Gujarat High Court
Shrimant vs State on 2 August, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCR.A/287/2010 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 287 of 2010
With
CRIMINAL
MISC.APPLICATION No. 2062 of 2010
In
SPECIAL
CRIMINAL APPLICATION No. 287 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
SHRIMANT
SANGRAMSINH PRATAPSINH GAEKWAD & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 5 - Respondent(s)
=========================================
Appearance
:
MR BB NAIK,
SENIOR ADVOCATE for M/S TRIVEDI & GUPTA
for Applicant(s) : 1 -
2.
MR LR POOJARI, ADDL. PUBLIC PROSECUTOR for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 2,
MR RM CHHAYA,
CENTRAL GOVT. STANDING COUNSEL with MR PS CHAMPANERI for
Respondent(s) : 3 - 5.
MR YN RAVANI for Respondent(s) :
6,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 27/12/2010
ORAL
JUDGMENT
[1.0] By way of this petition under Article 226 of the Constitution of India, petitioners - original applicants have prayed for the following reliefs:
[A] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.6, the Central Bureau of Investigation, or respondent No.2, the Commissioner of Police, Vadodara, to take the complaint of the petitioners through letter dated 8.10.2009 and to register the same as an offence punishable under the provisions of the Act and to investigate the same and file appropriate report before the competent Court after following the procedure prescribed under the Antiquities and Art Treasures Act, 1972.
[B] YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent Nos.3, 4 and 5 to take appropriate action to preserve Heirloom jewelery of the family of the Ex-Ruler of the then Baroda State and movable articles which are having historical interest and value, under the provisions of the Antiquities and Art Treasures Act, 1972.
[2.0] Shri Bharat Naik, learned Senior Advocate appearing on behalf the petitioners does not press the present petition qua prayer in terms of para 17[B] at this stage and has requested to consider the present petition qua prayer in terms of para 17[A]. Hence, present petition is dismissed as withdrawn so far as prayer in terms of para 17[B] is concerned and is being considered so far as prayer in terms of para 17[A] is concerned.
[3.0] It is the case on behalf of the petitioners that they belong to the family of Ex-Ruler of the then Baroda State which merge with the Union of India in March 1949 under the Treaty executed between Sir Pratapsinh Gaekwad and the Union of India. That the administration of the then State of Baroda was taken over by the Government of Bombay on 01.05.1949 with the State properties. That apart from the State properties in the private properties of the Ruler, there were many antiques and Heirloom jewelery which are "antiques" as defined under the provisions of the Antiquities [Export Control] Act, 1947 and under the Repealing Act, i.e. the Antiquities and Art Treasures Act, 1972 (herein after referred to as "Act, 1972") and the Rules made thereunder. It is the case on behalf of the petitioners that the said jewelry included three diamonds of historical interest and background, namely, " Akbar Shah Diamond", " Star of the South Diamond"
and " Empress Eugenie Diamond", and other Heirloom jewelry to be worn by the Ruler of the then Baroda State at the time of official functions including " Seven String Pearl Necklace".
It is also the case on behalf of the petitioners that Ex-Ruler of the then Baroda State, Sir Pratapsinh Gaekwad, removed the said diamonds and " Seven String Pearl Necklace"
out of India before the merger with other jewelry. That the Union of India, when came to know about the same, Sir Pratapsinh Gaekwad restored the said jewelry to Jawaharkhana where all Heirloom jewelery including the above referred items were kept. It is submitted that the aforesaid facts are categorically mentioned in a book, namely, the Story of Integration of Indian States, written by Sir V.P. Menon, which includes Chapter XXI on the merger of Baroda. It is the case on behalf of the petitioners that above referred three items namely " Akbar Shah Diamond", " Star of The South Diamond"
and " Empress Eugenie Diamond"
are very old and as per the history of the said diamonds, they are more than 200 years old. It is the case on behalf of the petitioners that the said diamonds are of historical interest and are covered by the definition of "antiques" defined under the Antiquities [Export Control] Act, 1947 and the Repealing Act i.e. the Act, 1972.
