SCC 407 : [2017] 8 SCR 33; AssistantCollector of Customs, Calcutta v. Sitaram Agarwala andAnother AIR 1966 SC 955 : [1966] SCR 1 – referredto.

E

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.174 of 2019

From the Judgment and Order dated 27.03.2015 of the High Courtof Delhi at New Delhi in Crl. Rev. P. No. 41 of 2006.

Aman Lekhi, ASG, Harish Pandey, Ms. Binu Tamta, B. KrishnaBPrasad, Advs. for the Appellant.

Dr. Sushil Balwada, Srilok Nath Rath, Y. P. Singh, Advs. for theRespondent.

The Judgment of the Court was delivered byCK. M. JOSEPH, J.

CK. M. JOSEPH, J. 1. The appeal maintained by Special Leaveis directed against the judgment of Learned Single Judge of High Courtof Delhi upholding the dismissal of the complaint filed by the appellantherein against the respondent and discharging him of offences underSections 132 and 135 of the Customs Act, 1962. The Additional ChiefDMetropolitan Magistrate allowed the application for discharge filed bythe respondent accepting the contention of the respondent that there is acomplete bar with regard to the prosecution under the Customs Act,1962, and under the Customs Act, and the Collector of Customs haspower only to confiscate the goods and impose penalty for havingcommitted breach of Section 3 of the Antiquities and Art Treasures Act,E1972 (hereinafter referred to as “the Antiquities Act”). The Magistratepurported to follow the judgment of Learned Single judge of the HighCourt of Delhi in Dr. V.J.A. Flynn vs. S.S. Chauhan & Another. TheHigh Court by the impugned order has come to endorse the said view.

2. We have heard Mr. Aman Lekhi, learned Additional SolicitorFGeneral appearing for the appellant and also learned counsel appearingon behalf of the respondent.

3. It must be noted that the Special Leave Petition out of whichthis appeal arise was ordered to be tagged with SLP(Crl.) No. 1525 of1996. The said Special Leave Petition was filed against the judgment ofGlearned Single Judge of High Court of Delhi which has been relied uponby the Court’s below for discharging the accused. As it turns out, thesaid Special Leave Petition has been closed by order dated 09.05.2016by reason of the death of the respondent in the said case. The learnedAdditional Solicitor General would contend that there is a clear error inthe reasoning of the Court by which it has concluded that prosecution isH

not maintainable under Sections 132 and 135 of the Customs Act, 1962.The error stems from a misapprehension both of the scheme of the Actand 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. Itreads as follows:- “3. Regulation of export trade in antiquities and art treasures. –(1) On and from the commencement of this Act, it shall not belawful for any person, other than the Central Government or anyauthority or agency authorized by the Central Government in thisbehalf, to export any antiquity or art treasure.

(2) Whenever the Central Government or any authority or agencyreferred to in sub-section (1) intends to export any antiquity or arttreasure such export shall be made only under and in accordancewith the terms and conditions of a permit issued for the purposeby such authority as may be prescribed.”

5. Section 4 is another material provision and hence we advert tothe same. It reads as follows: - “4. Application of Act 52 of 1962. – The Customs Act, 1962, shallhave effect in relation to all antiquities and art treasures, the exportof which by any person (other than the Central Government orany authority or agency authorized by the Central Government) isprohibited under Section 3 save in so far as that Act is inconsistentwith the provisions of this Act and except that (notwithstandinganything contained in section 125 of that Act) any confiscationauthorized under that Act shall be made unless the CentralGovernment on an application made to it in this behalf, otherwisedirects.”

“24. Power to determine whether or not an article, etc., isantiquity or art treasure. – If any question arises whether anyarticle, object or thing or manuscript, record or other document isor is not an antiquity or is or is not an art treasure for the purposesof this Act, it shall be referred to the Director General,Archaeological Survey of India, or to an officer not below the A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

rank of a Director in the Archaeological Survey of India authorizedby the Director General, Archaeological Survey of India and thedecision of the Director General, Archaeological Survey of Indiaor such officer, as the case may be, on such question shall befinal.”

7. The next important provision is Section 25. It reads as follows:-

25. Penalty.— (1)If any person, himself or by any other personon his behalf, exports or attempts to export any antiquity or arttreasure in contravention of section 3, he shall, without prejudiceto any confiscation or penalty to which he may be liable under theprovisions of the Customs Act, 1962 (52 of 1962) as applied bysection 4, be punishable with imprisonment for a term which shallnot be less than six months but which may extend to three yearsand with fine.

(2) if any person contravenes the provisions of section 5 or section12 or sub-section (2) or sub-section (3) of section 13 or section 14or section 17, he shall be punishable with imprisonment for a termwhich may extend to six months or with fine or with both and theantiquity in respect of which the offence has been committedshall be liable to confiscation.

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

8. Section 26 is a companion section of Section 25 and mustnecessarily be addressed. It reads as follows:- “26. Cognizance of offences. – (1) No prosecution for an offenceunder sub-Section (1) of Section 25 shall be instituted except byor with the sanction of such officer of Government as may beprescribed in this behalf.

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

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

9. The last provision which has been impressed upon us and whichwill throw light upon the scheme of the Act is Section 30. It reads asfollows: - “30. Application of other laws not barred. – The provisions of thisAct shall be in addition to, and not in derogation of, the provisionsof the Ancient Monuments Preservation Act, 1904 (7 of 1904) orthe Ancient Monuments and Archaeological Sites and RemainsAct, 1958, (24 of 1958) or any other law for the time being inforce.”

10. Mr. Aman Lekhi, Additional Solicitor General of India wouldcontend that the prosecution was launched under Sections 132 and 135of the Customs Act, 1962 on the basis that the ingredients of offencesunder Sections 132 and 135 were present. He makes it clear that this isnot a case of prosecution within the meaning of Section 25(1) of theAct. There is no bar in prosecuting the respondent under Sections 132and 135 of the Customs Act, he forcefully submitted. As far as Section4 is concerned, he points out that in fact it saves proceedings under theCustoms Act. The only taboo is that, to the extent, any inconsistencybetween the Customs Act and the Act exists, the provisions of theAntiquities Act will hold sway. He points out that there is no inconsistencyinvolved in maintaining the prosecution under Sections 132 and 135 ofthe Customs Act, 1962. Passing on to Section 25 of the Act, he wouldpoint out that the present case is not a prosecution under Section 25 readwith Section 3 of the Act. One set of facts may occasion the committingof more than one offence. The key question to be posed and consideredis what are the elements which make an offence under an enactment.A transaction may involve a person in the committing of two or moredistinct offences. This is neither contrary to Article 20 of the Constitutionof India nor Section 300 of the Code of Criminal Procedure. In thisregard, he drew our attention to the following cases:

(i) 1988 (3) SCC 467

A

B

C

DE

F

G

H

A(ii) 1983 (3) SCC 529

(iii) 2012 (7) SCC 621

11. The next argument based on Section 25 is that a perusal of theheading of the section reveals that it relates to penalty. The reason whichhas found favour with the High Court both in the judgment which wasBrelied upon and the impugned one is that under Section 25 of the Actafter the amendment, [Actually, the High Court was having in mind, theprovisions of Section 4 of the Antiquities (Export Control) Act, 1947(hereinafter referred to as “the 1947 Act”)], what is permissible underthe Customs Act, 1962, is only the confiscation proceedings and penaltyCproceedings. Penalty proceedings have been understood as exaction ofa monetary component. The learned Additional Solicitor General takesexception to the reasoning. In other words, it is his contention that evenproceeding on to basis of the interpretation placed by the High Courtthat after the amendment, under Section 25 what is permitted under theCustoms Act, is only confiscation and imposition of penalty, the impositionDof penalty is not to bear a narrow connotation as was contemplated bythe High Court. On the other hand, a penalty would include the penalconsequence after a prosecution and such prosecution would includeprosecution under Sections 132 and 135 of the Customs Act.

12. Further, he would complain that the High Court has lost sightEof the true import of Section 30 of the Act. Section 30 as we havenoticed declares that the provisions of the Act shall be in addition to thespecific laws which are mentioned therein but it does not end there. Italso 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 ejusdemFgeneris, in the interpretation of Section 30 and holding that the CustomsAct will not be an Act which will be embraced within the scope ofSection 30 under the last limb and therefore, it will not be an existinglaw.

13. Per contra, learned counsel appearing on behalf of theGrespondent would support the order of the High Court. He would pointout that the Antiquities Act which is actually enacted in the year 1972 islater in point of time than the Customs Act. The Act must prevail overthe Customs Act. The Act is a special Act and it will prevail over thegeneral law which is contained in the Customs Act.

H

14. Firstly, we will deal with the contention of the appellant thatthe Customs Act is also an existing law in force within out of the meaningof Section 30 of the Antiquities Act. The High Court has proceeded totake the view that the words ‘any law in force’ must be construedejusdem generis with the two laws which are indicated in Section 30namely, The Ancient Monuments Preservation Act, 1904 and the AncientMonuments and Archaeological Sites and Remains Act,1958.

