Delhi District Court
Chief Metropolitan Magistrate vs Soumitra Kumar Nahar & Another on 11 October, 2019
IN THE COURT OF NAVEEN K. KASHYAP,
CHIEF METROPOLITAN MAGISTRATE, ROUSE AVENUE COURTS
COMPLEX, DELHI.
Central Bureau of Investigation
Vs.
Soumitra Kumar Nahar & Another
(Present case is more than 20 years old matter. Further, accused no. 2
is a senior citizen of about 87 years. Hence taken on priority basis).
Complaint case no. 27/19
FINAL JUDGMENT
a) Sl.No. of the case : RC No. 2 (E)/97, CBI/SIV- XII/ND
b) Date of commission of offence : Around June 1997
c) Name of the complainant : Sh. M.J. James, Inspector of Police,
CBI Special Investigating Unit -XIII,
8th Floor, Lok Nayak Bhawan, Khan
Market, New Delhi-03.
d) Name of the accused, and : 1. Soumitra Kumar Nahar
his parentage and residence S/o Sh. Barun Kumar Nahar
R/o B-197, Greater Kailash Part I,
New Delhi.
2. Sh Barun Kumar Nahar
S/o Late Dr. Kesri Singh Nahar
R/o B-197, Greater Kailash Part I,
New Delhi.
e) offence complained of : U/S. 25 (2) r/w section 5 and 14 (3)
of Antiquities and Art Treasurers Act,
1972
f) Plea of accused persons : Accused persons pleaded not
guilty and claimed trial.
g) final order : Acquitted
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h) date of such order : 11.10.2019
Date of institution of the case : 30.12.1997
Date of pronouncing the judgment : 11.10.2019
BRIEF STATEMENT OF THE REASON FOR DECISION:
The Facts :
1.Present complaint is filed by such complainant Mr. M.J. James stating that he is a public servant and is an officer authorized by Central Government to file the present case before the court. That Mr. R.K. Saran, the then Deputy SP of CBI submitted a complaint to then SP requesting registration of a criminal case against the present two accused persons u/s 411 of IPC and 25 (2) r/w section 14 (3) of Antiquities and Art Treasurers Act, 1972. That the basis of such complaint was seizure of 26 articles suspected to be unregistered stolen antiquities seized from the possession of these two persons from their residence mentioned above at Greater Kailash Part I, New Delhi on 02.06.1997. That same was pursuant to a source information received at the branch that these two accused persons are indulged in the business of un-registered stolen antiquities. As such, such Sh. R.K. Saran constituted a raiding party and arranged service of two independent witnesses, namely, Sh. Dinesh Sharma and Surender Kumar from the office of Principal Controller of Accounts, Lok Nayak Bhawan, Khan Market, New Delhi. That a total of 26 articles were taken into police possession under a seizure memo. Copy of which was given to both the accused and such search was conducted in their presence. Further, before taking such items in police possession, all such 26 articles were photographed by CFSL photographer Gautam Rai on the spot. All such 26 articles were subjected for examination by Sh. Hari Manjhi, Director Antiquities. That he submitted his report stating that out of 26, 13 articles are antiquities. Same was received in CBI office on 23.07.1997. Further, clarification given by Sh. Hari Manjhi that CBI v. Soumitra Kumar Nahar & Another 2 of 16 out of these 13 antiquities, 8 comes within the purview of compulsory registration and none of them are registered in the name of either of the present two accused. Same was also confirmed by the registering office, Directorate of Archeology and Museum, Govt. of West Bengal, Kolkata. But no positive material could be gathered to confirm whether any of such were stolen from any part of India. Hence, allegation u/s 411 IPC as leveled in FIR dated 06.06.1997 is dropped. Further it is alleged that as per the confirmation by MCD, premises in question from where such articles were seized belongs to B.K. Nahar and he is residing with his son S.K. Nahar and both them are enjoying exclusive possession thereof.
It is further alleged that as per evidence on record, it is established that both of them are involved in illegal trade of antiquities without any valid license required u/s 5 of the Act in question and moreover possession of such unregistered antiquities is also violation of such Act. It is further claimed that both the accused could not give satisfactory reply regarding possession of such unregistered antiquities and not having license to deal with the same. It is further stated that the present case is filed within the period of limitation prescribed u/s 468 Cr.PC. It is further stated that necessary permission/authorization to file the present case is already given. Therefore, it is stated that there is no impediment in taking cognizance of the present case.
