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(2014) 01 RAJ CK 0113

In the Rajasthan High Court (Jaipur Bench)
Case No : DB Criminal Appeal No. 1254 of 2008

Banne Singh @ Pahalwan APPELLANT

Vs
State of Rajasthan RESPONDENT

Date of Decision : 15-01-2014

Acts Referred:
Antiquities and Art Treasures Act, 1972 — Section 14 25(1) 25(2) 3 5
Constitution of India, 1950 — Article 14 21 34 35
Criminal Procedure Code, 1973 (CrPC) — Section 110 177 184 184(a) 219
Evidence Act, 1872 — Section 27 45
Penal Code, 1860 (IPC) — Section 120B 379 401 410 410
Police Act, 1861 — Section 23 3
Citation : (2014) 01 RAJ CK 0113
Hon'ble Judges : Veerendr Singh Siradhana, J;R.S. Chauhan, J
Bench : Division Bench
Advocate : Sajjan Raj Surana, With Mr. K.K. Chhawal, , Ajay Kumar Bajpai, Mr.
Sarfaraz Haider Khan, Special Public Prosecutor,
Final Decision : Allowed

Judgement
R.S. Chauhan, J.
The appellant, Banne Singh @ Pahalwan has challenged the judgment dated
20.11.2008 passed by the Additional Sessions Judge (Fast Track) No. 1, Jaipur City,
Jaipur whereby the learned Judge has convicted and sentenced him as under:-

Three Years� rigorous imprisonment and imposed with a fine of

U/s. 411
Rs.10,000/-. In default of payment of fine, one month�s further
IPC
rigorous imprisonment.
U/s. 413
Life imprisonment and imposed with a fine of Rs.10,000/-.
IPC
U/s.
14/25(2) Four months� rigorous imprisonment.
AAT Act
 (All the sentence are to run concurrently)

However, the learned Judge has acquitted him of offences under Sections
379/120B, 413/120B, 414, 414/120B and 401 IPC and for offences under Sections
3/25(1) and 5/25(2) of the Antique & Art Treasure Act, 1972 (AAT Act, for short).
2. According to the prosecution, in the year 2002, two FIRs, namely FIR No.
128/02 and FIR No. 142/02 were registered at Police Station Vidyadhar Nagar,
Jaipur City (North) for offence u/s 411 IPC. These FIRs were not registered against
the present appellant; they were against other persons. While investigating these
two FIRs, the police discovered that allegedly there was a gang operating in
Rajasthan and Madhya Pradesh which was indulging in stealing antique sculptures
and artifacts, and in exporting and selling them abroad. It was also discovered that
Jaipur is the epicenter of their nefarious activities. In order to carry out an
extensive investigation with regard to these activities, Mr. Anand Srivastava, the
Superintendent of Police, Jaipur City (North), constituted a team of investigators.
The team kept surveillance over the alleged offenders.
3. On 6.6.2003, Ram Singh (P.W. 76), the SHO, P.S. Vidyadhar Nagar, received
secret information that four persons were discussing the sale of antique statues at
Ganesh Park, which fell under the jurisdiction of his police station. Immediately, a
team of policemen reached the park; they found four persons sitting behind a tree.
Mr. Chandra Purohit, S.I. (P.W. 58) eavesdropped on their conversation. He heard
them talking about buying and selling of antique statues and artifacts. The police
surrounded and searched these four persons. While searching Banne Singh, the
police recovered two photographs of antique sculptures (Articles 34 and 35); while
the first photograph was that of a statue of Lord Shiva and Goddess Parvati, the
second photograph was that of a Lion. These two photographs were recovered by
Recovery Memo (Ex. P. 16). The police also recovered the motorcycle which
belonged to Banne Singh, by Ex. P. 18. Since the other co-accused persons, from
whom antique sculptures were allegedly recovered, could not show any proof of
ownership, all the four persons, including the present appellant, were arrested.
Upon returning to the Police Station, Ram Singh (P.W. 76) registered a formal FIR,
namely FIR No. 146/2003 for offences u/s 379, 411, 401 IPC, and for offences
under Sections 5, 14/25(2) of the AAT Act.
