TaxTMI 
TaxTMI 
2019 (3) TMI 201
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment 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 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntion 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." 8. Section 26 is a companion section of Section 25 and must necessarily be addressed. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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, und....
X X X X Extracts X X X X
X X X X Extracts X X X X
....et-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. 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 permi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reasures, 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 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 r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvation Act, 1904 is as follows: ""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 suit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bject 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ONS - 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 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 pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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) 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)....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 alre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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. 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lties 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 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 was payable under the law in force at the time when it was committed and hence they cannot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ms authorities confiscated Certain goods under the Sea Customs Act there was a prosecution and the order of confiscation constituted a punishment within the meaning of clause (2) of Article 20. Negativing the said plea, this Court observed at SCR pages 738-739: "The very wording of Article 20 and the words used therein:- "convicted", "commission of the act charged as an offence", "be subjected to a penalty", "commission of the offence", "prosecuted and punished", "accused of any offence", would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure." 44. In V.K. Agarwal, Assistant Collector of customs v. Vasantraj Bhagwanji Bhatia And Others 1988 (3) SCC 467, the Court was faced with an acquittal of the accused person under Section 111 and 135 of the Customs Act and yet he was sought to be prosecuted under Section 85 of the Go....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on (1)". There is no manner of doubt that section 403(1) does not come to rescue of the respondents 1 to 3 whereas section 403(2) of the Code clearly concludes the matter against them." 45. In a recent judgment of this Court reported in State of Jharkhand V. Lalu Prasad Yadav 2017 (8) SCC 1 this Court conducted a survey of earlier case law and this is what the court inter alia held: "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 differ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... purposes referred to in sub-section (1) are the following:- (a) the maintenance of the security of India; (b) the maintenance of public order and standards of decency or morality; (c) the prevention of smuggling; (d) the prevention of shortage of goods of any description; (e) the conservation of foreign exchange and the safeguarding or balance of payments; (f) the prevention of injury to the economy of the country by the uncontrolled import or export of gold or silver; (g) the prevention of surplus of any agricultural product or the product of fisheries; (h) the maintenance of standards for the classification, grading or marketing of goods in international trade; (i) the establishment of any industry; (j) the prevention of serious injury to domestic production of goods of any description; (k) the protection of human, animal or plant life or health; (l) the protection of national treasures of artistic, historic or archaeological value; (m) the conservation of exhaustible natural resources; (n) the protection of patents, trade marks and copyrights; ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fficer 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; (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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or section 113, as the case may be; or (c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113; or (d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable, - (i) in the case of an offence relating to,- (A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding thirty lakh of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty excee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmissioner of Customs. (2) No court shall take cognizance of any offence under section 136,- (a) where the offence is alleged to have been committed by an officer of customs not lower in rank than Assistant Commissioner of Customs or Deputy Commissioner of Customs, except with the previous sanction of the Central Government; (b) where the offence is alleged to have been committed by an officer of customs lower in rank than Assistant Commissioner of Customs or Deputy Commissioner of Customs, except with the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs. (3) Any offence under this Chapter may, either before or after the institution of prosecution, be compounded by the Principal Chief Commissioner of Customs or Chief Commissioner of Customs on payment, by the person accused of the offence to the Central Government, of such compounding amount and in such manner of compounding as may be specified by rules. Provided that nothing contained in this sub- section shall apply to- (a) a person who has been allowed to compound once in respect of any offence under sections 135 and 135A; (b) a p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Government, on application to it in such behalf, otherwise directs." 59. Section 5 of the 1947 Act dealt with Penalty and Procedure. It read as follows: "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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 years or to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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; 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat 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 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 unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficial Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods or services or technology: Provided that the provisions of this sub- section shall be applicable, in case of import or export of services or technology, only when the service or technology provider is availing benefits under the foreign trade policy or is dealing with specified services or specified technologies. (3) All goods to which any Order under sub- section (2) applies shall be deemed to be goods the import or export of which has been prohibited under section 11 of the Customs Act, 1962 (52 of 1962) and all the provisions of that Act shall have effect accordingly. (4) without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for impo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iquity 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 consist of exporting or attempting to export antiquities or art treasures. In contrast to the same, the ingr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....here 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 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, int....
X X X X Extracts X X X X
X X X X Extracts X X X X
..........Before any repugnancy can arise, the following conditions must be satisfied:- 1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such an inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. 81. Finally, it summed up with the conclusions in paragraphs 35 which reads as under: "35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:- 1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. 2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. 3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in ....