ORDER
1. The petitioner Dr. V. J. A. Flynn is stated to be the second accused in a complaint case filed by the Custom Officer. He has sought the quashing of the said complaint case No. 91/1/94 pending in the Court of Additional Chief Metropolitan Magistrate, Delhi. The grievance of the petitioner is that said complaint filed under section 135 of the Customs Act, 1962 on the basis of the alleged offence committed under the Antiquities & Art Treasures Act, 1972 (hereinafter called the Antiquities Act) is not maintainable.
2. Briefly the facts leading to the filing of this complaint are that the petitioner alongwith another person named Sadasivan Mudaliar were leaving for Sydney via Hong Kong by Air India Flight on 21st June, 1994. On being intercepted at the Airport, it transpired that in the baggage of the petitioner there were coins which were suspected to be antiquities the export of which is prohibited under Section 3 of the Antiquities Act. Shri V. D. Sharam, Superintending Archaeologist examined these coins and prima facie opined that these were antiquities. He also suggested that these be got examined from the Director General of Archaeological Survey of India as required under Section 24 of the Antiquities Act for final decision. The defense of the petitioner before the Authority was that he had bought these rare coins from a shop located on the ground floor of Hotel Surya, Near Railway Station, Bangalore. He further states that he had been collecting the coins for over 50 years for his own delight and enjoyment. Some of these coins were of copper and sliver. He kept some coins in the house of accused No. 3 at B-9, Pamposh, New Delhi. On search being conducted at the house of accused No. 3, as many as 34149 old metallic coins were recovered. The petitioner admitted that all these coins belonged to him. It is in this background coupled with the fact that there was a prima facie view of the Superintendent, Archaeological Survey of India that coins were antiquity the export of which was banned under section 3 of the said Act, that the Collector of Customs accorded the sanction for prosecution of the petitioner vide his order dated 19th August, 1994. Pursuance to the sanction having been accorded the complaint under section 132, 135(1)(a) and 135-A of the Customs Act, 1962 was filed in the Court on 28th August, 1994. Cognizance on the complaint was taken by the learned Trial Court on the same day. Accused were summoned for 30th August, 1994. Thereafter the case was adjourned for prosecution’s evidence. Statement of the Complainant Shri S. S. Chauhan was recorded and he was partly cross-examined.
3. It is at this stage when the case was pending for the prosecution evidence that present petition was filed seeking quashing of the said complaint. Quashing has been sought, inter alia, on the grounds namely; (i) that the prosecution could only have been launched under the Antiquities Act an not under the Customs Act. Secondly, unless the provisions of Section 24 of the Antiquities Act had been complied with and final report denied from the Director General no prosecution could be launched and finally the sanction by the Collector of Customs is irrelevant so far as the violation or breach of any provision of the Antiquities Act is concerned. Therefore the proceedings initiated under the Customs Act based on the violation of the provisions of Antiquities Act are invalid and against the law. To appreciate these challenges we must understand the relevant provisions of the Antiquities Act which are reproduced as under :
2. Definitions – (1) In this Act, unless the context otherwise requires –
(a) “antiquity” includes –
(I)(i) any coin, sculpture, painting, epigraph or other work of art or craftsmanship;
(ii) any article, object or thing detached from a building or cave;
(iii) any article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages;
(iv) any article, object or thing of historical interest;
(v) any article, object or thing declared by the Central Government by notification in the Official Gazette, to be antiquity for the purposes of this Act,
which has been in existence for not less than one hundred years.
4. The bare reading of Clause (1) of Sub Section (1)(a) of Section 2 of the Antiquities Act shows that any coin which has been in existence for not less than one hundred years will fall under the definition of antiquity. Section 3 of the Antiquities Act, regulates the export trade in antiquities and art treasures. The same is reproduced as under :-
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 authorised by the Central Government in this behalf, to export any antiquity or art treasure.
