The Hindu Business Line : Cobwebs in the law on antiquities

"The officers of DRI (Directorate of Revenue Intelligence), Delhi Zonal Unit, intercepted a consignment of antiquities which were being allegedly attempted to be smuggled out to Hong Kong in six packages vide shipping Bill No 416 dated January 19, 1993 by making false declaration as handicraft items of stones. The alleged antiquities were loaded from a container which was parked at ICD Tughlakabad, Okhla."

What were the items? 18 stone sculptures of deities, certified to be antiquities, by the Archaeological Survey of India. DRI officers caught hold of Girish Dhawan and registered a complaint that his services had been engaged for documentation and processing of shipping bills in question, for `a huge sum of rupees'. One learns from the text of the Delhi High Court judgment dated May 1 that the complaint had been filed under Sections 132 and 135(1)(a) of the Customs Act; queerly, "no complaint was filed for the violation of the Antiquities and Art Treasures Act, 1972."

At the court, the accused relied upon a 1996 decision of the Delhi High Court: Dr. V.J.A. Flynn vs S.S. Chauhan. That story was about Flynn and Sadasivan Mudaliar who were allegedly leaving for Sydney via Hong Kong by Air India Flight on June 21, 1994. "On being intercepted at the airport, it transpired that in the baggage of the petitioner there were coins which were suspected to be antiquities the export of which is prohibited under Section 3 of the Antiquities Act," reads the text of Justice Usha Mehra's verdict dated March 4, 1996.

Flynn's defence was that he had bought the rare coins from a shop in Bangalore. "He further states that he had been collecting the coins for over 50 years for his own delight and enjoyment. Some of these coins were of copper and silver." Meanwhile Superintending Archaeologist examined the coins and prima facie opined that the same were antiquities.

Antiquity is defined as including: "any coin, sculpture, painting epigraph or other work of art or craftsmanship; any article, object or thing detached from a building or cave; any article, object or thing illustrative of science, art, crafts, literature, religion, customs, morals or politics in bygone ages; any article, object or thing of historical interest; 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 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."

Justice Mehra pointed out that the predecessor Act, that is, the Antiquities Act, 1947, had made all the provisions of the Customs Act applicable to an offence committed under the Antiquities Act. However, the 1972 Act had omitted the applicability of all the provisions of the Customs Act. Accordingly, provisions of the Customs Act are now applicable only for confiscation and penalty, said the judge. Punishment and prosecution had to be under the Antiquities Act, she added, before quashing the complaint.

In the Dhawan case, DRI submitted that the Flynn decision had been taken to the apex court through a Special Leave Petition. It seems notice was issued by the Supreme Court in that case, but "the matter could not be carried any further, as the petition, in the meantime, had become infructuous."

So there was no decision rendered by the Supreme Court on this important issue, rued the taxman. On that, however, the Delhi High Court couldn't help but sympathise with, before dismissing the petition.

Perhaps, there was wisdom, after all, in the antiquated law that the new law on antiquities shelved.

ExParte@TheHindu.co.in

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