Delhi District Court
State vs . Bhuwan Chand Joshi Etc. on 17 December, 2014
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTHEAST)07, NEW DELHI
FIR No. : 104/10
U/s : 14(3),25,17(2) The Antiquity and Art Treasure Act, 1972 and
103 D.P Act.
PS : K. M. Pur
State Vs. Bhuwan Chand Joshi etc.
JUDGMENT
a The Sl. No. of the case :147/1/14
b The date of commission : 09.05.2010
c The date of Institution of the case : 07.05.2011
d The name of complainant : SI Rajveer Singh
e The name of accused :(1) Bhuwan Chand Joshi S/o Sh.
Kishan Lal Joshi R/o C1, Palam
Vihar, Extn, Gurgaon, Haryana.
(2) Pradeep Kumar S/o Sh. Hosiyar
Singh R/o Village and Post
Nimana, PS Jhajjar, Haryana
f The offence complained of : 14(3),25,17(2) The Antiquity and
Art Treasure Act, 1972 and 103
D.P Act
g The plea of accused : Pleaded not guilty
h Arguments heard on : 17.12.2014
i The final order : Acquitted
j The date of judgment : 17.12.2014
BRIEF STATEMENT OF REASONS FOR DECISION:
1 The aforesaid accused persons have been sent for trial on the allegations that on 09.05.2010 at 10.45 am at Parking Gate Main Road in front of DDA Vikas Sadan, Kotla Mubarakpur, New Delhi within the jurisdiction of P.S. K. M. Pur FIR No. 104/10 1 of 20 both of them were found carrying four armed brown Shiva Images ( 48 x 23 cm and pedestal 18.5 x 18.5 ) made of Asht Dhatu ( opined by the government expert as Antiquities within the meaning of Section 2 of the Antiquities and Art Treasures Act, 1972) which both of them failed to get register and tried to transfer the possession of the said statue in vehicle No. HR14F4054 or in alternate were found in possession of the aforesaid idol without any proof of ownership and for which they could not give any reasonable/satisfactory reply and thus thereby committed offence punishable u/s 25 of the Antiquities & Art Treasures Act, 1972 and 103 of D.P. Act. Investigation was conducted and charge sheet was filed in the court on 07.05.2011.
2. Charge u/s 25 of the Antiquities & Art Treasures Act, 1972 and 103 of D.P. Act. was framed upon the accused persons on 24.01.2012 to which they pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined nine witnesses.
PW1 is HC Mehmood, who in deposition has deposed that on 9.5.2010 at about 10 am he alongwith Inspector V.N. Jha, SI Rajbir Singh, HC Nahar Singh, Ct. Vipin and Ct. Ajeet were on patrolling duty and reached at Vkas Sadan. PW1 has further deposed that SI Rajbir Singh and Inspector V.N. Jha had received a secret information that one vehicle i.e. AStar Maruti Car No. HR14F5404 red colour might be having one unique idol ( Muirti). They put the barricades opposite Vikas Sadan and started checking the vehicles. At about 10.40 aforesaid vehicle was coming from Sadarjung Terminal side. They stopped the vehicle. In the meanwhile one person sitting in the back seat of said car started FIR No. 104/10 2 of 20 running. On suspicion they apprehended the said persons whose name was revealed as Bhuwan and the name of the other person who was driving the said car was revealed as Pradeep. Accused Bhuwan was having a bag in his hand. SI Rajbir Singh checked the bag and found one idol of Lord Vishnu and Lord Shiva having four hands and there was hole in ears of said idols. They took both accused and recovered idols to the police station. SI Rajbir requested the officer of Archaeological Survey of India (ASI) who gave report about the said idols. IO seized the said idols and put it in a jar and sealed with seal of RS and prepared the rukka and got the FIR registered in the present case. The witness has also identified the photographs of the aforesaid case property vide Ex. P1 to Ex. P17 and also identified the red colour bag containing one white colour shawl vide Ex. P18 and Ex. P19.
PW2 Ct. Deepak Kumar, PW3, HC Nahar Singh are the other member of the police party which apprehended the accused and recovered the above said case property and have reiterated the story as stated by PW1 in his deposition and also identified the accused persons as well as the case property during recording of their testimony.
