Bowrings Fine Art Auctioneers ... vs Central Bureau Of Investigation ...
2007 Latest Caselaw 1236 Del

JUDGMENT

Reva Khetrapal, J.

1. The petitioners in the present writ petition pray for issuance of an appropriate writ, order or direction to quash FIR No. RC SID 2004 E 001 dated 29th January, 2004 under Section 120B Indian Penal Code, read with Section 25(1) and Section 3 of the Antiquities and Art Treasures Act, 1972 (hereinafter referred to as the AAT Act, 1972) and all proceedings arising there from. The aforesaid F.I.R. was registered pursuant to a complaint dated 06.01.2004 addressed to the Superintendent of Police, CBI/EOU-VIII, Block No. 3, C.G.O. Complex, Lodhi Road, New Delhi by Dr. G.T. Shendy, Superintending Archaeologist (Antiquity) for the Director General, Archaeological Survey of India.

2. The facts briefly stated are that the petitioner No. 1, M/s. Bowrings Fine Art Auctioneers Pvt. Ltd., is an auction house engaged in holding auctions of paintings of various eminent artists. The petitioners No. 2 and 3 are the Deputy Chairman cum Paintings In-charge and the Managing Director of the petitioner No. 1. In an auction held by the petitioners on 20th November, 2002, two paintings titled Reconciled by Frederico Andreotti and The Kill by George D. Rowlandson, were purchased by one Messrs Tony Haynes of England. When the said paintings were being shipped to the purchaser in England, the Deputy Superintendent, Archaeology (Customs), Archaeological Survey of India, on 07.01.2003, prima facie opined the paintings to be antiquities and advised to further refer the matter to the Director General, Archaeological Survey of India for final opinion and necessary action under the AAT Act, 1972. Accordingly, a panchnama of the paintings was prepared on 14.01.2003 (which is enclosed as Annexure-D to the petition), the paintings were detained by the Superintendent of Customs and the matter referred to the Director General, Archaeological Survey of India.

3. On examination, the Archaeological Survey of India on 30th June, 2003 sent a letter through Dr. G.T. Shendey, Superintending Archaeologist (Antiquity), informing the Customs that the nominee of the Director General had examined the subject paintings and come to the conclusion that the said paintings were registerable antiquities. A copy of the said letter is enclosed with the petition as Annexure-G.

4. On the basis of the aforesaid opinion of the nominee of the Director General, Archaeological Survey of India, a show cause notice dated 4th August, 2003 was issued by the Additional Commissioner Customs (Air Cargo Export) to the petitioners, wherein the petitioners were called upon to show cause why the paintings should not be confiscated and penalty imposed upon the petitioners. It was alleged that the seized paintings were antiquities and that the petitioners had knowingly attempted to export the same. The said show cause notice is enclosed as Annexure-F to the petition. The petitioners through their Advocate replied to the show cause notice and on their demand were furnished with the Report/Minutes of the meeting held on 9th June, 2003, showing that an Expert Committee comprising of Shri O.P. Sharma, Shri B.M. Pandey, Shri M.C. Joshi and Shri Hari Manjhi, Director (Antiquities), Archaeological Survey of India, had examined the subject paintings and found them to be antiquities.

5. The petitioners filed objections to the report of the Archaeological Survey of India and also their submissions dated 20th August, 2004 before the Additional Commissioner (Customs), but on 22nd September, 2004, the Additional Commissioner (Customs) in his order held that he was bound by the opinion of the Archaeological Survey of India by virtue of Section 24 of AAT Act, 1972 and passed an order of confiscation and imposition of penalty on the petitioners.