5. The reading of this Section makes it clear that no antiquity as defined under section 2 can be exported without the authority of the Central Government. Admittedly, in this case, the Central Government had not authorised the petitioner to export the coins. The word “export” has been defined under section 2(c) of the Antiquities Act which means taking out of India to a place outside India. In the present case, it has been the case of the prosecution that the petitioner was taking the coins out of India. Therefore, apparently in view of Section 3 of the Antiquities Act there is a ban imposed for the export of such coins which fall under the definition of “antiquity”. Section 4 of the Antiquities Act provides that the Customs Act of 1962 shall have effect in relation to all antiquities the export of which is prohibited under Section 3 of the Antiquities Act. On account of prohibition of export the Collector of Customs can confiscate the antiquity under the Customs Act, 1962. Reading of Section 4, which is reproduced as under, makes it clear that the provisions of Customs Act would apply only when the antiquity is to be confiscated :
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 authorised 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 authorised under that Act shall be made unless the Central Government on an application made to it in this behalf, otherwise directs.
6. Section 24 of the Antiquities Act envisages how to determine whether an article is antiquity or not. It stipulates as under :
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 authorised 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 question wherever raised as per the provision of Section 24 has to be referred to the Director General, Archaeological Survey of India whose decision shall be final. The safeguard under section 24 is provided because as pointed out above Clause (1) of sub-section (1)(a) of Section 2 of the Antiquities Act envisages that a coin will be antiquity if it has been in existence not less than one hundred years. To ascertain whether the coin had been existence for one hundred years, the decision of the Director General or his nominee not below the rank of a Director has been made final. This provision under the Scheme of the Act has been made in order to eliminate harassment and unnecessary dragging people into litigation, above the scheme of this Act. Once the final decision under section 24 is given holding the article to be antiquity then the said Act provides for prosecution and penalty under section 25 and 26 of the Act.
8. Mr. Dinesh Mathur, Senior Advocate appearing for the petitioner contended that if at any stage under this Act a question is raised about the article being antiquity the decision of the authority mentioned under section 24 before launching prosecution becomes mandatory. In the absence of final decision prosecution cannot be launched. Sections 25-26 of the Antiquities Act, which are reproduced as under, envisage the penalty to be imposed in case a person violates Section 3 of this Act and the Court will take cognizance under Section 26.
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 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 authorised 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.
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) of Section 25 except upon complaint in writing made by an officer generally or specially authorised 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. Mr. Mathur contended that Antiquity Act is a complete Code in itself. Respondent could not put into operation the Customs Act thereby giving a complete go bye to this Act. On the other hand justifying the filing of the complaint under the Customs Act, Additional Solicitor General, Mr. M. Chandrasekharan contended that Section 4 of Antiquities Act enables the respondent to take aid of the Customs Act in order to confiscate the prohibited goods. The confiscation has to be done under section 113 of the Customs Act. Sub-Section (d) of Section 113, which reads as under, provides that if any goods are exported contrary to any prohibition imposed under any law then those goods shall be confiscated.
Section 113 :
(d) any goods attempted to be exported or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under this Act or any other law, for the time being in force.
10. Relying on this provision, Mr. Chandrasekharan, Additional Solicitor General pointed out that since the prohibition is contained under Section 3 of the Antiquities Act and as per Section 4 of the Antiquities Act, the confiscation can be done under the provisions of Section 113 of the Customs Act, therefore, the complaint had to be filed under the Customs Act. He then drew the attention of this Court to the provisions of Section 127 of the Customs Act, which is reproduced as under :
127. Award of confiscation or penalty by customs officers not to interfere with the other punishments – The award of any confiscation or penalty under this Act by an officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under the provisions of Chapter XVI of this Act or under any other law.
