TMI Blog2019 (3) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Declaration of National Importance) Act, 1951, were two Acts in force relating to ancient monuments. We have noticed that in the Statement of Objects and Reasons for the passing of the Act and providing for the repeal of the earlier law based in the year 1947 was to provide for comprehensive law relating to antiquities. Antiquities made their appearance in the law which was made in the year 1904 as we have already noticed. Broadly the heritage of the nation can be said to 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 which is associated with the object - The 1904 Act and The Ancient Monuments and Archaeological Sites 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. All the laws reflect the legislation intention to protect the Ancient Monuments and Archaeological Sites and remains as also antiquities. Apart from the same no doubt under the Antiquities Act, art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Customs Act are distinct and different from one another. It may be true that it may be the same acts or transaction which gives rise to the two distinct offences but that may not matter. The prosecution is launched in regard to Section 135(1)(a) on the basis that Section 3 of the Antiquities Act prohibits export of antiquity and this is read with Section 3 of the Foreign Trade and Development Act 1992 read with Export and Import Policy for the year 1992-1997 bringing in Section 11 of the Customs Act. We have expounded the ingredients of Sections 132 and 135(1)(a) of the Customs Act. The view we are taking would give full play to the Customs Act to the extent that it is not inconsistent with the Act as contemplated under Sector 4. The view which we are declaring does not do violence to the provisions of Section 25 of the Act. The contrary view which has gained acceptance at the hands of the High Court, in our view, fails to give meaning and full play as intended to the Customs Act as provided in Section 4 of the Act. Furthermore, the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 132 and 135 of the Customs Act, 1962. The error stems from a misapprehension both of the scheme of the Act and 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. It reads as follows:- 3. Regulation of export trade in antiquities and art treasures. (1) On and from 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. (2) Whenever the Central Government or any 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. 5. Section 4 is another material provision and hence we advert to the same. It reads as follows: - 4. Application of Act 52 of 1962. The Customs Act, 1962, shall have effect in relation to all antiquities and art treasures, the export o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prisonment for a term which may extend to six months, or with fine, or with both. 8. Section 26 is a companion section of Section 25 and must necessarily be addressed. It reads as follows:- 26. Cognizance of offences. (1) No prosecution for an offence under sub-Section (1) of Section 25 shall be instituted except by or with the sanction of such officer of Government as may be prescribed in this behalf. (2) No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) or section 25 except upon complaint in writing made by an officer generally or specially authorized in this behalf by the Central Government. (3) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence punishable under this Act. 9. The last provision which has been impressed upon us and which will throw light upon the scheme of the Act is Section 30. It reads as follows: - 30. Application of other laws not barred. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of the Ancient Monuments Preservation Act, 1904 (7 of 1904) or the Ancient Monuments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, it is his contention that even proceeding on to basis of the interpretation placed by the High Court that after the amendment, under Section 25 what is permitted under the Customs Act, is only confiscation and imposition of penalty, the imposition of penalty is not to bear a narrow connotation as was contemplated by the High Court. On the other hand, a penalty would include the penal consequence after a prosecution and such prosecution would include prosecution under Sections 132 and 135 of the Customs Act. 12. Further, he would complain that the High Court has lost sight of the true import of Section 30 of the Act. Section 30 as we have noticed declares that the provisions of the Act shall be in addition to the specific laws which are mentioned therein but it does not end there. It also 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 ejusdem generis, in the interpretation of Section 30 and holding that the Customs Act will not be an Act which will be embraced within the scope of Section 30 under the last limb and therefore, it will not be an existing law. 13. Per contra, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule of ejusdem generis has to be applied with care and caution. It is not an inviolable rule of law, but it is only permissible inference in the absence of an indication to the contrary, and where context and the object and mischief of the enactment do not require restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning. As stated by Lord Scarman: If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it, the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many other rules of statutory interpretation, is a useful servant but a bad master. So a narrow construction on the basis of ejusdem generis rule may have to give way to a broader construction to give effect to the intention of Parliament by adopting a purposive construction. 