Department of Customs vs Sharad Gandhi

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 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.

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 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 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 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 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 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 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 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 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.