PW4 W/ASI Pushpa, who being deputed in the PS as Duty Officer has proved the registration of FIR in the present case vide Ex. PW4/A and her endorsement on the rukka vide Ex. PW4/B. PW5 is Ct. Naresh Kumar , who has deposed about handing over one sealed pullanda with seal of RS on the direction of the IO of the present case, to the expert team at the Office of Director General Archaeological Survey of India, FIR No. 104/10 3 of 20 who handed over a sample seal with pullanda to him which he handed over to the IO and MHC(M) respectively.
PW6 is Ex. SI Suman Kumar, who has deposed about handing over the further investigation of the case carried out by him wherein he moved an application regarding legal clarification from Archaeological Survey of India. Thereafter he obtained the sanction to file the chargesheet from Archaeological Survay of India, prepared the challan and filed before the court.
PW7 is Dr. Urmila Sant, Director, Antiquity, Archaeological Survey of India ( hereinafter ASI), Janpath, New Delhi, who in her deposition has deposed that on an application Ex. PW7/A moved by the IO of the case SI Rajbir Singh, she examined the object with the help of committee of experts at her office and prepared the detailed report regarding the said object and proved her report to this effect vide Ex. PW7/B, her authorization letter as Ex. PW7/C and Ex. PW7/D. PW8 is Sh. Mohammad K.K, Retired Director ( North Zone) Archaeological Survey of India who has deposed that an anitquity was produced before him by Inspector of P.S. Kotla Mubarakpur and he examined the antiquity and told him that he can only give his opinion that as to whether the same is antiquity or not and the final declaration will be made by a panel of expert appointed by the Director General of Archaeological Survey of India. He further deposed that on examination the antiquity in question which is an idol of either lord Shiva or lord Vishnu which was having a Kirita Mukuta and in one hand it was having a bowl and in another Varad Mudra and Abhay Mudra and also having a Trishul and appeared to him as six hundred years old and hence opined that it FIR No. 104/10 4 of 20 was an antiquity. The said witness has also opined about the value of the said antiquity as Rs. 5 Crores and proved his report vide Ex. PW8/A. PW9 is Inspector Vivekanand Jha, who also deposed the same version as stated by PW1 HC Mohammad in his testimony being the member of the raiding party and has also proved the seizure of the aforesaid idol vide Ex. PW9/A and letter dated 9.5.2010 written by the IO to Archaeological Survey of India vide Ex. PW9/B. Here it is pertinent to mention that the IO SI Rajbir Singh could not be examined as he expired during the course of the trial and PWs namely Ct. Vipin and Ct. Ajit were dropped being repetitive witnesses for the same facts.
4 Statement u/s 313 Cr.P.C of accused Pradeep was recorded in person and of other accused namely Bhuwan Chand Joshi was recorded through his counsel as the said accused is permanently exempted ( as he is stated to be bed ridden due to paralytic health) wherein plea of false implication was taken on behalf of accused persons. No defence evidence is led on behalf of accused persons. Even otherwise the present case is a summon trial case because the allegations pertain to non registration of the antiquity and its transfer and under sub section 2 of Section 25 of the Act, said offences if proved are punishable for a period of six months or with fine or with both besides confiscation of the antiquity. Hence, in view of the proviso to section 313(1) Cr.P.C, the court may dispense with the personal appearance of the accused alongwith dispensing of the examination u/s 313 Cr.P.C altogether in a summons case.
FIR No. 104/10 5 of 20 5 I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully. 6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused. 7 Ld. Defence counsel on the other hand has argued that there is no evidence
on the file against the accused persons for commission of the offence in question and as such the accused are entitled to acquittal in the present case.
8 Relevant Law:
Section 25 of The Antiquity and Art Treasure Act inter alia provides that :
(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 subsection (2) or subsection (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.
Section 26 The Antiquity and Art Treasure Act (Cognizance of offences) inter alia provides that:
FIR No. 104/10 6 of 20 (1) No prosecution for an offence under subsection (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 subsection (2) or subsection (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.
Section 25 of The Antiquity and Art Treasure Act, 1972 ( hereinafter the Act) inter alia provides in sub Section 2 punishment for contravention of Section 5, Section 12, Section 13 clause 2 and 3, Section 14 and Section 17 of the Act.
Section 14 of the Act inter alia provides requirement for registration for those antiquities regarding which there is a notification in the official gazettes and every person who owns, controls or is in possession of such antiquity shall register such antiquity before the Registering Officer within a specified time and Section 16 lays down the procedure for the same.
Section 17 of the Act provides requirement for intimation to the Registering Officer whenever there is a transfer of the control or ownership or possession of any antiquity specified in the notification made u/s 14 of the Act.
Section 5 of the Act provides prohibition regarding the sale of any antiquity for business except in accordance with the condition of licence granted FIR No. 104/10 7 of 20 u/s 8 and Section 7 of the Act and 9 of the Act provides for the licence or renewal thereof.
Section 26 of the Act inter alia provides that no court shall take cognizance of an offence except by or with the sanction of the such officer of the government as may be prescribed and except upon a complaint in writing by an officer generally or specifically authorized for cognizance and trial of offence u/s 25 clause 2 of the Act.
Section 24 of the Act inter alia provides that decision of the Director General of Archaeological Survey of India or an officer not below the rank of Director but authorized by the Director General will be final in case of any question whether any article etc. is an antiquity or not.
Section 293 Cr.P.C. Reports of certain Government scientific experts inter alia provides that:
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The court may, if it thinks fit, summon and examine any such expert as to the subjectmatter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if FIR No. 104/10 8 of 20 such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:
(a) any Chemical Examiner or Assistant Chemical Examiner to government;
(b)the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d)the Director, Haffkeine Institute, Bombay;
(e) the Director [Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
(g)any other Government scientific expert specified, by notification, by the Central Government for this purpose.
Illustration (g) and (h) of Section 114 of the Evidence Act provides that :
(g) That evidence which could be and is not produced would, if possible, be unfavorable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him;
Ld. Counsel for the accused during course of the arguments have also relied upon a case titled as State of Karnataka Vs. P. Gopalkrishna Panikar 1 FIR No. 104/10 9 of 20 (1992) CCR 343(DB). It has been held in this judgment that Section 26 clause 2 of the Act puts a blanket bar against cognizance of offences punishable u/s 25 (2) of the Act except upon a complaint in writing by an officer generally or specifically authorized in that behalf by the Central Government. As per section 2 (d) of Cr.P.C complaint mean any allegation orally or in writing to a magistrate with a view to taking action under the Code that some person have committed the offence but it does not include police report. Hence, it is clear that the complaint should be made specifically by the aggrieved person to the court with request to take the action. Such a complaint should be made to the court as complaint does not include a police report. Hence cognizance taken on the police report without such complaint addressed to court will not be a compliance of the provision of Section 26 of the Act. It was also held in the said case that before a person could be expected to account for possession of an article, it must be established that there is a reason to believe that the same is stolen property or property fraudulently obtained. Where there is not even a whisper to that effect, no duty is enjoined on the accused to account for possession of these articles and in such a situation possession of such property cannot be held to be an offence. 9 I have perused the case file very carefully and have duly considered the respective arguments.
10 I give the following reasons of my judgment:
(i) The accused persons have been charged with carrying the
antiquities within the meaning of Section 2 of the Act but failing to register such article and also in trying to transfer the possession of such article. For the said FIR No. 104/10 10 of 20 violation they have been charged u/s 25 of the Act. Also the accused persons have been charged u/s 103 D.P. Act for possession of such article without proof of ownership and account for possession. Here it should be noted that as per allegations, case of accused would be covered u/s 25 Clause (2) of the Act and not section 25 Clause (1) and (3) which deal with expert of antiquity and obstruction to licensing Officer respectively in course of his duty.
In brief the case of the prosecution is that a team was formed consisting of PW1 HC Mehmood, PW2 Ct. Deepak, PW3 HC Nahar Singh, Ct. Vipin , Ct. Ajit, SI Rajbir Singh and Inspector V.N. Jha on secret information that vehicle A Star Maruti Red Colour might be having a unique idol and will come at the place where the accused were apprehended. Barricades were put opposite Vikas Sadan and when the said vehicle arrived, it was stopped and one person identified as Bhuwan Chand Joshi was apprehended when he tried to flee. Said person was found sitting on the back seat of the car. Person who was driving the vehicle was identified as Pradeep. Accused Bhuwan was carrying a bag and it was found containing the idol and thereafter the accused persons were arrested, idol was seized and the accused persons were chargesheeted for the offences under the Act.