17. The question would be whether the High Court is right in applying the principles of ejusdem generis. In order that it applies, the court must find the existence of enumerated things before general words. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 25 of the Act. The legislature has provided for penalty for contravention of Section 3 of the Act with the rider that a prosecution under Section 3 of the Act would not deprive the competent authority under the Customs Act to exercise its power of confiscation or imposition of penalty. The question as to what is meant by the word penalty in Section 25(1) is a separate matter which we will advert to at the appropriate juncture. It is thereafter that Section 30 provides that the provisions of the Act are not intended to override the Ancient Monument Preservation Act, 1904 or the Ancient Monument and Archeological Site 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 the expression any other law which is cast in general terms is to be influenced by the company it keeps or the neighbourhood it is found in or is it possible to accept the case of the appellant that the words any other law for the time being in force must admit of a wider meaning. There can be no doubt that the Antiquities Act is a special enactment. We may at this juncture refer to the statement of objects and reasons of The Ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Draft Bill prepared by the Government of Bengal have been embodied so far as they were found suitable and the present Bill is the result. 3. The first portion of the Bill deals with protection of Ancient monuments an expression which has been defined in clause 2 (now section 2). The measure will apply only to such of these as are from time to time expressly brought within its contents though being declared to be protected monuments . A greater number of more famous buildings in India are already in possession or under the control of the Government; but there are others worthy of preservation which are in the hands of private owners. Some of these have already been insured or are fast falling into decay. The preservation of these is the chief object of the clause of the Bill now referred to and the provisions of the Bill are in general accordance with the policy enunciated in section 23 of the Religious Endowments Act, 1863 (20 of 1863), which recognises and saves the right of the Government to prevent injury to and preserve buildings remarkable in their antiquity and for their - historical or architectural value or required for the convenience of the public . The power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be impracticable even were it desirable to prevent a dealer from selling and a traveller from buying them. The sculptural carvings, images, bas-reliefs inscriptions and the like form a distinct class by themselves, in that their value depends upon their local connection. Such antiquities may as in the case of those of Swat, be found outside India or in Native States and this the Legislature cannot reach directly; while as the regards the British territory and under the existing law, it is impossible to go beyond the provisions of the Indian Treasure Trove Act, 1878 (6 of 1878). (In these circumstances, it is proposed, by clause 18 of the Bill to take power to prevent the removal from British India of any antiquities which it may be deemed desirable to retain in the country, and at the same time to prevent importation. By thus putting a stop on draft in such articles it is believed that it will be possible to protect against spoliation a number of interesting places situated without and beyond British territory. Clause 19 aims at providing for antiquities such as sculptures and inscriptions which belong to another place and ought therefore to be kept in situ or deposited in loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any act which may be necessary for the purpose of maintain a protected monument or of securing convenient access thereto; (5) land includes a revenue-free estate, a revenue-paying estate, and a permanent transferable tenure, whether such an estate or tenure by subject to incumbrances or not; and (6) owner includes a joint owner invested with power of management on behalf of himself and other joint owners, and any manager or trustee exercising powers of management over an ancient monument, and the successor in title of any such owner and the successor in office of any such manager or trustee: Provided that nothing in this Act shall be deemed to extend the powers which may lawfully be exercised by such manager or trustee. 23. Section 17 deals with the transfer of Antiquities:- 17. Transfer of ownership, etc., of antiquities to be intimated to the registering officer. Whenever any person transfers the ownership, control or possession of any antiquity specified in any notification issued under sub-section (1) of Section 14 such person shall intimate, within such period and in such form as may be prescribed the fact of such transfer to the registering offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the present enactment. The words art treasure was not included in the enactment. The Act deals with monuments, protected areas, prohibited and regulated areas. It has created a National Monuments Authority (w.e.f. 29.3.2010) vide Section 20F. There are specific provisions dealing with antiquity contained in Sections 25 and 26 of the Act, which read as follows : 25. Power of Central Government to control moving of antiquities.