11. Relying on Section 127 of the Customs Act he contended that these provisions envisage that once the goods are confiscated then the penalty has to be imposed under the Customs Act. Customs Authorities will inflict the punishment as provided under Chapter XVI of the Act or under any other law. Chapter XVI deals with the offences and prosecution. Section 135 falls under Chapter XVI of the Customs Act. Harmonious reading of these provisions and the Scheme of the Customs Act the only irresistible conclusion which can be drawn is that besides confiscation and penalty, the prosecution can also be launched on the basis of the offence committed by the petitioner under Section 135 of the Customs Act. Mr. Chandrasekharan then contended that the Scheme of both the Acts i.e. Antiquities Act and Customs Act show that the proceedings under the Antiquities Act and the Customs Act parallel proceedings. It was for the Custom Authorities to prosecute under this or that Act. The petitioner could have been prosecuted under both the Acts simultaneously for the same cause of action. If the complaint had been filed under the Antiquities Act then the provisions of Section 24 of the Antiquities Act would be attracted and not otherwise. Hence seeking of opinion from the Director General as envisaged under section 24 of the Antiquities Act was not necessary in this case. By moving an application in this regard before the learned Trial Court cannot prejudice the case of the respondent nor would act as an estoppel because there cannot be any estoppel against the law. Since on account of the prohibition of export of antiquity falls under section 3 of the Antiquities Act, the Collector of Customs was entitled to confiscate the same and also impose penalty, hence the prosecution has to be under the Customs Act. To prosecute or to initiate prosecution under the Customs Act, the Collector was the only competent person to accord sanction after forming a prima facie view that the coins in question were antiquity. He need not have taken final decision from any other authority. To support his contention that the prosecution under the Customs Act and under the Antiquities Act are parallel proceedings and the choice was with the Collector of Customs to initiate under either Mr.M. Chandrasekharan, placed reliance on the decision of the Supreme Court in the case of Rabindra Chamaria & ors. v. Registrar of Companies, West Bengal and others, .
12. Mr. M. Chandrasekharan then placed reliance on the provisions of Section 30 of the Antiquities Act to indicate that the provisions of this Act shall be in addition to any other law for the time being in force. The other provisions of law as mentioned in Section 30 according to Mr. Chandrasekharan would be the Customs Act. The provisions of the Antiquities Act are in addition to the Customs Act. Hence, the jurisdiction of the Collector of Customs is not barred, rather the reading of Section 30 of the Antiquities Act envisages that the Collectors of Customs would have the jurisdiction. It provides that the provisions of this Act shall be in addition to any other law. Any other law in this case would be the Customs Act. Relying on the observations of Supreme Court in the case of Rabindra Chamaria (supra) as well as in the case of Shri V. K. Aggarwal v. Vasantraj Bhagwanji Bhatia, AIR 1988 SC 1106, Mr. Chandrasekharan contended that since the offence under the Antiquities Act and Customs Act exist independently hence prosecutor could choose to prosecute the petitioner under one of the Act instead of both. In the case of V. K. Aggarwal (supra) the Court was concerned with the Customs Act as well as the Gold (Control) Act. In that case, the accused was acquitted under section 111 read with Section 135 of the Customs Act. He was, however, subsequently prosecuted under section 85 of the Gold (Control) Act. The High Court in that case held that the subsequent trial was barred by virtue of Section 403(1) of Cr.P.C., but the Supreme Court while setting aside the judgment of the High Court observed that Section 403(1) Cr.P.C. would not come to the rescue of the accused whereas Section 403(2) of the Code clearly concludes the matter against them. If the ingredients of both the offences are satisfied, the same act of possession of the gold would constitute an offence both under the Customs Act as also under the Gold (Control) Act. Such being the position, the Supreme Court observed that it cannot be said that they could have been tried on the same facts for an alternative charge in the context of Section 236 of Cr.P.C. at the time of the former proceedings. The Supreme Court further observed that it cannot be said that the persons who are sought to be tried in the subsequent proceedings could have been tired on the same facts at the former trial under section 236 of the Code. The facts constituting the offence under the Customs Act are different and are not sufficient to justify the conviction under the Gold (Control) Act. A separate charge could have been framed in respect of the distinct offence under Gold (Control) Act. Relying on these observations, Mr. M. Chandrasekharan contended that if in that case the accused could be convicted under the Gold (Control) Act as well as under the Customs Act, as an alternative charge, there is no bar in the case in hand to prosecute the petitioner under the Customs Act and also simultaneously under the Antiquities Act. To support his contention further that the proceedings could be parallel, Mr. Chandrasekharan further placed reliance on the observations of the Supreme Court in the case of M/s Aggarwal Trading Corporation v. The Assistant Collector of Customs, Calcutta, , wherein the Supreme Court observed that at page 654 –
It is well accepted legislative practice to incorporate by reference, if the Legislature so chooses, the provisions of some other Act in so far as they are relevant for the purposes of and in furtherance of the scheme and objects of that Act. Merely because the restrictions specified in Section 8 of the Foreign Exchange Regulation Act are deemed to be prohibitions and restrictions under Section 19 of the Sea Customs Act, those prohibitions and restrictions are not necessarily confined to goods alone but must be deemed for the purposes of the Foreign Exchange Regulation Act to include therein restrictions in respect of the articles specified in Section 8 thereof including currency notes as well. Even if the currency notes are not goods, the restrictions prescribed in Section 8 of the Foreign Exchange Act cannot be nullified by Section 23-A thereof which incorporates Section 19 of the Sea Customs Act.