15. Learned Additional Solicitor General sought support from thedecision of this Court in Bharat Heavy Electricals Limitedv. GlobeHi-Fabs Limitedreported in 2015 (5) SCC 718 for the principle that theprinciples of ejusdem generis must not be used to place a narrowconstruction where a larger and purposive construction is called for.We would advert to the following discussion by this Court in paragraph10. It reads as under:

“10. In construing the words “a claim of set-off or otherproceeding to enforce a right arising from contract”, occurring inSection 69 of the Partnership Act, 1932, the Supreme Court refusedto limit the generality of “other proceeding” and to apply theejusdem 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 unlessthere be “a genus constituted or a category disclosed”, gave thefollowing illustration:

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

16. Still further we may profitably advert to the statement of lawmade by this Court in paragraph 12. The same reads as under:

“12. The rule of ejusdem generis has to be applied with careand caution. It is not an inviolable rule of law, but it is onlypermissible inference in the absence of an indication to the contrary,and where context and the object and mischief of the enactment AB

C

DE

F

G

H

Ado not require restricted meaning to be attached to words of generalimport, it becomes the duty of the courts to give those words theirplain and ordinary meaning. As stated by Lord Scarman:

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

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

17. The question would be whether the High Court is right inapplying the principles of ejusdem generis. In order that it applies, thecourt must find the existence of enumerated things before general words.In other words, specified categories must have a common golden threadDof commonality running through them. The specified words must befollowed by general words. Since the purpose of interpretation of statuteis to glean the legislative intention and purposive interpretation being animportant tool of statutory interpretation, the demands made by the samemay overwhelm, the temptation to place a restrictive interpretation byadopting the principles of ejusdem generis unless it is warranted. TwoEviews being possible, a view which advances the object may be preferredbut the question arises whether the learned Additional Solicitor Generalwould be justified in relying upon the principles relating ejusdem generisin the facts. When the legislature makes a law, the presumption is that itis aware of all existing laws. The Court does not begin with a presumptionFof ignorance. The Act in question, would indeed furnish a lucid illustrationof the aforesaid principles. The legislature was fully conscious that theCustoms Act, 1962 exists on the statute book. The legislature wasconscious of its operation and it wanted to articulate the manner in whichboth laws were to co-exist. It is accordingly that in Section 4 it hasexpressly provided that the Customs Act shall apply in relation to allGantiquities and art treasures, the export of which by any person otherthan the Central Government or authorized or agency is prohibited underSection 3 of the Act. The only area where it tabooed the application ofthe Customs Act is where the Act contains provisions which wereirreconcilable being inconsistent with the Antiquities Act. Equally, it also H

expressly provided for the situation that any confiscation, notwithstandingSection 125 of the Customs Act thereof, shall be made in regard toantiquities and art treasure unless on an application made to the CentralGovernment, it otherwise directs. Section 125 of the Customs Act is aprovision which enables the officer adjudging the confiscation proceedingsto give an option to pay a fine in lieu of confiscation. The obvious intentionof the legislature is to provide that once an order for confiscation ispassed under the Customs Act in respect of antiquities or art treasurethe powers ordinarily available under Section 125 of the Customs Actwill not be available.

18. Still further the legislative light is shone by the words used inSection 25 of the Act. The legislature has provided for penalty forcontravention of Section 3 of the Act with the rider that a prosecutionunder Section 3 of the Act would not deprive the competent authorityunder the Customs Act to exercise its power of confiscation or impositionof penalty. The question as to what is meant by the word ‘penalty’ inSection 25(1) is a separate matter which we will advert to at theappropriate juncture. It is thereafter that Section 30 provides that theprovisions of the Act are not intended to override the Ancient MonumentPreservation Act, 1904 or the Ancient Monument and ArcheologicalSite 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 theexpression ‘any other law’ which is cast in general terms is to be influencedby the company it keeps or the neighbourhood it is found in or is it possibleto accept the case of the appellant that the words ‘any other law’ for thetime being in force must admit of a wider meaning. There can be nodoubt that the Antiquities Act is a special enactment. We may at thisjuncture refer to the statement of objects and reasons of The Antiquitiesand Art Treasures Act, 1972 which reads as follows:

“At present Antiquities (Export Control) Act, 1947, provides forcontrolling the export of objects of antiquarian or historical interestor significance. Experience in the working of the Act has shownthat in the modern set-up the provisions contained therein are notsufficient with a view to preserving objects of antiquity and arttreasures in India. It is proposed to make a comprehensive law toregulate the export trade in antiquities and art treasures and toprovide for the prevention of smuggling of, and fraudulent dealingsin antiquities. It is also considered necessary to make provision in A

B

C

D

E

F

G

H

A

such law for the compulsory acquisition of antiquities and arttreasures for preserving in public places. The present Bill isintended to achieve the above objectives.”

(Emphasis supplied)

19. Firstly, we must ascertain whether there is a common genusBcontained in the specific enumeration of two laws namely the AncientMonuments Preservation Act, 1904 and the Ancient Monuments andArchaeological Sites and Remains Act, 1958.

20. Let us examine the historical perspective which led to thepassing of these two aforesaid enactments.

C

21. The statement of objects and reasons for the enactment ofthe Ancient Monuments Preservation Act, 1904 is as follows:

““The object of this measure is to preserve to India its ancientmonuments in antiquities and to prevent the excavation byunauthorised persons of sites of historic interest and value.

D

2. In 1898 the question of antiquarian exploration and researchattracted attention and the necessity of taking steps for theprotection of monuments and relics of antiquity was impressedupon the Government of India. It was then apparent that legislationwas required to enable the Government to discharge theirresponsibilities in the matter and a Bill was drafted on the lines ofthe existing Acts of Parliament modified so as to embody certainprovisions which have found a place in recent legislation regardingthe antiquities of Greece and Italy. This draft was circulated forthe opinions of local Governments and their replies submittedshowed that the proposals incorporated in it met with almostunanimous approval, the criticism received being directed, for themost part, against matters of detail. The draft has since beenrevised, the provisions of the Draft Bill prepared by the Governmentof Bengal have been embodied so far as they were found suitableand the present Bill is the result.

E

F

G

3. The first portion of the Bill deals with protection of “Ancientmonuments” an expression which has been defined in clause 2(now section 2). The measure will apply only to such of these asare from time to time expressly brought within its contents though

being declared to be “protected monuments”. A greater numberof more famous buildings in India are already in possession orunder the control of the Government; but there are others worthyof preservation which are in the hands of private owners. Someof these have already been insured or are fast falling into decay.The preservation of these is the chief object of the clause of theBill now referred to and the provisions of the Bill are in generalaccordance with the policy enunciated in section 23 of the ReligiousEndowments Act, 1863 (20 of 1863), which recognises and savesthe right of the Government “to prevent injury to and preservebuildings remarkable in their antiquity and for their - historical orarchitectural value or required for the convenience of the public”.The power to intervene is at present limited to cases to whichsection 3 of the Bengal Regulation 19 of 1810 or section 3 of theMadras Regulation VII of 1817 applies. In framing the presentBill the Government has aimed at having the necessity of goodwill and securing the cooperation of the owners concerned and ithopes that the action which it is proposed to take may tend ratherto the encouragement than to the suppression of private effort.The Bill provides that the owner or the manager of the buildingwhich merits greater care than it has been receiving may be invitedto enter into an agreement for its protection and that in the eventof his refusing to come to terms the collector may proceed toacquire it compulsorily or take proper course to secure itsapplication. It has been made clear that there is to be no resort tocompulsory acquisition in the case the monument is used inconnection with religious observances or in other case until theowner has had an opportunity of entering into an agreement ofthe kind indicated above; and it is expressly provided that themonument maintained by the Government under the proposed Act,shall not be used for any purpose inconsistent with its characteror with purpose of its foundation, and that, so far as is compatiblewith the object in view the public shall have access to it free ofcharge. By the 4th proviso of clause 11 (now section 10) it is laiddown that in assessing the value of the monument for the purposeof compulsory acquisition under the Land Acquisition Act, 1894(1 of 1894) its archaeological, artistic or historical merits shall notbe taken into account. The object of the Government as purchaser AB

C

DEFG

H

A

B

C

D

E

F

G

H

being to preserve at the public expense and for the public benefitan ancient monument with all its associations, it is considered thatthe value of those associations should not be paid for.

[Note:- As the 4th proviso of clause 11 was the subject ofunfavourable comment, it was omitted by the Select Committee.]

