Delhi District Court
Cbi vs Pritam Chand Kaushal ("Acquitted") ... on 18 August, 2011
RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI RC SID 1999 E 0002 U/s 14 (3) r/w Section 25 (2) of The Antiquities and Art Treasures Act, 1972 Unique ID No.: 02401R0168232000 J U D G M E N T:
______________________________________________________________
(a) S. No. of the case : 17/1
(b) Name of complainant : Shri U.K Goswami, Inspector/CBI/SIU (IX), Block 3, CGO Complex, Lodhi Road, New Delhi.
(c) Date of commission of offence : 04.08.1999
(d) Name of the accused : Pritam Chand Kaushal,
S/o Late Shri Rania Ram,
R/o C72, First Floor, Niti Bagh,
New Delhi.
(e) Offence complained of : U/s 14 (3) r/w Section 25 (2) of
The Antiquities and Art
Treasures Act, 1972
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 18.08.2011
(h) Final Order : Acquitted
(i) Date of such order : 18.08.2011
______________________________________________________________ CBI V/s Pritam Chand Kaushal ("Acquitted") Page 1 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
J U D G M E N T:
The facts of the case as borne out from the record are that a case being RC 5(E)/98/SIUIX/New Delhi was registered by CBI with regard to theft of antiquities from its Malkhana. During the course of investigation of the aforesaid case, on 04.08.1999 Inspector U.K Goswami conducted raids at the residence of accused, i.e front first floor of C72, Niti Bagh in the presence of Shri S.C Sharan and Shri Ram Niwas, employees of Archaeological Survey of India (hereinafter referred to as "ASI"). From the house of accused, seven objects, suspected to be antiquities were taken into police possession. Thereafter, on 09.08.1999 the said articles were got photographed by CBI through CFSL, formal FIR in the matter was registered on the complaint of Inspector U.K Goswami and matter was put to investigation. During the course of investigation, on 06.09.1999 Shri Hari Manjhi, Director (Antiquity), ASI examined all the seven objects recovered from the possession of accused and declared only one object out of it, i.e a standing figure of Lord Vishnu with attendants on both sides (23.8 x 12.7 cms) as "antiquity". Thereafter, Shri Hari Manjhi further certified to the IO vide his letter dated 16.09.1999 that the said antiquity was required to be registered under the law by the accused and as per the record of ASI, same was not lying registered in the name of accused. As such, the accused was found to have violated the provisions of Section 14(3) of Antiquities and Art CBI V/s Pritam Chand Kaushal ("Acquitted") Page 2 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 Treasures Act, 1972 (hereinafter referred to as "Act"), as punishable U/s 25(2) of the Act. Thereafter, Look Out Notices were sent to police authorities of various States to confirm whether the said antiquity was stolen from any part of India, but nothing positive could be established, as a result whereof Sections 120 B/380/411 IPC in the present case FIR were dropped.
2. On 17.04.2000, Director (Antiquity), ASI, issued necessary authorisation for filing complaint in this matter U/s 26 (2) of the Act, authorising Inspector K.S Lochab to file complaint in this case. As such, on 20.04.2000, complaint U/s 25 (2) r/w Section 14 (3) of the Act was filed in this case.
3. Thereafter, accused was summoned in the matter, supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments on charge, vide order dated 29.01.2003, charge U/s 14 (3) r/w Section 25 (2) of Act was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to bring home the guilt of accused, prosecution examined eleven witnesses, whereafter the PE in the matter was closed and statement of accused U/s 313 Cr.P.C recorded, wherein accused stated that alleged antiquity was not recovered by CBI from his residence. He also abjured all the allegations against him.