4. During the course of investigation, on 6.6.2003, Banne Singh allegedly made a
statement (Ex. P. 1110) u/s 27 of the Evidence Act to Ram Singh (P.W. 76). He
told Ram Singh that he has kept twelve antique statues at his residential house in
his village Rudhapura, District Karauli. In pursuance of this statement, Richhpal
Singh Jhakhar (P.W. 1) took Banne Singh to his village and recovered, from his
house and farm, twelve statues, namely one statue of the Boar incarnation of Lord
Vishnu (Varah Avtar), two statues of Lion, one statue of a Jain Devi, two statues of
Sursundari (woman indulging in wine drinking), one statue of Bhairav (an image of
Lord Shiva), one statue of Shiva and Parvati, and another idol of Lord Shiva and
Parvati in standing position. These statues were recovered by Ex. P.44; the Site
Plan was also drawn as Ex. P. 45. During the trial, these statues were marked as
Article 442 to 453.
5. During further investigation, it was discovered that the statues of the Varah
Avtar, Jain Devi, two Sursundari, two Lions, the statue of Bhairv and the statue of
Lord Shiva and Parvati relate to a FIR chalked out at Police Station Harnavada
Shahji, District Baran, namely FIR No. 109/03. It was also discovered that the
statue of Lord Shiva and Parvati, in a standing position, with two pillars and an
arch, the said statue relates to a FIR chalked out at Police Station Jahajpur, District
Bhilwara, namely FIR No. 96/03. The trials in both these FIRs are still pending.
6. Moreover, according to the prosecution, on 10.6.2003, again Banne Singh made
a statement (Ex. P. 1115) u/s 27 of the Evidence Act wherein he claimed that he
has hidden fifty photographs of antique statues, a statue of Lord Shiva and Parvati
and another statue of Lord Ganesh in his bedroom. In pursuance of this statement,
he was again taken to his village Rudhapura; fifty photographs and the statues
were recovered by Recovery Memo (Ex. P. 51).
7. Furthermore, according to the prosecution, while Banne Singh was arrested in
FIR No. 84/89, registered at Police Station Atru, District Baran, on 14.7.2003, he
made a third statement (Ex. P. 1117) u/s 27 of the Evidence Act to Ram Singh
(P.W. 76). He informed Ram Singh that he has hidden six antique statues, which
were stolen, in his Guadi (open space outside the house) and in his farm. Since
Ram Singh was busy in other investigations, he handed over Banne Singh to
Rajendra Tyagi (P.W. 75). In pursuance of the said statement, the police recovered
six statues, namely one red sandstone statue of Lord Shiva having four arms, a
head of Lord Brahma carved out in almond color stone, a panel showing Goddess
Parvati, a panel of Men alongwith Goddesses Ganga and Yamuna, a statue of
Nataraj (Lord Shiva as a dancer) and lastly, a statue of Lord Narsingh (where Lord
Vishnu is shown as half lion and half man). These statues were recovered by
Recovery Memo (Ex. P. 94). A Site Plan (Ex. P. 95) was also drawn.
8. During the course of investigation, it was further discovered that in total twenty-
five persons were involved in committing theft, receiving stolen properties, and
exporting antique sculptures and artifacts. According to the Police, these twenty-
five persons, including the appellant, belonged to a gang of thieves who habitually
engaged in dealing with or receiving stolen property. Therefore, six other FIRs
against the appellant, and a large number of FIRs were registered against the
other co-accused persons.
9. On 3.9.2003, the police submitted a charge-sheet against nineteen persons
including the present appellant. Subsequently on 15.5.2004, the police submitted
another charge-sheet against six persons. The trials of both the charge-sheets
were consolidated by the learned Judge.
10. In order to prove its case, the prosecution examined eighty-three witnesses,
submitted 1189 documents, and produced 1468 articles. On the other hand, the
defence produced ten witnesses, and submitted 679 documents. Since during the
course of trial four people absconded, by judgment dated 20.11.2008, the learned
Judge convicted eighteen persons, including the appellant, and acquitted three
persons. The appellant was convicted, and sentenced as mentioned above. Hence,
this appeal before this court.