- (1) If the Central Government considers that any antiquities or class of antiquities ought not to be moved from the place where they are without the sanction of the Central Government, the Central Government may, by notification in the Official Gazette, direct that any such antiquity or any class of such antiquities shall not be moved except with the written permission of the Director General. (2) Every application for permission under sub-section (1) shall be in such form and contain such particulars as may be prescribed. (3) Any person aggrieved by an order refusing permission may appeal to the Central Government whose decision shall be final. 26. Purchase of antiquities by Central Government.- (1) If the Central Government app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of 1904), shall cease to have effect in relation to ancient and historical monuments and archaeological sites and remains declared by or under this Act to be of national importance, except as respects things done or omitted to be done before the commencement of this Act. 31. Now the time is ripe to look at the Constitution in order to find out 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 and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance. 33. Entry 12 of the State List provides for ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance. 34. Entry 40 of the Concurrent List provides for archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance. 35. There are laws enacted by state legislature. We have noticed that in the Statement of Objects and Reasons for the passing of the Act and providing for the repeal of the earlier law bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the categories of genus are exhausted. Rather these two enactments which are specifically embodied in Section 30 are followed by general words which allow the application of 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 wide interpretation or narrow interpretation can be placed on the words any other law . In particular, the use of the word any preceding the words other law interpreted literally may allow us to declare that all laws in force 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 still further the object which is sought to be achieved by the enactment. It is also well settled that every attempt must be made to place a harmonious construction on each and every provision of the enactment. 38. We would think that though the words any other law for the time being in force has been used, the context for the use of the provision is not to be overlooked. We have referred to the relevant provisions of the two specific enactments which show that the said legislation also deals with antiquities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations. Firstly, it will apply except where the provisions of the Customs Act are inconsistent with the provisions of the Antiquities Act. In other words, if there are provisions in the Antiquity Act, which are inconsistent with the Customs Act, the provisions of the Antiquity Act will prevail over the Customs Act. 41. The Second limitation on the applicability of the Customs Act is as regards the specific provisions contained in Section 125 and an option ordinarily made available under Section 125 is not to be extended as provided in Section 4 of the Act. Still further legislature has taken care to incorporate certain aspects under the Customs Act under Section 25. The provision that a prosecution under Section 25 will not take away the power to confiscate or impose a penalty under the Customs Act is explicitly provided. It has provided for sanction for prosecution in Section 26. The legislature was fully conscious of the extant provisions of the Customs Act when it passed the Antiquity Act, 1972. It was conscious of the interplay of the two enactments and it accordingly made the Customs Act applicable in the manner provided in Section 4 and Section 25. Now with Section 4 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrospective effect. They principally rely on Article 20 (1) in support of their case. Article 20 (1) is modelled on the basis of section 9 (3) of Article 1 of the Constitution of the United States of America which reads: No bill of attainder or ex post facto law shall be passed. This clause has been understood in the United States of America as being applicable only to legislation concerning crimes. (See Calder v. Bull 3 Dall 386 : IL Ed. 648(1798)). The expression 'offence' is not defined in the Constitution. Article 367 of the Constitution says that unless the context otherwise provides for words which are not defined in the Constitution, the meaning assigned in the General Clauses Act, 1897 may be given. Section 3 (38) of the General Clauses Act defines 'offence' as any act or omission made punishable by any law for the time being in force. The marginal note of our Article 20 is 'protection in respect of conviction 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' in clause (1) of Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have also concluded that a separate charge could have been framed in respect of the distinct offence under