2. This is one of the oldest matter pending in this court and same is about 22 years old. Further, accused no. 2 B.K. Nahar is a senior citizen of about 87 years.
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3. Both the accused were ultimately summoned and complete set of copies were supplied to both the accused persons. After hearing arguments, vide reasoned order, notice was framed against them on 22.07.1999 u/s 251 CBI v. Soumitra Kumar Nahar & Another 3 of 16 Cr. P.C., as it is a summon trial matter. Such notice was framed against both the accused u/s 25 (2) r/w 5 and 14 of the Antiquities and Art Treasurers Act.
Material Evidence In Brief :
4. Prosecution in support of present case examined 10 witnesses, including the IO. PW-1 is the star witness from ASI. PW-2 is the photographer working in CFSL. PW-3 and PW-10 are the witnesses to the search. PW-4 is SP of CBI dealing with the present case. PW-5 granted sanction/authorization u/s 26 (2) of the Act. PW-6 is the first IO of the case. PW-7 is an official from MCD for proving the possession over the house where the articles in question were recovered. PW-8 is another official of CBI/complainant. PW-9 is a witness from registering office, Govt. of West Bengal, Kolkata who deposed about whether articles in question were registered or not with the Directorate of Archeology.
The Defence :
5. Statement of A-1, S.K. Nahar was recorded U/s. 313 Cr.P.C. wherein he pleaded innocence and false implication in this case. He deposed that house in question as well as the articles in questions belongs to his father/accused no. 2 Mr. B.K. Nahar. That he does not know whether such articles falls within the definition antiquities. That he did not give any document to CBI, but his father must have given some documents.
6. Statement of A-2 Mr. B.K. Nahar was recorded U/s. 313 Cr.P.C. wherein he pleaded innocence and false implication in this case. He stated that out of the articles seized and subject matter of the present case, one and two were Indian. That he had gone to Kolkata Archaeological agencies for registration of articles, but he was told that they cannot register foreign articles. That as such, he came back and thought that he will declare one or two Indian articles in Delhi, but before the lapse of 15 days, his house was CBI v. Soumitra Kumar Nahar & Another 4 of 16 raided.
7. Both the accused choose to lead defence evidence.
8. They could examine only one witness DW-1, Professor N.K. Garg, from IIT Delhi. But on a bare perusal of examination in chief of such witness, it can be seen that he did not depose anything material in favour of accused particularly regarding line of defence taken by them.
The Arguments:
9. Ld APP for State as well as Ld counsel for A-1 and A-2 argued very well in detail and assisted the court well.
10. It is argued by Ld APP for State that all the necessary ingredient of section 5 as well as 14 are proved on the basis of evidence on record. It is further stated that there is an admission at least of accused no. 2 Mr. B.K. Nahar, that one or two articles were Indian and he wanted to get them registered, which implies that he was well aware that such articles were antique. It is further stated that the mark L-1 and L-2/receipts furnished by such accused to CBI relating to purchase of such articles in question do not correspondence with the description of the 26 articles actually seized during raid on his premises. As such, same is not of much avail. It is further stated that it is not disputed that articles were recovered from accused house. Further, it is proved on record that such articles were not registered either in the name of accused no. 1 or in the name of accused no. 2. That even the defence witness did not support the accused. It is further argued that CBI is duly authorized, even as per the provision of special Act under which it is constituted. In any case sanction u/s 26 of the Act was duly given and proved.
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11. On the other hand, it is argued in detail by ld. Counsel for accused persons that accused purchased certain articles from Kolkata against bill. Such articles were purchased on 22.05.1997. That accused no. 2 Mr. B.K. Nahar, is a renowned person/art collector. That CBI with ulterior motive conducted the so called raid on 02.06.1997 i.e. even before the expiry of 15 days given in the Act itself for registration of articles, if need so arise at all. There is no evidence at all and there could not be evidence at all u/s 411 IPC. Still, initially CBI, in order to harass the accused persons, filed an FIR under such section. It is further argued that the present Act applies to articles/antiques of India and not of other country. It is further pointed out and vehemently argued that in order to fall under the provision of present Act the age of articles must be more than 100 years. It is further argued that most of the articles which are subject matter of the present case are not Indian as such not required to be registered nor in fact filed under the provision of such Act. It is further stated that although the report was prepared by committee but only PW1 from ASI was examined and there is a discrepancy and in his deposition in this regard. It is further argued that in any case there is no iota of evidence that accused persons were selling or offering for sale of any of such articles. Therefore, section 5 of Act cannot apply at all. It is further stated that ingredient of section 14 of the Act is not complied also because CBI raided and seized the articles before the 15 days of purchase.
As such, it is argued that such articles are not antiques at all. It is further argued that in any case they are not Indian. It is further argued that in fact the painter of the paintings in question is still alive, as such it can be inferred very well that such paintings cannot be more than 100 years old. It is further argued that CBI is not authorized to file the present complaint. As such, It is further argued that in fact the CBI was not authorized to conduct the raid in question. It is stated that as far as mask in question at item no. 1 CBI v. Soumitra Kumar Nahar & Another 6 of 16 and standing male at item no. 12 is concerned, there is no bill but they are ordinary articles and do not fall within the category of antiques at all.
In any case, it is argued that benefit of doubt must go to the accused. Further it is argued that CBI concerned authority failed to conduct the relevant test to determine the age and period of articles in question.
FINDINGS:
12. I have heard both the sides and gone through the record. Further, I have gone through the provisions of Act in question. Further, it may be noted that it is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
13. At this stage, it would be appropriate to note the relevant provisions of Act in question. :
13.1. Section 2 (1) In this Act, unless the context otherwise requires,--
(a) "antiquity" includes--
(1) (i) any coin, sculpture, painting, epigraph or other work of art or craftsmanship;
CBI v. Soumitra Kumar Nahar & Another 7 of 16
(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 an antiquity for the purposes of this Act, which has been in existence for not less than one hundred years; and (II) any manuscript, record or other document which is of scientific, historical, literary or aesthetic value and which has been in existence for not less than seventy-five years;
13.2. Section 5 Antiquities to be sold only under a license-
As from the date of expiry of a period of six months from the commencement of this Act] no person shall, himself or by any other person on his behalf, carry on the business of selling or offering to sell any antiquity except under and in accordance with the terms and conditions of a licence granted under section 8.
13.3. Section 14 Registration of antiquities-
(1) The Central Government may, from time to time, by notification in the Official Gazette, specify those antiquities which shall be registered under this Act.
(2) In specifying the antiquities under sub-section (1), the Central Government shall have regard to the following factors, namely:--
(i) the necessity for conserving the objects of art;
(ii) the need to preserve such objects within India for the better appreciation of the cultural heritage of India;
(iii) such other factors as will, or are likely to, contribute to the CBI v. Soumitra Kumar Nahar & Another 8 of 16 safeguarding of the cultural heritage of India. (3) Every person who owns, controls or is in possession of any antiquity specified in the notification issued under sub-section (1) shall register such antiquity before the registering officer--
(a) in the case of a person who owns, controls or possesses such antiquity on the date of issue of such notification, within three months of such date; and
(b) in the case of any other person, within fifteen days of the date on which he comes into ownership, control or possession of such antiquity, and obtain a certificate in token of such registration 13.4. Section 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.
13.5. Section 23 Powers of entry, search, seizure, etc.-
(1) Any person, being an officer of Government, authorized in this behalf by the Central Government, may, with a view to securing compliance with the provisions of this Act or to satisfying himself that the provisions of this Act have been complied with
(i) enter and search any place;
(ii) seize any antiquity or art treasure in respect of which he suspects that CBI v. Soumitra Kumar Nahar & Another 9 of 16 any provision of this Act has been, is being, or is about to be, contravened and thereafter take all measures necessary for securing the production of the antiquity or art treasure so seized in a court and for its safe custody, pending such production.
(2) The provisions of sections 102 and 103 of the Code of Criminal Procedure, 1898 (5 of 1898) relating to search and seizure shall, so far as may be, apply to searches and seizures under this section.