4. The second portion of the Bill deals with movable objectsof historical or artistic interest and these may be divided into twoclasses: the first consists of ornaments, enamels, silver and coppervessels, Persian and Arabian Manuscripts, and curios general.These are for the most part portable and consequently difficult totrade; they are as a rule artistic; are of historic interest and itwould be impracticable even were it desirable to prevent a dealerfrom selling and a traveller from buying them. The sculpturalcarvings, images, bas-reliefs inscriptions and the like form a distinctclass by themselves, in that their value depends upon their localconnection. Such antiquities may as in the case of those of Swat,be found outside India or in Native States and this the Legislaturecannot reach directly; while as the regards the British territoryand under the existing law, it is impossible to go beyond theprovisions of the Indian Treasure Trove Act, 1878 (6 of 1878). (Inthese circumstances, it is proposed, by clause 18 of the Bill totake power to prevent the removal from British India of anyantiquities which it may be deemed desirable to retain in thecountry, and at the same time to prevent importation. By thusputting a stop on draft in such articles it is believed that it will bepossible to protect against spoliation a number of interesting placessituated without and beyond British territory. Clause 19 aims atproviding for antiquities such as sculptures and inscriptions whichbelong to another place and ought therefore to be kept in situ ordeposited in local museums. The removal of these, it is proposedto enable the local Government to prohibit by notification and theclause also provides that, if the object is moveable, the ownermay require the Government to purchase it outright and that, if itis immovable the Government shall compensate the owner forany loss caused to him by the prohibition. Clause 20 (now section19) deals with the compulsory purchase of such antiquities if thatis found to be necessary for their preservation and the owner is not willing on personal or religious grounds to part with them. Insuch cases it is proposed that the price to be paid should be assessedby the Collector, subject to a right of appeal to the local Governmentbut it is for consideration whether the Land Acquisition Act of1894should be followed and reference to the Courts allowed.

5. The third portion of the Bill deals with excavations andgives 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 toprotect acts done or in good faith intended to be done, under thelaw which it is now proposed to enact”

22. Section 2, inter alia, provides as follows:- “2. DEFINITIONS - In this Act, unless there is anythingrepugnant in the subject or context,-

(1) “ancient monument” means any structure, erection ormonument, 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, andincludes- (a) the site of an ancient monument; (b) such portion of land adjoining the site of an ancient monumentas may required for fencing or covering in or otherwise preservingsuch monument; and

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

(2) “antiquities” include any moveable objects which[the CentralGovernment], by reason of their historical or archaeologicalassociations, may think it necessary to protect against injury,removal or dispersion;

(3) ”Commissioner” includes any officer authorized by the [CentralGovernment] to perform the duties of a Commissioner under thisAct;

(4) ”maintain” and “maintenance” include the fencing, coveringin, repairing, restoring and cleansing of a protected monument, A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

and the doing of any act which may be necessary for the purposeof maintain a protected monument or of securing convenient accessthereto;

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

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

Provided that nothing in this Act shall be deemed to extend thepowers which may lawfully be exercised by such manager ortrustee.

23. Section 17 deals with the transfer of Antiquities:- “17. Transfer of ownership, etc., of antiquities to be intimated tothe registering officer. – Whenever any person transfers theownership, control or possession of any antiquity specified in anynotification issued under sub-section (1) of Section 14 such personshall intimate, within such period and in such form as may beprescribed the fact of such transfer to the registering officer.”

“22. Jurisdiction – A Magistrate of the third class shall not havejurisdiction to try any person charged with an offence against thisAct.”

25. It may be noticed that the Antiquity (Export Control) Act,1947 came into force. The said Act has been repealed by the AntiquitiesAct but we will refer to certain provisions contained in the Act inconnection with one of the contentions of the appellant.

26. It is thereafter that the Ancient Monuments and ArchaeologicalSites and Remains Act, 1958 which is another enactment specificallyenumerated in Section 30 of the Act in question came to be enacted.

27. The statement of objects and reasons would indicate, interalia, that the Ancient Monuments Preservation Act, 1904 and the Ancient and Historical Monuments and Archaeological Sites and Remains(Declaration of National Importance) Act, 1951, were two Acts in forcerelating to ancient monuments.

It is further stated as follows :

“While the Constitution has distributed the subject-matter underthree different heads the Act of 1904 governs all ancientmonuments whether falling the Central field or the State field,and vests all executive power in the Central Government. Theposition of the existing law relating to ancient monuments is farfrom satisfactory. The present Bill purports to be a self-containedlaw at the Centre which will apply exclusively to ancient monument,etc. of national importance falling under Entry 67 of List 1 and toarchaeological sites and remains falling under Entry 40 in theConcurrent List. Simultaneously, the State Governments wouldbe advised to enact a similar law in respect of ancient monumentetc., falling under Entry 12 in the State List. In this manner, theCentral and State fields will be clearly demarcated and the existingconfusion and overlapping of jurisdiction arising from the Act of1904 will be eliminated.”

28. Section 2(b) defines antiquity in similar terms as antiquity hasbeen defined under the Antiquities Act. The two differences are asfollows:

The word “painting” is also included in the Act in question beforeus, whereas the word “painting” was not included specifically inthe first part of the definition. Besides the same the definition didnot contain the words in Clause 2 which deals with manuscript,record or other documents as it is contained in the presentenactment. The words “art treasure” was not included in theenactment. The Act deals with monuments, protected areas,prohibited and regulated areas. It has created a NationalMonuments Authority (w.e.f. 29.3.2010) vide Section 20F. Thereare specific provisions dealing with antiquity contained in Sections25 and 26 of the Act, which read as follows :

“25. Power of Central Government to control moving ofantiquities.- (1) If the Central Government considers that any A

B

C

D

E

F

G

A

B

C

D

E

F

G

H

antiquities or class of antiquities ought not to be moved fromthe place where they are without the sanction of the CentralGovernment, the Central Government may, by notification inthe Official Gazette, direct that any such antiquity or any classof such antiquities shall not be moved except with the writtenpermission of the Director General.

(2) Every application for permission under sub-section (1)shall be in such form and contain such particulars as may beprescribed.

(3) Any person aggrieved by an order refusing permissionmay appeal to the Central Government whose decision shallbe final.

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

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

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

29. Section 30 provides for penalties and it reads as follows :

“30. Penalties.- (1) Whoever—

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

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

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

(iv) does any act in contravention of sub-section(1) of section 19,shall be punishable with [imprisonment which may extend to twoyears], or with [fine which may extend to one lakh rupees], orwith both.

(2) Any person who moves any antiquity in contravention of anotification issued under sub-section (1) of section 25 shall bepunishable with [imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both] andthe Court convicting a person of any such contravention may byorder direct such person to restore the antiquity to the place fromwhich it was moved.”

(Emphasis supplied)

30. Section 39 is a repealing provision and it reads thus:

“39. Repeals and saving.- (1) The Ancient and HistoricalMonuments and Archaeological Sites and Remains (Declarationof National Importance) Act, 1951 (71 of 1951), and section 126of the States Reorganisation Act, 1956 (37 of 1956), are herebyrepealed.

(2) The Ancient Monuments Preservation Act, 1904 (7 of1904), shall cease to have effect in relation to ancient and historicalmonuments and archaeological sites and remains declared by orunder this Act to be of national importance, except as respectsthings done or omitted to be done before the commencement ofthis Act.”

31. Now the time is ripe to look at the Constitution in order to findout 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 andrecords, and archaeological sites and remains, declared by or underlaw made by Parliament to be of national importance.

A

B

C

D

E

F

G

A

33. Entry 12 of the State List provides for ancient and historicalmonuments and records other than those declared by or under law madeby Parliament to be of national importance.

34. Entry 40 of the Concurrent List provides for archaeologicalsites and remains other than those declared by or under law made byBParliament to be of national importance.

35. There are laws enacted by state legislature. We have noticedthat in the Statement of Objects and Reasons for the passing of the Actand providing for the repeal of the earlier law based in the year 1947was to provide for comprehensive law relating to antiquities. AntiquitiesCmade their appearance in the law which was made in the year 1904 aswe have already noticed. Broadly the heritage of the nation can be saidto 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 whichis associated with the object.D

36. The 1904 Act and The Ancient Monuments and ArchaeologicalSites 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. Allthe laws reflect the legislation intention to protect the Ancient MonumentsEand Archaeological Sites and remains as also antiquities. Apart fromthe same no doubt under the Antiquities Act, art treasures being humanwork of art which are not antiquities but which become art treasures byway of notification declaring them to be art treasures are also dealtwith. One of the questions to be answered before the principle of ejusdemFgeneris is applied is whether the genus is already exhaustivelyenumerated in the specified categories. See in this regard the followingdiscussion in Principles of Statutory Interpretation by Justice G.P. Singh(page 512):

“…If the preceding words do not constitute mere specificationsof a genus but constitute description of a complete genus, the rulehas no application. In a policy of insurance, the insurance weregiven as option to terminate the policy if they so desired `by reasonof such change or from any other cause whatever’; the words`by reason of such change’ in the context referred to any and G

every act done to the insured property whereby the risk of firewas increased; the Privy Council in these circumstances refusedto construe the words `or from any other cause whatever’ by therule of ejusdem generis. Lord Watson said: “In the present case,there appears no room for its application. The antecedent clausedoes not contain a mere specification of particulars but thedescription of a complete genus…”

37. But the aforesaid principle may not have application as afterenumerating enactments which we have already held constituted onegenus there is nothing to indicate that the categories of genus areexhausted. Rather these two enactments which are specifically embodiedin Section 30 are followed by general words which allow the applicationof 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 wideinterpretation or narrow interpretation can be placed on the words ‘anyother law’. In particular, the use of the word “any” preceding the words“other law” interpreted literally may allow us to declare that all laws inforce 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 stillfurther the object which is sought to be achieved by the enactment. It isalso well settled that every attempt must be made to place a harmoniousconstruction on each and every provision of the enactment.

