SC: The interplay b/w “Customs Act” and “Antiquities & Art Treasures Act”

On 27th February 2019, in the matter of Department of Customs v. Sharad Gandhi, The Hon’ble Supreme Court pronounced that a prosecution under Section 25 of the Antiquities and Art Treasures Act, 1972 will not bar the imposition of confiscation and penalty in the form of monetary exaction. However, this doesn’t 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. Therefore, a prosecution under Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barred in regard to the antiquities or art treasures.

The Hon’ble Supreme Court, among other things observed that:  

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. (Para 17)

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 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 i.e. the Customs Act, 1962 and the Antiquities and Art Treasures Act, 1972 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. (Para 17)

The only area where the Antiquities and Art Treasures Act, 1972 tabooed the application of the Customs Act is where the Act contains provisions which were irreconcilable being inconsistent with the Antiquities Act. (Para 17)

Equally, the Antiquities and Art Treasures Act, 1972 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. (Para 17)

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. (Para 17)

Still further the legislative light is shone by the words used in Section 25 of the Antiquities and Art Treasures Act, 1972. 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. (Para 18)

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. (Para 36)

Though in Section 30 of the Antiquities and Art Treasures Act, 1972, 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 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. (Para 38)

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 part. It is all such laws which legislature intended to comprehend within the expression ‘any other law for the time being in force’. The intention behind Section 30 of the Antiquities and Art Treasures Act, 1972 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. Therefore, the words ‘any other law for the time being in force’ must be construed as ejusdem generis. (Para 38)

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. (Para 40)

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 Antiquities and Art Treasures Act, 1972. (Para 41)

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. (Para 41)

The words “any other law” in Section 30 of the Antiquities Act, would not include the Customs Act, 1962. (Para 41)

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 can not be said that he is being prosecuted for the same offence as contained in Section 3 read with Section 25 of the Antiquity Act. (Para 66)

Quite clearly the ingredients of Section 25 of the Antiquities and Art Treasures Act, 1972  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. (Para 66)

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 under the Customs Act. It would not in any way violate either Section 25 or Section 26 of the Act. (Para 67)

The ingredients of the offences under Section 135(1)(a) of the Customs Act, 1962 and the offence under Section 3 read with Section 25 of the Antiquities Act are different and distinct. (Para 76)

The inter play between two enactments i.e. the “Customs Act, 1962” and the “Antiquities and Art Treasures Act, 1972”, 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. (Para 79)

While it may be true that the Antiquities Act is a comprehensive law, it cannot be treated as a complete or exhaustive code. (Para 83)

Prosecution under Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barred in regard to the antiquities or art treasures. (Para 85)

Copy of judgement: Judgement_27-Feb-2019

-Tushar Kaushik

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