1  

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO(S).174 OF 2019  

(Arising out of SLP(Crl.) No.9159 of 2015)  

DEPARTMENT OF CUSTOMS      ...APPELLANT(S)  

VERSUS  

SHARAD GANDHI          ...RESPONDENT(S)  

JUDGMENT  

K.M. JOSEPH, J.  

1.  The appeal maintained by Special Leave is  

directed against the judgment of Learned Single Judge  

of High Court of Delhi upholding the dismissal of the  

complaint filed by the appellant herein against the  

respondent and discharging him of offences under  

Sections 132 and 135 of the Customs Act, 1962. The  

Additional Chief Metropolitan Magistrate allowed the  

application for discharge filed by the respondent  

accepting the contention of the respondent that there  

is a complete bar with regard to the prosecution under              

the Customs Act, 1962, and under the                             

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Customs Act, and the Collector of Customs has power  

only to confiscate the goods and impose penalty for  

having committed breach of Section 3 of the Antiquities  

and Art Treasures Act, 1972 (hereinafter referred to as  

“the Antiquities Act”). The Magistrate purported to  

follow the judgment of Learned Single judge of the High  

Court of Delhi in Dr. V.J.A. Flynn vs. S.S. Chauhan &  

Another.  The High Court by the impugned order has come  

to endorse the said view.   

2.  We have heard Mr. Aman Lekhi, learned  

Additional Solicitor General appearing for the  

appellant and also learned counsel appearing on behalf  

of the respondent.   

3.  It must be noted that the Special Leave  

Petition out of which this appeal arise was ordered to  

be tagged with SLP(Crl.) No. 1525 of 1996. The said  

Special Leave Petition was filed against the   judgment

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of learned Single Judge of High Court of Delhi which  

has been relied upon by the Court’s below for  

discharging the accused. As it turns out, the said  

Special Leave Petition has been closed by order dated  

09.05.2016 by reason of the death of the respondent in  

the said case. The learned Additional Solicitor General  

would contend that there is a clear error in the  

reasoning of the Court by which it has concluded that  

prosecution is not maintainable 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.  

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(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 of  

which by any person (other than the Central  

Government or any authority or agency authorized  

by the Central Government) is prohibited under  

Section 3 save in so far as that Act is  

inconsistent with the provisions of this Act and  

except that (notwithstanding anything contained  

in section 125 of that Act) any confiscation  

authorized under that Act shall be made unless  

the Central Government on an application made to  

it in this behalf, otherwise directs.”  

6.  Section 24 reads as follows:-  

“24. Power to determine whether or not an  article, etc., is antiquity or art treasure. – If  

any question arises whether any article, object  

or thing or manuscript, record or other document  

is or is not an antiquity or is or is not an art  

treasure for the purposes of this Act, it shall  

be referred to the Director General,  

Archaeological Survey of India, or to an officer  

not below the rank of a Director in the  

Archaeological Survey of India authorized by the  

Director General, Archaeological Survey of India  

and the decision of the Director General,  

Archaeological Survey of India or such officer,

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as the case may be, on such question shall be  

final.”   

7.  The next important provision is Section 25. It  

reads as follows:-  

25. Penalty.— (1) If any person, himself or by  

any other person on his behalf, exports or  

attempts to export any antiquity or art treasure  

in contravention of section 3, he shall, without  

prejudice to any confiscation or penalty to which  

he may be liable under the provisions of the  

Customs Act, 1962 (52 of 1962) as applied by  

section 4, be punishable with imprisonment for a  

term which shall not be less than six months but  

which may extend to three years and with fine.  

(2) if any person contravenes the provisions of  

section 5 or section 12 or sub-section (2) or  

sub-section (3) of section 13 or section 14 or  

section 17, he shall be punishable with  

imprisonment for a term which may extend to six  

months or with fine or with both and the  

antiquity in respect of which the offence has  

been committed shall be liable to confiscation.  

(3) If any person prevents any licensing officer  

from inspecting any record, photograph or  

register maintained under section 10 or prevents  

any officer authorized by the Central Government  

under sub-section (1) of section 23 from entering  

into or searching any place under that sub-

section, he shall be punishable with imprisonment  

for a term which may extend to six months, or  

with fine, or with both.”  

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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 and Archaeological  

Sites and Remains Act, 1958, (24 of 1958) or any  

other law for the time being in force.”  

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10.  Mr. Aman Lekhi, Additional Solicitor General of  

India would contend that the prosecution was launched  

under Sections 132 and 135 of the Customs Act, 1962 on  

the basis that the ingredients of offences under  

Sections 132 and 135 were present. He makes it clear  

that this is not a case of prosecution within the  

meaning of Section 25(1) of the Act. There is no bar in  

prosecuting the respondent under Sections 132 and 135  

of the Customs Act, he forcefully submitted. As far as  

Section 4 is concerned, he points out that in fact it  

saves proceedings under the Customs Act. The only taboo  

is that, to the extent, any inconsistency between the  

Customs Act and the Act exists, the provisions of the  

Antiquities Act will hold sway. He points out that  

there is no inconsistency involved in maintaining the  

prosecution under Sections 132 and 135 of the Customs  

Act, 1962. Passing on to Section 25 of the Act, he  

would point out that the present case is not a  

prosecution under Section 25 read with Section 3 of the  

Act. One set of facts may occasion the committing of  

more than one offence. The key question to be posed and

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considered is what are the elements which make an  

offence under an enactment.  A transaction may involve  

a person in the committing of two or more distinct  

offences. This is neither contrary to Article 20 of the  

Constitution of India nor Section 300 of the Code of  

Criminal Procedure. In this regard, he drew our  

attention to the following cases:  

(i) 1988 (3) SCC 467  

(ii) 1983 (3) SCC 529  

(iii) 2012 (7) SCC 621  

11.   The next argument based on Section 25 is that a  

perusal of the heading of the section reveals that it  

relates to penalty. The reason which has found favour  

with the High Court both in the judgment which was  

relied upon and the impugned one is that under Section  

25 of the Act after the amendment, [Actually, the High  

Court was having in mind, the provisions of Section 4  

of the Antiquities (Export Control) Act, 1947  

(hereinafter referred to as “the 1947 Act”)],  what is  

permissible under the Customs Act, 1962, is only the

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confiscation proceedings and penalty proceedings.  