38. We would think that though the words ‘any other law for thetime being in force’ has been used, the context for the use of the provisionis not to be overlooked. We have referred to the relevant provisions ofthe two specific enactments which show that the said legislation alsodeals with antiquities as it deals with cognate subjects namely ancientmonuments and archaeological sites. The common genus is manifest.The legislative intention was to declare that the Antiquities Act shouldnot result in the provision contained in allied or cognate laws beingoverridden upon passing of the Antiquity Act. Full play was intended forthe provisions contained in relation to antiquities contained in the twoengagements. Despite the passage of the Antiquity Act, a prosecutionfor instance would be maintainable if a case is otherwise made out underthe two enactments in relation to antiquity. The Antiquities Act in otherwords is not to be in derogation of those provisions. They were tosupplement the existing laws. It is therefore in the same context that we AB

C

D

E

F

G

Ashould understand the words ‘any other law for the time being in force’.For instance, there may be laws made by the State legislatures whichrelate to antiquity. There may be any other law which deal with a subjectwith a common genus of which the specific law would be an integralpart. It is all such laws which legislature intended to comprehend withinthe expression ‘any other law for the time being in force’. Take forBexample, a case where there is a theft of an antiquity. Can it be said thatthe 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 beapplicable, to the extent that it is not covered by any provision in theCActs in question. The Contract Act may continue to applicable. But it isnot the question of applying general laws that engage the attention of thelegislature. The intention behind Section 30 was as noted is to providefor any other law which deal with antiquity to continue to have force anddeclare its enforceability even after passing of the Antiquity Act. In thatview of the matter we are of the view that the words ‘any other law forDthe time being in force’ must be construed as ejusdem generis.39. More importantly, a wider import may be negatived by otherevidence available in the Act itself.

40. Section 4 of the Antiquities Act, it must be remembered, hasEalready provided for the applicability of the Customs Act in the mannerwhich we have already explained. In other words, the Customs Act isapplicable subject to two qualifications. Firstly, it will apply except wherethe provisions of the Customs Act are inconsistent with the provisions ofthe Antiquities Act. In other words, if there are provisions in the AntiquityAct, which are inconsistent with the Customs Act, the provisions of theFAntiquity Act will prevail over the Customs Act.

41. The Second limitation on the applicability of the Customs Actis as regards the specific provisions contained in Section 125 and anoption ordinarily made available under Section 125 is not to be extendedas provided in Section 4 of the Act. Still further legislature has takenGcare to incorporate certain aspects under the Customs Act under Section25. The provision that a prosecution under Section 25 will not take awaythe power to confiscate or impose a penalty under the Customs Act isexplicitly provided. It has provided for sanction for prosecution in Section26. The legislature was fully conscious of the extant provisions of the H

Customs Act when it passed the Antiquity Act, 1972. It was consciousof the interplay of the two enactments and it accordingly made theCustoms Act applicable in the manner provided in Section 4 and Section25. Now with Section 4 and Section 25 as it stands, if we were to acceptthe argument of the learned Additional Solicitor General that the CustomsAct must be also included as ‘any other law for the time being in force’under Section 30 and therefore we are persuaded to hold that the AntiquityAct is in addition and not in derogation of the Customs Act 1962 theresult will be as follows :

The Customs Act will apply with all force and what would be theeffect of such application on Section 4 of the Antiquities Act? On theone hand Section 4 declares that the Customs Act will apply exceptwhere it is in consistent with the Antiquities Act. The Antiquities Actwill, therefore, prevail over the Customs Act in case of an inconsistency.So also there is a modified application of the Customs Act qua Section125 thereof. The application of Customs Act through the mechanismprovided under Section 30 of the Act will thus bring it into conflict withthe Section 4 of the Act and this in our view certainly would not havebeen the legislative intention. Equally as we have noted that legislaturehas taken care to provide for the saving of powers to impose penaltiesand order confiscation despite the prosecution under Section 25 of theAntiquities Act. In view of the clear provisions contained in the Act, weare of the view that the word “any other law” in Section 30 of theAntiquities Act, would not include the Customs Act, 1962.

42. The next question, is whether prosecution under Sections 132and 135(1)(a) of the Customs Act, 1962 is permitted under Section 4 ofthe Antiquities Act and what is the impact of Sections 25 and 26 of theAntiquities Act. Before we examine the relevant provisions of the CustomsAct, we may advert to a few decisions about the maintainability of morethan 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 TaxAct, 1956. We think it appropriate to advert to paragraphs 25 and 26which read as follows:

25. The contention of the petitioners is that any act or omissionwhich is considered to be a default under the Act for which penaltyis leviable is an offence, that such act or omission was not an A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

offence and no penalty was payable under the law in force at thetime when it was committed and hence they cannot be punishedby the levy of penalty under a law which is given retrospectiveeffect. They principally rely on Article 20(1) in support of theircase. Article 20 (1) is modelled on the basis of section 9(3) ofArticle 1 of the Constitution of the United States of America whichreads: “No bill of attainder or ex post facto law shall be passed.”This clause has been understood in the United States of Americaas being applicable only to legislation concerning crimes. (SeeCalder v. Bull 3 Dall 386 : IL Ed. 648(1798)). The expression‘offence’ is not defined in the Constitution. Article 367 of theConstitution says that unless the context otherwise provides forwords which are not defined in the Constitution, the meaningassigned in the General Clauses Act, 1897 may be given. Section3(38) of the General Clauses Act defines ‘offence’ as any act oromission made punishable by any law for the time being in force.The marginal note of our Article 20 is ‘protection in respect ofconviction 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’ inclause (1) of Article 20, ‘prosecuted and punished’ in clause (2)of Article 20and ‘accused of an offence’ and ‘compelled to be awitness against himself’ in clause (3) of Article 20clearly suggeststhat Article 20relates to the constitutional protection given topersons 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 widesignificance. Sometimes it means recovery of an amount as apenal measure even in a civil proceeding. An exaction which isnot of compensatory character is also termed as a penalty eventhough it is not being recovered pursuant to an order finding theperson concerned guilty of a crime. In Article 20 (1)the expression‘penalty’ is used in the narrow sense as meaning a payment whichhas to be made or a deprivation of liberty which has to be sufferedas a consequence of a finding that the person accused of a crimeis guilty of the charge.

26. In Maqbool Hussain v. The State of Bombay 1953 SCR 730,the question for consideration was whether when the Customs authorities confiscated Certain goods under the Sea Customs Actthere was a prosecution and the order of confiscation constituteda 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:-“convicted”, “commission of the act charged as an offence”, “besubjected to a penalty”, “commission of the offence”, “prosecutedand punished”, “accused of any offence”, would indicate that theproceedings therein contemplated are of the nature of criminalproceedings before a court of law or a judicial tribunal and theprosecution in this context would mean an initiation or starting ofproceedings of a criminal nature before a court of law or a judicialtribunal in accordance with the procedure prescribed in the statutewhich creates the offence and regulates the procedure.”

44. InV. K. Agarwal, Assistant Collector of customs v. VasantrajBhagwanji Bhatia And Others1988 (3) SCC 467, the Court was facedwith an acquittal of the accused person under Section 111 and 135 of theCustoms Act and yet he was sought to be prosecuted under Section 85of the Gold (Control) Act, 1968. The Court inter alia held as follows:

8. We have also concluded that a separate charge could havebeen framed in respect of the distinct offence under Gold ControlAct Under the circumstances the plea raised by the defence cannotsucceed. The two conclusions reached by us brings the mattersquarely within the parametres of the law settled by this Courtdecades ago in S. L. Apte’s case 1961 (3) SCR 107. In that casethe element of ‘dishonesty’ was required to be established undersection 409 of Indian Penal Code whereas it was not required tobe established under Section 105 of the Indian Insurance Act. Inthis backdrop this Court has enunciated the law in the context ofthe plea based on Article 20(2)of the Constitution, Section 26ofGeneral Clauses Act and section 403(2)of the Criminal ProcedureCode in no uncertain terms:

“If, therefore, the offences were distinct there is no question ofthe rule as to double-jeopardy as embodied in Art.20(2) of theConstitution, being applicable.

A

BC

D

E

F

G

H

A

B

C

D

E

F

G

The next point to be considered is as regards the scope ofs. 26ofthe General Clauses Act. Though s.26in its opening words refersto “the act or omission constituting an offence under two or moreenactments”, the emphasis is not on the facts alleged in the twocomplaints but rather on the ingredients which constitute the twooffences with which a person is charged. This is made clear bythe concluding portion of the section which refers to “shall not beliable to be punished twice for the same offence”. If the offencesare not the same but are distinct, the ban imposed by this provisionalso cannot be invoked. It therefore follows that in the presentcase as the respondents are not being sought to be punished for“the same offence” twice but for two distinct offences constitutedor made up of different ingredients the bar of the provision isinapplicable.