It will be very clear from the reading of the evidence led by the prosecution that in whole of the scenario there is no person brought as accused who was trying to purchase the antiquity. It is not the case of the prosecution that there is an accused in the present case who was trying to sell the antiquity and that there was another person in the picture who was trying to FIR No. 104/10 11 of 20 purchase the same. Hence, it cannot be said that mere taking of the idol Ex. P20 was in violation of Section 17 r/w 25(2) of the Act which requires prior intimation to the Registering Officer in case of transfer of the idol in its ownership, control or possession. Hence, the charge of illegal transfer will not sustain. For the same reason accused were not in violation of Section 5 r/w 25(2) of the Act.
(ii) The next main charge is that the accused failed to get the alleged antiquity Ex. P20 registered which is in violation of provision of Section 14 r/w 25(2) of the Act. In this regard the prosecution has led the evidence that Ex. P20 is an antiquity within Section 2 (a) of the Act and as per Ex. PW7/B same has been opined to be an antiquity after following the provisions of 24 of the Act. Also as per Ex. PW7/C which is an authorization to the IO Suman Kumar to file the complaint and the chargesheet in the competent court, it is mentioned that as the said article Ex. P20 is an antiquity for there is a notification No. SO448(E) dated 2.7.1976 and hence, the accused were in illegal possession of the same without registration. PW7 Dr. Urmilla Sant has deposed in the capacity of the Director Antiquity and has proved Ex. PW7/B and PW7/C abovesaid. Also PW8 is the Retired Director Sh. Mohammad who has deposed the manner in which conclusion was reached that the said article in an antiquity. In the present case the entire culpability revolves around the question whether the item Ex. P20 is "antique or not". If there is doubt about its antiquiteness, the whole prosecution case would be dislodged.
Prosecution is required to firmly establish through cogent and FIR No. 104/10 12 of 20 convincing evidence that the artifact allegedly recovered from the accused persons is antique and not a fake copy. It is clear from perusal of record that expert committee of 3 members was constituted but such experts have not been examined. Court itself is not an expert on the subject but it is needed to be satisfied from oral and documentary evidence that Ex. P20 is an antique item as report Ex. PW7/B stating it is an antique item is not covered u/s 293 Cr.P.C which is quoted before. Mere perusal of this provision shows that the report of expert committee of ASI is not covered u/s 293 Cr.P.C. If such report had been admissible u/s 293 Cr.P.C then unless court deems fit, there was no need to call an expert. But in present case as already stated the report of ASI team of expert is not admissible u/s 293 Cr.PC without calling such expert witnesses. There is no witness to inform the court about the basis on which the expert committee reached its conclusion which needed to be established beyond reasonable doubt as convicting a person and curtailing his liberty in such case would be travesty of justice. Such expert committee members have been named in the cross examination of PW7 Urmilla Sant but the same are neither cited nor examined as prosecution witnesses. PW7 admits in cross examination that she only signed the report and has no role in preparation of the report Ex. PW7/B. She admits that she does not know the difference between Asth Dhatu and bronze. She further admits in cross examination that the committee has not done forensic examination of case property and that just on basis of normal observation, conclusion about antiqueness was drawn. The specific words of PW7 have been quoted herein below from her cross examination:
FIR No. 104/10 13 of 20 " The name of the committee members are Mr. Dowson ( Keeper National Museum) Dr. C. Marghbandu, retired Director of Archaeological Survey of India & Dr. R.D. Trivedi retired Director of Archaeological Survey of India. It is true that I only signed the detailed report which is Ex. PW7/B after obtaining the verbal consent of all the committee members. I do not know what is difference between asth dhatu and bronze. The committee has not done scientific analysis/forensic examination of the case property. Vol. on the basis of observation of the art pieces, the experts draw conclusion whether any particular art piece is antique or not. On the basis of experience, the committee came to conclusion that the case property is antique."