Penalty proceedings have been understood as exaction of  

a monetary component. The learned Additional Solicitor  

General takes exception to the reasoning. In other  

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

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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, learned counsel appearing on behalf  

of the respondent would support the order of the High  

Court. He would point out that the Antiquities Act  

which is actually enacted in the year 1972 is later in  

point of time than the Customs Act.  The Act must  

prevail over the Customs Act. The Act is a special Act  

and it will prevail over the general law which is  

contained in the Customs Act.  

14.  Firstly, we will deal with the contention of  

the appellant that the Customs Act is also an existing

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law in force within out of the meaning of Section 30 of  

the Antiquities Act.  The High Court has proceeded to  

take the view that the words ‘any law in force’ must be  

construed ejusdem generis with the two laws which are  

indicated in Section 30 namely, The Ancient Monuments  

Preservation Act, 1904 and the Ancient Monuments and  

Archaeological Sites and Remains Act,1958.  

15.  Learned Additional Solicitor General sought  

support from the decision of this Court in Bharat Heavy  

Electricals Limited v. Globe Hi-Fabs Limited reported  

in 2015 (5) SCC 718 for the principle that the  

principles of ejusdem generis must not be used to place  

a narrow construction where a larger and purposive  

construction is called for.  We would advert to the  

following discussion by this Court in paragraph 10.  It  

reads as under:  

“10. In construing the words “a claim of  

set-off or other proceeding to enforce a right  

arising from contract”, occurring in Section 69  

of the Partnership Act, 1932, the Supreme Court  

refused to limit the generality of “other  

proceeding” and to apply the ejusdem generis  

rule as the preceding phrase ‘a claim of set-

off’, did not constitute a genus or category.  

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In that case, Hidayatullah, J., in explaining  

the principle that the rule cannot be applied  

unless there be “a genus constituted or a  

category disclosed”, gave the following  

illustration:  

“In the expression `books, pamphlets,  

newspapers and other documents’, private  

letters may not be held included if `other  

documents’ be interpreted ejusdem generis  

with what goes before.  But in a provision  

which reads `newspapers or other documents,  

likely to convey secrets to the enemy’, the  

words `other documents’ would include  

document of any kind and would not take  

their colour from newspaper.”  

16.  Still further we may profitably advert to the  

statement of law made by this Court in paragraph 12.  

The same reads as under:  

“12. The rule 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.”

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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 words, specified categories must have a common  

golden thread of commonality running through them. The  

specified words must be followed by general words.   

Since the purpose of interpretation of statute is to  

glean the legislative intention and purposive  

interpretation being an important tool of statutory  

interpretation, the demands made by the same may  

overwhelm, the temptation to place a restrictive  

interpretation by adopting the principles of ejusdem  

generis unless it is warranted.  Two views being  

possible, a view which advances the object may be  

preferred but the question arises whether the learned  

Additional Solicitor General would be justified in

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relying upon the principles relating ejusdem generis in  

the facts. When the legislature makes a law, the  

presumption is that it is aware of all existing laws.   

The Court does not begin with a presumption of  

ignorance.  The Act in question, would indeed furnish a  

lucid illustration of the aforesaid principles.  The  

legislature was fully conscious that the Customs Act,  

1962 exists on the statute book.  The legislature was  

conscious of its operation and it wanted to articulate  

the manner in which both laws were to co-exist.  It is  

accordingly that in Section 4 it has expressly provided  

that the Customs Act shall apply in relation to all  

antiquities and art treasures, the export of which by  

any person other than the Central Government or  

authorized or agency is prohibited under Section 3 of  

the Act.  The only area where it tabooed the  

application of the Customs Act is where the Act  

contains provisions which were irreconcilable being  

inconsistent with the Antiquities Act.  Equally, it  

also expressly provided for the situation that any  

confiscation, notwithstanding Section 125 of the

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Customs Act thereof, shall be made in regard to  

antiquities and art treasure unless on an application  

made to the Central Government, it otherwise directs.   

Section 125 of the Customs Act is a provision which  

enables the officer adjudging the confiscation  

proceedings to give an option to pay a fine in lieu of  

confiscation.  The obvious intention of the legislature  

is to provide that once an order for confiscation is  

passed under the Customs Act in respect of antiquities  

or art treasure the powers ordinarily available under  

Section 125 of the Customs Act will not be available.  

18.  Still further the legislative light is shone by  

the words used in Section 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

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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 Antiquities and Art Treasures Act, 1972 which  

reads as follows:  

“At present Antiquities (Export Control)  

Act, 1947, provides for controlling the  

export of objects of antiquarian or  

historical interest or significance.   

Experience in the working of the Act has  

shown that in the modern set-up the

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provisions contained therein are not  

sufficient with a view to preserving  

objects of antiquity and art treasures  

in India.  It is proposed to make a  

comprehensive law to regulate the export  

trade in antiquities and art treasures  

and to provide for the prevention of  

smuggling of, and fraudulent dealings in  

antiquities.  It is also considered  

necessary to make provision in such law  

for the compulsory acquisition of  

antiquities and art treasures for  

preserving in public places.  The  

present Bill is intended to achieve the  

above objectives.”  

        (Emphasis supplied)  

19.  Firstly, we must ascertain whether there is a  

common genus contained in the specific enumeration of  

two laws namely the Ancient Monuments Preservation Act,  

1904 and the Ancient Monuments and Archaeological Sites  

and Remains Act, 1958.  

20.  Let us examine the historical perspective which  

led to the passing of these two aforesaid enactments.  