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

403(2) A person acquitted or convicted of any offence may beafterwards tried for any distinct offence for which a separatecharge might have been made against him on the former trialunder section 235, sub-section (1)”.

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

45. In a recent judgment of this Court reported in State ofJharkhand V. Lalu Prasad Yadav 2017 (8) SCC 1 this Court conducteda 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, thisCourt considered the meaning of the expression “same offence”employed in Article 20(2) and observed that second prosecutionand conviction must be for the same offence. If the offences aredistinct, there is no question of the rule as to double jeopardybeing applicable. This Court has observed thus: (SCC pp. 293 &295, paras 26 & 29)

“26. What is the meaning of the expression used in Article 20(2)“for the same offence”?

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

29. It is thus clear that the same facts may rise to differentprosecutions and punishment and in such an event the protectionafforded by Article 20(2) is not available. It is settled law that aperson can be prosecuted and punished more than once even onsubstantially same facts provided the ingredients of both theoffences are totally different and they did not form the sameoffence.”

46. In State (NCT of Delhi) V. Sanjay2014 (9) SCC 772, acriminal prosecution was launched under the Indian Penal Code and/orMines and Minerals (Development & Regulation) Act 1957 (hereinaftercalled ‘MMDR Act’) for mining from river beds without valid licenceand permits under the latter Act. There was no complaint from theauthorised officer under the Act. This Court took the view that theingredients constitute the offence under the MMDR Act and theingredients of dishonestly removal of sand and gravel from the river bedwithout the consent which is the property of the State is a distinct offenceunder the Indian Penal Code, therefore, the Magistrate on receipt of thePolice Report for the commission of the offence under Section 378 IPCcan take cognizance without awaiting the complaint which may be filedby the authorised officer under the MMDR Act. The court inter aliaheld as follows:

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

A

B

C

D

E

F

G

A47. Now let us examine the scheme of the Customs Act, 1962.The Customs Act, 1962 purports to consolidate and amend the law relatingto customs. Section 11 of the Customs Act provides as follows:

11. Power to prohibit importation or exportation of goods.— (1) Ifthe Central Government is satisfied that it is necessary so to doBfor any of the purposes specified in sub-section (2), it may, bynotification in the Official Gazette, prohibit either absolutely orsubject to such conditions (to be fulfilled before or after clearance)as may be specified in the notification, the import or export ofgoods 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 ormorality; 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 orbalance of payments; E(f) the prevention of injury to the economy of the country by theuncontrolled import or export of gold or silver; (g) the prevention of surplus of any agricultural product or theproduct of fisheries; (h) the maintenance of standards for the classification, grading orFmarketing of goods in international trade;

(i) the establishment of any industry;

(j) the prevention of serious injury to domestic production of goodsof any description; (k )the protection of human, animal or plant life or health; G

(l) the protection of national treasures of artistic, historic orarchaeological value; (m) the conservation of exhaustible natural resources; H

(n) the protection of patents, trade marks and copyrights; (o) the prevention of deceptive practices; (p) the carrying on of foreign trade in any goods by the State, orby a Corporation owned or controlled by the State to the exclusion,complete or partial, or citizens of India; (q) the fulfilment of obligations under the Charter of the UnitedNations for the maintenance of international peace and security; (r) the implementation of any treaty, agreements or conventionwith any country; (s) the compliance of imported goods with any laws which areapplicable to similar goods produced or manufactured in India;

(t) the prevention of dissemination of documents containing anymatter which is likely to prejudicially affect friendly relations withany foreign State or is derogatory to national prestige; (u) the prevention of the contravention of any law for the timebeing in force; and

(v) any other purpose conducive to the interests of the generalpublic.”

48. Chapter IV-B came to be inserted with effect from 03/01/1969. It contains Section 11H. Section 11H(a) provides that unless thecontext otherwise requires “illegal export” means the export of any goodsin contravention of the provisions of this Act or any other law for thetime being in force. Section 11(i) deals with the powers of CentralGovernment to specify goods having regard to the magnitude of illegalexport of certain class of goods or description in which case it wouldbecome specified goods for which there are separate restrictionscontained in Section 11J, 11K and 11M. Section 11N falling under ChapterIVC provides the Central government with power to exempt. It readsas follows:

“11N. Power to exempt.- If the Central Government is satisfiedthat it is necessary in the public interest so to do, it may, bynotification in the Official Gazette, exempt generally, eitherabsolutely or subject to such conditions as may be specified in the A

B

C

D

E

F

G

H

Anotification, goods of any class or description from all or any ofthe 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 bedetained. Section 39 of the Customs Act provides that the master of aBvessel shall not permit the loading of any export goods, other than baggageand mail bags, until an order has been given by the proper officer grantingentry-outwards to such vessel. Section 40 of the Customs Actcontemplates that export goods are not be loaded unless duly passed bythe proper officer. Section 50 deals with the procedure for clearance ofexport goods. Sub-section (2) & (3) of Section 50 reads as follows:C

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

(3) The exporter who presents a shipping bill or bill of exportDunder this section shall ensure the following, namely:- (a) the accuracy and completeness of the information giventherein; (b) the authenticity and validity of any document supporting it;and E

(c) compliance with the restriction or prohibition, if any, relatingto the goods under this Act or under any other law for thetime being in force.”

50. Chapter XIII containing Section 100 to 110A provides forsearches, seizure and arrest. Section 100 deals with power to searchFsuspected persons entering or leaving India, etc. Section 103 providespower to screen or X-ray bodies of suspected persons for detectingsecreted goods. Section 104 confers the power to arrest by an officerof the Customs empowered in this regard. Section 108 which is subjectmatter of many judgments of courts provides for power to summon aGperson to give evidence and produce documents.

51. Chapter XIV has the chapter heading “Confiscation of Goodsand Conveyances and Imposition of Penalties”. Section 113 providesfor confiscation of goods attempted to be improperly exported etc.

H

52. Section 114 AA provides for penalty for use of false andincorrect material. It came to be inserted by Act 25 of 2006 only witheffect from 30/07/2006. Section 117 deals with penalties forcontravention etc. which are not expressly provided. Section 119 dealswith confiscation of goods used for concealing smuggled goods. Section121 deals with confiscation of sale-proceeds of smuggled goods. Theword ‘smuggling’ has been defined in Section 2 (39) reads as follows:

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

53. Section 125 provides for the power to give an option to payfine in lieu of confiscation.

54. Chapter XIVA deals with settlement of cases. Various powersof the Settlement Commission are set out in the provisions falling underthe Chapter. Section 127(h) provides for granting immunity fromprosecution and penalty.

55. Chapter XVI provides for ‘Offences and Prosecutions’. It isthereunder 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 relatingto the customs knowing or having reason to believe that suchdeclaration, statement or document is false in any materialparticular, shall be punishable with imprisonment for a term whichmay extend to two years, or with fine, or with both.”

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

(a) is in relation to any goods in any way knowingly concerned inmisdeclaration of value or in any fraudulent evasion or attempt atevasion of any duty chargeable thereon or of any prohibition forthe time being imposed under this Act or any other law for thetime 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 orpurchasing or in any other manner dealing with any goods which AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

he knows or has reason to believe are liable to confiscation undersection 111 or section 113, as the case may be; or

(c) attempts to export any goods which he knows or has reasonto believe are liable to confiscation under section 113; or (d) fraudulently avails of or attempts to avail of drawback or anyexemption from duty provided under this Act in connection withexport 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 ofrupees; or (B) the evasion or attempted evasion of duty exceeding thirtylakh of rupees; or

(C) such categories of prohibited goods as the CentralGovernment may, by notification in the Official Gazette, specify;or (D) fraudulently availing of or attempting to avail of drawbackor any exemption from duty referred to in clause (d), if theamount of drawback or exemption from duty exceeds thirtylakh of rupees, with imprisonment for a term which may extendto seven years and with fine: Provided that in the absence ofspecial and adequate reasons to the contrary to be recorded inthe judgment of the court, such imprisonment shall not be forless than one year;

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

(2) If any person convicted of an offence under this section orunder sub-section (1) of section 136 is again convicted of anoffence under this section, then, he shall be punishable for thesecond and for every subsequent offence with imprisonment fora term which may extend to seven years and with fine:

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

(3) For the purposes of sub-section (1) and (2), the following shallnot be considered as special and adequate reasons for awardinga sentence of imprisonment for a term of less than one year,namely: —

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

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

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

(iv) the age of the accused.”