13. Relying on these observations, the Additional Solicitor General contended that by virtue of Section 30 read with Section 4 of the Antiquities Act restrictions created under section 3 of the Antiquities Act would entitle the Collector of Customs to initiate the prosecution under Section 135 of the Customs Act. According to Mr. M. Chandrasekharan reading of the Customs Act clearly postulates that prosecution under the Antiquities Act is independent than under the Customs Act. It is only when a person has to be prosecuted under Section 26 of the Antiquities Act that the provisions of Section 24 would assume importance but not when the prosecution is under the Customs Act. The provisions of one Act in view of the above discussion does not exclude the provisions of the other Act. These run parallel. Harmonious reading of the scheme of Antiquities Act and of the Customs Act would lead to only one conclusion that discretion was with the Collector to prosecute the petitioner under any of the Acts while basing the case on the basis of prohibition created under section 3 of the Antiquities Act.
14. At the first flash, the argument of Mr. M. Chandrasekharan, Additional Solicitor General appears to be very convincing. But if the schemes of both the Acts are studied deeply then one can find fallacy in the arguments of the Additional Solicitors General. The fallacy is when Mr. M. Chandrasekharan presumes that Section 24 does not exist on the Statute book. But unfortunately, this presumption cannot be drawn because Section 24 is very much on the Statute Book of the Antiquities Act. We cannot ignore the same. As per Section 4 of the Antiquities Act, Customs Act would be attracted once the Collector takes the decision to confiscate the antiquity i.e. the coins in this case. I have been told at the bar that so far no confiscation proceedings have been initiated by the Collector. Before confiscation, adjudication proceedings are a must when they can culminate into penalty but that has not been done in this case. It is only after the adjudication confiscation and penalty having been imposed that the prosecution would start under section 135 of the Customs Act. But the facts on record do not support this aspect.
15. The Legislature in its wisdom amended the Antiquities Act of 1947 in 1972 by the Act of 52 of 1972. It would be an interesting reading if we have the amended and unamended Act before us and compare the same. Take for example Section 4 of the Antiquities Act, 1947 (Act XXXI of 1947) which is reproduced as under :
4. Application of Act VIII of 1878 – All antiquities the export of which is prohibited under section 3 shall be deemed to be goods of which the export has been prohibited under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that, the provisions of Section 183 of that Act notwithstanding, any confiscation authorised under that Act shall be made, unless the Central Government, on application to it in such behalf, otherwise directs.