PW8 Sh Mohd. K.K. (Retired) Director (North Zone) of ASI is examined but he has not been even able to state whether it is statue of Lord Shiva or Lord Vishnu. He says in cross examination that opinion whether Ex. P20 is antique or not is not based on forensic examination but on stylistic method and his opinion is Ex. PW8/A but the same in my view is probably and inadvertently marked as such and that report is Ex. PW7/B. He has not stated what stylistic features were seen example the period or the school to which the artifact belong or the dynasty to which it belong like Gupta period , Pala Dynasty, Pratihara Dynasty etc. The specific words of PW8 in examination are " I examined the antiquity in question that it is an idol of either Lord Shiva or Lord Vishnu. It appeared to me as six hundred years old, hence, I opined that it is an antiquity". The specific words of PW8 in cross examination are " It is true that my opinion is not on the basis of scientific method Vol. it is on the basis of stylistic method."
FIR No. 104/10 14 of 20 Thus at the cost of repetition neither any expert witness were examined nor is there any explanation for non examination of such witnesses who would have been otherwise star/material witnesses nor any expert committee report has been filed for perusal of the court. Only report is the decision of the expert which is Ex. PW7/B stating Ex. P20 as an antique which is not enough without establishing basis thereof. Even report Ex. PW7/B is not endorsed by any expert committee member nor is there any separate authorization in favour of PW7 or PW8 who are from the Archaeological Survey of India.
Hence, non examination of such experts and non production of detailed report would invite adverse inference under clause (g) and (h) of Section 114 of Evidence Act which is quoted before. Court can draw adverse inference that if such report had been produced or such witnesses had been examined, it would have falsefied the case of the prosecution. Non production of the detailed report should be read against the prosecution. In my view there is a gaping hole in the prosecution case.
Also no technique has been told by any of the prosecution witnesses like PW7 or PW8 both from ASI as to how it has been stated by PW7 in cross examination that the idol is more than 100 years old while PW8 describes it as 600 years old. Prosecution is silent on the dating technique to come to the conclusion that it is more than 100 years old for an artifact to be described as antique within the definition of Section 2(a) of the Act.
FIR No. 104/10 15 of 20
(iii) Also in my view the said manner of proving the said Ex. P20 as an
antiquity is flawed in several respects. There is nothing in section 14 of the Act
which says that there is a general notification of every article to be declared as an antiquity. In fact a clear reading of Section 14 of the Act will make it clear that in respect of the specific article regarding which the accused is being tried, there should be a specific notification prior in time to the point when accused was caught with its illegal possession without registration. The specific words of provisions inter alia are " The Central Government may from time to time by notification in the Official Gazette specify those antiquities which shall be registered under this Act." The words used are "may from time to time" meaning thereby that there should be a specific notification prior in time regarding the article sought to be described as an antiquity. Then u/s 14 (3) of the Act it is provided that " every person who owns, controls or is in possession of antiquity specified in the notification under sub section (1) shall register said antiquity within the time provided. In the present case as there is no notification in respect of Ex. P20, hence accused were not liable to get it registered. Otherwise how will the accused know that what he is in possession of is an antiquity or that it will be declared an antiquity in future or even if it has been declared as an antiquity prior in time, the Act is not clear regarding the manner in which the accused is supposed to know about the article being an antiquity. In the Act there is no presumption of Law that just because the accused was found in possession of an article which is of a cultural value, there is deemed knowledge on his part of the said article being an antiquity and that he is required to register it.