6. The petitioners filed Writ Petition (Crl.) 16325/2004 challenging the aforesaid order which was withdrawn with the liberty to challenge the Report dated 09.06.2003 vide order order dated 11.10.2004 passed by this Court. Accordingly, Writ Petition (Crl.) bearing No. 16598/2004 was filed challenging the Minutes of the Expert Committee/Report dated 9th June, 2003, which was disposed by a Division Bench of this Court by a consent order dated 24th March, 2005 (enclosed with the petition as Annexure-I). The said order is apposite and is accordingly reproduced hereunder:

CORAM:

Hon'ble Mr. Justice Swatanter Kumar

Hon'ble Mr. Justice Madan B. Lokur

ORDER

24.03.2005

We have heard learned Counsel appearing for the parties at some length.

Challenge in this Writ Petition is to the Minutes of the Expert Committee dated 9th June, 2003 and the order passed by the Additional Commissioner of Customs dated 22nd September, 2004.

In view of the stand taken before us by the learned Counsel appearing for the respective parties it would not be necessary for us to notice the facts or the various contentions raised in the Writ Petition. Suffice it to note during the course of the hearing and upon instructions from the respective clients, counsel for the parties submit that the Writ Petition may be disposed of by a consent order. The agreed terms are:

1. The Respondents would re-constitute a Committee who shall examine the paintings and pass a fresh order in regard to the matter in controversy.

2. The Petitioner would be notified about the constitution of the Committee and when the Committee proposes to inspect the paintings subject matter of the present Writ Petition.

3. The Petitioner would have the right to file objections and also the expert opinions in support of their case which would be examined by the Committee.

4. When the Committee inspects the paintings, the representative of the Petitioner would be present. In its discretion, if the Committee so desires, it would obviously have the liberty to call the Petitioner for hearing.

5. A fresh order would be passed within three months from today and in the meanwhile the Respondents would take full care of the paintings and they would be placed at a place and in a manner which would ensure that the paintings are not spoiled in any manner.

6. It is also agreed between the parties that the Respondents would inform the date of inspection of the paintings in question at least one month in advance to the Petitioner to enable the Petitioner to have his experts also present on the same day.

In view of the above terms or otherwise which are fair and equitable and meet the ends of justice, as the parties have already agreed to appoint a fresh Committee who shall make a fresh report and a fresh order be passed by the Competent Authority, it will not be necessary for the parties to give effect to the earlier report.

This consent order, however, would in no way adversely effect the proceedings under the Customs Act taken by the Authorities.

If a new report is passed the earlier report will not be given effect to.

Accordingly, the Writ Petition is disposed of.

Sd/-

Swantanter Kumar, J.

Sd/-

Madan B. Lokur, J.

March 24, 2005.

7. Acting upon the aforementioned consent order of 24th March, 2005, a second Committee of experts came to be constituted by the Director General, Archaeological Survey of India of which Dr. Amarendra Nath, Dr. G.T. Shendey, Prof. Rajeev Lochan and Ms. Rupika Chawla (apart from two others, who were also appointed but failed to attend the proceedings) were members.

8. The petitioners were informed accordingly vide letter dated 25th/27th April, 2005 and further informed that re-examination of the subject paintings by the Re-Constituted Committee would take place on 20th May, 2005. Copy of the letter is annexed with the petition as Annexure-J. The petitioners submitted a written presentation along with experts opinions showing that the paintings were not antiquities and also attended the meetings of the Expert Re-constituted Committee which took place on 2nd August, 2005 and 5th August, 2005. Thereafter, as no report was forthcoming from the Archaeological Survey of India, the petitioners filed an application, being CM No. 2175/2006 in Writ Petition (Crl.) No. 16598/2004 on 17th February, 2006 praying for appropriate directions to the Archaeological Survey of India to comply with the consent order of 24th March, 2005 (Annexure-M). The said application came to be disposed of on 20th March, 2006 by the following order:

CM No. 2175/2006

The respondents have, along with the reply filed by them to this application, placed on record copies of two reports submitted by the Expert Committee appointed by the ASI. Copies of both the reports, which are signed by two members each of the said Committee have been furnished to counsel for the petitioner, who submits that no further orders are required in the present application except that the petitioner may be given the liberty to seek further redress in accordance with law in appropriate proceedings before the appropriate authority.

