V J A FLYNN Vs. S S CHAUHAN

JUDGEMENT

(1.) The petitioner Dr.V.J.A.FIynn 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.9171/94 pending in the Court of Additional Chief Metropolitan Magistrate, Delhi. The grievance of the petitioner is that the 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.Sharma, 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 defence of the petitioner before the Authority was that he had bought these rare coins from a shop located on the groundfloor 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 silver. 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. Congnizance 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 and 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: