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TMI Blog2002 (11) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were suspected to be antiquities, export of which was prohibited under Section 3 of the Antiquities and Art Treasure Act, 1972 (in short the Antiquities Act). Therefore, at request of Customs, the Director General of the Archaeological Survey of India (in short ASI) deputed Mr. D.V. Sharma, Superintending Archaeologist, who examined the coins and prima facie found them to be antiquities. The coins along with other bags and suitcases were seized under Section 110 of the Customs Act, 1962 on the reasonable belief that the export of the same was prohibited under the Antiquities Act. Some Indian currency was also seized under Section 110 of the Customs Act, 1962 read with FERA, 1973. The statement of Flynn and Mudaliar was recorded under Section 108 of the Customs Act. The petitioner Flynn stated that the coins recovered from Sadasivan actually belonged to him and were handed over to him only to save excess freight. In his voluntary statement under Section 108 of the Customs Act, Flynn also revealed that he had been collecting gold, silver, brass and copper coins, both Roman and Indian and had purchased a huge quantity from Bangalore and after sorting out the same at his friend Shya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is established that the goods seized are antiquities. In other words the argument is, that the report of the Director General of Archaeological Survey of India, certifying the coins to be antiquities under Section 24 of the Antiquities Act is a pre-requisite to the issuance of show cause notice. It is submitted that the seizure of the coins was effected on 21st June, 1994 and the impugned show cause notice was issued on 2nd December, 1994 and by that date, the report of the Director General (ASI) had not been received. It is submitted that it was on 4th October, 1995 that the respondents moved the ACMM, New Delhi where the complaint under Section 135 of the Customs Act was pending against the petitioners, for sending the seized antique coins for the expert opinion of the Director General (ASI). It is submitted that till date the complete report has not been received. The report dated 31st July, 1998 received during the pendency of these writ petitions with respect to part of the seized coins, is alleged to be of no consequence as the same being subsequent to the issuance of the show cause notice, cannot validate the same. 5.Mr. Jayant Bhushan, learned standing counsel for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the commencement of this Act, it shall not be lawful for any person, other than the Central Government or any authority or agency authorized by the Central Government in this behalf, to export any antiquity or art treasure. Whenever the Central Government or any(2) authority or agency referred to in sub-section (1) intends to export any antiquity or art treasure such export shall be made only under and in accordance with the terms and conditions of a permit issued for the purpose by such authority as may be prescribed." 8.As per this provision, no one except the Central Government or any authority or agency authorised by such Government, is competent to export any antiquity or art treasure. This provision apparently prohibits the export of such coins which fall under the definition of "Antiquity". By virtue of Section 4, provisions of the Customs Act, 1962 are made applicable to this Act. Reading of Section 4, which is reproduced below, makes it clear that the Customs Act shall have effect in relation to all antiquities, the export of which is prohibited under Section 3 of the Antiquities Act. The Collector of Customs can, therefore, confiscate the antiquities, export of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibition to export particular goods is under any other law i.e. other than the Customs Act, the Collector of Customs can confiscate the same. As discussed above, the provisions of Customs Act have been made applicable to the Antiquities Act by virtue of Section 4 of the Antiquities Act. 12.Section 114 of the Customs Act provides for personal penalty for attempt to export the prohibited goods. Section 122 of the Customs Act provides for adjudication of confiscations and penalties. Section 124 of the Customs Act provides for show cause notice before the confiscation of goods. It is reproduced as under : Issue of show cause notice before the"124. confiscation of goods, etc. - No order confiscating any goods or imposing any penalty shall be made under this Chapter unless the owner of the goods or such person - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; (b) is given an opportunity of making a representation in writing under such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein; and (c) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, the Collector of Customs had to be satisfied that prima facie the coins sought to be confiscated were antiquities, export of which was prohibited under Section 3 of the Antiquities Act. The submission is that before issuing the show cause notice, there was sufficient material on record. The grounds for issuing the show cause notice for confiscating the coins have been clearly mentioned in the impugned show cause notice more specifically in Paras 13 and 14 thereof. The notice specifically refers to a report from Superintending Archaeologist (Antiquities), ASI, dated 23rd June, 1994, which indicated that the seized coins were of outstanding numismatic value which would throw ample light on the lesser known aspect of the numismatic history of India. 17.Mr. Neeraj Kaul, learned senior Counsel for the petitioners contends that the two reports dated 21st and 22nd June, 1994 of Shri D.V. Sharma, Superintending Archaeologist did not show as to how the seized coins were antiquities. These reports simply state that all the coins/objects, referred in the reports, were found to be antiquities and it was suggested that the matter be referred to the Director General (ASI) for the expert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the show cause notice is based on surmises and conjectures or any extraneous considerations or there was not enough material before the Collector of Customs to issue the same. The show cause notice satisfies the requirement of law and in any case, no prejudice would be caused to the petitioners as they have been given full opportunity to file a reply to the notice and justify their stand before the Collector. 20.The learned senior Counsel for the petitioners has relied upon two judgments Mohinder Singh Gill v. Chief Election Commissioner Ors. - 1978 (1) SCC 405 and Tandon Brothers v. State of West Bengal - 2001 (5) SCC 664 for the proposition that a show cause notice has to be tested on the date of its issuance and any subsequent material would not validate the same. Reliance on these two judgments is mis-conceived, as the same are not applicable to the instant case on facts. In any case, there is no quarrel with the proposition that a show cause notice has to be tested on the date of its issuance. In the above discussion, we have already observed that the report of the Director General (ASI) under Section 24 of the Antiquities Act is not a pre-requisite for issuing a sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming him of the grounds on which the goods are proposed to be confiscated, meaning thereby that there should be sufficient material before the Collector which gives grounds for the proposed action. The Collector of Customs in this case had sufficient material before him to hold a bona fide belief that the coins were liable to be confiscated, which gave a good ground for issuing the show cause notice. 22The further contention of Mr. Neeraj Kaul. is that since the criminal complaint under Section 35 of the Customs Act, against the petitioners was quashed by this Court vide order dated 4th March, 1996, the present proceedings for confiscation do not lie. The contention is that since the final report of the Director General (ASI) under Section 24 of the Antiquities Act was not received before launching prosecution, the complaint was quashed. The argument of the learned Counsel does not impress us. The criminal proceedings are independent and do not affect the adjudication proceedings for confiscation of the antiquities which the petitioners were trying to export in contravention of Section 3 of the Antiquities Act. The quashing of the prosecution has no bearing on the adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X
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