21.  The statement of objects and reasons for the  

enactment of the Ancient Monuments Preservation Act,  

1904 is as follows:

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“"The object of this measure is to  

preserve to India its ancient monuments  

in antiquities and to prevent the  

excavation by unauthorised persons of  

sites of historic interest and value.   

2. In 1898 the question of antiquarian  

exploration and research attracted  

attention and the necessity of taking  

steps for the protection of monuments  

and relics of antiquity was impressed  

upon the Government of India. It was  

then apparent that legislation was  

required to enable the Government to  

discharge their responsibilities in the  

matter and a Bill was drafted on the  

lines of the existing Acts of Parliament  

modified so as to embody certain  

provisions which have found a place in  

recent legislation regarding the  

antiquities of Greece and Italy. This  

draft was circulated for the opinions of  

local Governments and their replies  

submitted showed that the proposals  

incorporated in it met with almost  

unanimous approval, the criticism  

received being directed, for the most  

part, against matters of detail. The  

draft has since been revised, the  

provisions of the 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

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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 intervene is  

at present limited to cases to which  

section 3 of the Bengal Regulation 19 of  

1810 or section 3 of the Madras  

Regulation VII of 1817 applies. In  

framing the present Bill the Government  

has aimed at having the necessity of  

good will and securing the cooperation  

of the owners concerned and it hopes  

that the action which it is proposed to  

take may tend rather to the  

encouragement than to the suppression of  

private effort. The Bill provides that  

the owner or the manager of the building  

which merits greater care than it has  

been receiving may be invited to enter  

into an agreement for its protection and  

that in the event of his refusing to  

come to terms the collector may proceed  

to acquire it compulsorily or take  

proper course to secure its application.

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It has been made clear that there is to  

be no resort to compulsory acquisition  

in the case the monument is used in  

connection with religious observances or  

in other case until the owner has had an  

opportunity of entering into an  

agreement of the kind indicated above;  

and it is expressly provided that the  

monument maintained by the Government  

under the proposed Act, shall not be  

used for any purpose inconsistent with  

its character or with purpose of its  

foundation, and that, so far as is  

compatible with the object in view the  

public shall have access to it free of  

charge. By the 4th proviso of clause 11  

(now section 10) it is laid down that in  

assessing the value of the monument for  

the purpose of compulsory acquisition  

under the Land Acquisition Act, 1894 (1  

of 1894) its archaeological, artistic or  

historical merits shall not be taken  

into account. The object of the  

Government as purchaser being to  

preserve at the public expense and for  

the public benefit an ancient monument  

with all its associations, it is  

considered that the value of those  

associations should not be paid for.   

[Note:- As the 4th proviso of clause  

11 was the subject of unfavourable  

comment, it was omitted by the Select  

Committee.]  

4. The second portion of the Bill  

deals with movable objects of historical  

or artistic interest and these may be  

divided into two classes: the first  

consists of ornaments, enamels, silver  

and copper vessels, Persian and Arabian  

Manuscripts, and curios general. These

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are for the most part portable and  

consequently difficult to trade; they  

are as a rule artistic; are of historic  

interest and it would 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 local  

museums. The removal of these, it is  

proposed to enable the local Government  

to prohibit by notification and the  

clause also provides that, if the object  

is moveable, the owner may require the  

Government to purchase it outright and

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that, if it is immovable the Government  

shall compensate the owner for any loss  

caused to him by the prohibition. Clause  

20 (now section 19) deals with the  

compulsory purchase of such antiquities  

if that is found to be necessary for  

their preservation and the owner is not  

willing on personal or religious grounds  

to part with them. In such cases it is  

proposed that the price to be paid  

should be assessed by the Collector,  

subject to a right of appeal to the  

local Government but it is for  

consideration whether the Land  

Acquisition Act of 1894should be  

followed and reference to the Courts  

allowed.   

5. The third portion of the Bill deals  

with excavations and gives power to make  

rules to prohibit or regulate such  

operations.   

6. The general power to make rules is  

given by clause 22 (now section 23), and  

clause 23 (now section 24) is intended  

to protect acts done or in good faith  

intended to be done, under the law which  

it is now proposed to enact"        

22.  Section 2, inter alia, provides as follows:-  

“2. DEFINITIONS - In this Act, unless there  

is anything repugnant in the subject or  

context,-  

(1) "ancient monument" means any structure,  

erection or monument, or any tumulus or place  

of interment, or any cave, rock-sculpture,  

inscription or monolith, which is of  

historical, archaeological or artistic

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interest, or any remains thereof, and includes-  

  (a) the site of an ancient monument;  

  (b) such portion of land adjoining the site  

of an ancient monument as may required for  

fencing or covering in or otherwise preserving  

such monument; and  

  (c) the means of access to and convenient  

inspection of an ancient monument;  

(2) "antiquities" include any moveable objects  

which[the Central Government], by reason of  

their historical or archaeological  

associations, may think it necessary to protect  

against injury, removal or dispersion;  

(3)”Commissioner” includes any officer  

authorized by the [Central Government] to  

perform the duties of a Commissioner under this  

Act;  

(4)”maintain” and “maintenance” include the  

fencing, covering in, repairing, restoring and  

cleansing of a protected monument, and the  

doing of 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.

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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 officer.”  

24.  Section 22 reads as follows:-  

“22. Jurisdiction – A Magistrate of the third  

class shall not have jurisdiction to try any  

person charged with an offence against this  

Act.”  

25.  It may be noticed that the Antiquity (Export  

Control) Act, 1947 came into force.  The said Act has  

been repealed by the Antiquities Act but we will refer  

to certain provisions contained in the Act in  

connection with one of the contentions of the  

appellant.

25  

26.  It is thereafter that the Ancient Monuments and  

Archaeological Sites and Remains Act, 1958 which is  

another enactment specifically enumerated in Section 30  

of the Act in question came to be enacted.   

