February 28, 2019:
On Wednesday, the Bench of Justices Ashok Bhushan and K.M. Joseph, while allowing the appeal holds that, prosecution under Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barred in regard to the antiquities or art treasures.
The issue before the Supreme Court in the present case relates to inconsistency between the Customs Act, 1962 and Antiquities and Art Treasures Act, 1972.
The Supreme Court has applied the 'Principle of Harmonious construction' to both the provisions and what is more giving the primacy to the antiquities Act where it is called for accordingly.
The concept of ‘inconsistency’, according to the Bench is found in Article 254 of the Constitution of India. Article 254 has a marginal note which speaks about inconsistencies between laws made by Parliament and laws made by legislatures of the State. If the law made by the State is repugnant to the law made the Parliament, the law made by the Parliament to the extent of repugnancy shall prevail, observes the Bench.
The Court in previous judgment's has taken note of the provision which provided for saving of other laws and has come to the conclusion that the intention that the State Act which was undoubtedly the dominant legislation would only be “in addition and not in derogation of any other law for the time being in force”.
According to the apex court, the Antiquities Act is a comprehensive law, it cannot be treated as a complete or exhaustive code. Of course, the principles relating to 'Repugnancy' have been expounded in the context of conflicting claims to legislative power between two legislatures. But the court states that both, the Customs Act and Antiquities Act have been made by Parliament.
"We have expounded the ingredients of Sections 132 and 135(1)(a) of the Customs Act. The view we are taking would give full play to the Customs Act to the extent that it is not inconsistent with the Act as contemplated under Section 4. The view which we are declaring does not do violence to the provisions of Section 25 of the Act. The contrary view which has gained acceptance at the hands of the High Court, in our view, fails to give meaning and full play as intended to the Customs Act as provided in Section 4 of the Act. Furthermore, the principle that a transaction or the same set of facts can give rise to more than one distinct offence provided the legislative intention in this regard is clear from the provisions which creates such offences cannot be lost sight of."
Prosecution under Sections 132 and 135(1)(a) of the Customs Act, 1962, is not barred in regard to the antiquities or art treasures. Accordingly, the apex court allows the appeal and sets aside the impugned order.
Read Judgment @ LatestLaws.com
DEPARTMENT OF CUSTOMS Vs SHARAD GANDHI_27-Feb-2019(Downloadable PDF)
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