16. Section 4 of the Act of 1947 made all the provisions of Customs Act applicable to an offence committed under section 3 of the Antiquities Act of 1947. After the amendment by the amended Section 4 of the Act of 1972, the Legislature consciously omitted the applicability of all the provisions of the Customs Act. This shows the mind and the intention of the Legislature. Provisions of the Customs Act are now applicable only for confiscation and not for prosecution. To arrive at this conclusion reference can be made to the provision of Section 25 of the Antiquities Act which have been reproduced above. Section 25 of the Antiquities Act in no uncertain words stipulates that if any person contravenes the provisions of Section 3 he shall be liable for punishment without prejudice to the action of confiscation or penalty for which he has rendered himself liable under the Customs Act. Bare reading of Section 25 clearly shows that confiscation and penalty has to be under the Customs Act whereas for the breach of Section 3 of the Antiquities Act, the punishment and prosecution has to be under this Act i.e. Antiquities Act. Therefore, by no stretch of imagination, the arguments given by Mr. M. Chandrasekharan can be appreciated that once the confiscation is done under section 113 of the Customs Act read with Section 127, all the provisions of Customs Act would come into operation and the Collector of Customs would get power to prosecute. The proceedings under the Antiquities Act and the Customs Act by no stretch of imagination can be called parallel proceedings. Rather the wording of Section 25 of the Antiquities Act creates a bar with regard to the prosecution under the Customs Act. It only gives power to the Collector of Customs to confiscate the goods and impose penalty for having committed the breach of the provisions of Section 3 of the Antiquities Act and nothing more. Therefore, the analogy drawn by Additional Solicitor General M. M. Chandrasekharan to the Gold (Control) Act is of no help to him. The analogy that the proceedings under the Gold (Control) Act are parallel is of no help in the facts of this case because of the specific restriction regarding the applicability of the Customs Act having been created under section 4 read with Section 25 of the Antiquities Act of 1972. The prohibition under section 3 of the Antiquities Act is a prohibition under that Act and not under the Customs Act, therefore, the prosecution as envisaged under sections 25 and 26 of the Antiquities Act has to be under the Antiquities Act and not under the Customs Act. Hence the provisions of Section 24 of the Antiquities Act assumes importance in the facts and circumstances of this case. Admittedly, the provisions of Section 24 of the Antiquities Act have not been complied with. The reports dated 21st and 22nd June, 1994 clearly show that Shri D. V. Sharma examined the coins recovered from the petitioner. He only indicated the total number of those coins and stated them to be antiquities, but nowhere opined that he was sure that these were antiquity, rather in this respect he referred those to the Director General, Archaeological Survey of India for expert advise under section 24 of the Antiquities Act, 1972. Thus the contention of Mr. Chandrasekharan that prima facie view was formed by Mr. D. V. Sharma is belied from the reading of those two reports. The fact that he confirmed these coins to be antiquity cannot be inferred from the reading of these reports. It appears that the prosecution was not sure as to whether the coins were antiquity or not, that is the reasons in the compliant the prosecution itself indicated that it was under the realm of suspicion. This finds mention in para 3(b) of the complaint which reads as under :
“The recovered goods were suspected to be Antiquity. The Director General of Archaeological Survey of India, New Delhi was requested to depute an expert for evaluation of coins and Art Treasures. Shri Dharam Veer Sharam, Superintendent Archaeological (Antiquities) examined the recovered goods and vide his report dated 21-6-1994 confirmed them to be antiquities, covered under the provisions of Antiquities and Art Treasures Act, 1972. Accused Nos. 1 and 2 could not produce any evidence for lawful possession and export of the recovered coins of gold, silver and copper and the silver ornaments belt (Kamar Band) Indian currency and as such the same were seized. A panchnama dated 22-6-1994 was drawn.”
17. Reading of this para indicates that prosecution wrongly read the report of 21st and 22nd June, 1994 as confirmation of coins being antiquity. Even otherwise Mr. D. V. Sharma being mere Superintendent could not give his final decision because he lacked authority to do so. He was not the authority envisaged under section 24 of the Antiquities Act. In fact from the reading of para 3 of the complaint and the alleged sanction accorded it was clear that the prosecution was sure that they were prosecuting the petitioner under the Antiquities Act. That is why they invoked the provisions of Section 24 of the Antiquities Act by calling an official of the Director General of the Archaeological Survey of India. Unfortunately for the prosecution they left lacunae by not getting the coins examined by a competent officer as envisaged under section 24 of the Antiquities Act. It was examined by a person of the rank of the Superintendent, therefore, apparently his decision was not final. Finality of the decision could be attached if the decision had been given by the Director General or the Director. But that was not done. In the absence of there being a final decision, the prosecution could not have been launched. Sanction had also to be accorded after the final decision but that is missing in this case. To my mind, to overcome that lacunae, prosecution has taken shelter under the Customs Act. The provisions of the Customs Act are not applicable for the purpose of the prosecution. Prosecution could only be launched under the Antiquities Act and not under the Customs Act. The Customs Act could only be invoked for confiscation and penalty and not for prosecution.