Gold Control Act Under the circumstances the plea raised by the defence cannot succeed. The two conclusions reached by us brings the matter squarely within the parametres of the law settled by this Court decades ago in S. L. Apte's case 1961 (3) SCR 107. In that case the element of 'dishonesty' was required to be established under section 409 of Indian Penal Code whereas it was not required to be established under Section 105 of the Indian Insurance Act. In this backdrop this Court has enunciated the law in the context of the plea based on Article 20(2) of the Constitution, Section 26of General Clauses Act and section 403(2) of the Criminal Procedure Code in no uncertain terms: If, therefore, the offences were distinct there is no question of the rule as to double-jeopardy as embodied in Art. 20(2) of the Constitution, being applicable. The next point to be considered is as regards the scope of s. 26 of the General Clauses Act. Though s. 26 in its opening words refers to the act or omission constituting an offence under two or more enactments , the em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is settled law that a person can be prosecuted and punished more than once even on substantially same facts provided the ingredients of both the offences are totally different and they did not form the same offence. 46. In State (NCT of Delhi) V. Sanjay 2014 (9) SCC 772, a criminal prosecution was launched under the Indian Penal Code and/or Mines and Minerals (Development Regulation) Act 1957 (hereinafter called MMDR Act ) for mining from river beds without valid licence and permits under the latter Act. There was no complaint from the authorised officer under the Act. This Court took the view that the ingredients constitute the offence under the MMDR Act and the ingredients of dishonestly removal of sand and gravel from the river bed without the consent which is the property of the State is a distinct offence under the Indian Penal Code, therefore, the Magistrate on receipt of the Police Report for the commission of the offence under Section 378 IPC can take cognizance without awaiting the complaint which may be filed by the authorised officer under the MMDR Act. The court inter alia held as follows: 52. It is a well-known principle that the rule against double je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, complete or partial, or citizens of India; (q) the fulfilment of obligations under the Charter of the United Nations for the maintenance of international peace and security; (r) the implementation of any treaty, agreements or convention with any country; (s) the compliance of imported goods with any laws which are applicable to similar goods produced or manufactured in India; (t) the prevention of dissemination of documents containing any matter which is likely to prejudicially affect friendly relations with any foreign State or is derogatory to national prestige; (u) the prevention of the contravention of any law for the time being in force; and (v) any other purpose conducive to the interests of the general public. 48. Chapter IV-B came to be inserted with effect from 03/01/1969. It contains Section 11H. Section 11H(a) provides that unless the context otherwise requires illegal export means the export of any goods in contravention of the provisions of this Act or any other law for the time being in force. Section 11(i) deals with the powers of Central Government to specify goods having regard to the magnitude of illegal export of certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51. Chapter XIV has the chapter heading Confiscation of Goods and Conveyances and Imposition of Penalties . Section 113 provides for confiscation of goods attempted to be improperly exported etc. 52. Section 114 AA provides for penalty for use of false and incorrect material. It came to be inserted by Act 25 of 2006 only with effect from 30/07/2006. Section 117 deals with penalties for contravention etc. which are not expressly provided. Section 119 deals with confiscation of goods used for concealing smuggled goods. Section 121 deals with confiscation of sale- proceeds of smuggled goods. The word smuggling has been defined in Section 2 (39) reads as follows: 2(39) smuggling , in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113; 53. Section 125 provides for the power to give an option to pay fine in lieu of confiscation. 54. Chapter XIVA deals with settlement of cases. Various powers of the Settlement Commission are set out in the provisions falling under the Chapter. Section 127(h) provides for granting immunity from prosecution and penalty. 55. Chapter XVI provides for Offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both. (2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than one year. (3) For the purposes of sub-section (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely: - (i) the fact that the accused has been convicted for the first time for a reference under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion) Act, 1972 (53 of 1972); (c) a person involved in smuggling of goods falling under any of the following, namely:- (i) goods specified in the list of Special Chemicals, Organisms, Materials, Equipment and Technology in Appendix 3 to Schedule 2 (Export Policy) of ITC (HS) Classification of Export and Import Items of the Foreign Trade Policy, as amended from 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 import and export in the ITC (HS) Classification of Export and Import Items of the Foreign Trade Policy, as amended from time to time, issued under section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992); (iii) any other goods or documents, which are likely to affect friendly relations with a foreign State or are derogatory to national honour; (d) a person who has been allowed to compound once in respect of any offence under this Chapter for goods of value exceeding rupees one crore; (e) a person who has been convicted under this Act on or after the 30th day of December, 2005. 