# DEPARTMENT OF CUSTOMS v. SHARAD GANDHI

- **Citation:** [2019] 4 S.C.R. 273
- **Court:** Supreme Court of India
- **Decided:** 2019-02-27
- **Case number:** Criminal Appeal No. 174 of 2019
- **Bench:** Ashok Bhushan, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/department-of-customs-v-sharad-gandhi-33639
- **Pages:** 58

## Headnote

Customs Act, 1962: ss.132 and 135(1)(a) - Prosecution under,
in regard to the antiquities or art treasures - Held: Prosecution
under ss.132 and 135(1)(a) of the Customs Act, 1962, is not barred
in regard to the antiquities or art treasures - Antiquities and Art
Treasures Act, 1972.
Antiquities and Art Treasures Act, 1972: s.30 - Whether the
words 'any law in force' must be construed ejusdem generis with
the two laws indicated in s.30 namely, the Ancient Monuments
Preservation Act, 1904 and the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 - Held: The 1904 Act
and the 1958 Act indicate a one common genus - It is, inextricably
intertwined with the heritage and history of the nation - These two
enactments which are specifically embodied in s.30 are followed by
general words which allow the application of the principle of ejusdem
generis - For the said reason, the words "any other law for the time
being in force" are employed - The intention behind s.30 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
Antiquities Act - The applicability of Customs Act through the
mechanism provided under s.30 would bring it into conflict with s.4
of the Act and this certainly would not be the legislative intention -
The words 'any other law' in s.30 would not include Customs Act -
Doctrines/Principles - Principle of ejusdem generis - Interpretation
of statutes - Ancient Monuments Preservation Act, 1904 - Ancient
Monuments and Archaeological Sites and Remains Act, 1958.
Doctrines/Principles: Principle of ejusdem generis -
Applicability of - Held: In order to apply the principle of ejusdem
generis, the court must find the existence of enumerated things before
general words - In other words, specified categories must have a
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common golden thread of commonality running through them -
Antiquities and Art Treasures Act, 1972 - s.30.
Antiquities and Art Treasures Act, 1972: s.4 - Whether having
regard to the mandate of s.4 of the Antiquities Act, the prosecution
under ss.132/135 of the Customs Act for attempting to export
antiquity would be inconsistent with s.25 r/w s.26 of the Antiquities
Act - Held: By virtue of s.4 of Antiquities Act, all the provisions of
the Customs Act except to the extent of inconsistency is provided
full play - By virtue of the same, prosecution under ss.132 and 135
would lie provided that the ingredients of the offence contained in
ss.132 and 135 are found to exist - 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 s.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 s.25 or s.26 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 s.132 of the
Customs Act, it cannot be said that he is being prosecuted for the
same offence as contained in s.3 r/w s.25 of the Antiquities Act -
The ingredients of s.25 of the Act and s.132 of the Customs Act are
distinct and different from one another - Constitution of India -
Art.254 - Customs Act, 1962 - ss.132 and 135 - Foreign Trade
(Development & Regulation) Act 1992 - ss.3 and 5.
Antiquities and Art Treasures Act, 1972: Legislative intent of
enactment - Discussed.
Ancient Monument Preservation Act, 1904: Legislative intent
of enactment - Discussed.
Ancient Monument and Archeological Site and Remains Act,
1958: Legislative intent of enactment - Discussed.
Constitution of India: Art.254 - Concept of Inconsiste

## Text

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[2019] 4 S.C.R. 273
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DEPARTMENT OF CUSTOMS
v.
SHARAD GANDHI
(Criminal Appeal No. 174 of 2019)
FEBRUARY 27, 2019
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Customs Act, 1962: ss.132 and 135(1)(a) - Prosecution under,
in regard to the antiquities or art treasures - Held: Prosecution
under ss.132 and 135(1)(a) of the Customs Act, 1962, is not barred
in regard to the antiquities or art treasures - Antiquities and Art
Treasures Act, 1972.
