1996 (3) TMI 529 - HC - Customs

Summary

Issues Involved:
1. Whether the prosecution could be launched under the Customs Act, 1962 for an alleged offence under the Antiquities & Art Treasures Act, 1972.
2. Whether the provisions of Section 24 of the Antiquities Act were complied with before initiating prosecution.
3. Whether the sanction by the Collector of Customs was relevant for prosecuting under the Antiquities Act.
4. Whether the Customs Act provisions could be invoked for prosecution in cases involving antiquities.

Issue-wise Detailed Analysis:

1. Prosecution under Customs Act for Offence under Antiquities Act:
The petitioner argued that the prosecution should be under the Antiquities Act and not under the Customs Act. Section 4 of the Antiquities Act indicates that the Customs Act applies only for confiscation of antiquities, not for prosecution. The court emphasized that the Antiquities Act is a complete code in itself, and prosecution for violations of this Act should be conducted under its provisions, specifically Sections 25 and 26, which outline penalties and cognizance of offences.

2. Compliance with Section 24 of the Antiquities Act:
Section 24 of the Antiquities Act mandates that any question regarding whether an article is an antiquity must be referred to the Director General, Archaeological Survey of India, whose decision is final. The court noted that the coins were only examined by a Superintendent Archaeologist, who suggested further examination by the Director General. Since this final determination was not made, the prosecution could not be validly initiated. The court highlighted that the safeguard under Section 24 is to prevent unnecessary litigation and harassment.

3. Relevance of Sanction by the Collector of Customs:
The petitioner contended that the sanction by the Collector of Customs was irrelevant for prosecuting under the Antiquities Act. The court agreed, stating that the sanction for prosecution under the Antiquities Act must come from the appropriate authority as prescribed under Section 26, not from the Collector of Customs. The court emphasized that the Collector's role is limited to confiscation and penalty under the Customs Act, not prosecution under the Antiquities Act.

4. Invocation of Customs Act Provisions for Prosecution:
The Additional Solicitor General argued that Section 4 of the Antiquities Act allows for the application of the Customs Act for confiscation, which includes prosecution under Section 135 of the Customs Act. However, the court found this argument flawed, noting that Section 4 only allows for confiscation under the Customs Act, not prosecution. The court highlighted the legislative intent to limit the Customs Act's applicability to confiscation, as evidenced by the amendment of Section 4 in 1972, which omitted the broader applicability present in the 1947 Act.

Conclusion:
The court concluded that the prosecution under the Customs Act was not sustainable. The complaint filed under the Customs Act was quashed, and the proceedings initiated on its basis were ordered to be dropped. The court emphasized that the proper procedure under the Antiquities Act was not followed, particularly the requirement for a final decision by the Director General, Archaeological Survey of India, under Section 24. The petition was allowed, reinforcing the need to adhere strictly to the statutory provisions of the Antiquities Act for prosecution.