13.6. Section 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.
13.7. Section 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 (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 CBI v. Soumitra Kumar Nahar & Another 10 of 16 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 fine, or with both 13.8. Section 26(1) 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 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.
14. Coming back to the facts of present case, it may be noted that in any case PW5 deposed that complainant M.J. James was duly authorized by him to file and pursue the present complaint and such order dated 29.12.1997 was proved as Ex. PW5/A. She further deposed that she has gone through the complaint and other material before issuing such letter. She further denied that such letter / order was issued in mechanical manner or without application of mind or that no material was placed before issuing the same.
15. Further, it is claimed by the accused side that painter of alleged CBI v. Soumitra Kumar Nahar & Another 11 of 16 paintings in question is still alive, as such in any case such paintings cannot be more than 100 years old. But on a perusal of evidence on record it is clear that there is no evidence proved on record to support such argument. As such no weightage can be given to such argument.
16. But, as far as offence u/s 5 read with section 25 (2) of the Act is concerned, on a bare perusal of evidence proved on record, it is clear that there is no evidence, direct or even circumstantial, to show that any of the accused were carrying on the business of selling or offering to sell any antiquity. Same is the necessary ingredient to attract section 5. In fact, it is the undisputed stand of CBI itself that such articles in question were recovered from the house of the accused persons. As such, no such offence is proved on record, although in the original FIR there were allegation about the same. In fact, it may further be noted in this regard that in the complaint filed in the court, itself even the offence u/s 411 IPC was dropped. As such, both the present accused are acquitted of such offence u/s 5 read with section 25 (2) of the Act.
17. Further the stand taken by prosecution is that the accused S.K. Nahar (A-1) as well as B.K. Nahar (A-2) were found in possession of the house from where the articles in question were recovered. But it is stated by the PW7 that as per MCD record relating to property tax A-2 Mr. B.K. Nahar was the registered person in the record of MCD. Further, during his cross- examination he admitted that there was no record to show that A-1 Mr. S.K. Nahar was having any connection with the abovesaid property at that time.
But it is also not disputed by the accused side and on the other hand proved on record by the prosecution that at the time of raid / search both the accused were found living in the property in question and thus CBI v. Soumitra Kumar Nahar & Another 12 of 16 having possession of the same. But again this at best shows that both of them were in possession of the property from where articles in question were recovered. But the same does not amount that in any case A-1 was also having possession of such articles in question. In fact, on the basis of material on record and having regard to the explanation given by both the accused during their statement u/s 313 Cr.P.C, it is clear that it is the A-2 who claimed ownership of all such articles and was dealing with the same and nowhere it is shown that it is the A-1 Mr. S.K. Nahar who bought such articles or thereafter was in possession thereof. But all what is proved on record is that A-1 happened to be at the place where such articles were kept by A-2. In any case, there is no sufficient evidence on record to prove that A-1 was owing, controlling or having possession of any of such articles in question. And on the other hand it is proved on record it is the A-2 who had possession of such articles at the time of their recovery from the house in question.
18. In this case, it is not in dispute that the articles in question along with other articles were seized from the house where accused no.1 and 2 were residing. In fact, accused no. 2 has not disputed that he is the owner of the articles in question.
19. At this stage, it may be noted that in this case, it is fairly deposed by the PW-4 Sh. R.K. Saran, Retired SP CBI during his cross-examination that he cannot say anything about the seized property whether the same is indigenous or foreign. He further admitted that he cannot say that seized property were all antique or not. In fact, he deposed that it is the duty of Archaeological Survey of India (ASI) whether property is antique or not. Further it can be seen that PW-1 Sh. Hari Manji, Retired Director (Antiquity) ASI deposed that he was working in ASI. That on 23.03.1997, 26 art objects relating to present case were examined by him with the help of experts. He CBI v. Soumitra Kumar Nahar & Another 13 of 16 further deposed that after examination he prepared a report Ex. PW1/A. He further deposed that he also sent a letter dated 17.10.1997 mentioning the registrable antiquities Ex. PW1/B. He further deposed that while declaring some of the objects as antiquities he signed on back of photographs which are collectively marked as Ex. PW1/C to Ex. PW1/c-8 and he further deposed that antiquities produced in court are marked as P1 to P8.