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5. I have heard arguments advanced at bar by Shri Jaidev Prasad, learned Special PP for CBI and Shri Gurdial Singh, learned senior counsel for accused and perused the entire material on record. Before adverting to the adjudication upon arguments advanced at bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
6. PW1, Shri Satish Chander Saran, in his evidence stated that on 04.08.1999, he was posted as Deputy Superintendent in ASI and on that day on the directions of Director (Admin.), ASI, he accompanied the CBI team alongwith his colleague Shri Ram Niwas, in search of some stolen antiquities from the Malkhana of CBI. During search, the house of accused was raided, wherefrom seven objects, suspected to be antiquities were recovered, including one object of Brass, being idol of Lord Krishna. He proved the said idol of Lord Krishna, as case property as Ex.P1. He further stated that on 09.08.1999, he and his colleague Shri Ram Niwas were again called in the office of CBI, where the recovered objects from the residence of accused were got photographed. In his crossexamination, he stated that he had not received directions in writing from Director General, ASI for joining investigation with CBI in the matter. He further stated that before moving out from his office to join CBI in the search, he had the knowledge that CBI wanted his services for searching some antiquities which were stolen from the Malkhana of CBI. He expressed his knowledge about prominent God and Goddesses. He further stated that he could clearly identify pictures of Lord CBI V/s Pritam Chand Kaushal ("Acquitted") Page 4 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 Vishnu and Lord Krishna. He further stated that the objects suspected to be "antiquities" were always examined by a "Committee" of experts for forming opinion as to whether same were antiquities or not. He, however, denied the suggestion that he was not part of the raiding party on 04.08.1999, which conducted the raid at the residence of accused.
7. PW2, Shri C.B Patil in his evidence stated that in the year 1999 he was working as Registering Officer in the O/o Director General, ASI and his job was to register the entries of antiquity and transfer of the ownership thereof and other related matters. In this matter, he was asked by CBI to give opinion after consulting registers as to whether the case property was lying registered with ASI or not and after verifying the Index Register, Accession Register and Transfer of Ownership Register of Antiquities, he gave opinion that it was not lying registered with ASI in the name of accused. Strangely, neither certified copies of said registers nor the report of this witness was taken into possession in this matter by IO. This witness in his cross examination categorically admitted that his report in the matter was not there on record.
8. PW3, Shri Gautam Roy, Sr. Scientific Officer from CFSL, CBI in his evidence stated that on 09.08.1999 on the directions of IO, he had photographed the objects recovered from the house of accused, including the case property.
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9. PW4 (wrongly written) Shri U.K Goswami, the complainant in this case submitted that on 04.08.1999 he alongwith Shri S.C Saran and Shri Ram Niwas, officers from ASI and some other CBI officials conducted search at the house of accused and during search, in addition to some other objects, the case property was recovered from his bedroom and same was seized. Lateron, on 09.08.1999, same was got photographed through CFSL, CBI. In his crossexamination, he admitted that no search was conducted in the present case, however, during investigation of an earlier case, being RC 5(E)/98, the case property in the present case was recovered without there being any Search Warrants issued by any court in this regard. He, however, denied the seizure of case property without any authority of law. He further claimed ignorance about the present case being a noncognizable case and no investigation therein could have taken place without the permission of the court. He further stated that although public witnesses from the locality were available during search of the residence of accused, but they did not participate despite request of CBI in the proceedings.
10. PW5, Shri Ram Niwas has deposed on the lines of PW1 Shri Satish Chandra Saran.
11. PW6, Shri Hari Manjhi in his evidence stated that in the year 1999, he was posted as Director (Antiquities) in ASI. He was approached by CBI in this case for examination of the objects recovered from the house of CBI V/s Pritam Chand Kaushal ("Acquitted") Page 6 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 accused and suspected to be "antiquities" for his opinion and vide his letter dated 31.08.1999, he fixed the date of examination of the objects in the office of Director General, ASI as 06.09.1999. Accordingly, on 06.09.1999, the objects were examined by him and vide his report dated 15.09.1999 he opined only case property to be "antiquity" and other six to be "nonantiquity". Thereafter, on the request of CBI, he further opined vide his letter dated 27.09.1999 that the case property was registrable antiquity under the Act, but was not lying registered in the name of accused as per the records available in the O/o ASI. Thereafter, he issued authorisation to file complaint in favour of CBI against the accused. This witness was thoroughly crossexamined by the defence, wherein he stated that he was authorised by the Director General, ASI for examination of the objects recovered from the accused in this case. Thereafter, he constituted a team of experts with the approval of Director General, ASI, to examine the objects which consisted of Dr.S.S Biswas, Dr.K. Deva and Dr.Daljeet. The aforesaid team examined the objects, minutes of the proceedings by the Committee were prepared and thereafter, he declared only case property to be antiquity. He, however, admitted that there was no reference of the examination of the objects by the Committee and the Committee having been formed on the directions of Director General, ASI in his report Ex.PW6/B, dated 15.06.1999. Very importantly, he admitted that the Committee which had examined the objects in the present case found that none of those was an antiquity. He denied the suggestion that he had no authority to give authorisation to CBI for the prosecution of accused in this CBI V/s Pritam Chand Kaushal ("Acquitted") Page 7 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 matter. He was reexamined by the prosecution with the permission of Court, wherein he stated that he was present when the Committee had examined the objects and the report Ex.PW6/B was a collective decision of the Committee. In his recrossexamination, he admitted that the theory of collective decision propounded in reexamination did not find mention in Ex.PW6/B.