The application (CM No. 2175/2006) is, accordingly, disposed of with the liberty to the petitioner to seek appropriate redress in appropriate proceedings before the competent authority not only against the reports submitted by the Committee but also for any other direction including the direction for production of any record or document.

Order dusty.

9. It transpires from the record that the Archaeological Survey of India had filed an Affidavit on or around 17th March, 2006 stating therein that pursuant to the meetings of the Expert Committee held on 20th July, 2005, 2nd August, 2005, 5th August, 2005 and 16th August, 2005, initially two of the four members of the Expert Committee had given their report while the remaining two members had given their separate reports on 18.02.2006. As per the first report (enclosed as Annexure-I to the Affidavit), the subject paintings were opined to be antiquities whereas the latter report of Prof. Rajeev Lochan and Ms. Rupika Chawla (enclosed as Annexure-II to the Affidavit) is to the effect that it is not possible to arrive at an unequivocal finding as to whether the paintings were antiquities or not. In other words, the reports given by the remaining two members may be termed as inconclusive.

10. As a result, the petitioners again approached this Court by way of another writ petition, being Writ Petition (Crl.) No. 5656/2006 challenging the first Report of the Re-Constituted Committee (Second Expert Committee) that the subject paintings were antiquities. The said writ petition came to be disposed of vide order dated 28th April, 2006 by this Court (Hon'ble Mr. Justice Vikramajit Sen). The operative part of the said order reads as follows:

11. ...On first principles of criminology, it may not be permissible for any person to be prosecuted either under the Antiquities Act or under the Customs Act where there is a clear division on the question of the age of the painting itself; benefit of the doubt would have to be extended to the person charged with violation of the Statute. Accepting the argument of Mr. Mishra, the Competent Authority, namely, the Director General, Archaeological Survey of India, would now have to take a final decision on the matter. In this regard, keeping the annals of the litigation in view, the decision would now have to be taken by the Director General, Archaeological Survey of India himself, with the aid of or reference to the split opinion of the Second Expert Committee. This will indeed be a difficult and formidable task if not impossible one for any person who is not academically and professionally trained to return a finding on the extremely technical question of the age of a Painting. It was because of this vexed situation that the absence of qualifications of the Director General, Archaeological Survey of India had manifested itself. An IAS Officer may be fully competent to discharge administrative functions. However, unless he has attained specialization in the field of determination of the age of a Painting, he would have to depend only on the Experts' opinions. Keeping in perspective the absence of even a preponderant opinion he may be left with only one option.

12. The auction took place almost three and a half years ago. Valuable consideration has been paid towards the price of the paintings in question. Differing (sic.) a final decision will only be to the detriment of the purchaser. A decision should already have been taken by the Director General, Archaeological Survey of India since the Report of Prof. Rajeev Lochan and Ms. Rupika Chawla had been received by him as far back as on 18.2.2006. It should not be forgotten that delay in this regard also exposes the Petitioner to continued prosecution.

13. This Writ Petition is disposed of with the direction to the Director General, Archaeological Survey of India to pass an order in terms of the decision of the Division Bench dated March 24, 2005, within four weeks.

14. In view of these events the prosecution of the Petitioners under the Antiquities Act or under the Customs Act shall be held in abeyance till the expiry of thirty days after the fresh determination/decision of the Director General, Archaeological Survey of India taken within the parameters outlined above. The Competent Authority/Director General, Archaeological Survey of India shall afford the Petitioner an opportunity of being heard.

15. Parties to bear their respective costs.

sd/-

Vikramajit Sen, J.

April 28, 2006

11. The aforesaid order is the genesis of the present writ petition. The petitioners submit that four weeks time was granted by this Court to the Director General, Archaeological Survey of India to give his decision which expired on 26th May, 2006 and the Director General having failed to give his decision that the said paintings were antiquities within the time granted by this Court, the trial court ought to discharge the petitioners instead of continuing with the proceedings indefinitely.

