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 Ace'). 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. 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 Mt, 1972. Section 3 forbids the export of Antiquities and Art Treasures. It reads as follows:-
641. 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.
Whenever the Central Government or any authority or agency referred to in sub-section (1) linen& 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, as the case may be, on such question shall be final."
7. The next important provision is Section 25. It reads as follows:-
25. (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 time 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 of ficer 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."
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 or prosecution within the meaning of Section 25(I) 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 lie 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, 1 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 Indian or 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") j, what is permissible under the Customs Act, 1962, is only the confiscation proceedings and penalty proceedings. Penalty proceedings have been understood as exaction of amonetary component. The learned Additional Solicitor General takes exception to the reasoning. In other words, it is his contention that even proceeding onto 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 been 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 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 indica ted in Section 30 namely , The Ancient Monuments Preservation Act, 1904 and the Ancient Monumen ts 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 Ili-Fobs 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 asunder: - "10. In construing the words "a claim of set-of f 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 claim of set-of f did not constitute a genus or category .
In that case, Hidayat ullah, 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.7
16. Still flirther we may profitably advert to the statement of law made by this Court in paragraph 12.The same readas 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 Scar man: "If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it, the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many other rules of statutory interpretation, is a useful servant but a bad master ."
So a narrow construction on the basis of ejusdem generis rule may have to give way to a broader construction to: give effect to the intention of Parliament by adopting a purposive construction.
17. The question would be whether the High Court is right in applying the principles of ejusdem generis. In order that it applies, the court must find the existence of enumerated things before general words. In other 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 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 arttreasures, 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 shon e 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 prosecu tion under Section 3 of the Act would not deprive the competent authority under the Customs Act to exercise its power of confiscation or imposition of penalty . The question as to what is meant by the word `penalty' in Section 25(1) is a separate matter which we will advert to at the appropriate juncture. It is thereafter that Section 30 provides that the provisions of the Act are not intended to override the Ancient Monument Preservation Act, 1904 or the Ancient Monument and Archeological Site and Remains Act, 1958 or any other law for the time being in force. The question which we are to ponder upon and decide is whether the expression 'any other law' which is cast in general terms is to be influenced by the company it keeps or the neighbourhood it is found in or is it possible to accept the case of the appellant that the words 'any other law' for the time being in force must admit of a wider meaning. There can be no doubt that the Antiquities Act is a special enactment. We may at this juncture refer to the statement .of objects and reasons of The 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 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 Monumen ts 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 Monume nts Preservation 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 unauthorized 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 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. 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 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 there gards 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 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 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 1894 should 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 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 in cumbrances or not; and
(6) "owner" includes a joint owner invested with power of management on behalf of himself and other joint owners, and any manager or trustee exercising powers of management over an ancient monument, and the successor in title of any such owner and the successor in office of any such manager or trustee: Provided that nothing in this Act shall be deemed to extend the powers which may lawfully be exercised by such manager or trustee.
23. Section 17 deals with the transfer of Antiquities:- "17. Transfer of ownership, etc., of antiquities to be intimated to the registering officer.-- Whenever any person transfers the ownership, control or possession of any antiquity specified in any notification issued under sub-section
(1) of Section 14 such person shall intimate, within such period and in such form as may be prescribed the fact of such transfer to the registering officer."
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.
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. 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: revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.