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2015 (4) TMI 346 - DELHI HIGH COURT

2015 (4) TMI 346 - DELHI HIGH COURT - 2015 (322) E.L.T. 221 (Del.) - Illegal 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 amen .....

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e 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 agains .....

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ging the respondent, the present revision petition has been filed by the petitioner. 2. Factual matrix, as emerges from the record, is that on 18.02.1995 during the course of clearance of courier bags of M/s DHL Worldwide Express, a wooden box was intercepted on suspicion and was examined by the Customs Preventive Officers of IGI Airport. The wooden box had contained Stone Figure Handicrafts in the courier manifest. In the airway bill, sender was shown as Mr.Robert Jaeger and receiver was shown .....

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Worldwide Express. The airway bill was signed by the accused and thus the accused was the owner of the consignment and he had attempted to export the seized antique piece of sand stone of Budha illegally. The respondent was arrested on 06.07.1995 in accordance with law. 3. After completion of enquiries, a complaint for offences punishable under Section 132 & 135 (i) (a) of the Customs Act was filed by the Department of Customs against the respondent. Cognizance of offences was taken. 4. To .....

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dditional Chief Metropolitan Magistrate vide order dated 16.11.2005 discharged the respondent holding that there is complete bar with regard to prosecution under the Customs Act and under the Customs Act only the Collector of Customs has power to confiscate the goods and impose penalty for having committed the breach of Section 3 of the Antiquities Act and nothing more. 5. Feeling aggrieved by the same, the petitioner has preferred the present revision petition to set aside the order dated 16.11 .....

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ase as the same has already been challenged in the Hon ble Supreme Court vide SLP No.1525/1996 and the same is pending for decision. 7. Learned counsel for the petitioner has also referred to judgment in the case of Om Prakash Bhatia vs. Commissioner of Customs, Delhi (2003) 6 SCC 161. The facts of the said case are that the appellant sought to export skirts. The exporter claimed a drawback of money on the consignment on the basis that the value of each skirt was higher. During the enquiry, the .....

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hand, learned counsel for the respondent has argued that the complaint filed by the Customs under the Customs Act was not sustainable as the prosecution can be launched only under the Antiquities Act. There was specific provision in the Antiquities Act for launching prosecution and only the penalty can be imposed under the Customs Act. 9. To deal with the rival contentions of the parties, this Court has gone through the above referred case law. This Court in case of Dr. V.J.A. Flynn vs. S.S. Ch .....

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e to the Antiquities Act. Only the provisions whenever confiscation has to be applied then Customs Act provisions would be invoked. Therefore, no reliance on the provisions of Section 127 or for that matter Chapter-XVI of the Customs Act can be taken help of. Section 127 of the Customs Act seemingly stipulates adjudication before confiscation and thereafter prosecution under Chapter XVI but not before that. Hence, reading of Section 127 of the Customs Act and Section 4 of the Antiquities Act nul .....

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this regard, I am supported by the decision of the Supreme Court in the case of The Collector of Customs, Madras v. Nathella Sampathu Chetty MANU/ SC/0089/1961 : 1983 ECR 2198D (SC). Considering the language of Section 19 of the Sea Customs Act, 1878 and Section 23A of Foreign Exchange Regulation Act of 1947 the Supreme Court observed in that case that there was no scope for any argument that there has been any incorporation of the provisions of the earlier statute in the later. Similarly in the .....

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t complaint are ordered to be dropped. 10. In view of the law laid down by this Court in Dr.V.J.N. Flynn s case (supra), it is a settled law 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 .....

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