57. Section 140 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. We may also notice that Section 5 of the 1947 Act is pari materia with Section 25 of the Antiquities Act in regard to the crucial elements namely `without prejudice to any confiscation or penalty both in 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 the very same words namely confiscation or penalty as has been employed in Section 25 of the Antiquities Act. In the Sea Customs Act, 1878, in Chapter XVI under the heading Offences and Penalties Section 167 provided for various offences and the penalties were in the form of monetary exaction or confiscation and penalties by way of monetary exaction. However, besides the same we notice that in respect of some offences it is provided that such persons shall on conviction before a Magistrate, be liable to a fine not exceeding certain limits (See Sections 167(72) (74)). Section 167 (75) deal with cases where on conviction before a Magistrate, sentence of imprisonment or fine or both were provided. The extent of punishment varied. The scheme of the Sea Customs Act, 1878 thus differs from the present Customs Act 1962. In other words, in Section 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and the penalty for which is imposed by them. These may be compendiously called customs offences. Besides these there are criminal offences which are dealt with by Magistrates and which result in conviction and sentence of imprisonment and/or fine. These two kinds of offences have been created to ensure that no fraud is committed in the matter of payment of duty and also to ensure that there is no smuggling of goods, without payment of duty or in defiance of any prohibition or restriction imposed under Ch. IV of the Act. Thus, this Court has held that there are custom offences and criminal offences. The criminal offences were dealt with by the Magistrate which may culminate in conviction and imposition of imprisonment and or fine. Thus, this being the scheme of the Sea Customs Act, when Section 5 of the Antiquity (Export Control) Act, 1947 provided that prosecution for contravening Section 3 of the said Act would be without prejudice to the imposition of penalties and ordering confiscation the word penalty could take in both the customs offences and also the criminal offences. If it is interpreted as embracing the criminal offences then the word penalty would also embr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Act, can it be said that he is being prosecuted for the same offence as contained in Section 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 of the Customs Act are distinct and different from one another. It may be true that it may be the same acts or transaction which gives rise to the two distinct offences but that may not matter. 67. The complaint in this case also adverts to Section 50 of the Customs Act. Section 50 declares it to be a duty on the part of the exporter to make and subscribe to a declaration as to the truth of the contents of the shipping bill or bill of export. The exporter is to ensure the accuracy and completeness of information given by him. He has also 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 shall ensure compliance with the restriction or prohibition if any relating to the goods under the Customs Act or under any other law for the time being in force. Certainly, the restrictions or prohibition within the meaning of Section 50(3)(C) would comprehend Section 3 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resistance or refusal to allow a radiologist to screen or to take X-ray picture of his body as per the order of the Magistrate under Section 103 by resisting or refusing to allow action on the basis of advice of a registered medical practitioner for bringing out goods secreted inside his body as provided under Section 103. Take a situation where a person secretes 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, we are not making any final pronouncement in regard to the same. 69. The time is now ripe for us to look at the complaint which has been filed by the appellant. The complaint inter alia appears as follows: One wooden box was intercepted on suspicion on 18/02/1995. In the courier manifest the contents of the said wooden box were declared as Stone Figure Handicrafts . Suspecting it to be an antiquity, the officers of the Archaeological Survey of India were called and it was declared to be an antiquity and was identified as a sand stone head of Buddha. Respondent s statement was recorded under Section 108 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st August 1973 in the Gazette. Rule 15 which was inserted with effect from 30/11/1978 declared that the Director General of Archaeological Survey of India shall be the officer competent in terms of Section 26(1) to institute or to sanction institution of prosecution for the offence under Sub-section (1) of Section 25 of the Act. 71. Coming finally to Section 135(1)(a) of the Customs Act, the third limb which alone is invoked in this case, penalises fraudulently evading or attempting to evade any prohibition for the time being imposed under the Customs Act or any other law for the time being in force in regard to such goods. 