[3.1] It is the case on behalf of the petitioners that after the death of Sir Pratapsinh Gaekwad, Maharaja Fatehsinhrao Pratapsinhrao Gaekwad was made the Ruler of the then Baroda State and was the last recognized Ruler of the then Baroda State and the above referred three jewelery were lying intact in Jawaharkhana of the State which were owned and occupied by Maharaja Fatehsinhrao Pratapsinhrao Gaekwad. It is the case on behalf of the petitioners that even the above referred three diamonds with other jewelery were shown in the wealth tax returns filed by Maharaja Fatehsinhrao Pratapsinhrao Gaekwad from time to time under the provisions of the Wealth Tax Act. It is the case on behalf of the petitioners that since petitioner No.1 is the brother and petitioner No.2 is the nephew of late Shri Fatehsinhrao Pratapsinhrao Gaekwad, Ex-Ruler of the then Baroda State, they are very much interested in preservation of Heirloom jewelery which is also "antiques" under the provisions of the Act, 1972. It is the case on behalf of the petitioners that the petitioners came to know that after the death of Sir Fatehsinrao Pratapsinhrao Gaekwad, the persons, who were in possession of the said Heirloom jewelery, were disposing of the same without the permission of respondent Nos.2 to 5 herein though the said jewelery is "antiques"
under the provisions of the Act, 1972 and therefore, petitioner No.1 approached respondent No.4, Director General, Archaeological Survey of India, New Delhi by letter dated 15.06.2007 requesting him for registering Heirloom jewelery and other movable properties like Gold Gun (Canon) and Silver Gun (Canon) and other articles of historical interest and "antiques" under the provisions of the Act, 1972. It is the case on behalf of the petitioners that petitioner No.1 also mentioned in the said letter that he has come to know through a news item which appeared in the Times of India stating that a part of " Seven String Pearl Necklace"
was kept for auction at Christies, New York. It was also mentioned in the said letter that he has come to know that " Star of the South Diamond"
was with Cartier at that time. It is the case on behalf of the petitioners that petitioner No.1 also mentioned in the said letter that after the death of Sir Fatehsinrao Pratapsinhrao Gaekwad, other family members, namely, Mrs. Mrunalinidevi Puar and Shri Ranjitsinh Gaekwad with an intention to siphon away these articles, were illegally and unauthorizedly taking these Heirloom jewelery and inventorized antiques out of India and were trying to sell them. It is the case on behalf of the petitioners that therefore, by the letter dated 15.06.2007 addressed to respondent No.4, he has requested to take appropriate action against the persons mentioned in the said letter and others involved in removing the said Heirloom jewelery and other articles out of India.
[3.2] It is the case on behalf of the petitioners that petitioner No.1 received the reply from the Director (Antiquities), Archaeological Survey of India, respondent No.5 on 07.08.2007 informing petitioner No.1 that "antique objects" cannot be taken out of the country as per the provisions of the Act, 1972 and if any such incident has happened, the same may be reported to the local police or CBI, as the Archaeological Survey of India is not the enforcing agency. It is the case on behalf of the petitioners that thereafter some correspondence took place between respondent Nos.4 & 5 and petitioner No.1 and ultimately petitioner No.1 wrote a letter to respondent No.5 on 14.07.2009 categorically informing respondent No.5 that Mrs. Mrunalinidevi Puar and Shri Ranjitsinh Gaekwad have unauthorizedly and illegally taken those antiques out of India and they have committed breach of the provisions of the Act. It is the case on behalf of the petitioners that in the said letter, it was also stated that under Section 26 of the Act, 1972, cognizance of an offence cannot be taken an no prosecution for an offence under Section 25 of the Act, 1972 can be instituted except on sanction of such officer of the Government as may be prescribed in this behalf and no Court can take cognizance of an offence punishable under Section 25 of the Act, 1972 except upon complaint in writing made by an officer generally or specially authorized in this behalf by the Central Government, therefore, he requested respondent No.5 to take appropriate action. Therefore, petitioner No.1 requested to take appropriate action or to inform him the designation and address of the authorized officer in this behalf so as to enable him to lodge a complaint with such an officer. The said request was made vide letter dated 14.07.2009 by petitioner No.1. It is the case on behalf of the petitioners that petitioner No.1 received a reply dated 03.08.2009 from respondent No.5 in response to his letter dated 14.07.2009 informing petitioner No.1 that the prosecuting agency for the offences committed under sub-section (1) of Section 25 and sub-section (1) of Section 25 is Director General, Archaeological Survey of India, when as for in respect of the offences committed under sub-section (2) of Section 25 and sub-section (2) of Section 26, the authorized officer is the Director (Antiquities), Archaeological Survey of India. It is the case on behalf of the petitioners that thereafter and after the receipt of the letter dated 03.08.2009 from respondent No.5, petitioner No.1 approached respondent No.2, the Commissioner of Police, Vadodara by letter dated 08.10.2009, stating all the facts regarding removal of Heirloom jewelery including the above referred three diamonds and " Seven String Pearl Necklace" by Mrs. Mrunalinidevi Puar and Shri Ranjitsinh Gaekwad and other family members which amounts to an offence punishable under the provisions of the Act, 1972 and requested him to lodge the complaint and register the same as First Information Report. It is the case on behalf of the petitioners that despite the above request, the complaint filed by petitioner No.1 is not registered as FIR for the offences punishable under the provisions of the Act, 1972. The petitioners, therefore, have preferred the present Special Criminal Application for the aforesaid relief.