27.  The statement of objects and reasons would  

indicate, inter alia, that the Ancient Monuments  

Preservation Act, 1904 and the Ancient and Historical  

Monuments and Archaeological Sites and Remains  

(Declaration of National Importance) Act, 1951, were  

two Acts in force relating to ancient monuments.   

It is further stated as follows :  

“While the Constitution has  

distributed the subject-matter under  

three different heads the Act of 1904  

governs all ancient monuments whether  

falling the Central field or the State  

field, and vests all executive power in  

the Central Government.  The position of  

the existing law relating to ancient  

monuments is far from satisfactory.  The  

present Bill purports to be a self-

contained law at the Centre which will  

apply exclusively to ancient monument,  

etc. of national importance falling  

under Entry 67 of List 1 and to  

archaeological sites and remains falling  

under Entry 40 in the Concurrent List.  

26  

Simultaneously, the State Governments  

would be advised to enact a similar law  

in respect of ancient monument etc.,  

falling under Entry 12 in the State  

List.  In this manner, the Central and  

State fields will be clearly demarcated  

and the existing confusion and  

overlapping of jurisdiction arising from  

the Act of 1904 will be eliminated.”        

28.  Section 2(b) defines antiquity in similar terms  

as antiquity has been defined under the Antiquities  

Act.  The two differences are as follows:  

The word “painting” is also included in the Act in  

question before us, whereas the word “painting” was  

not included specifically in the first part of the  

definition.  Besides the same the definition did not  

contain the words in Clause 2 which deals with  

manuscript, record or other documents as it is  

contained 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

27  

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  

apprehends that any antiquity mentioned in a  

notification issued under sub-section (1) of  

section 25 is in danger of being destroyed,  

removed, injured, misused or allowed to fall  

into decay or is of opinion that, by reason of  

its historical or archaeological importance, it  

is desirable to preserve such antiquity in a  

public place, the Central Government may make  

an order for the [compulsory acquisition of  

such antiquity] and the Collector shall  

thereupon give notice to the owner of the  

antiquity [to be acquired].   

(2) Where a notice of [compulsory  

acquisition] is issued under sub-section (1) in  

respect of any antiquity, such antiquity shall  

vest in the Central Government with effect from  

the date of the notice.  

28  

(3) The power of [compulsory acquisition]  

given by this section shall not extend to any  

image or symbol actually used for bona fide  

religious observances.”   

29.  Section 30 provides for penalties and it reads  

as follows :  

“30. Penalties.- (1) Whoever—   

(i) destroys, removes, injures, alters,  

defaces, imperils or misuses a protected  

monument, or   

(ii) being the owner or occupier of a protected  

monument, contravenes an order made under  

subsection (1) of section 9 or under sub-

section (1) of section 10, or  

(iii) removes from a protected monument any  

sculpture, carving, image, bas-relief,  

inscription, or other like object, or   

(iv) does any act in contravention of sub-

section(1) of section 19, shall be punishable  

with [imprisonment which may extend to two  

years], or with  [fine which may extend to one  

lakh rupees], or with both.  

(2) Any person who moves any antiquity in  

contravention of a notification issued under  

sub-section (1) of           section 25 shall  

be punishable with [imprisonment which may  

extend to two years or with fine which may  

extend to one lakh rupees or with both] and the  

Court convicting a person of any such  

contravention may by order direct such person  

to restore the antiquity to the place from  

which it was moved.”  

      (Emphasis supplied)  

29  

30.  Section 39 is a repealing provision and it  

reads thus:  

“39. Repeals and saving.- (1) The Ancient and  

Historical Monuments and Archaeological Sites  

and Remains (Declaration of National  

Importance) Act, 1951 (71 of 1951), and section  

126 of the States Reorganisation Act, 1956 (37  

of 1956), are hereby repealed.   

(2) The Ancient Monuments Preservation Act,  

1904 (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

30  

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 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

31  

antiquity is the historical or archaeological value  

which is associated with the object.   

36.  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 treasures being human work of art which are not  

antiquities but which become art treasures by way of  

notification declaring them to be art treasures are  

also dealt with.  One of the questions to be answered  

before the principle of ejusdem generis is applied is  

whether the genus is already exhaustively enumerated in  

the specified categories.  See in this regard the

32  

following discussion in Principles of Statutory  

Interpretation by Justice G.P. Singh (page 512):  

“…If the preceding words do not  

constitute mere specifications of a  

genus but constitute description of a  

complete genus, the rule has no  

application.  In a policy of insurance,  

the insurance were given as option to  

terminate the policy if they so desired  

`by reason of such change or from any  

other cause whatever’; the words `by  

reason of such change’ in the context  

referred to any and every act done to  

the insured property whereby the risk of  

fire was increased; the Privy Council in  

these circumstances refused to construe  

the words `or from any other cause  

whatever’ by the rule of ejusdem  

generis. Lord Watson said: “In the  

present case, there appears no room for  

its application.  The antecedent clause  

does not contain a mere specification of  

particulars but the description of a  

complete genus…”   

37.  But the aforesaid principle may not have  

application as after enumerating enactments which we  

have already held constituted one genus there is  

nothing to indicate 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

33  

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

34  

that the said legislation also deals with antiquities  

as it deals with cognate subjects namely ancient  

monuments and archaeological sites.  The common genus  

is manifest.  The legislative intention was to declare  

that the Antiquities Act should not result in the  

provision contained in allied or cognate laws being  

overridden upon passing of the Antiquity Act.  Full  

play was intended for the provisions contained in  

relation to antiquities contained in the two  

engagements.  Despite the passage of the Antiquity Act,  

a prosecution for instance would be maintainable if a  

case is otherwise made out under the two enactments in  

relation to antiquity.  The Antiquities Act in other  

words is not to be in derogation of those provisions.   

They were to supplement the existing laws.  It is  

therefore in the same context that we should understand  

the words ‘any other law for the time being in force’.   