11. Mr. Sajjan Raj Surana, the learned Senior Counsel for the appellant, has raised
only three contentions before this court. Firstly, within the jurisdiction of Police
Station Vidyadhar Nagar and within the jurisdiction of Jaipur only two photographs
of alleged antique sculptures were recovered from the appellant. However, the
alleged recoveries of antique sculptures were neither within the territorial
jurisdiction of Police Station Vidyadhar Nagar, nor within the jurisdiction of Jaipur.
After all, all the recoveries of the alleged antique sculptures were made from the
appellant''s house and farm located in village Rudhapura in District Karauli.
Therefore, the learned trial court at Jaipur did not have the jurisdiction to try the
appellant. Hence, the entire trial qua the appellant stands vitiated.
12. Secondly, Section 413 IPC deals with ''habitually receiving stolen property''.
The word ''habit'' or ''habitually'' would necessarily imply repetitive conduct or
action. Thus, it requires previous convictions u/s 411 IPC. In fact, while convicting
the co-accused Vaman Narain Ghiya for the offence u/s 413 IPC, the learned trial
Judge was of the opinion that before an accused can be convicted for the said
offence, he should have been convicted at least twice. However, qua the present
appellant, he has not applied the same yardstick. Despite the fact that so far the
appellant has not been convicted by any court for offence u/s 411 IPC, the learned
Judge has convicted the appellant for offence u/s 413 IPC. The learned Judge has
erred in relying upon the pendency of few trials for convicting the appellant for the
said offence. Therefore, the appellant''s conviction for offence u/s 413 IPC is legally
unsustainable.
13. Thirdly, although the prosecution has alleged that ''antique'' statues were
recovered from the appellant''s possession, it has failed to prove the ''antiqueness''
of the sculptures. The prosecution has neither examined any expert from the fields
of art, art history, and archeology, nor submitted any documentary proof to
substantiate its case that the sculptures recovered from the appellant were
''antiques''. According to Gauri Chatterji (P.W. 70), two Expert Committees were
constituted. Both the Expert Committees were headed by G.C. Chawley. However,
before G.C. Chawley could depose before the learned trial court at Jaipur, he
expired. Despite his death, the prosecution has not examined any other member of
either of the two Expert Committees. Thus, there is a lack of expert opinion in the
present case. Further, according to Gauri Chatterji (P.W. 70) and Hari Manjhi (P.W.
69), detailed reports were available in their office. These detailed reports were
prepared by the Expert Committees. However, the prosecution has not submitted
the detailed reports. Instead, it has merely submitted list/reports (Ex. P.222, 223,
225 and 227) with regard to all the art objects recovered from the present
appellant and from the other co-accused persons. According to Hari Manjhi (P.W.
69), while he has identified the signatures of G.C. Chawley on these lists/reports,
he is not in a position to tell the court about the truthfulness or the falsehood of
these reports. Mere identification of a signature does not prove the contents of a
report. Since these lists/reports (Ex. P.222, 223, 225 and 227) do not fall u/s 293
Cr.P.C. they were required to be proved by the prosecution like any other
documentary evidence. However, as the prosecution has failed to prove these
lists/reports, they are inadmissible in evidence.
14. Moreover, these lists/reports are incomplete and inconclusive, for they do not
reveal the scientific basis on which the sculptures have been declared as antique.
According to Dr. G.T. Shinde (P.W. 78), the sculptures were classified as ''antique''
or ''non-antiques'' on the basis of their ''appearance''. However, ''appearance'' can
be misleading. For the endeavour of an artist who creates a fake copy is to make
the fake appear as good as the original and as ''old as the original''. Moreover, the
lists/reports do not reveal ''the stylistic basis'' on which these sculptures have been
declared as ''antiques''. For, these lists/reports do not reveal the period, the style,
the school, the dynasty to which these sculptures belong to. Since Hari Manjhi
(P.W. 69) clearly admits that fake copies of antique sculptures are readily available
in the market, it was essential for the prosecution to rule out the possibility that
these sculptures, allegedly recovered from the appellant, were not fakes.
However, the prosecution has failed to do so. Therefore, the court has no basis for
concluding that the sculptures recovered from the appellant''s possession were,
indeed, ''antique''. Hence, his conviction u/s 14/25(2) of the AAT Act is clearly
unjustified.