56. Section 137 provides inter alia that no court can takecognizance of any offence under Section 132, 133, 134 or Section 135 orSection 135A except with the previous sanction of the PrincipalCommissioner of Customs or Commissioner of Customs. Sub-Section(3)provides for compounding of the offence by the officers mentioned.Section 137 reads as under:

“137. Cognizance of offences. —

(1) No court shall take cognizance of any offence under section132, section 133, section 134 orsection 135 or section 135A, exceptwith the previous sanction of the Principal Commissioner ofCustoms or Commissioner of Customs.

(2) No court shall take cognizance of any offence under section136,—

(a) where the offence is alleged to have been committed by anofficer of customs not lower in rank than AssistantCommissioner of Customs or Deputy Commissioner ofCustoms, except with the previous sanction of the CentralGovernment; A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

(b) where the offence is alleged to have been committed by anofficer of customs lower in rank thanAssistant Commissionerof Customs or Deputy Commissioner of Customs, except withthe previous sanction of thePrincipal Commissioner of Customsor Commissioner of Customs.

(3) Any offence under this Chapter may, either before or afterthe institution of prosecution, be compounded by the Principal ChiefCommissioner of Customs or Chief Commissioner of Customs onpayment, by the person accused of the offence to the CentralGovernment, ofsuch compounding amount and in such manner ofcompounding as may be specified by rules.

Provided that nothing contained in this sub-section shall apply to—

(a) a person who has been allowed to compound once in respectof any offence under sections 135 and 135A; (b) a person who has been accused of committing an offenceunder this Act which is also an offence under any of the followingActs, namely:—

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

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

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

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

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

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

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

(iii) any other goods or documents, which are likely to affectfriendly relations with a foreign State or are derogatory tonational honour; (d)a person who has been allowed to compound once in respectof any offence under this Chapter for goods of value exceedingrupees one crore; (e)a person who has been convicted under this Act on or after the30th day of December, 2005.”

57. Section 140 of the Customs Act which deals with offence byCompanies is identically worded as Section 28 of the Antiquities Act.

58. At this juncture we may notice the provisions of the 1947 Actin some greater detail. Section 3 provided that no person shall exportany antiquity except under the authority of a licence granted by theCentral Government. Section 4 read as follows:

“4. Application of Act VIII of 1878.- All antiquities the exportof which is prohibited under section 3 shall be deemed to be goodsof which the export has been prohibited under Section 19 of theSea Customs Act, 1878, and all the provisions of that Act shallhave effect accordingly, except that, the provisions of section 183of that Act notwithstanding, any confiscation authorised underthat Act shall be made, unless the Central Government, onapplication 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 attemptsto export an antiquity in contravention of Section 3, he shall, withoutprejudice to any confiscation or penalty to which he may be liableunder the provisions of the Sea Customs Act, 1878, as applied bySection 4, be punishable with imprisonment for a term which mayextend to one month, or with fine which may extend to five thousandrupees, or with both.

(2) No Court shall take cognizance of an offence punishable underthis section except upon complaint in writing made by an officergenerally or specially authorised in this behalf by the CentralGovernment, and no Court inferior to that of a Presidency A

B

C

D

E

F

G

H

AMagistrate or a Magistrate of the first class shall try any suchoffence.”

60. Under Section 4 of the 1947 Act, all antiquities, the export ofwhich is prohibited under Section 3 were to be deemed as goods whichwere prohibited Section 19 of the Sea Customs Act where all theBprovisions of the Sea Customs Act were to have effect except Section183 which correspond to Section 125 of the present customs Act. Section19 of the Sea Customs Act, 1878 read as follows:

“19. The Central Government may from time to time, by notificationin the Official Gazette, prohibit or restrict the bringing or taking byCsea or by land goods of any specified description into or out ofIndia across any customs frontier as defined by the CentralGovernment.”

61. We may also notice that Section 5 of the 1947 Act is parimateria with Section 25 of the Antiquities Act in regard to the crucialDelements namely ‘without prejudice to any confiscation or penalty’ bothin 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 thevery same words namely confiscation or penalty as has been employedin Section 25 of the Antiquities Act. In the Sea Customs Act, 1878, inEChapter XVI under the heading “Offences and Penalties” Section 167provided for various offences and the penalties were in the form ofmonetary exaction or confiscation and penalties by way of monetaryexaction. However, besides the same we notice that in respect of someoffences it is provided that such persons shall on conviction before aMagistrate, be liable to a fine not exceeding certain limits (See SectionsF167(72) & (74)). Section 167 (75) deal with cases where on convictionbefore a Magistrate, sentence of imprisonment or fine or both wereprovided. The extent of punishment varied. The scheme of the SeaCustoms Act, 1878 thus differs from the present Customs Act 1962. Inother words, in Section 167 of the Sea Customs Act, penalty in the senseGof 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 ofCustoms, Calcutta vs. Sitaram Agarwala and Another AIR 1966 SC955 considered the scheme of Sea Customs Act, 1878 as contained in H

Section 167. Section 167 (8) contemplated the levy of penalty by wayof liability to confiscation and penalty of three times not exceeding thevalue of goods or not exceeding one thousand rupees. The Courtcontrasted the said provision with Section 167 (81). The provision readas follows:

OffencesSection of Penaltiesthis Act to which offence has reference "(81). If any person knowingly, General such person shall and with intent to defraud the on conviction Government of any duty payable tbefore a Magistrate harbouring, keeping or be liable to concealing or in any manner imprisonment for dealing with any goods which any terms not have been unlawfully removed exceeding two from a warehouse or which are years or to fine or to both; chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid; or If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods,”

The penalty provided in Column III for the same was that on confiscationbefore a Magistrate he will be liable to imprisonment for a term notexceeding two years or to fine or both. This is what the Court had todeclare in regard to the aforesaid penalties :

A

B

C

D

E

F

G

A“Then comes Ch. XVI dealing with offenses and penalties.Offence enumerated in Ch. XVI are of two kinds; first there arecontraventions of the Act and rules thereunder which are dealtwith by Customs officers and the penalty for which is imposed bythem. These may be compendiously called customs offences.Besides these there are criminal offences which are dealt with byBMagistrates and which result in conviction and sentence ofimprisonment and/or fine. These two kinds of offences have beencreated to ensure that no fraud is committed in the matter ofpayment of duty and also to ensure that there is no smuggling ofgoods, without payment of duty or in defiance of any prohibitionCor restriction imposed under Ch. IV of the Act.”

Thus, this Court has held that there are custom offences and criminaloffences. The criminal offences were dealt with by the Magistratewhich may culminate in conviction and imposition of imprisonment andor fine. Thus, this being the scheme of the Sea Customs Act, whenDSection 5 of the Antiquity (Export Control) Act, 1947 provided thatprosecution for contravening Section 3 of the said Act would be withoutprejudice to the imposition of penalties and ordering confiscation theword ‘penalty’ could take in both the customs offences and also thecriminal offences. If it is interpreted as embracing the criminal offencesthen the word ‘penalty’ would also embrace within its scope penalty byEway of imprisonment or fine imposed for the commission of a criminaloffence after a prosecution before the Magistrate.

64. We may notice that under the Customs Act 1962, penaltiesand confiscation fall under Chapter XIV. Penalties as contained inChapter XIV would correspond to customs offences in the Sea CustomsFAct, 1878. As far as the criminal offences are concerned, they areseparately dealt with under Chapter XVI. Yet the legislature has, infact, chosen to repeat the word ‘confiscation and penalty’ when it draftedSection 25 of the Antiquities Act.

65. There are two submissions we need to address which areGmade on behalf of the appellant. By virtue of Section 4, all the provisionsof the Customs Act except to the extent of inconsistency is provided fullplay. By virtue of the same prosecution under Sections 132 and 135would lie provided that the ingredients of the offence contained in Sections132 and 135 are found to exist. The second submission is even the word H

‘penalty’ which is contained in Section 25 should be interpreted in abroader sense so as to encompass prosecution as contemplated underSections 132 and 135 of the Customs Act besides the penalty in the formof monetary exaction.

66. In order to arrive at an appropriate conclusion in this regardwe must cull out the ingredients of the offences under Sections 132 and135 of the Act. The ingredients of Section 132 are as follows:

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

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

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

If we contrast Section 132 of the Customs Act with Section 25 of theAct, it will be seen that the offence under Section 25 of the AntiquityAct lies in exporting or attempting to export any antiquity or art treasureby violating Section 3 of the Act. When a person exports or attempt toexport an antiquity it is but essential that he would be having a transactionwith relation to the customs. If in his transaction with the customs inregard to export or attempted export of any antiquity or art treasure hedoes any of the acts contained in Section 132 of the Customs Act, can itbe said that he is being prosecuted for the same offence as contained inSection 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 ofthe Customs Act are distinct and different from one another. It may betrue that it may be the same acts or transaction which gives rise to thetwo distinct offences but that may not matter.