For instance, there may be laws made by the State  

legislatures which relate to antiquity.  There may be  

any other law which deal with a subject with a common  

genus of which the specific law would be an integral

35  

part.  It is all such laws which legislature intended  

to comprehend within the expression ‘any other law for  

the time being in force’.  Take for example, a case  

where there is a theft of an antiquity. Can it be said  

that the prosecution under Section 379 of the IPC would  

not be maintainable.  The answer will be an emphatic  

No.  Certainly, the prosecution will lie.  The Sale of  

Goods Act which relate to movable items generally will  

be applicable, to the extent that it is not covered by  

any provision in the Acts in question.  The Contract  

Act may continue to applicable.  But it is not the  

question of applying general laws that engage the  

attention of the legislature.  The intention behind  

Section 30 was as noted is to provide for any other law  

which deal with antiquity to continue to have force and  

declare its enforceability even after passing of the  

Antiquity Act. In that view of the matter we are of the  

view that the words ‘any other law for the time being  

in force’ must be construed as ejusdem generis.  

36  

39.  More importantly, a wider import may be  

negatived by other evidence available in the Act  

itself.  

40.  Section 4 of the Antiquities Act, it must be  

remembered, has already provided for the applicability  

of the Customs Act in the manner which we have already  

explained.  In other words, the Customs Act is  

applicable subject to two qualifications.  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

37  

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  

Section 25 as it stands, if we were to accept the  

argument of the learned Additional Solicitor General  

that the Customs Act must be also included as ‘any  

other law for the time being in force’ under Section 30  

and therefore we are persuaded to hold that the  

Antiquity Act is in addition and not in derogation of  

the Customs Act 1962 the result will be as follows :

38  

The Customs Act will apply with all force and  

what would be the effect of such application on  

Section 4 of the Antiquities Act?  On the one hand  

Section 4 declares that the Customs Act will apply  

except where it is in consistent with the  

Antiquities Act.  The Antiquities Act will,  

therefore, prevail over the Customs Act in case of  

an inconsistency. So also there is a modified  

application of the Customs Act qua Section 125  

thereof.  The application of Customs Act through  

the mechanism provided under Section 30 of the Act  

will thus bring it into conflict with the Section  

4 of the Act and this in our view certainly would  

not have been the legislative intention.  Equally  

as we have noted that legislature has taken care  

to provide for the saving of powers to impose  

penalties and order confiscation despite the  

prosecution under Section 25 of the Antiquities  

Act. In view of the clear provisions contained in  

the Act, we are of the view that the word “any

39  

other law” in Section 30 of the Antiquities Act,  

would not include the Customs Act, 1962.  

42.  The next question, is whether prosecution under  

Sections 132 and 135(1)(a) of the Customs Act, 1962 is  

permitted under Section 4 of the Antiquities Act and  

what is the impact of Sections 25 and 26 of the  

Antiquities Act.  Before we examine the relevant  

provisions of the Customs Act, we may advert to a few  

decisions about the maintainability of more than one  

prosecution.     

43.  In Shiv Dutt Rai Fateh Chand & Ors. Vs. Union  

of India & Anr., 1983 (3) SCC 529, the matter arose  

under the Central Sales Tax Act, 1956.  We think it  

appropriate to advert to paragraphs 25 and 26 which  

read as follows:  

25. The contention of the petitioners is that  

any act or omission which is considered to be  

a default under the Act for which penalty is  

leviable is an offence, that such act or  

omission was not an offence and no penalty

44  

“40.8 In Monica Bedi v. State of A.P.;2011  

(1) SCC 284, this Court considered the  

meaning of the expression “same offence”  

employed in Article 20(2) and observed that  

second prosecution and conviction must be for  

the same offence. If the offences are  

distinct, there is no question of the rule as  

to double jeopardy being applicable. This  

Court has observed thus: (SCC pp. 293 & 295,  

paras 26 & 29)  

“26. What is the meaning of the expression  

used in Article 20(2) “for the same offence”?  

What is prohibited under Article 20(2) is,  

that the second prosecution and conviction  

must be for the same offence. If the offences  

are distinct, there is no question of the  

rule as to double jeopardy being applicable.   

29. It is thus clear that the same facts  

may rise to different prosecutions and  

punishment and in such an event the  

protection afforded by Article 20(2) is not  

available. 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.  

45  

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 jeopardy is based on a  

maxim nemo debet bis vexari pro una et eadem  

causa, which means no man shall be put in  

jeopardy twice for one and the same offence.  

Article 20 of the Constitution provides that  

no person shall be prosecuted or punished for  

the offence more than once. However, it is  

also settled that a subsequent trial or a  

prosecution and punishment has no bar if the  

ingredients of the two offence are distinct.”  

47.  Now let us examine the scheme of the Customs  

Act, 1962.  

48  

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 class of goods or description in which case  

it would become specified goods for which there are  

separate restrictions contained in Section 11J, 11K and  

11M.  Section 11N falling under Chapter IVC provides  

the Central government with power to exempt.  It reads  

as follows:  

“11N. Power to exempt.- If the Central  

Government is satisfied that it is  

necessary in the public interest so to  

do, it may, by notification in the  

Official Gazette, exempt generally,  

either absolutely or subject to such  

conditions as may be specified in the  

notification, goods of any class or  

description from all or any of the  

provisions of chapter IVA or Chapter  

IVB.”  

49  

49.  There are various provisions which relate to  

levy of duty, assessment of duty, remission of duty  

etc. with which we need not be detained.  Section 39 of  

the Customs Act provides that the master of a vessel  

shall not permit the loading of any export goods, other  

than baggage and mail bags, until an order has been  

given by the proper officer granting entry-outwards to  

such vessel.  Section 40 of the Customs Act  

contemplates that export goods are not be loaded unless  

duly passed by the proper officer.  Section 50 deals  

with the procedure for clearance of export goods.  Sub-

section (2) & (3) of Section 50 reads as follows:  

“50. (2) The exporter of any goods, while  

presenting a shipping bill or bill of  

export, shall make and subscribe to a  

declaration as to the truth of its  

contents.  