12. The moot question, therefore, is whether the aforesaid two paintings are antiquities within the meaning of Section 2(1)(a) and, as such, their export is impermissible by virtue of the provisions of Section 3 read with Section 25 of the AAT Act, 1972. In order to examine this question, a brief look at the Objects and the sundry provisions of the AAT Act, relevant to the present case, is called for. The Objects of the Act are stated to be:

An Act to regulate the export trade in antiquities and art treasures, to provide for the prevention of smuggling of, and fraudulent dealings in antiquities, to provide for the compulsory acquisition of antiquities and art treasures for preservation in public places and to provide for certain other matters connected therewith or incidental or ancillary thereto.

Section 2 defines an antiquity as follows:

2. Definitions.

(1) In this Act, unless the context otherwise requires,-

(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....
 

13. Section 3 of the AAT Act, 1972, Sub-section (1), which deals with regulation of export trade in antiquities and art treasures mandates that it shall not be lawful for any person, other than the Central Government, to export any antiquity or art treasure. Sub-section (2) of Section 3 further lays down that even the Central Government shall not export any antiquity or art treasure except in accordance with the terms and conditions of a permit issued for the purpose by such authority as may be prescribed.

14. Section 24, which is directly relevant to the present petition, reads as under:

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 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.

15. Section 25(1) which deals with the penalty to be imposed upon a person who violates Section 3 of the Act reads as follows:

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 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.

16. Sub-section (1) of Section 26, which deals with cognisance of offences under Sub-section (1) of Section 25, reads as follows:

26. Cognisance 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.

17. It may be pointed out at this juncture that it is not the case of the respondents that the paintings in question have been notified in the Official Gazette as antiquities and, admittedly, the case against the petitioners is that the two paintings are antiquities by virtue of having been in existence for more than 100 years. At this juncture, it would also be apposite to note that the author of the painting Reconciliation, namely, Frederico Andreotti was in the field from 1847 to 1930, while the author of the other painting The Kill, George Derville Rowlandson is of the period from 1861 to 1930. Thus, there can be no manner of doubt that the paintings are old/antique paintings, but whether the same fall within the definition of antiquities as defined in the Act remains to be considered. It is this aspect on which the Director General was to opine. According to the petitioners he was miserably failed to do so, for it is not in dispute that he has neither given a fresh decision within the time stipulated by this Court nor till date sought any extension of time for doing so.

18. In the course of arguments, Ms.Tasneem Ahmedi, learned Counsel for the petitioners vehemently contended that the Director General having failed to comply with the orders of this Court dated 28th April, 2006 and, as such, the paintings not having been declared to be antiquities, it is incumbent upon this Court to quash the FIR and all proceedings arising there from. According to her, the petitioners are being harassed unnecessarily, in as much as there is no finding by the Archaeological Survey of India on the age of the paintings but the petitioners continue to remain charged under the FIR, which is based on an earlier Report rendered redundant by this Court. Moreover, the trial court does not discharge the petitioners on the ground that the proceedings are held in abeyance by this Court, without considering the fact that this Court had stayed the proceedings for 30 days on account of the four weeks period given to the Director General to give his findings on whether the subject paintings were antiquities. Since the Director General has failed to give any report that the said paintings are antiquities, within the time granted by this Court, the trial court ought to have discharged the petitioners instead of continuing with the proceedings indefinitely.

19. In the above context, Ms. Ahmadi has drawn my attention to the communication received by the petitioners from the Director General around 26th/29th May, 2006 when the petitioners were asked to immediately present their case regarding the age of the paintings (Annexure-R to the petition). She submits that no time or date or venue was mentioned in the said letter and accordingly the petitioners responded vide their letter dated 2nd June, 2006 asking for the date, time and venue of the meeting to which no response was received. Copy of the said letter is enclosed with the petition as Annexure-S.

