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2015 (4) TMI 346 - HC - CustomsIllegal export of antique statue - Commission of offences punishable under Section 132 & 135 (i) (a) - Additional Chief Metropolitan Magistrate discharged the respondent holding that there is complete bar with regard to prosecution under the Customs Act - Held that - Section 4 of the Antiquities Act, 1947 made all the provisions of the Customs Act, 1962 applicable to an offence committed under Section 3 of the 1947 Act. An amendment was brought into force vide Section 4 of the Act of 1972 vide which the Legislature omitted the applicability of all the provisions of the Customs Act. Provisions of the Customs Act are now applicable only for confiscation and not for prosecution. Section 25 of the Antiquities Act stipulates that if any person contravenes the provision of Section 3, he shall be liable for punishment without prejudice to the action of confiscation or penalty for which he has rendered himself liable under the Customs Act. A reading of Section 25 shows that confiscation and penalty has to be under the Customs Act, whereas the punishment and prosecution has to be under the Antiquities Act for breach of Section 3 of the Antiquities Act. There is no force in the argument of the learned counsel for the petitioner that once the confiscation is done under the Customs Act, all the provisions of the Customs Act would come into operation and the Customs department would get power to launch prosecution against the respondent. Section 25 of the Antiquities Act clearly creates a bar with regard to the prosecution under the Customs Act. - Decided against Revenue.
Issues:
1. Legality of the order of discharge passed by the Additional Chief Metropolitan Magistrate. 2. Applicability of the Customs Act and the Antiquities Act in the case. 3. Interpretation of Section 4 of the Antiquities Act, 1947 and its relation to the Customs Act. 4. Comparison of relevant case laws and their impact on the present case. 5. Arguments regarding prosecution under the Customs Act versus the Antiquities Act. 6. Consideration of the judgments in Om Prakash Bhatia vs. Commissioner of Customs, Delhi and Commissioner of Customs & Central Excise vs. Achiever International. Analysis: 1. The petitioner filed a revision petition against the order of discharge by the Additional Chief Metropolitan Magistrate based on a complaint under the Customs Act for attempting to illegally export an antiquity. The respondent was accused of booking a stone head of Budha for export, leading to his arrest in 1995. 2. The dispute centered on whether the Customs Act or the Antiquities Act should govern the prosecution in this case. The respondent argued that prosecution should be under the Antiquities Act, not the Customs Act, as there was a specific provision for launching prosecution under the former. 3. The Court analyzed the provisions of Section 4 of the Antiquities Act, noting that while the Customs Act was initially applicable, an amendment in 1972 limited its applicability to confiscation only. The Court cited precedents to support the view that prosecution under the Customs Act was not sustainable for breaches of the Antiquities Act. 4. The petitioner's counsel referenced judgments in other cases to support their argument, but the Court found them irrelevant as the key judgment in Dr. V.J.A. Flynn's case was still applicable and had not been overturned or stayed by the Supreme Court. 5. The Court upheld the order of discharge, emphasizing that the prosecution under the Customs Act was not permissible due to the specific provisions of the Antiquities Act. It clarified that while confiscation and penalties fall under the Customs Act, prosecution for breaches of the Antiquities Act must be pursued under that specific legislation. 6. Ultimately, the Court dismissed the revision petition, affirming the decision of the Additional Chief Metropolitan Magistrate and directing the trial court to proceed accordingly. The judgment highlighted the importance of understanding the specific legal frameworks governing different types of offenses to ensure proper prosecution and adjudication.
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