(3) The exporter who presents  a shipping  

bill or bill of export under this section  

shall ensure the following, namely:-  

(a) the accuracy and completeness of the  

information given therein;

50  

(b) the authenticity and validity of any  

document supporting it; and  

(c) compliance with the restriction or  

prohibition, if any, relating to the  

goods under this Act or under any  

other law for the time being in  

force.”  

50.  Chapter XIII containing Section 100 to 110A  

provides for searches, seizure and arrest.  Section 100  

deals with power to search suspected persons entering  

or leaving India, etc.  Section 103 provides power to  

screen or X-ray bodies of suspected persons for  

detecting secreted goods.  Section 104 confers the  

power to arrest by an officer of the Customs empowered  

in this regard.  Section 108 which is subject matter of  

many judgments of courts provides for power to summon a  

person to give evidence and produce documents.  

51.  Chapter XIV has the chapter heading  

“Confiscation of Goods and Conveyances and Imposition

51  

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.  

58  

“5. Penalty and Procedure.- (1) If any person  

exports or attempts to export an antiquity in  

contravention of Section 3, he shall, without  

prejudice to any confiscation or penalty to  

which he may be liable under the provisions of  

the Sea Customs Act, 1878, as applied by  

Section 4, be punishable with imprisonment for  

a term which may extend to one month, or with  

fine which may extend to five thousand rupees,  

or with both.  

(2) No Court shall take cognizance of an  

offence punishable under this section except  

upon complaint in writing made by an officer  

generally or specially authorised in this  

behalf by the Central Government, and no Court  

inferior to that of a Presidency Magistrate or  

a Magistrate of the first class shall try any  

such offence.”  

60.  Under Section 4 of the 1947 Act, all  

antiquities, the export of which is prohibited under  

Section 3 were to be deemed as goods which were  

prohibited Section 19 of the Sea Customs Act where all  

the provisions of the Sea Customs Act were to have  

effect except Section 183 which correspond to Section  

125 of the present customs Act.  Section 19 of the Sea  

Customs Act, 1878 read as follows:  

“19. The Central Government may from time to  

time, by notification in the Official Gazette,  

prohibit or restrict the bringing or taking by  

sea or by land goods of any specified  

description into or out of India across any

59  

customs frontier as defined by the Central  

Government.”  

61.  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

60  

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 167 of the Sea Customs Act, penalty  

in the sense of monetary exaction, confiscation, or  

both and lastly imprisonment and/or fine were all  

classified under common heading ‘penalties’.  

63.  In fact, we find that this Court in the  

Assistant Collector of Customs, Calcutta vs. Sitaram  

Agarwala and Another  AIR 1966 SC 955 considered the  

scheme of Sea Customs Act, 1878 as contained in  

Section 167.  Section 167 (8) contemplated the levy  

of penalty by way of liability to confiscation and  

penalty of three times not exceeding the value of  

goods or not exceeding one thousand rupees.  The

61  

Court contrasted the said provision with Section 167  

(81).  The provision read as follows:  

Offences Section of  

this Act to  

which  

offence has  

reference  

Penalties  

"(81). If any person knowingly, and  

with intent to defraud the  

Government of any duty payable   

thereon, or to evade any  

prohibition or restriction for the  

time being in force under or by      

virtue of this Act with respect       

thereto acquires possession of,  

or is in any way concerned in  

carrying, removing, depositing,  

harbouring, keeping or concealing or  

in any manner dealing with any goods  

which have been unlawfully removed  

from a warehouse or which are  

chargeable with a duty which has not  

been paid or with respect to the  

importation or exportation of which  

any prohibition or restriction is  

for the time being in force as  

aforesaid; or  

If any person is in relation to any  

goods in any way knowingly concerned  

in any fraudulent evasion or attempt  

at evasion of any duty chargeable  

thereon or of any such prohibition  

or restriction as aforesaid or of  

any provision of this Act applicable  

to those goods,”  

General such person shall on  

conviction before a  

Magistrate be liable to  

imprisonment for any  

terms not exceeding two  

years or to fine or to  

both;  

The penalty provided in Column III for the same was  

that on confiscation before a Magistrate he will be  

liable to imprisonment for a term not exceeding two

62  

years or to fine or both.  This is what the Court had  

to declare in regard to the aforesaid penalties :  

“Then comes Ch. XVI dealing with offenses and  

penalties. Offence enumerated in Ch. XVI are of  

two kinds; first there are contraventions of  

the Act and rules thereunder which are dealt  

with by Customs officers 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

63  

‘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 embrace within its scope penalty  

by way of imprisonment or fine imposed for the  

commission of a criminal offence after a prosecution  

before the Magistrate.  

64.  We may notice that under the Customs Act  

1962, penalties and confiscation fall under Chapter  

XIV.  Penalties as contained in Chapter XIV would  

correspond to customs offences in the Sea Customs  

Act, 1878.  As far as the criminal offences are  

concerned, they are separately dealt with under  

Chapter XVI.  Yet the legislature has, in fact,  

chosen to repeat the word ‘confiscation and penalty’  

when it drafted Section 25 of the Antiquities Act.   

65.  There are two submissions we need to address  

which are made on behalf of the appellant.  By virtue  

of Section 4, all the provisions of the Customs Act

64  

except to the extent of inconsistency is provided full  

play.  By virtue of the same prosecution under Sections  

132 and 135 would lie provided that the ingredients of  

the offence contained in Sections 132 and 135 are found  

to exist.  The second submission is even the word  

‘penalty’ which is contained in Section 25 should be  

interpreted in a broader sense so as to encompass  

prosecution as contemplated under Sections 132 and 135  

of the Customs Act besides the penalty in the form of  

monetary exaction.   

66.  In order to arrive at an appropriate conclusion  

in this regard we must cull out the ingredients of the  

offences under Sections 132 and 135 of the Act.  The  

ingredients of Section 132 are as follows:  

1) Making, signing or using or causing to  

be made, signed or used any  

declaration statement or document;  

2) The aforesaid act must be in  

transaction of any business relating  

to the customs;

65  

3) The acts mentioned above must be done  

with the knowledge or having reason to  

believe that such a declaration  

statement or document is false in any  

material particular.  