12. PW9, Inspector K.S Lochab in his evidence stated that on 20.04.1999, he had filed a complaint in this matter U/s 25 (2) r/w Section 14 (3) of the Act, which was duly forwarded by his Branch SP, Shri M. Ram. He further stated that on 04.08.1999 he was present with the raiding party, at the time of conducting search at the residence of accused. He further stated that he was also present at the time of getting the objects, including the case property photographed in the matter through CFSL, CBI on 09.08.1999. He further stated that he had investigated the present matter. In his cross examination, he stated that he had recorded statement of PW6 Shri Hari Manjhi, who had examined the objects recovered from the house of accused and had given report. He, however, denied the suggestion that no Committee was formed for the examination of the objects. He further denied the suggestion that he did not record the statement of Director General, ASI or the Committee Members who examined the objects because the Committee had opined that none of the objects recovered from the residence of accused was antiquity.
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13. The learned defence counsel very vehemently argued that there was a delay of four days in registration of FIR in this case, as the alleged recovery of case property took place on 04.08.1999, whereas the FIR in the matter was registered on 09.08.1999, without there being any explanation for the same. It was next contended that there is nothing on record to suggest that the case property was not lying registered with ASI, as neither the relevant registers in this regard nor the report of PW2 were there on record in this matter. It was further argued that seizure of case property conducted vide Ex.PW1/1 is a false and fabricated document, as the alleged search and seizure did not take place in presence of any public witness of the concerned locality. It was further contended that the case property Ex.P1, i.e idol of Lord Vishnu with attendants on both sides was categorically opined to be "not an antiquity" by the Committee of experts appointed by the Director General, ASI, however, PW6 in connivance with the officials of CBI gave false report Ex.PW6/B and unilaterally opined the case property to be an antiquity, without there being any basis for the same. It was next contended that PW6 was not authorised to give opinion about the case property and was further not authorised to grant authorisation to PW9 to file complaint in the matter.
14. Per contra, learned Special PP for CBI has very vehemently argued that PW1 and PW5 are independent witnesses of search and seizure and as such, CBI has amply proved its case.
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15. A perusal of record reveals that the alleged recovery from the residence of accused was either a chance recovery or there was some source information with the CBI with regard to accused being in possession of some antiquities. When seizure of the objects, including the case property took place on 04.08.1999, then there was no justification for CBI to have waited for four days for registering FIR in this case. The only justification which is apparent from the record is that it was only on 06.09.1999 that PW6 had examined the objects and had opined the case property to be "antiquity" on 15.09.1999, as such the explanation of CBI that it did not have opinion of expert as to whether the objects recovered from the residence of accused were antiquities or not, and till then it would not have registered the FIR in this case is without any basis, as the opinion that the case property was an antiquity came to CBI only on 15.09.1999 and not before that. There was no bar for getting the FIR in the matter registered on 04.08.1999 itself on the basis of objects recovered from the residence of accused. It is settled law that delay in recording of FIR in itself is not a factor upon which the prosecution case can be thrown out of window, least it causes material prejudice to the accused. Here in this case, the stand of the accused throughout has been that nothing was recovered from his residence and the recovery of the objects in this matter was planted upon him.