72. Now, in regard to the last part in the complaint inter alia there is reference to the export of antiquity 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 are deemed to be issued under Section 11 of the Customs Act, 1962 issued in paragraph 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 expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibited under Section 11 of the Customs Act. Para 123 of the Import-Export policy 1992-1997 read as follows: 123. All goods may be exported without any restriction except to the extent such exports are regulated by the Negative List of Exports or any other provision of this Policy or any other law for the time being in force. The Director General of Foreign Trade may, however, specify through a Public Notice the terms and conditions according to which any goods not included in the Negative List of Exports may be exported without a licence. Such terms and conditions may include Minimum Export Price (MEP), registration with specified authorities, value addition, quantitative ceilings and compliance with other laws, rules, regulations. Goods placed in the negative list are those goods which are completely prohibited items. It is to be borne in mind that Section 3 of the Antiquities Act does not completely prohibit export of antiquity or art treasure and it countenances export by the Central Government or by persons authorised. 75. Therefore, the prosecution is launched in regard to Section 135(1)(a) on the basis that Section 3 of the Antiquities Act prohibits export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Antiquities Act only to sustain a prosecution in the third limb thereof of Section 135(1)(a), it is incumbent on the prosecution to establish that the accused fraudulently evaded or attempted to evade the prohibition against export. Therefore, in the said sense, the ingredients of the offences under Section 135(1)(a) and the offence under Section 3 read with Section 25 of the Antiquities Act are different and distinct. 77. The question, however, would arise whether having regard to the mandate of Section 4 of the Antiquities Act, the prosecution under Section 135(1)(a) when it is on the basis of fraudulently evading or attempting to evade the prohibition contained in Section 3 of the Antiquities Act would be inconsistent with Section 25 read with Section 26 of the Antiquities Act. A prosecution under Section 25 of the Antiquities Act is to be done on the basis of sanction of Director General of Archaeological Survey of India who is the statutory sanctioning authority. Like a prosecution under Section 132 of the Customs Act, a prosecution under 135(1)(a) must be on the basis of sanction given by the competent authority under the Customs Act, and not the Antiquities Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is an antiquity or not or an art treasure or not, the provisions contained under Section 24 of the Antiquities Act would be applicable and the question must be decided by the Director General of Archaeological Survey of India or his authorized nominee and finality would be attached therewith. The Director General or his authorized officers would be the authorities who would have the necessary knowledge, experience and could give an authoritative opinion in the case of dispute as to whether an article is or is not an antiquity or art treasure. By this process, we would think that we can give full play on a harmonious construction to both the provisions and what is more giving the primacy to the antiquities Act where it is called for accordingly. 80. It may be noticed that the concept of inconsistency is found in Article 254 of the Constitution of India. Article 254 has a marginal note which speaks about inconsistencies between laws made by Parliament and laws made by legislatures of the State. The Article goes on to state that if the law made by the State is repugnant to the law made the Parliament, the law made by the Parliament to the extent of repugnancy shall prevail. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the State Act creates distinct and separate offences with different ingredients and different punishments and it does not in any way collide with the Central Acts No doubt the Court in the said case took note of the provision which provided for saving of other laws and came to the conclusion that the intention that the State Act which was undoubtedly the dominant legislation would only be in addition and not in derogation of any other law for the time being in force which manifestly included the Central Acts, namely, the Indian Penal code, The Prevention of Corruption Act and the Criminal Law (Amendment) Act,. 82. We may also notice the following test which has been laid down in the decision of this court reported in AIR 1959 SC 648 which has in fact been adverted in a recent judgment of this Court in Innoventive Industries 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, this Court referred to its earlier judgments in Zaverbhai Amai Das v. State of Bombay 1955 (1) SCR 799 and Tika Ramji v. State of U.P. 1956 SCR 393 and held: 29 . Repugnancy betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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