67. The complaint in this case also adverts to Section 50 of theCustoms Act. Section 50 declares it to be a duty on the part of theexporter to make and subscribe to a declaration as to the truth of thecontents of the shipping bill or bill of export. The exporter is to ensurethe accuracy and completeness of information given by him. He hasalso 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 shallensure compliance with the restriction or prohibition if any relating to the A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Agoods under the Customs Act or under any other law for the time beingin force. Certainly, the restrictions or prohibition within the meaning ofSection 50(3)(C) would comprehend Section 3 read with Sections 25and 26 of the Antiquities Act as Antiquities Act would certainly be interalia a law for the time being in force within the meaning of Section50(3)(c). Certainly, such provisions are complementary and notBantithetical to or inconsistent with Section 25 of the Antiquities Act. Ifan exporter gives a false declaration or information, should not the laweffectively deal with him? Section 132 does precisely that by makingfalse declaration as provided therein punishable. It is inconceivable asto how such a provision namely Section 132 would be inconsistent withCSection 25 or 26 of the Antiquities Act. It is to be noted at any rate thatSection 25 apart from providing for prosecution for the export orattempted export, declares that the person concerned can be visitedwith a confiscation proceedings and penalty. Even accepting thecontention of the respondent that what is permitted under Section 25 isimposition of penalty in the sense of monetary exaction, it is to be notedDthis is in connection with the prosecution for the offence under Section25 read with Section 3 of the Antiquities Act. In other words, whenthere is a prosecution under Section 25 of the Antiquities Act, it will notbar the imposition of confiscation and penalty in the form of monetaryexaction but that does not mean that prosecution for a distinct andEseparate offence as contained in Section 132 of the Customs Act is inany way prohibited as being inconsistent with Section 25. In this regardthough for prosecution under the Customs Act the sanctioning authorityis different from the authority to sanction prosecution under the AntiquitiesAct, the authority to sanction prosecution under Section 26 is only quathe offence under Section 25 of the Antiquities Act. The authorityFcompetent to sanction prosecution under the Customs Act is the exclusiveauthority to countenance prosecution for offences under the CustomsAct. So, there can be no conflict if a prosecution under Section 132 ofthe Customs Act is maintained after proper sanction by the competentauthority under the Customs Act. It would not in any way violate eitherGSection 25 or Section 26 of the Act.

68. Section 133 deals with obstruction of officers of custom. Itprovides that if any person obstructs any person of the customs in exerciseof the power under the Act he is liable for punishment. Section 134penalizes resistance or refusal to allow a radiologist to screen or to take H

X-ray picture of his body as per the order of the Magistrate under Section103 by resisting or refusing to allow action on the basis of advice of aregistered medical practitioner for bringing out goods secreted inside hisbody as provided under Section 103. Take a situation where a personsecretes an antiquity in his body and incurs the wrath of section 134.Can he be heard to say that prosecution under the Customs Act is barred?Since the case does not involve prosecution under these sections, weare not making any final pronouncement in regard to the same.

69. The time is now ripe for us to look at the complaint which hasbeen filed by the appellant. The complaint inter alia appears as follows:

One wooden box was intercepted on suspicion on 18/02/1995. Inthe courier manifest the contents of the said wooden box weredeclared as ‘Stone Figure Handicrafts’. Suspecting it to be anantiquity, the officers of the Archaeological Survey of India werecalled and it was declared to be an antiquity and was identified asa sand stone head of Buddha. Respondent’s statement wasrecorded under Section 108 of the Customs Act. The respondenthad stated that he was only a commission agent and he hadprepared a declaration as given by his client Mr. Robert Jaeger.There are other allegations. It is finally stated further as follows:

“……….

“……….

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

(i) The accused used a fictitious name viz. Mr. Robert Jaegerto book the antique piece in his name for ‘whom he failedto provide any identification particulars/ reference details.He also failed to produce any evidence to prove that thesaid antique piece was handed over to him by the saidRobert Jaeger. In fact, had Mr. Robert Jaeger existed inreality the accused would have obtained a receipt fromhim showing the purchase of the seized antique piece andalso he would have obtained as encashment certificatefrom him which he failed to obtain/ produce-the accusedalso did not obtain any written authority/ declaration fromthe said Mr. Robert Jaeger authorising him to export theparcel on his behalf.

AB

C

D

E

FG

H

A

B

C

D

E

F

G

H

(ii) The accused himself/ prepared the false proforma Invoicein his own handwriting and signed the declaration on theproforma invoice and also signed the airway bill knowinglythat the said piece was an antique.

(iii) The ace used deliberately and knowingly concealed thefacts and issued a false certificate to the effect that theSand Stone Head of Buddha was new and a non-antiquity.

n. Export, of the Antiquities is prohibited until and unlessauthorised by the Central Govt. by (virtue of Section 3 of theAntiquities & Art: Treasures Act, 1962 read with Section 3 of theForeign Trade (Development & Regulation) Act, 1992 by Virtueof which the restrictions are deemed to be issued under Section11 of the Customs Act, 1962 para 123 (Chapter xi) of the exportand Import policy 1992-97 (which is deemed to be issued underSection 5 of the Foreign Trade (Development & Regulation) Act,1992) specifically prohibits the export of goods, which are restrictedunder any other law for the time being in force.”

70. Under Section 26 of the Act, a prosecution under Section25(1) can be instituted only by or with the sanction of an officer of theGovernment as prescribed in this behalf. The antiquities and Art TreasureRules 1973 came to be published on 31[st] August 1973 in the Gazette.Rule 15 which was inserted with effect from 30/11/1978 declared thatthe Director General of Archaeological Survey of India shall be the officercompetent in terms of Section 26(1) to institute or to sanction institutionof prosecution for the offence under Sub-section (1) of Section 25 of theAct.

71. Coming finally to Section 135(1)(a) of the Customs Act, thethird limb which alone is invoked in this case, penalises fraudulentlyevading or attempting to evade any prohibition for the time being imposedunder the Customs Act or any other law for the time being in force inregard to such goods.

72. Now, in regard to the last part in the complaint inter alia thereis reference to the export of antiquity being prohibited under Section 3 ofthe Antiquities Act, read with Section 3 of the Foreign Trade (Development& Regulation) Act 1992 by virtue of which the restrictions are deemedto be issued under Section 11 of the Customs Act, 1962 issued inparagraph 123 of Chapter XI of the Export And Import Policy 1992- 1997 which is deemed to be issued under Section 5 of the Foreign Trade(Development & Regulation) Act 1992 specifically prohibiting the exportof 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 antiquityas required under Section 50 of the Customs Act, 1962 and wasknowingly concerned in fraudulent evasion/ attempt at evasion of the prohibitions imposed on the export of the above said recoveredand seized antiquity. The accused has, thus, committed offencespunishable under Sections 132 and 135 (1)(a) of the CustomsAct, 1962.”

Thus, the prosecution is maintained under Sections 132 and 135(1)(a) ofthe 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. -(1) The Central Government may, by Order published in theOfficial Gazette, make provision for the development andregulation of foreign trade by facilitating imports and increasingexports.

(2) The Central Government may also, by Order published in theOfficial Gazette, make provision for prohibiting, restricting orotherwise regulating, in all cases or in specified classes of casesand subject to such exceptions, if any, as may be made by orunder the Order, theimport or export of goods or services ortechnology:

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

(3) All goods to which any Order under sub-section (2) appliesshall be deemed to be goods the import or export of which hasbeen prohibited under section 11 of the Customs Act, 1962 (52 of1962) and all the provisions of that Act shall have effect accordingly.

A

B

C

D

E

F

G

H

A

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

74. Of relevance to this case is sub section 3 of Section 3. Itpurports 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 isprohibited under Section 11 of the Customs Act. Para 123 of the Import-Export policy 1992-1997 read as follows:

B

“123. All goods may be exported without any restriction except tothe extent such exports are regulated by the Negative List ofExports or any other provision of this Policy or any other law forthe time being in force.

C

The Director General of Foreign Trade may, however, specifythrough a Public Notice the terms and conditions according towhich any goods not included in the Negative List of Exports maybe exported without a licence. Such terms and conditions mayinclude Minimum Export Price (MEP), registration with specifiedauthorities, value addition, quantitative ceilings and compliancewith other laws, rules, regulations.”