20. Per contra, Ms. Neelam Grover, learned Counsel for the CBI submits that in pursuance of the orders dated 28th April, 2006 passed by this Court, the petitioners were requested to present their case before the Director General, Archaeological Survey of India. However, the response given by the petitioners vide their letter dated 2nd June, 2006 clearly indicated that the petitioners were not interested in presenting their case in terms of the orders of the Hon'ble Court on the ground that the four weeks time granted by this Court had already come to an end. Notwithstanding, vide letter dated 16.10.2006, the petitioners were once again requested to present their case before the Director General, Archaeological Survey of India on 19.10.2006 at 11.00 a.m. in his chamber. In response to the said letter, the petitioners vide their letter dated 18.10.2006 stated that they required 15 days prior notice to present the expert to attend such a meeting. The petitioners also made a statement that they reserved their right to object to any report being barred, by virtue of the fact that no order had been passed within the time stipulated by this Court. In view of the aforesaid statement made by the petitioners, no further meeting was fixed by the Director General.

21. Ms. Grover on behalf of the C.B.I. urged that it is not for this Court to declare the subject paintings as antiquities or otherwise, this being a question which is liable to be considered by the trial court after examining the entire material on record. Ms. Grover further points out that the petitioners are already facing prosecution under the Customs Act and, as is clear from a reading of the consent order dated 24th March, 2005 passed by this Court, it has been specifically made clear by the Division Bench that the consent order would in no way adversely effect the proceedings under the Customs Act taken by the authorities. While fairly conceding that the Division Bench has stated that if a new report is given, the earlier report will not be given effect to, she points out that there is on the record a fresh Report. A perusal of the said report, she contends, shows that while two members of the Expert Re-Constituted Committee have unequivocally opined that the paintings are antiquities, the opinion of the remaining two members is inconclusive. Thus, the weight of the evidence is in favor of the prosecution and, in any case, it is not open to this Court to go into the question of whether the paintings are or are not antiquities. That being a question which the trial court is called upon to answer.

22. I have given my anxious and thoughtful consideration to the matter in issue after carefully going through the voluminous records.

23. As far back as more than six decades ago, the Privy Council in the celebrated decision of Emperor v. Khwaza Nazir Ahmed , had taken the view that Section 561-A of the old Act (equivalent to Section 482 of the present Act) gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date.

24. The guiding principles relating to the exercise of jurisdiction to quash complaints and criminal proceedings under Section 482 of the Code of Criminal Procedure have been set down by the Hon'ble Supreme Court in a series of decisions, wherein the Apex Court has simultaneously sounded a note of caution to the Courts by emphasizing that the exercise of power under the inherent jurisdiction of the Court is the exception and not the rule. It is neither feasible nor necessary to refer to all the aforesaid decisions. It may, however, be worthwhile to notice that in a recent pronouncement of the Apex Court, Indian Oil Corporation v. NEPC India Ltd. and Ors. , the guidelines laid down in the earlier decisions were again delineated as follows (SCC page-747, para-12):

12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre , State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, Rupan Deol Bajaj v. Kanwar Pal Singh Gill , Central Bureau of Investigation v. Duncans Agro Industries Ltd. , State of Bihar v. Rajendra Agrawalla , Rajesh Bajaj v. State NCT of Delhi , Medical Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. , Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque . The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

25. A three Judge Bench decision of the Supreme Court in State of Karnataka v. M. Devender Appa , after reviewing the case law on the subject and the plenitude of the power under Section 482 of the Code, cautioned that the court must be careful to see that the inherent power should not be exercised to stifle a legitimate prosecution. The Hon'ble Supreme Court held that it would be highly erroneous for the court, in exercise of its inherent powers to quash the proceedings and to short-circuit a prosecution by giving its prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the issues involved are of magnitude and cannot be seen in their true perspective without sufficient material. It was held that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 Cr.P.C. It is, however, not open to the High Court to embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the prosecution case would not be sustained. That is the function of the trial court. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. Mere allegations of mala fides against the informant are also of no consequence and cannot by themselves be the basis for quashing the proceedings.