15. On the other hand, Mr. Ajay Bajpai and Mr. Sarfaraj Haider Khan, the learned
Special Public Prosecutors have contended that the police had arrested the
appellant at the Ganesh Park as he was discussing the sale of antique sculpture
with the other co-accused persons. Moreover, the statue of Lord Shiva with
Goddess Parvati shown in the photograph, recovered at the Ganesh Park, was
subsequently recovered from the appellant''s house/farm. Further, it is only during
the investigation of the FIR registered at Police Station Vidyadhar Nagar, namely
FIR No. 146/03, that thrice the appellant made statements u/s 27 of the Evidence
Act. Thus, the recovery of the statues from the appellant''s possession, from his
house and his fields, was in pursuance of the statement made by him during the
investigation of FIR No. 146/03. Therefore, the learned trial court had the
territorial jurisdiction to try the case.
16. Secondly, that the word ''habit'' and ''habitual'' has been interpreted
repeatedly by the Hon''ble Apex Court. According to the Hon''ble Supreme Court,
habit can be inferred from the existence of numerous FIRs lodged against the
accused. Hence, there is no need for a previous conviction u/s 411 IPC in order for
the court to infer that the accused is habitually receiving stolen property. In order
to buttress this submission, the learned counsel has relied upon the case of State of
Maharashtra and Others Vs. Mehamud,
17. Thirdly, the two expert committees were constituted with persons who had a
specialized knowledge in the field of art history and archeology. Therefore, they
had used their knowledge to classify the sculptures recovered from the appellant
on the basis of their appearance. Thus, they were justified in classifying the
sculptures on the basis of appearance alone. Moreover, since these lists/reports
(Ex. P.222, 223, 225 and 227) form part of the detailed reports, they are covered
by Section 293 Cr.P.C. Hence, they do not need to be proved by the prosecution.
18. Lastly, since the sculptures recovered from the appellant''s possession have
been declared as an ''antique'', the prosecution has established its case for offence
u/s 14/25(2) of the AAT Act.
19. In rejoinder, Mr. S.R. Surana, the learned Senior counsel, has pleaded that the
case of Mehamud (supra) relates to a case of preventive detention. However,
preventive detention is different from a punitive detention. Repeatedly, the
Hon''ble Supreme Court has held that there is a vast different between preventive
detention and punitive detention. In order to buttress this contention, the learned
counsel has relied upon the case of Haradhan Saha Vs. The State of West Bengal
and Others, and Dropti Devi and Another Vs. Union of India (UOI) and Others,
Therefore, the factors which are relevant for inferring ''habit'' under the preventive
detention laws are different from those factors for inferring ''habit'' under the
punitive laws. Hence, before a person can be convicted for offence u/s 413 IPC, he
has to be convicted, at least twice, for offence u/s 411 IPC. For, a single conviction
is not sufficient for inferring a ''habit''. Hence, according to the learned counsel, the
case law cited by the learned Special Public Prosecution is inapplicable to the
present case.
20. Heard the learned counsel for the parties and examined the impugned
judgment, and perused the case law cited at the Bar.
21. Chapter-XIII Cr.P.C. deals with "Jurisdiction of the Criminal Courts in Inquiries
and Trials". While Section 177 Cr.P.C. lays down the general rule for holding the
trial, there are certain expectations to Section 177 Cr.P.C. Section 184 Cr.P.C. is
one of the exceptions. Section 184 Cr.P.C. is as under:--
184. Place of trial for offences triable together.--Where--(a) the offences
committed by any person are such that he may be charged with, and tried at one
trial for, each such offence by virtue of the provisions of section 219, section 220 or
section 221, or
(b) the offence or offences committed by several persons are such that they may
be charged with and tried together by virtue of the provisions of section 223, the
offences may be inquired into or tried by any Court competent to inquire into or try
and of the offences.
22. Section 184 refers to Section 223. Section 223 deals with persons who may be
charged jointly and tried together.