16. As regards the case property opined to be a registrable antiquity and the same being not registered in the name of accused, the CBI except for examining PW2 has not produced any documentary evidence in the matter. CBI V/s Pritam Chand Kaushal ("Acquitted") Page 10 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011
17. The search and seizure in this matter was effected by CBI on 04.08.1999 from a residential locality and yet no independent witness was joined therein. PW4 has given a bleak explanation in his crossexamination that he had tried to join witnesses from the locality, but they refused to join the search and seizure proceedings. It is settled law that when the very possession of an article entails penal consequences, then the recovery thereof from the possession of accused has to be proved through cogent, trustworthy and selfsufficient evidence by the prosecuting agency. It was, thus desirable from CBI to have joined independent witnesses and if independent witnesses had refused to join proceedings then appropriate action against them should have been taken in accordance with law or at least their names and addresses should have been taken on record.
18. Now, we will turn to most important aspect of this matter, which is as to whether PW6 Shri Hari Manjhi, the then Director (Antiquity), of his own was competent to give opinion about the objects recovered from the house of accused to be antiquities or not; whether he was authorised by the then Director General, ASI to get the objects examined or was he competent to authorise PW9 to file complaint in this matter. In this regard, Section 24 of the Act is relevant and same is reproduced as under:
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RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 "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 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".
(Underlined emphasised)
19. A perusal of this Section reveals that it is the Director General, ASI to whom the object recovered suspected to be antiquity is required to be referred to for opinion as to whether same is antiquity or not. However, in case, Director General ASI feels it appropriate, he may authorise any other Director to give opinion in this regard and the opinion so given shall be final, meaning thereby that the opinion given either by Director General or any other Director authorised by the Director General with regard to the fact that as to whether the object suspected to be antiquity is an antiquity or not would be final. The very material on the basis of which the said opinion is formed and the reasons which led to formation of that opinion have to be clearly set out in the documentary form, so that opinion presumed to be conclusive under the law could be basis of conviction of an accused. A perusal of the entire evidence of PW6 recorded in this court and the documentary evidence in this regard reveals that as per his evidence, he was authorised by Director General, ASI to examine the objects recovered from the possession of accused, but the said authorisation is not on record. Had this document been CBI V/s Pritam Chand Kaushal ("Acquitted") Page 12 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011 on record, then this court would been in a position to appreciate as to whether it was PW6 alone, who was authorised by the Director General, ASI or the Director General, ASI had given authority to PW6 to either examine the objects himself or to get the same done through a committee of experts. As per the testimony of this witness, he had constituted a "Committee", comprising of experts, i.e Dr.S.S Biswas, Shri K.Deva and Dr.Daljeet, who all had unanimously opined that none of the objects recovered from the house of accuse was an antiquity. However, this witness without referring to the deliberations of the Committee and of his own independent volition, executed report Ex.PW6/B, giving an indication as if he had examined the objects and found the case property out of the same to be "antiquity". Whether report Ex.PW6/B can be looked into for want of documents of authorisation of PW6 by Director General, ASI and for want of minutes of meeting of the committee of experts dated 06.09.1999? When PW6 has categorically admitted that minutes of the said meeting were drawn. In report Ex.PW6/B, PW6 has not stated even a whisper about the deliberations of the Committee. Therefore, no explicit reliance can be placed upon report Ex.PW6/B, whereby the case property in this matter was opined to be an antiquity.
20. Once this court has held that the opinion of PW6 with regard to case property being an antiquity is not tenable in the eyes of law, there is no point in adverting further to arguments advanced at bar in this matter. CBI V/s Pritam Chand Kaushal ("Acquitted") Page 13 of 14 RC SID 1999 E 0002 U/s 14(3) r/w 25(2) of Antiquities & Art Treasures Act, 1972 DOD: 18.08.2011
21. In view of the above discussion, this court is of the firm opinion that CBI has miserably failed in proving the object, allegedly recovered from the house of accused to be an antiquity and as such, the prosecution of accused in this matter is held to be without any reasonable basis. The accused is accordingly acquitted of the charges in this matter. His B/B stands cancelled, surety stands discharged. Endorsement(s), if any, either on the documents of surety or accused be cancelled forthwith. Original documents, if any, either of accused or of surety be returned to its rightful owner forthwith. Since, defence of the accused in the matter has been that the case property was not recovered from his house, same shall stand confiscated to State. File be consigned to Record Room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 18.08.2011 Chief Metropolitan Magistrate:
Delhi
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