[4.0] Shri Chhaya, learned Central Government Standing Counsel has appeared on behalf of the Central Government and respondent Nos.3 to 5. It is submitted that as such the application submitted by the petitioners dated 15.06.2007 was only with respect to registration of articles mentioned in the said application under the Act, 1972 and the same was replied by the Director (Antiquities) vide his communication dated 07.08.2007 informing petitioner No.1 that as per the list attached by him, the antique objects cannot be taken out of the country under the provisions of the Act, 1972. It is submitted that petitioner No.1 was also informed that if any such incident is noticed, the matter may be reported to the local police and CBI, as the Archaeological Survey of India is not the enforcing agency. It is further submitted that by Shri Chhaya, learned Central Government Standing Counsel that even the representation/application submitted by petitioner No.1 dated 14.07.2009 was replied by the Director (Antiquities) vide reply dated 03.08.2009 and petitioner No.1 was informed that the authority to authorize the prosecuting agency for the offences committed under sub-section 1 of Section 25 and sub-section (1) of Section 26 is the Director General, Archaeological Survey of India, when as for in respect of the offences committed under sub-section (2) of Section 25 and sub-section (2) of Section 26, the authorized officer is the Director (Antiquities), Archaeological Survey of India and the said authorization are given on the request of the law enforcing agencies who have registered cases against such offences. It is submitted that as such the petitioners have not approached the competent authority who can authorize to grant sanction to file the complaint for illegal export and transfer of ownership etc. of unregistered antiquities, no further action is taken by the appropriate authority. It is submitted that on an appropriate application being submitted to the competent authorized officer as mentioned in the communication dated 03.08.2009, appropriate decision shall be taken.
[5.0] Heard Shri B.B. Naik, learned Senior Advocate appearing on behalf of the applicants/petitioners of Special Criminal Application No.287/2010, Shri L.R. Poojari, learned Additional Public Prosecutor appearing on behalf of respondent - State authorities; Shri R.M. Chhaya, learned Central Government Standing Counsel appearing on behalf of the Central Government and respondent Nos.3 to 5 and Shri Ravani, learned advocate appearing on behalf of respondent No.6. As stated herein above, Shri Naik, learned Senior Advocate appearing on behalf of the petitioners has not pressed the prayer in terms of para 17[B] at this stage and therefore, this Court is required to consider the prayer in terms of para 17[A] only. It is the case on behalf of the petitioners that two antiquities (1) " Seven String Pearl Necklace" and (2) " Star of the South Diamond" have been illegally exported out of the country and it is alleged that Mrs. Mrunalinidevi Puar and Shri Ranjitsinh Gaekwad and his other family members have illegally and unauthorizedly took the aforesaid two antiquities out of the country, which is in contravention of the provisions of the Act, 1972, more particularly, Sections 25 and 26 of the aforesaid Act, 1972.
"Antiquity"
is defined under Section 2(1)(a) of the Act, 1972, which reads as under:
(a) "antiquity"
includes-
(I) (i)any coin, sculpture, painting, epigraph or other work of art or craftsmanship;
(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;
[5.1] As per section 3 of the aforesaid Act, 1972, on and from the commencement of the aforesaid Act, 1972, it shall not be lawful for any person, other than the Central Government or any authority or agency authorized by the Central Government in this behalf, to export any antiquity or art treasure. Considering sub-section (2) of Section 3, even whenever the Central Government or any authority or agency referred to in sub-section (1) intends to export any antiquity or art treasure such export shall be made only under and in accordance with the terms and conditions of a permit issued for the purpose by such authority as may be prescribed. As per Section 5 of the aforesaid Act, 1972, 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. Section 14 of the Act, 1972 deals with registration of antiquities. Section 25 of the Act, 1972, is with respect to the penalty and sub-section (1) of Section 25 deals with exports or attempts to export any antiquity or art treasure in contravention of Section 3 of the Act, 1972 and if any person himself or by any other person on his behalf, exports or attempts to export an antiquity or art treasure in contravention of Section 3, he shall, without prejudice to any confiscation of penalty to which he may be liable under the provisions of the Customs Act, 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. As per sub-section (2) of Section 25, 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 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. Under sub-section (3) of Section 25, 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.