Antiquities and Art Treasures Act, 1972: s.30 - Whether the
words 'any law in force' must be construed ejusdem generis with
the two laws indicated in s.30 namely, the Ancient Monuments
Preservation Act, 1904 and the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 - Held: The 1904 Act
and the 1958 Act indicate a one common genus - It is, inextricably
intertwined with the heritage and history of the nation - These two
enactments which are specifically embodied in s.30 are followed by
general words which allow the application of the principle of ejusdem
generis - For the said reason, the words "any other law for the time
being in force" are employed - The intention behind s.30 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
Antiquities Act - The applicability of Customs Act through the
mechanism provided under s.30 would bring it into conflict with s.4
of the Act and this certainly would not be the legislative intention -
The words 'any other law' in s.30 would not include Customs Act -
Doctrines/Principles - Principle of ejusdem generis - Interpretation
of statutes - Ancient Monuments Preservation Act, 1904 - Ancient
Monuments and Archaeological Sites and Remains Act, 1958.
Doctrines/Principles: Principle of ejusdem generis -
Applicability of - Held: In order to apply the principle of ejusdem
generis, the court must find the existence of enumerated things before
general words - In other words, specified categories must have a
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common golden thread of commonality running through them -
Antiquities and Art Treasures Act, 1972 - s.30.
Antiquities and Art Treasures Act, 1972: s.4 - Whether having
regard to the mandate of s.4 of the Antiquities Act, the prosecution
under ss.132/135 of the Customs Act for attempting to export
antiquity would be inconsistent with s.25 r/w s.26 of the Antiquities
Act - Held: By virtue of s.4 of Antiquities Act, all the provisions of
the Customs Act except to the extent of inconsistency is provided
full play - By virtue of the same, prosecution under ss.132 and 135
would lie provided that the ingredients of the offence contained in
ss.132 and 135 are found to exist - 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 s.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 s.25 or s.26 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 s.132 of the
Customs Act, it cannot be said that he is being prosecuted for the
same offence as contained in s.3 r/w s.25 of the Antiquities Act -
The ingredients of s.25 of the Act and s.132 of the Customs Act are
distinct and different from one another - Constitution of India -
Art.254 - Customs Act, 1962 - ss.132 and 135 - Foreign Trade
(Development & Regulation) Act 1992 - ss.3 and 5.
Antiquities and Art Treasures Act, 1972: Legislative intent of
enactment - Discussed.
Ancient Monument Preservation Act, 1904: Legislative intent
of enactment - Discussed.
Ancient Monument and Archeological Site and Remains Act,
1958: Legislative intent of enactment - Discussed.
Constitution of India: Art.254 - Concept of Inconsistency -
Inconsistencies between laws made by Parliament and laws made
by legislatures of the State - Discussed - Antiquities and Art
Treasures Act, 1972.
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Allowing the appeal, the Court
HELD: 1.1 In order to apply the principles of ejusdem
generis, 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. 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 furnish a lucid illustration of the said 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. Accordingly 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. [Para 17][290-D-H]
1.2 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. 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 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
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other law' for the time being in force must admit of a wider
meaning. [Para 18][291-C-F]
1.3 The statement of objects and reasons 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. The 1904 Act
and the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 indicate 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. These two enactments which are specifically embodied
in Section 30 are followed by general words which allow the
application of the principle of ejusdem generis. This is for the
reason that the words "any other law for the time being in force"
are employed. The use of the word "any" preceding the words
"other law" interpreted literally may allow to declare that all laws
in force are intended to apply even after the passing of the
Antiquities Act. [Paras 27, 28, 36, 37][296-H; 297-A; 300-D-E;
301-C-D]
Principles of Statutory Interpretation by Justice G.P.
Singh - referred to
1.4 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. The relevant provisions of the two specific
enactments show 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. The
intention behind Section 30 was 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
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of the matter, the words 'any other law for the time being in force'
must be construed as ejusdem generis. [Para 38][301-E-G;
302-D]
1.5 Section 4 of the Antiquities Act already provided for
the applicability of the Customs Act. 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. The second limitation
on the applicability of the Customs Act is as regards the specific
provisions contained in Section 125 and an option ordinarily made
available under Section 125 is not to be extended as provided in
Section 4 of the Act. Still further legislature has taken care to
incorporate certain aspects under the Customs Act under Section
25. The provision that a prosecution under Section 25 will not
take away the power to confiscate or impose a penalty under the
Customs Act is explicitly provided. It has provided for sanction
for prosecution in Section 26. The legislature was fully conscious
of the extant provisions of the Customs Act when it passed the
Antiquities 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.
The application of Customs Act through the mechanism provided
under Section 30 of the Act will bring it into conflict with the
Section 4 of the Act and this certainly would not have been the
legislative intention. 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.
The word "any other law" in Section 30 of the Antiquities Act,
would not include the Customs Act, 1962. [Paras 40, 41]
[302-G-H; 303-A, D-E]
2. 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. By virtue of Section 4,
all the provisions of the Customs Act 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. Contrasting Section 132 of the Customs Act
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with Section 25 of the Act, it can 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,
it cannot 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 ingredients of Section 25 of the Act and Section 132 of
the Customs Act are distinct and different from one another. It
may be true that it may be the same acts or transaction which
gives rise to the two distinct offences but that may not matter.
[Paras 42, 65, 66][303-F; 318-G-H; 319-D-F]
Bharat Heavy Electricals Limited v. Globe Hi-Fabs
Limited (2015) 5 SCC 718; Shiv Dutt Rai Fateh Chand
& Ors. v. Union of India & Anr., (1983) 3 SCC 529 :
[1983] 3 SCR 198; V. K. Agarwal, Assistant Collector
of customs v. Vasantraj Bhagwanji Bhatia And Others
(1988) 3 SCC 467 : [1988] 3 SCR 450; State of
Jharkhand v. Lalu Prasad Yadav (2017) 8 SCC 1 :
[2017] 3 SCR 630; State (NCT of Delhi) v. Sanjay
(2014) 9 SCC 772 : [2014] 9 SCR 1063 - referred to.
3.1 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. At any rate, 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, 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
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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 under the Customs Act. It
would not in any way violate either Section 25 or Section 26 of
the Act. [Para 67] [320-B-G]
3.2 In the instant complaint filed by the appellant, it was
mentioned that one wooden box was intercepted. 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.
The respondent had stated in his statement recorded under
Section 108 of the Customs Act that he was only a commission
agent and he had prepared a declaration as given by his client. It
was finally stated that the accused attempted to export the seized
antique piece i.e. Sand Stone head of Buddha illegally. Section
135(1)(a) of the Customs Act 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. Now, in regard to the last part in
the complaint inter alia there was reference to the export of
antiquity being prohibited under Section 3 of the Antiquities Act,
read with Section 3 of the Foreign Trade (Development &
Regulation) Act 1992 by virtue of which the restrictions are
deemed to be issued under Section 11 of the Customs Act, 1962
issued in paragraph 123 of Chapter XI of the Export And Import
Policy 1992-1997 which is deemed to be issued under Section 5
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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. Thus, the prosecution
is maintained under Sections 132 and 135(1)(a) of the Customs
Act, 1962. [Paras 69, 71, 72][321-C-E; 323-A, C]
3.3 Sub section 3 of Section 3 purports to declare that all
goods to 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. 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. 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. [Paras 74, 75] [324-B-C, E-G]
3.4 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 ImportExport Policy for the year 1992-1997 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 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
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this case would attract the prohibition contained in Section 3 of
the Antiquities Act. 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 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. [Para 76][324-G-H;
325-A-F]
4.1 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. [Para 77][325-G, H]
4.2 Section 24 deals with the power to decide whether an
article is an antiquity or art treasure. It declares 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
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and his decision for the purpose of the Act on such question shall
be final. 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. In 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
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,
full play can be given 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. [Paras 78, 79][326-B-E, G,
H; 327-A-C]
5.1 The concept of 'inconsistency' is found in Article 254
of the Constitution of India. Article 254 has a marginal note which
speaks about inconsistencies between laws made by Parliament
and laws made by legislatures of the State. The Article goes on
to state that if the law made by the State is repugnant to the law
made the Parliament, the law made by the Parliament to the extent
of repugnancy shall prevail. 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
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the Customs Act, 1962 and the Antiquities Act. [Para 80]
[327-C-E]
5.2 While it may be true that the Antiquities Act is a
comprehensive law, it cannot be treated as a complete or
exhaustive code. Of course, the principles relating to repugnancy
have been expounded in the context of conflicting claims to
legislative power between two legislatures. In this case both the
Customs Act 1962 and Antiquities Act have been made by
Parliament. [Para 83][329-D, E]
6. Full play is given to the Customs Act to the extent that it
is not inconsistent with the Antiquities Act as contemplated under
Section 4. 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. Prosecution
under Sections 132 and 135(1)(a) of the Customs Act, 1962, is
not barred in regard to the antiquities or art treasures.