If we contrast Section 132 of the Customs Act with  

Section 25 of the Act, it will be seen that the offence  

under Section 25 of the Antiquity Act lies in exporting  

or attempting to export any antiquity or art treasure  

by violating Section 3 of the Act.  When a person  

exports or attempt to export an antiquity it is but  

essential that he would be having a transaction with  

relation to the customs.  If in his transaction with  

the customs in regard to export or attempted export of  

any antiquity or art treasure he does any of the acts  

contained in Section 132 of the 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

66  

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 Sections 25 and 26  

of the Antiquities Act as Antiquities Act would  

certainly be inter alia a law for the time being in

67  

force within the meaning of Section 50(3)(c).   

Certainly, such provisions are complementary and not  

antithetical to or inconsistent with Section 25 of the  

Antiquities Act.  If an exporter gives a false  

declaration or information, should not the law  

effectively deal with him?   Section 132 does precisely  

that by making false declaration as provided therein  

punishable.  It is inconceivable as to how such a  

provision namely Section 132 would be inconsistent with  

Section 25 or 26 of the Antiquities Act.  It is to be  

noted at any rate that Section 25 apart from providing  

for prosecution for the export or attempted export,  

declares that the person concerned can be visited with  

a confiscation proceedings and penalty. Even accepting  

the contention of the respondent that what is permitted  

under Section 25 is imposition of penalty in the sense  

of monetary exaction, it is to be noted this is in  

connection with the prosecution for the offence under  

Section 25 read with Section 3 of the Antiquities Act.   

In other words, when there is a prosecution under  

Section 25 of the Antiquities Act, it will not bar the

68  

imposition of confiscation and penalty in the form of  

monetary exaction but that does not mean that  

prosecution for a distinct and separate offence as  

contained in Section 132 of the Customs Act is in any  

way prohibited as being inconsistent with Section 25.   

In this regard though for prosecution under the Customs  

Act the sanctioning authority is different from the  

authority to sanction prosecution under the Antiquities  

Act, the authority to sanction prosecution under  

Section 26 is only qua the offence under Section 25 of  

the Antiquities Act.  The authority competent to  

sanction prosecution under the Customs Act is the  

exclusive authority to countenance prosecution for  

offences under the Customs Act. So, there can be no  

conflict if a prosecution under Section 132 of the  

Customs Act is maintained after proper sanction by the  

competent authority under the Customs Act.  It would  

not in any way violate either Section 25 or Section 26  

of the Act.  

69  

68.  Section 133 deals with obstruction of officers  

of custom.  It provides that if any person obstructs  

any person of the customs in exercise of the power  

under the Act he is liable for punishment. Section 134  

penalizes 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.  

70  

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 Act.  The respondent had stated  

that he was only a commission agent and he had  

prepared a declaration as given by his client Mr.  

Robert Jaeger. There are other allegations. It is  

finally stated further as follows:  

“……….  

m. From the aforementioned facts,  

it is clear that the accused, attempted  

to export the seized antique piece.   

I.e. Sand Stone Head of Buddha illegally  

as elaborated below :

71  

(i) The accused used a  fictitious name viz. Mr.  

Robert Jaeger to book the  

antique piece in his name  

for `whom he failed to  

provide any  

identification  

particulars/ reference  

details.  He also failed  

to produce any evidence  

to prove that the said  

antique piece was handed  

over to him by the said  

Robert Jaeger.  In fact,  

had Mr. Robert Jaeger  

existed in reality the  

accused would have  

obtained a receipt from  

him showing the purchase  

of the seized antique  

piece and also he would  

have obtained as  

encashment certificate  

from him which he failed  

to obtain/ produce-the  

accused also did not  

obtain any written  

authority/ declaration  

from the said Mr. Robert  

Jaeger authorising him to  

export the parcel on his  

behalf.     

(ii) The accused himself/  prepared the false  

proforma Invoice in his  

own handwriting and  

signed the declaration on  

the proforma invoice and  

also signed the airway  

bill knowingly that the

72  

said piece was an  

antique.  

(iii) The ace used deliberately  and knowingly concealed  

the facts and issued a  

false certificate to the  

effect that the Sand  

Stone Head of Buddha was  

new and a non-antiquity.         

n. Export, of the Antiquities is  

prohibited until and unless authorised  

by the Central Govt. by (virtue of  

Section 3 of the Antiquities & Art:  

Treasures Act, 1962 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 para 123 (Chapter  

xi) of the export and Import policy  

1992-97 (which is deemed to be issued  

under Section 5 of the Foreign Trade  

(Development & Regulation) Act, 1992)  

specifically prohibits the export of  

goods, which are restricted under any  

other law for the time being in  

force.”  

70.  Under Section 26 of the Act, a prosecution  

under Section 25(1) can be instituted only by or with  

the sanction of an officer of the Government as  

prescribed in this behalf.  The antiquities and Art  

Treasure Rules 1973 came to be published on 31st August

73  

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

74  

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 export of goods which are  

restricted under any law for the time being in force.  

Thereafter, what follows is crucial: -  

“4. The accused did not declare the  

recovered and seized antiquity as  

required under Section 50 of the  

Customs Act, 1962 and was knowingly  

concerned in fraudulent evasion/  

attempt at evasion of the prohibitions  

imposed on the export of the above  

said recovered and seized antiquity.   

The accused has, thus, committed  

offences punishable under Sections 132  

and 135 (1)(a) of the Customs Act,  

1962.”   

Thus, the prosecution is maintained under Sections 132  

and 135(1)(a) of the Customs Act, 1962.  

73.   Section 3 of the Foreign Trade (Development and  

Regulation) Act, 1992 reads as follows: -

76  

which any order under sub-section (2) applies are to be  

deemed as goods the import and export of which is  

prohibited 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.   