18. Reliance by Mr. M. Chandrasekharan on the provisions of Section 30 of the Antiquities Act, to my mind, is mis-placed. The word ‘any other law’ has to be read ejesdum generis to the foregoing class or generis namely Ancient Monuments and Archaeological Sites and Remains Act. If “any other law for the time being in force” is to be read as “any other law” then why not Excise Act, Sales Tax Act. But that is not the intention of the Legislature. Principle of ejesdum generis as understood by Courts is that when the Legislature has indicated certain acts and thereafter the word “any other law”, is used then the use of the word “any other law” has to have nexus with the foregoing Acts. Respondent, to my mind, cannot take advantage of the words ‘any other law’ appearing in Section 30 of the Antiquities Act.
19. After the amendment in the Antiquities Act it is apparent that the Legislature with full conscience departed from the previous provisions of Section 4 of 1947 Act thereby making it sure that all the provisions of Customs Act are not made applicable to the Antiquities Act. Only the provisions whenever confiscation has to be applied then Customs Act provisions would be invoked. Therefore, no reliance on the provisions of Section 127 or for that matter Chapter-XVI of the Customs Act can be taken help of. Section 127 of the Customs Act seemingly stipulates adjudication before confiscation and thereafter prosecution under Chapter XVI but not before that. Hence, reading of Section 127 of the Customs Act and Section 4 of the Antiquities Act nullifies the arguments Mr. M. Chandrasekharan that these are parellel proceedings.
20. Reliance by Mr. M. Chandrasekharan, Additional Solicitor General on the Imports and Exports (Control) Act, 1947 rather supports the case of the petitioner. Under Section 3 sub-section 2 of the Imports & Exports (Control) Act, 1947 all the provisions of the Customs Act have been made applicable but that provisions are seemingly absent under Section 4 of the Antiquities Act, 1972. Moreover, under section 5 of the Imports & Exports (Control) Act, 1947, no procedure has been prescribed for filing the complaint hence the complaint could be filed under Section 135 of the Customs Act. But under the Antiquities Act, the provisions for prosecution and penalty have been specifically provided under the Antiquities Act. The prosecution has to be under the Antiquities Act on account of the breach committed under the Act and not under the Customs Act.
21. Section 11 of the Customs Act deals with the power to prohibit importation or exportation of goods. Sub-section 2(1) of the Customs Act envisages the protection of national treasures of artistic, historic or archaeological value and others because the coins in question to be antiquity would be converted under archaeological authority, but admittedly as stated at the bar no notification has been issued by the Central Government under section 11(2)(1) of the Customs Act. Therefore, no help can be taken by the respondent on the basis of the provisions contained under section 11 of the Customs Act. For prohibition of export of the antiquities, the respondent has banked on Section 3 of the Antiquities Act. If that be so then the prosecution has to be under that very Act.
22. A comparison of Section 4 of Antiquities Act of 1947 with Section 4 of the Antiquities Act of 1972 would show that all the provisions of the Customs Act under section 4 of the Act of 1947 were applicable and were to operate in case there was any violation or breach of the prohibitions under the Antiquities Act. But after the amendment applicability of all the provisions of the Customs Act have been given up. In this regard, I am supported by the decision of the Supreme Court in the case of The Collector of Customs, Madras v. Nathella Sampathu Chetty, AIR 1962 SCC 316 : (1962 (1) Cri LJ 364). Considering the language of Section 19 of the Sea Customs Act, 1878 and Section 23A of Foreign Exchange Regulation Act of 1947 the Supreme Court observed in that case that there was no scope for any argument that there has been any incorporation of the provisions of the earlier statute in the later. Similarly in the present case, there is no provision for incorporation of the Customs Act, which was under Section 4 of the Antiquities Act of 1947 getting attracted in the Antiquities Act of 1972.
23. After analysing the provisions of both the Act and relying on the observations of the Supreme Court and the facts stated above, I find that the complaint filed in this case under the Customs Act is not sustainable. Accordingly, the complaint in question is quashed and the proceedings initiated on the basis of that complaint are ordered to be dropped.
24. Petition allowed.