Section 223 Cr.P.C. is as under:--
223 - What persons may be charged jointly:
The following persons may be charged and tried together, namely:--
(a) persons accused of the same offence committed in the course of the same
transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt
to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning
of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same
transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or
criminal misappropriation, and persons accused of receiving or retaining, or
assisting in the disposal or concealment of, property possession of which is alleged
to have been transferred by any such offence committed by the first-named
persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal
Code (45 of 1860) or either of those sections in respect of stolen property the
possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45
of 1860) relating to counterfeit coin and persons accused of any other offence
under the said Chapter relating to the same coin, or of abetment of or attempting
to commit any such offence; and the provisions contained in the former part of this
Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate offences and
such persons do not fall within any of the categories specified in this section, the
[Magistrate or Court of Sessions] may, if such persons by an application in writing,
so desire, and if he is satisfied that such persons would not be prejudicially affected
thereby, and it is expedient so to do, try all such persons together.
23. A co-joint reading of Section 184 and Section 223 covers the present case.
Firstly, the appellant was charged by the learned trial court while using its power
u/s 221 Cr.P.C. Since the nature of the offence was unclear, the appellant was
charged for different offences. Therefore, the appellant''s case falls u/s 184(a)
Cr.P.C.
24. Secondly, Section 223(e) Cr.P.C. deals with offenders who are accused of an
offence of receiving, or retaining stolen property and Section 223(f) Cr.P.C. deals
with offenders who are accused of an offence under Sections 411 and 414 IPC. In
the present case, the appellant was being tried with those who were charged for
charged for receiving, or retaining stolen property. Moreover, the appellant was
charged with offence u/s 411 IPC.
25. Thirdly, the case of the prosecution was that while investigating FIR No.
146/03, it was slowly but surely discovered that there was a gang of offenders who
were engaging in stealing, receiving, retaining, in transferring, or transporting, or
assisting in the disposal, or concealment of stolen property. It is during the course
of investigation in the said FIR that the appellant had made three different
statements u/s 27 of the Evidence Act. In pursuance of these statements,
recoveries were made from his house and farm. These recoveries were also
interrelated with other co-accused persons. Thus, a large number of persons were
charged for the same offence. Hence, they could be tried together in accordance
with Section 184 Cr.P.C. and Section 223 Cr.P.C. by the trial court at Jaipur.
26. Lastly, the appellant has not pleaded that he has suffered any prejudice for
being tried by the learned trial court at Jaipur. Therefore, the first contention
raised by the learned Senior Counsel with regard to the territorial jurisdiction of
the learned trial court is unacceptable.
27. The second contention and the counter-contention raise the following issues for
the determination of this court: firstly, what is the meaning of the words "habit"
and "habitually"? Secondly, is there a difference between preventive and punitive
detention? Thirdly, are the yardsticks for the two classes same or different?
Fourthly, what is the scope and ambit of Section 413 IPC? Fifthly, does Section 413
IPC require a previous conviction?
28. According to Encyclopedic Law Lexicon, by Justice C. K. Thakker [2 Edition
(2013), Page 2104] the word habit means that person should be committing such
acts recurrently so as to allow reasonable person of a reasonable prudence to
come to a reasonable conclusion that he is in the habit of committing such acts".
"The word ''habit'' means "persistence in doing an act, a fact which is capable of
proof by adducing evidence of the commission of a number of similar acts".
''Habitually'' must be taken to mean "repeatedly or persistently". "The expression
''habitually'' is very significant". "A person is said to be habitual criminal who by
force of habit or inward disposition is accustomed to commit crimes. It implies
commission of such crimes repeatedly or persistently and prima facie there should
be continuity in the commission of those offences." [Ref. to Ayub @ Pappukhan
Nawabkhan Pathan Vs. S.N. Sinha and another,
29. Moreover, in the Law Lexicon by P. Ramanatha Aiyar, [Reprint Edn. (1987), P.
499], ''habitually'' means "constant, customary and addicted to specified habit and
the term habitual criminal may be applied to anyone who has been previously
convicted of a crime to the sentences and committed to prison more than twice".
The word ''habitually'' means ''usually'' and ''generally''. Almost similar meaning is
assigned to the words ''habit'' in Aiyar''s Judicial Dictionary, [10 Edn., p. 485]. It
does not refer to the frequency of the occasions, but to the invariability of practice
and the habit has to be proved by totality of facts.