77  

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 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.  

76.  In the last limb of Section 135(1)(a) of the  

Customs Act, 1962, the ingredients of the offence are  

the fraudulent evasion or attempt at evading any  

prohibition for the time being imposed under the  

Customs Act or under any other law for the time being  

in force with respect to such goods. On the basis of  

the Import-Export Policy for the year 1992-1997 which  

we have referred to in para 123 thereof read with  

Section 3 of The Foreign Trade (Development and  

Regulation) Act, 1992, the restriction as to export  

of antiquities is deemed to be issued under Section  

11 of the Customs Act, 1962. Therefore, the export of

78  

antiquity and art treasures became prohibited by the  

deeming provisions of Section 3(3) of The Foreign  

Trade (Development and Regulation) Act, 1992 under  

Section 11 of the Customs Act, 1962. Section  

135(1)(a), in so far as, the prosecution is concerned  

under the third limb can be said to be under Section  

11 of the Customs Act read with Section 135(1)(a) no  

doubt with the aid of Section 3(1) of the Antiquities  

Act also. It would make it a case of prosecution for  

fraudulently evading or attempting to evade a  

prohibition contained in the Customs Act, 1962 though  

invoking Section (3) of the Antiquities Act also. The  

second part of the last limb of Section 135(1)(a)  

permits prosecution for fraudulent evasion or attempt  

to evade the prohibition contained in any other law  

for the time being in force. The said prohibition in  

the facts of this case would attract the prohibition  

contained in Section 3 of the Antiquities Act. It may  

be noted that as far as a prosecution under Section  

25 of the Antiquities Act read with Section 3 of the  

said Act is concerned, the ingredients of the offence

79  

consist of exporting or attempting to export  

antiquities or art treasures. In contrast to the  

same, the ingredients of the offence under Section  

135(1)(a) contains an additional and different  

element, namely, fraudulently evading or attempting  

to evade the prohibition in the matter of exporting  

the goods or attempting to export the goods which are  

prohibited. Be it on the basis of deemed prohibition  

under Section 11 of the Customs Act or on the basis  

of prohibition contained in Section 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.  

80  

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.   

78.  The last aspect which may be necessary to  

notice, the provision of Section 24 of the Antiquities  

Act. Section 24 deals with the power to decide whether  

an article is an antiquity or art treasure. It declares

81  

that if any question arises whether under any article,  

object or thing or manuscript record or other document  

is or is not an antiquity or art treasure or is or is  

not an art treasure, the matter must be referred to the  

Director General of Archaeological Survey of India or to  

an officer not below the rank of Director authorized by  

the Director General and his decision for the purpose  

of the Act on such question shall be final. Section 24  

makes a declaration about the decision of the named  

authorities being final for the purposes of this Act. A  

perusal of the complaint, in fact, would show that  

there is a case for the appellant that they have got  

stone head of Buddha examined and there is an opinion  

by authorized nominee of the Director General of  

Archaeological Survey of India, finding it to be an  

antiquity and on the basis of request made by the  

appellant officers and reference has been made  

specifically to Section 24 of the Antiquities Act.   

Section 24 as noticed confers power on the Director  

General or his authorized nominee to determine the  

question as to whether the articles etc. is an

82  

antiquity or not or an art treasure or not. This  

determination which is to be treated as final is for  

the purposes of the Act. Undoubtedly, one of the  

purposes of the Act would be a prosecution under  

Section 25 of the Act. In this case, the case of the  

appellant is that the prosecution is under Sections 132  

and 135(1)(a) of the Customs Act, 1962. Whether it is  

necessary for the Customs Authorities to procure the  

opinion of the Director General of Archaeological  

Survey of India or his authorized officer for a  

prosecution under the Customs Act?   

79.  We have noticed the contents of the complaint.  

There is undoubtedly reference to the prohibition  

contained against export of antiquity, inter alia,  

under the Antiquities Act.  Under Section 4 of the  

Antiquities Act, the Customs Act has been made  

applicable except to the extent of the inconsistency.  

The inter play between two enactments, can be  

understood as follows – while the prosecution under the  

Customs Act in regard to the Antiquity or art treasure

83  

may be permissible, when a question arises as to  

whether an article 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

84  

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.  This is no doubt subject to  

sub-Article (2). The said Article being a  

constitutional provision dealing with the complex  

subject of the quasi federal structure we have in India  

in part may not be entirely apposite for interpreting  

the provision of Section 4 which speaks about  

inconsistency between the Customs Act, 1962 and the  

Antiquities Act.  However, we may only refer to a  

Constitution Bench judgment of this Court in K.  

Karunanidhi vs. Union of India and Another  1979 (3)  

SCC 431.  This Court proceeded to hold that the Tamil  

Nadu Men (Criminal Misconduct) Act, 1973 was not  

repugnant to the Indian Penal Code, Prevention of  

Corruption Act and Criminal Law (Amendment) Act, 1952  

and it was in addition to and not in derogation of any  

law in force.  The Court inter alia held in paragraph  

24 as follows:

88  

84.  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 principle that a transaction  

or the same set of facts can give rise to more than one  

distinct offence provided the legislative intention in  

this regard is clear from the provisions which creates  

such offences cannot be lost sight of.    

85.  The upshot of the above discussion is as  

follows:- Prosecution under Sections 132 and 135(1)(a)  

of the Customs Act, 1962, is not barred in regard to  

the antiquities or art treasures. Accordingly, we allow

89  

the appeal and set aside the impugned order. The  

complaint filed may be proceeded with as per law.  

However, we make it very clear that pronouncement of  

this order shall not come in the way of the Court  

deciding the matter on its merits. The Court will  

proceed to consider the matter on its own and shall not  

be influenced by any observation which may have been  

made in this order regarding merits.   

…………………………….J.                                               (Ashok Bhushan)    

…………………………J.                                                  (K.M. Joseph)    

New Delhi;  February 27, 2019