Aboobacker vs State of Kerala

V. Ramkumar, J.—The revision petitioner, who is the 1st accused in C.C. No. 49 of 2001 on the file of the Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam for an offence punishable u/s 135(1)(ii) of the Customs Act, 1962, challenges the conviction entered and the sentence passed against him concurrently by the courts below.

I heard the learned counsel for the petitioner as well as the learned Central Government Standing Counsel representing the 2nd respondent namely Deputy Commissioner, Air Cargo Complex, U.B. Centre, Calicut.

What has been unravelled by the oral and documentary evidence in this case is the following:-

On 14-8-2000 the Senior Intelligent Officer, DRI, Calicut and his party received a credible information to the effect that there was an attempt to export a 300 year old antique idol of Vishnu from the Calicut Airport to Sharjah by Sharja Flight No. IC 998 scheduled for 5-8-2000. At about 9.30 am on that day the DRI officials noticed the revision petitioner aged about 37 years coming with a cardboard carton through the Aircargo complex gate of Calicut airport. The revision petitioner was intercepted by the officials in the presence of independent witnesses. During interrogation he has disclosed that he had come with a cardboard cargo belonging to his brother-in-law (2nd accused in the case). He told the DRI officials that his brother-in-law will arrive at the Airport premises shortly. Even though the officials waited for the 2nd accused, no body turned up within reasonable time, getting suspicious from the attitude of A1, the DRI officials examined the cargo carton carried by the revision petitioner in the presence of the independent witnesses. A detailed examination of the carton revealed that among the utensils kept inside a plywood box there was a Vishnu idol which was 11 inches in height. The description of the idol as revealed by Ext. P6 certificate subsequently issued by the Superintending Archaeologist, Archaeological Survey of India, Arnattukara. Thrissur is as follows :-

Four handed Vishnu standing in somabhanga, holding in right upper hand shanka. The left upper hand is broken. The idol is holding padma in the lower hand and gadha in the left lower hand is missing. The idol wears Karandamukuta and urvatilaka. A long Padmamala from the idol''s shoulder was seen extended up to the leg. The idol was standing over the padmapitha.

A search of the persons of the revision petitioner resulted in the recovery of a shipping bill. The above shipping bill as well as the antique idol of Lord Vishnu and the other articles used for concealing the same were seized by the Intelligent Officers of the DRI, Calicut under Ext. P1 mahazar dated 14-8-2000 to which two independent witnesses affixed their signatures as attestors. The idol was got assessed by Superintending, Archaeologist, Archaeological Survey of India (Ministry of HRD Department of Culture), Thrissur Circle, Thoppinmoola, Aranantrukara, Thrissur, who as per Ext. P6 certificate opined that the idol belongs to the 17th century and is an antiquity as per the provisions of the Antiquity and Art Treasures Act, 1972 and it is an invaluable and priceless treasure of the country. The idol was examined by the appeal committee of the Archaeological Survey of India u/s 24 of the aforesaid Act. Ext. P7 is the certificate issued by the Director of Antiquities confirming the fact that the idol of Vishnu was a registrable antiquity. The value of the idol as estimated by the DRI officials was Rs. 50,00,000/-. Since the revision petitioner was clandestinely attempting to export the antique idol against the provisions of the Customs Act, he has committed an offence punishable u/s 135(1)(ii) of the Customs Act, 1962.

Except contending that the parcel was being presented for export to Sharja for and on behalf of his brother-in-law Kunhali (2nd accused), the revision petitioner had no other explanation. His brother-in-law also appeared to be an elusive person. In Ext. P2 statement given by the revision petitioner u/s 108 of the Customs Act he had confessed that the above idol will fetch an amount of Rs. 1 crore in the international market.

The revision petitioner who had attempted to surreptitiously export the Vishnu idol disguising the same as household utensils and without declaring the same has committed an offence punishable u/s 135(1)(ii) of the Customs Act. The conviction has been rightly recorded by the courts below after a careful evaluation of the oral and documentary evidence of the case.

What now survives for consideration is the question as to the legality or otherwise of the sentence imposed on the revision petitioner. The learned counsel for the petitioner contended that the revision petitioner has been in custody for the past 19 months and that he was carrying a pared only for and on behalf of his brother-in-law, the 2nd accused who is living happily in Sharjah and therefore the revision petitioner does not deserve the maximum sentence of rigorous imprisonment for three years as has been awarded by the court below.

I am afraid that 1 cannot agree with the above submissions. He was admittedly carrying the parcel which contained the unique and rare idol of Lord Vishnu worth more than Rs. 50,00,000/- kept concealed among household utensils in the cargo carton. His contention that he was an innocent carrier on behalf of his brother-in-law is too good to be believed. The article which was concealed in the carton which was attempted to be exported was a precious antique for which no explanation is forthcoming. No person is entitled to possess any antique of this nature without a registration u/s 14 of the Antiquity and Art Treasures Act, 1972. A per Section 3 of the said Act which regulates export trade in antiquities and art treasures, it is not lawful for any person, other than the Central Government or any authority or agency authorised by the Central Government to export any antiquity or art treasure. Even for carrying on the business of selling or offering for sale of such antiquity one should have a licence as provided u/s 5 of the said Act. The revision petitioner also did not have any authority for exporting the antiquity to Sharjah. Under these circumstances, the courts below cannot be faulted in awarding the sentence of rigorous imprisonment for three years which in the facts and circumstances of the case does not call for any interference at the hands of this Court sitting in revision, This revision which is devoid of any merit is accordingly dismissed.

Dated this the 4th day of August 2008.