FIR No. 104/10 16 of 20 In this regard Ld. Predecessor vide order dated 05.01.2013 has also stated that it is desirable that detailed rules particularly with regard to source of procurement of antiquity by the applicant and for registration should be properly framed. It was further observed that the matter with regard to inadequacy of the rule shall be considered at the appropriate stage. Hence, in my view firstly there should be a notification specifically relating to the antiquity in question then there should be knowledge on the part of the person that it is an antiquity and that he is required to register it within certain time. It will be very unreasonable if a person is held guilty for lack of knowledge that it is an antiquity because that would mean that he is expected to be an expert on the subject. In such circumstances without specific notification it will be like cart putting before the horse. At the cost of repetition it is pointed out that no notification as mandated by Section 14 of the Act regarding requirement of registration has been filed on the record or exhibited. However, during the course of arguments it was pointed out that though there is no notification regarding said antiquity Ex. P20 but still the accused has filed the copy of the certificate of registration which is mark Z and the prosecution has not come forward with any plea that it has not been registered after it was brought to the notice of the accused that it requires to be registered. As per 14(3) of the Act 3 months time is available for registration of the same and the accused has got it registered on 24.08.2010 when he came to know of the requirement. To sum up this point, there is a doubt about the artifact Ex. P20 as an antique item due to the absence of bringing on record any evidence that proper procedure was adopted by ASI to assess it whether it is an antiquity or not. Also in my view FIR No. 104/10 17 of 20 there should be a prior notification of an artifact as an antiquity to make the accused liable u/s 14 (3) r/w 25 (2) of the Act for failure to register it. On both counts prosecution has failed to establish the case. In fact prosecution case gets totally dislodged in view of these points.
(iv) Further, I am in agreement with Ld. Counsel for the accused who has rightly placed reliance on the judgment of State of Karnataka Vs. P. Gopalkrishna Panikar 1 (1992) CCR 343(DB) that there should be a complaint filed with specific request to take action addressed to the court. In the present case there is no such request made to the court nor any request to take action in Ex. PW7/C. Though in the present case no sanction is required for institution of the prosecution because same is required when the offences consists of export of antiquity or attempt to export the same as per section 25 (1) r/w Section 26(1) of the Act but as per section 26(2) of the Act as quoted above a complaint within meaning of 2(d) of Cr.P.C is required to be filed by an officer generally or specially authorized in this behalf. The authorization letter Ex. PW7/C suffers from inherent defects. It has not been issued by the Director General of ASI but merely bears the signatures of PW7 Director (Antiquity). There is no evidence available on the record to show that the Director General has delegated the power to issue the authorization letter to Director ( Antiquity). Hence, the letter filed on the record is contrary to the requirement of law and loses its legal validity. The mandate of section 26(2) has not been followed in letter and spirit. This basic requirement of law need to be fulfilled before the accused is brought to face the FIR No. 104/10 18 of 20 trial and in absence of the same the statuary rights of the accused may be violated because criminal trial means curtailment of liberty. At the cost of repetition it is again stated that there is no authority from the Director General given to PW7 which is on the record or that authority was given to file complaint addressed to court by Central Government.
(v) Also neither there is no public person who has been citied as an independent witness to the incident nor it is clear as to how all the police witnesses are having razor sharp memory so much so they are able to recall the exact number of the vehicle in which the accused were found with the antiquity and it raises doubt that somewhere there is an effort to fill the loopholes.
(vi) As regards allegation u/s 103 D.P. Act is concerned, there is nothing in the evidence that idol Ex. P20 is a stolen property and abovesaid judgment of State of Karnataka Vs. P. Gopalkrishna Panikar 1 (1992) CCR 343(DB) would apply and accused would not be liable to account for possession unless said idol is found to be stolen or fraudulently obtained. Hence, accused are also not liable u/s 103 D.P. Act also.
(vii) Last but not the least the requirement of Section 100(4) &(5) Cr.P.C have not been fulfilled in the sense that at the time when the antiquity was recovered from the accused persons, it was at a busy time and place and accused persons must furnish the explanation as to why the requirement of law were not followed in letter and spirit. In absence of the explanation, the steps taken by the police agency have to be viewed with suspicion.
11 In view of the cumulative effect of the abovesaid reasons, prosecution has FIR No. 104/10 19 of 20
not been able to prove its case against the accused persons beyond reasonable doubts. Accordingly, both accused persons are acquitted of the allegations levelled against them. Before parting with the case it is necessary to clarify that the accused Pradeep was given the supardari of case property Ex. P20 and in view of the provisions of the Act he cannot sell or transfer the said case property unless he has a licence therefor or unless he intimates to the Registering Officer about the transfer of the control or ownership or possession of the antiquity. Their bail bond stands discharged. File be consigned to Record Room subject to filing of bail bonds u/s 437A Cr.P.C.
Announced in the open (Ashok Kumar)
Court on 17.12.2014 MM(South East)07,
New Delhi.
FIR No. 104/10 20 of 20