[5.2] Section 26 of the Act, 1972 deals with cognizance of offences and as per sub-section (1) of Section 26, 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. As per sub-section (2) of Section 26, 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.
Sections 25 and 26 of the Act, 1972 reads as under:
25. Penalty.-(1) If any person, himself or by any other person on his behalf, exports or attempts to export an antiquity or art treasure in contravention of Sec.3, he shall, without prejudice to any confiscation of penalty to which he may be liable under the provisions of the Customs Act, 1962 (52 of 1962), as applied by Sec.4, be punishable with imprisonment for a terms 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 Sec.5 or Sec.12 or sub-section (2) or sub-section (3) of Sec.13 or Sec.14 or Sec.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.
(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.
26. Cognizance of offences.-(1) No prosecution for an offence under sub-section (1) of Sec.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.
Thus, considering the aforesaid provisions of the Act, 1972, whenever it is alleged that any person has exported or attempted to export any antiquity or art treasure in contravention of Section 3, sub-section (1) of Section 26 of the Act, 1972 would be applicable and no prosecution for the said offence is maintainable except by or with the sanction of such officer of Government as may be prescribed in that behalf. In the present case, we are concerned with the allegation for the offence punishable under sub-section (1) of Section 25 of the Act, 1972. It appears from the communication dated 03.08.2009 (Annexure F) that Director General, Archaeological Survey of India is the competent authority/authorized officer to grant sanction to institute the prosecution. On making an appropriate application by the aggrieved person to the said authority, the Director General, Archaeological Survey of India is either authorized to file/lodge the complaint before the prosecuting agency or he may authorize any person/applicant to institute the prosecution for the alleged offences under sub-section (1) of Section 25 or he may refuse to grant sanction in accordance with law and on merits. In the present case, it appears that petitioners have not approached the Director General, Archaeological Survey of India alleging contravention of sub-section (1) of Section 25 with respect to the aforesaid two antiquities i.e. (1) " Seven String Pearl Necklace" and (2) " Star of the South Diamond".
[6.0] Shri B.B. Naik, learned Senior Advocate appearing on behalf of the petitioners has submitted that petitioners shall submit appropriate application before the appropriate authority i.e. authorized officer i.e. Director General, Archaeological Survey of India for the alleged offences committed under sub-section (1) of Section 25 with respect to the aforesaid two antiquities i.e. (1) " Seven String Pearl Necklace" and (2) " Star of the South Diamond" within a period of four weeks from today and it is requested that let the said authority exercise powers under sub-section (1) of Section 26 at the earliest.
[7.0] In view of the above, present Special Criminal Application is disposed of by relegating the petitioners to submit an appropriate application/complaint before the Director General, Archaeological Survey of India who is reported to be authorized officer to institute prosecution or grant sanction to institute the prosecution for the alleged offences punishable under sub-section (1) of Section 25 with respect to the aforesaid two antiquities i.e. (1) " Seven String Pearl Necklace" and (2) " Star of the South Diamond" and as and when such application/complaint is made, Director General, Archaeological Survey of India is hereby directed to look into the same, consider the same and exercise powers under sub-section (1) of Section 26 of the Act, 1972 and if satisfied, he himself may institute the prosecution or authorize any other officer or person (may be petitioner/s) to institute the prosecution for the alleged offences under sub-section (1) of Section 25 with respect to two antiquities i.e.(1) " Seven String Pearl Necklace" and (2) " Star of the South Diamond". and/or if he is prima facie satisfied that no such sanction is required, he may take appropriate decision in accordance with law and on merits an inform the petitioners accordingly so that if aggrieved, the petitioners may initiate appropriate proceedings challenging the same. The aforesaid exercise shall be completed within a period of two months from the date of receipt of such application/complaint.
[8.0] With this, present Special Criminal Application is disposed of.
[9.0] In view of disposal of Special Criminal Application No.287/2010, no order in Criminal Miscellaneous Application No.2062/2010.
(M.R. Shah, J.) *menon Top