Madras High Court
Mushtaq Ahmed Banday @ Mushtaq Ahmad ... vs The Inspector Of Police on 29 April, 2024
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.OP(MD)No.4677 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.OP(MD)No.4677 of 2024
and
Crl.MP(MD)No.3654 of 2024
1.Mushtaq Ahmed Banday @ Mushtaq Ahmad Banday
2.Khurshid Ahmed Khan
: Petitioners
Vs.
1.The Inspector of Police,
Idol Wing,
Chennai.
Crime No.41 of 2022
2.Kavitha : Respondents
PRAYER: Petition filed under Section 482 Cr.P.C to call for the records
relating to the Crime No.41 of 2022 pending on the file of the first
respondent Police and quash the same.
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Crl.OP(MD)No.4677 of 2024
For Petitioners : Mr.G.Karuppasamy Pandiyan
For R.1 : Mr.M.Sakthi Kumar
Government Advocate (Crl. Side)
*****
ORDER
The petitioners are accused nos.1 & 2 in Crime No.41 of 2022 on the file of the respondent Police and they have filed this petition to quash the proceedings pending against them.
2.The prosecution case is that on 17.10.2022 at about 04.00 pm, the respondent Police had conducted search in the Handicraft shop of the petitioners and recovered three statues, viz., (i) Stone Carving Figure;
(ii) Stone Lady Figure; and (iii) Stone Head. After the seizure of the said statues, the respondent Police enquired the person, who is in charge of the shop and found that there were no documents / proofs as to from where they have purchased those statues. Hence, the case has been registered for the offence u/s.41(1)(d) and 102 Cr.P.C.
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3.Learned Counsel for the petitioners submitted that on 25.01.2023, the second petitioner appeared before the respondent Police and produced bills and documents showing the place from where they have purchased the statues. Despite the same, the respondent Police is keep on coming to the shop under the guise of enquiry and search. Moreover, even after the lapse of 1.5 years, no final report has been filed till date.
4.He further submitted that a criminal case can be registered only in respect of a cognizable offence. However, in the case on hand, FIR has been registered for the offence u/s.41(1)(d) and 102 Cr.P.C. Therefore, the learned Counsel prayed for quashing the FIR.
5.Learned Government Advocate (Crl. Side) submitted that the petitioners are running an Art Emporium at North Chithirai Street, Madurai and on information that the petitioners are having antique statues in the Emporium, the respondent Police conducted a search on 17.10.2022 at about 04.00 pm. During the search, the respondents have recovered three 3/8 https://www.mhc.tn.gov.in/judis Crl.OP(MD)No.4677 of 2024 statues, viz., (i) Stone Carving Figure of Lord Siva with Parvathi; (ii) Stone Lady Figure; and (iii) Stone Head. The Manager of the Emporium, one Zahoor Ahmed Zargar, who was present, was not having any convincing answers for these three statues and has failed to produce any documents for the same. The statues recovered were handed over to the Idol Wing, Madurai and the Idol Wing has registered the case in Crime No.41 of 2022 for the offence u/s.41(1)(d) & 102 Cr.P.C. They have issued summons to the petitioners u/s.41A Cr.P.C on 04.11.2022 calling upon them to produce the documents pertaining to the statues. The petitioners have not appeared and co-operated, however, they have sent three bill copies that they have purchased these statues from one M/s.Varun Handicrafts, Delhi and M/s.Ruby Palace, Delhi.
6.He further submitted that as per the Antiquities and Art Treasures Act, 1972, the respondent Police has filed necessary application before the Additional Chief Judicial Magistrate, Kumbakonam, to determine the antiquity of these statues, which were recovered. The learned Chief Judicial Magistrate allowed the said application and the Regional Director (South), 4/8 https://www.mhc.tn.gov.in/judis Crl.OP(MD)No.4677 of 2024 Archeological Survey of India, has submitted a report that the Stone Carving statue (Siva and Parvathi) recovered from the petitioners is an antiquity. Therefore, the respondent Police has proceeded further for obtaining necessary sanction for prosecution from the Director General of Archeological Survey of India and same is pending consideration.
7.This Court considered the rival submissions made on either side and perused the materials placed on record.
8.The petitioners have filed this application to quash the FIR, on the strength of the bills issued by M/s.Varun Handicrafts, Delhi and M/s.Ruby Palace, Delhi. Apart from that, it is their case that the respondent Police cannot register the case for a non-cognizable offence and on the sections, which were registered in the FIR, no prosecution can be laid.
9.However, the Departmental of Archeological Survey of India has now reported that one of the statues recovered from the petitioners is an antiquity. If anybody violates the provisions of Section 5 or 12 or 13(2) or 5/8 https://www.mhc.tn.gov.in/judis Crl.OP(MD)No.4677 of 2024 13(3) or 14 or 17 of the Act, they shall be liable to be punished with an imprisonment for a term which may extend to six months or with fine or with both, as per Section 25(2) of the Antiquities and Art Treasures Act. Similarly, if any person exports or attempts to export any antiquity in contravention of Section 3, either by himself or by any other person, is liable to be prosecuted for a minimum period of six months, as per Section 25(1) of the Act. However, no prosecution can be initiated under the Antiquities and Art Treasures Act, 1972, without a sanction from the concerned officer.
10.In this case, the respondents have stated that the Regional Director (South), Archeological Survey of India, has submitted a report that one of the statues is an antiquity and that the respondents have also filed an application before the Director General of Archeological Survey of India requesting sanction for prosecution. Therefore, this Court is not inclined to entertain this quash application.
6/8 https://www.mhc.tn.gov.in/judis Crl.OP(MD)No.4677 of 2024 Accordingly, this criminal original petition stands dismissed, with a direction to the respondent Police to verify the genuineness of the bills produced by the petitioners, before prosecuting the accused. In the event, if the bills are genuine, then the seller has also to be booked for selling Antiquities. Consequently, connected miscellaneous petition is closed.
Internet : Yes 29.04.2024
gk
To
1.The Inspector of Police,
Idol Wing,
Chennai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.OP(MD)No.4677 of 2024
B.PUGALENDHI, J.
gk
Crl.OP(MD)No.4677 of 2024
29.04.2024
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