But, in his cross-examination, inter alia, he deposed that there is no method of determining the age of an object, and whether an object is antiquity or not can be identified or determined only by way of visual observations. He further admitted that science of determining the age and declaring the antiquity is not is perfect science and the result depends on expertees and experience of the examiner. He further admitted that he has not mentioned the age of material, the year of arts and other relevant particulars in his report to show whether a particular falls within the observation of antiquities or not. He further admitted that he cannot say after seeing the objects whether is 10 years, 20 years, 60 years or 100 years old but he deposed that approximately it can be 65 years or upwards. He further deposed that he can give the age of object after seeing the object. But on the next date of hearing, he deposed that he cannot tell the age and period of the material used in the objects in question. He further admitted that committee members collectively decides which object is antiquity or not. He further admitted that there were three members of the committee apart from him. He further admitted that examined females standing figures under tree which was declared non antiquity and was made of stone and same is mentioned in serial no. 3 of his report. He further admitted that he has not examined the age of stone used in such object. He further admitted that they have not tested scientifically any object to determine its age and period. It is further admitted that committee has not given any report. He further admitted that CBI v. Soumitra Kumar Nahar & Another 14 of 16 only collective decision was taken in the form of minutes signed by all of them. He further deposed that such minutes were handed over to CBI but such minutes was not found on record.
20. Thus, on a bare perusal of statement of such witness who is the only expert witness examined by CBI, it is clear that he or the committee did not employ any scientific method to determine the age and period of articles in question. It may further be remembered that at best their report is an opinion only. Further, in any case it is pertinent to note that on a bare reading of evidence on record it is clear that prosecution nowhere proved on record whether the articles in question were Indian only and not of some other country only. Same is relevant as the offence in question can be committed only relating to Indian articles only. In any case, as also argued by Ld. Counsel for accused, CBI has failed to place on record sufficient evidence that any of such articles was more than a hundred years old. Even otherwise, the benefit of any reasonable doubt must go to the accused, which is a cardinal principle of criminal law.
21. At this stage, it may be seen that the persons who sold the articles in question are not examined. In fact, it is stated that they have already expired before their examination. But in any case, such bills Mark L-1 and L-2 are produced and relied by prosecution only in the evidence of their IO/PW-6. Further, as per the deposition of PW-6, same were handed over to him by accused no. 1. Thus, in any case there is no dispute regarding such two documents/bills and same can be considered in evidence as such. But in any case, in the background of findings relating to evidence of PW-1, when it is not proved beyond reasonable doubt whether any of the articles in question is antique, that too of Indian origin, whether the articles mentioned the bills Mark L-1 and L-2 corresponds to the relevant articles out of the 26 articles CBI v. Soumitra Kumar Nahar & Another 15 of 16 seized in the present case, is not of much consequence.
22. Further, it maybe noted that Clause (b) of sub-section 3 of section 14 gives a period of 15 days to the person who own, control or possess any antique to get it registered before the registering officer. In this case, as per undisputed bills Mark L-1 and L-2 they are dated 22.05.1997 and 24.05.1997. It is further proved on record that premises of accused persons in question was searched / raided on 02.06.1997. Thus, it is clear that 15 days time from the date of such bills / purchase was not even over at the time of such raid. Further it is not proved by CBI as per the evidence on record that possession of such articles was with any of the accused from an earlier time i.e. before 15 days. Further, at the cost of repetition it is to be remembered that prosecution has to stand on its own leg and cannot take advantage of lacuna of defence of accused, if any.
23. In view of the above discussion, it is held that prosecution has miserably failed to prove charge u/s 5 r/w 25 of the Act. Further, it is held that the charge u/s 14 r/w 25 of the Act is not proved beyond reasonable doubts. Accordingly, both the accused S.K. Nahar and B.K. Nahar are acquitted for all the charges/offences in the present case.
File be consigned to record room after due compliance.
Digitally signed by NAVEEN NAVEEN KUMAR
KUMAR KASHYAP
Date: 2019.10.14
KASHYAP 13:22:22 +0530
Announced in the open court (NAVEEN K. KASHYAP)
on 11.10.2019 and all the pages Chief Metropolitan Magistrate
from 1 to 16 are signed by me. Rouse Avenue Courts, New Delhi
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