D

E

Goods placed in the negative list are those goods which are completelyprohibited items. It is to be borne in mind that Section 3 of the AntiquitiesAct does not completely prohibit export of antiquity or art treasure and itcountenances export by the Central Government or by personsauthorised.F

75. Therefore, the prosecution is launched in regard to Section135(1)(a) on the basis that Section 3 of the Antiquities Act prohibitsexport of antiquity and this is read with Section 3 of the Foreign Tradeand Development Act 1992 read with Export and Import Policy for theyear 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 atevading any prohibition for the time being imposed under the CustomsAct or under any other law for the time being in force with respect tosuch goods. On the basis of the Import-Export Policy for the year 1992- H

1997 which we have referred to in para 123 thereof read with Section 3of The Foreign Trade (Development and Regulation) Act, 1992, therestriction as to export of antiquities is deemed to be issued under Section11 of the Customs Act, 1962. Therefore, the export of antiquity and arttreasures became prohibited by the deeming provisions of Section 3(3)of The Foreign Trade (Development and Regulation) Act, 1992 underSection 11 of the Customs Act, 1962. Section 135(1)(a), in so far as, theprosecution is concerned under the third limb can be said to be underSection 11 of the Customs Act read with Section 135(1)(a) no doubtwith the aid of Section 3(1) of the Antiquities Act also. It would make ita case of prosecution for fraudulently evading or attempting to evade aprohibition contained in the Customs Act, 1962 though invoking Section(3) of the Antiquities Act also. The second part of the last limb of Section135(1)(a) permits prosecution for fraudulent evasion or attempt to evadethe prohibition contained in any other law for the time being in force.The said prohibition in the facts of this case would attract the prohibitioncontained in Section 3 of the Antiquities Act. It may be noted that as faras a prosecution under Section 25 of the Antiquities Act read with Section3 of the said Act is concerned, the ingredients of the offence consist ofexporting or attempting to export antiquities or art treasures. In contrastto the same, the ingredients of the offence under Section 135(1)(a)contains an additional and different element, namely, fraudulently evadingor attempting to evade the prohibition in the matter of exporting thegoods or attempting to export the goods which are prohibited. Be it onthe basis of deemed prohibition under Section 11 of the Customs Act oron the basis of prohibition contained in Section 3 of the Antiquities Actonly to sustain a prosecution in the third limb thereof of Section 135(1)(a),it is incumbent on the prosecution to establish that the accusedfraudulently evaded or attempted to evade the prohibition against export.Therefore, in the said sense, the ingredients of the offences under Section135(1)(a) and the offence under Section 3 read with Section 25 of theAntiquities Act are different and distinct.

77. The question, however, would arise whether having regard tothe mandate of Section 4 of the Antiquities Act, the prosecution underSection 135(1)(a) when it is on the basis of fraudulently evading orattempting to evade the prohibition contained in Section 3 of the AntiquitiesAct would be inconsistent with Section 25 read with Section 26 of theAntiquities Act. A prosecution under Section 25 of the Antiquities Act is AB

CD

EF

G

H

Ato be done on the basis of sanction of Director General of ArchaeologicalSurvey of India who is the statutory sanctioning authority. Like aprosecution under Section 132 of the Customs Act, a prosecution under135(1)(a) must be on the basis of sanction given by the competentauthority under the Customs Act, and not the Antiquities Act.

B78. The last aspect which may be necessary to notice, the provisionof Section 24 of the Antiquities Act. Section 24 deals with the power todecide whether an article is an antiquity or art treasure. It declares thatif any question arises whether under any article, object or thing ormanuscript record or other document is or is not an antiquity or art treasureor is or is not an art treasure, the matter must be referred to the DirectorCGeneral of Archaeological Survey of Indiaor to an officer not below therank of Director authorized by the Director General and his decision forthe purpose of the Act on such question shall be final. Section 24 makesa declaration about the decision of the named authorities being final forthe purposes of this Act. A perusal of the complaint, in fact, would show Dthat there is a case for the appellant that they have got stone head ofBuddha examined and there is an opinion by authorized nominee of theDirector General of Archaeological Survey of India, finding it to be anantiquity and on the basis of request made by the appellant officers andreference has been made specifically to Section 24 of the AntiquitiesAct. Section 24 as noticed confers power on the Director General orEhis authorized nominee to determine the question as to whether the articlesetc. is an antiquity or not or an art treasure or not. This determinationwhich 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 25of the Act. In this case, the case of the appellant is that the prosecutionFis under Sections 132 and 135(1)(a) of the Customs Act, 1962. Whetherit is necessary for the Customs Authorities to procure the opinion of theDirector General of Archaeological Survey of India or his authorizedofficer for a prosecution under the Customs Act?

79. We have noticed the contents of the complaint. There isGundoubtedly reference to the prohibition contained against export ofantiquity, inter alia, under the Antiquities Act. Under Section 4 of theAntiquities Act, the Customs Act has been made applicable except tothe extent of the inconsistency. The inter play between two enactments,can be understood as follows – while the prosecution under the CustomsAct in regard to the Antiquity or art treasure may be permissible, whenH

a question arises as to whether an article is an antiquity or not or an arttreasure or not, the provisions contained under Section 24 of the AntiquitiesAct would be applicable and the question must be decided by the DirectorGeneral of Archaeological Survey of India or his authorized nomineeand finality would be attached therewith. The Director General or hisauthorized officers would be the authorities who would have the necessaryknowledge, experience and could give an authoritative opinion in thecase of dispute as to whether an article is or is not an antiquity or arttreasure. By this process, we would think that we can give full play on aharmonious construction to both the provisions and what is more givingthe primacy to the antiquities Act where it is called for accordingly.

80. It may be noticed that the concept of ‘inconsistency’ is foundin Article 254 of the Constitution of India. Article 254 has a marginalnote which speaks about inconsistencies between laws made byParliament and laws made by legislatures of the State. The Article goeson to state that if the law made by the State is repugnant to the lawmade the Parliament, the law made by the Parliament to the extent ofrepugnancy shall prevail. This is no doubt subject to sub-Article (2).The said Article being a constitutional provision dealing with the complexsubject of the quasi federal structure we have in India in part may not beentirely apposite for interpreting the provision of Section 4 which speaksabout inconsistency between the Customs Act, 1962 and the AntiquitiesAct. However, we may only refer to a Constitution Bench judgment ofthis 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 PenalCode, Prevention of Corruption Act and Criminal Law (Amendment)Act, 1952 and it was in addition to and not in derogation of any law inforce. The Court inter alia held in paragraph 24 as follows:

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

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

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the twoActs is of such a nature as to bring the two Acts into direct A

B

C

D

E

F

G

H

A

collision with each other and a situation is reached where it isimpossible to obey the one without disobeying the other.

81. Finally, it summed up with the conclusions in paragraphs 35which reads as under:

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

1. That in order to decide the question of repugnancy it mustbe shown that the two enactments contain inconsistent andirreconcilable provisions, so that they cannot stand together oroperate in the same field.

C

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

3. That where the two statutes occupy a particular field, butthere is room or possibility of both the statutes operating in theDsame field without coming into collision with each other, norepugnancy results.

4. That where there is no inconsistency but a statute occupyingthe same field seeks to create distinct and separate offences,no question of repugnancy arises and both the statutes continueto operate in the same field.

E

This Court also held:

36. In the light of the propositions enunciated above, there can beno doubt that the State Actcreates distinct and separate offenceswith different ingredients and different punishments and it doesFnot in any way collide with the Central Acts……”

No doubt the Court in the said case took note of the provision whichprovided for saving of other laws and came to the conclusion that theintention that the State Act which was undoubtedly the dominant legislationwould only be “in addition and not in derogation of any other law for theGtime being in force” which manifestly included the Central Acts, namely,the Indian Penal code, The Prevention of Corruption Act and the CriminalLaw (Amendment) Act,.

82. We may also notice the following test which has been laiddown in the decision of this court reported in AIR 1959 SC 648 which H

has in fact been adverted in a recent judgment of this Court inInnoventiveIndustries 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, thisCourt referred to its earlier judgments in Zaverbhai Amai Das v.State of Bombay 1955 (1) SCR 799 and Tika Ramji v. State ofU.P. 1956 SCR 393 and held:

29….”Repugnancy between two statutes may thus be ascertainedon the basis of the following three principles:

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

(2) Whether Parliament intended to lay down an exhaustivecode in respect of the subject matter replacing the Act of theState Legislature; and (3) Whether the law made by Parliamentand the law made by the State Legislature occupy the samefield.”

83. While it may be true that the Antiquities Act is a comprehensivelaw, it cannot be treated as a complete or exhaustive code. Of course,the principles relating to repugnancy have been expounded in the contextof conflicting claims to legislative power between two legislatures. Inthis case both the Customs Act 1962 and Antiquities Act have beenmade by Parliament.

84. We have expounded the ingredients of Sections 132 and135(1)(a) of the Customs Act. The view we are taking would give fullplay to the Customs Act to the extent that it is not inconsistent with theAct as contemplated under Sector 4. The view which we are declaringdoes not do violence to the provisions of Section 25 of the Act. Thecontrary view which has gained acceptance at the hands of the HighCourt, in our view, fails to give meaning and full play as intended to theCustoms Act as provided in Section 4 of the Act. Furthermore, theprinciple that a transaction or the same set of facts can give rise to morethan one distinct offence provided the legislative intention in this regardis clear from the provisions which creates such offences cannot be lostsight of.

85. The upshot of the above discussion is as follows:- Prosecutionunder Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barredin regard to the antiquities or art treasures. Accordingly, we allow the A

B

C

D

E

F

G

H

330SUPREME COURT REPORTS

Aappeal and set aside the impugned order. The complaint filed may beproceeded with as per law. However, we make it very clear thatpronouncement of this order shall not come in the way of the Courtdeciding the matter on its merits. The Court will proceed to consider thematter on its own and shall not be influenced by any observation whichmay have been made in this order regarding merits.B

Devika Gujral

Appeal allowed.

C

D

E

F

G

H