26. Viewed from this angle, in my considered opinion, in the instant case the exercise of inherent power under Section 482 Cr.P.C. by this Court in writ jurisdiction is uncalled for and unwarranted. Section 24 of the AAT Act, 1972 lays down that the opinion of the Director General and/or his nominee shall be final on the question of the paintings being antiquities. Such an opinion has been expressed by the Director General and forms the basis of the First Information Report. If the said FIR is quashed on the ground that the Director General of Archaeological Survey of India has failed to give his fresh opinion in terms of the order dated 28th April, 2006, the same may result in the loss of valuable objects of art termed as antiquities, precious to the cultural heritage of the country, and further result in defeating the objects of the AAT Act, 1972 itself. In any event, to my mind, minutely examined, the Report of the Reconstituted Expert Committee (constituted by virtue of the consent order dated 24th March, 2005) also shows that while according to two members of the said Committee the subject paintings are definitely antiquities, the other two members have not unequivocally stated that the paintings are not antiquities and there opinion is inconclusive, to say the least. The weight of the opinion, therefore, undoubtedly appears to be in favor of the prosecution.

27. There is no denying the fact that the Director General of Archaeological Survey of India, who was directed by this Court to give his decision within a prescribed time period, has failed to do so. Indubitably also, the Director General has failed to apply even for extension of time. But the inaction of the Director General and/or his apathy to the heritage of the country and the objects sought to be achieved by the AAT Act cannot be allowed to be taken advantage of by the petitioners to grind their own axe. It cannot be, and indeed it is not the case of the petitioners that no offence has been spelt out in the First Information Report. The First Information Report, as already stated, seeks to prosecute the petitioners for violation of the provisions of Section 3 read with Section 25 of the Act and is based on the opinion given by the nominee of the Director General, Archaeological Survey of India. The concern of this Court as to whether the averments in the complaint spell out the ingredients of the criminal offence for which the petitioners are sought to be prosecuted is, therefore, addressed. The petitioners reliance on certain expert opinions to contend that the subject paintings are not antiquities is not a matter to be gone into by this Court. These are defenses that the petitioners will have to put forth during the trial. defenses/evidence that may be available to the petitioners may eventually lead to the acquittal of the petitioners, but cannot be grounds for quashing the proceedings and strangulating them at the threshold.

28. Then again, it also cannot be lost sight of that the Charge-Sheet in the instant case has been filed with the approval of the Director General, who, in terms of Section 26 of the Act, has sanctioned the prosecution. It is specifically so stated in the Charge-Sheet. The question which arises is: Is it open to this Court to quash the proceedings for want of Report/decision of the Director General in the face of the approval/sanction granted by the Director General to the prosecution? To my mind, the answer must clearly be in the negative. Or, to put it differently, is it possible to conjecture that the Director General would have given decision that the paintings were not antiquities after having sanctioned prosecution against the petitioners on the premise that the paintings were registrable antiquities? I think not.

29. Having arrived at the aforesaid findings, the inevitable corollary is that no relief can be given to the petitioners at this stage. There is absolutely no occasion for quashing the cognizance taken by the learned trial court and the further proceedings in the case. The trial must be taken to its logical conclusion and a decision arrived at by the Court after analysing and sieving the evidence tendered by the prosecution and the defense. The writ petition is, therefore, dismissed. The learned trial Judge shall proceed with the trial of the case in accordance with law after issuance of notice to both the parties.

30. Nothing contained in this order shall be construed by the trial court as an expression of opinion on the merits of the case or taken out of context to support such findings as the trial court may choose to give on conclusion of the trial.