[Paras 84, 85][329-E-H]
K. Karunanidhi v. Union of India and Another (1979)
3 SCC 431 : [1979] 3 SCR 254 - relied on.
Innoventive Industries Limited v. ICICI Bank and
Another (2018) 1 SCC 407 : [2017] 8 SCR 33; Assistant
Collector of Customs, Calcutta v. Sitaram Agarwala and
Another AIR 1966 SC 955 : [1966] SCR 1 - referred
to.
Case Law Reference
(2015) 5 SCC 718
 referred to
Para 15
[1983] 3 SCR 198
 referred to
Para 43
[1988] 3 SCR 450
 referred to
Para 44
[2017] 3 SCR 630
 referred to
Para 45
[2014] 9 SCR 1063
 referred to
Para 46
[1966] SCR 1
 referred to
Para 63
[1979] 3 SCR 254
 relied on
Para 80
[2017] 8 SCR 33
 referred to
Para 82
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
174 of 2019
From the Judgment and Order dated 27.03.2015 of the High Court
of Delhi at New Delhi in Crl. Rev. P. No. 41 of 2006.
Aman Lekhi, ASG, Harish Pandey, Ms. Binu Tamta, B. Krishna
Prasad, Advs. for the Appellant.
Dr. Sushil Balwada, Srilok Nath Rath, Y. P. Singh, Advs. for the
Respondent.
The Judgment of the Court was delivered by
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 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 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
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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.
(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
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI
[K. M. JOSEPH, J.]
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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, 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."
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
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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."
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 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
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI
[K. M. JOSEPH, J.]
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(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, under Section 25 what is permitted under the
Customs Act, is only confiscation and imposition of penalty, the imposition
of penalty is not to bear a narrow connotation as was contemplated by
the High Court. On the other hand, a penalty would include the penal
consequence after a prosecution and such prosecution would include
prosecution under Sections 132 and 135 of the Customs Act.
12. Further, he would complain that the High Court has lost sight
of the true import of Section 30 of the Act. Section 30 as we have
noticed declares that the provisions of the Act shall be in addition to the
specific laws which are mentioned therein but it does not end there. It
also provides that it shall be in addition to any other existing law in force.
He complains that High Court erred in applying the principles of ejusdem
generis, in the interpretation of Section 30 and holding that the Customs
Act will not be an Act which will be embraced within the scope of
Section 30 under the last limb and therefore, it will not be an existing
law.
13. Per contra, 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.
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14. Firstly, we will deal with the contention of the appellant that
the Customs Act is also an existing 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 Limitedv. Globe
Hi-Fabs Limitedreported 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. 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
DEPARTMENT OF CUSTOMS v. SHARAD GANDHI
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do not require restricted meaning to be attached to words of general
import, it becomes the duty of the courts to give those words their
plain and ordinary meaning. As stated by Lord Scarman:
"If the legislative purpose of a statute is such that a statutory
series should be read ejusdem generis, so be it, the rule is helpful.
But, if it is not, the rule is more likely to defeat than to fulfil the
purpose of the statute. The rule like many other rules of statutory
interpretation, is a useful servant but a bad master."
So a narrow construction on the basis of ejusdem generis rule
may have to give way to a broader construction to give effect to
the intention of Parliament by adopting a purposive construction."
17.