30. The Hon''ble Supreme Court has repeatedly dealt with the words, ''habit'' and
''habitually''-from Dhanji Ram Sharma Vs. Superintendent of Police, North Dist,
Delhi Police and Others, to Gopalanachari Vs. State of Kerala, from Vijay Narain
Singh Vs. State of Bihar and Others, to Mustakmiya Jabbarmiya Shaikh Vs. M.M.
Mehta, Commissioner of Police and Others, from Vijay Amba Das Diware and
Others Vs. Balkrishna Waman Dande and Another, t o State of Maharashtra and
Others Vs. Mehamud, But for the case of Vijay Amba Das Diware (supra), which
dealt with Rent Control Act, the other above mentioned cases dealt with preventive
detention, either under preventive detention laws, or u/s 110 Cr.P.C. as in the case
of Gopalanachari (supra). The judgment of Dhanji Ram Sharma (supra) has been
followed consistently by the Hon''ble Supreme Court while interpreting the words
''habit'' and ''habitually''. In the case of Dhanji Ram Sharma (supra) the Apex
Court had opined as under:--
6. u/s 23 of the Police Act, 1861, the police is under a duty to prevent commission
of offences and to collect intelligence affecting the public peace. For the efficient
discharge of their duties, the police officers are empowered by the Punjab Police
Rules, 1934 to open the history sheets of suspects and to enter their names in
police register No. 10. These powers must be exercised with caution and in strict
conformity with the rules. The condition precedent to the opening of history sheet
under Rule 23.9(2) is that the suspect is a person "reasonably believed to be
habitually addicted to crime or to be an aider or abettor of such person". Similarly,
the condition precedent to the entry of the names of the suspects in Part II of
police register No. 10 under Rule 23.4(3)(b) is that they are "persons who are
reasonably believed to be habitual offenders or receivers of stolen property
whether they have been convicted or not". If the action of the police officers is
challenged, they must justify their action and must show that the condition
precedent has been satisfied.
7. A habitual offender or a person habitually addicted to crime is one who is a
criminal by habit or by disposition formed by repetition of crimes. Reasonable
belief of the police officer that the suspect is a habitual offender or is a person
habitually addicted to crime is sufficient to justify action under Rules 23.4(3)(b) and
23.9(2). Mere belief is not sufficient. The belief must be reasonable, it must be
based on reasonable grounds. The suspect may or may not have been convicted of
any crime. Even apart from any conviction, there may be reasonable grounds for
believing that he is a habitual offender.
31. The above stated principle is certainly applicable to preventive detention. But
in catena of cases the Hon''ble Supreme Court has distinguished between
preventive detention and a punitive one. The Constitution Bench in the case of
Haradhan Saha (supra) had opined as under:
19. The essential concept of preventive detention is that the detention of a person
is not to punish him for something he has done but to prevent him from doing it.
The basis of detention is the satisfaction of the Executive of a reasonable
probability of the likelihood of the detenu acting in a manner similar to his past acts
and preventing him by detention from doing the same. A criminal conviction on the
other hand is for an act already done which can only be possible by a trial and legal
evidence. There is no parallel between prosecution in a court of law and a
detention order under the Act. One is a punitive action and the other is a
preventive act. In one case a person is punished to prove his guilt and the standard
of proof beyond reasonable doubt whereas in preventive detention a man is
prevented from doing something which is necessary for reasons mentioned in
Section 3 of the Act to prevent.
32. Similar views have also been expressed in the case of Dropti Devi and Anr.
(supra).
33. Moreover, in the case of Rekha Vs. State of T. Nadu tr. Sec. to Govt. and
Another, the Apex Court opined as under:
35. It must be remembered that in cases of preventive detention no offence is
proved and the justification of such detention is suspicion or reasonable probability,
and there is no conviction which can only be warranted by legal evidence.
Preventive detention is often described as a "jurisdiction of suspicion" (vide State of
Maharashtra v. Bhaurao Punjabrao Gawande, SCC para 63). The detaining
authority passes the order of detention on subjective satisfaction.
34. Relying on the case of Rex v. Halliday [1917 AC 268], in the case of Kubic
Darusz Vs. Union of India (UOI) and Others,the Hon''ble Supreme Court observed
as under:
A preventive detention as was held in Rex v. Halliday, 1917 AC 268 ''is not punitive
but precautionary measure''. The object is not to punish a man for having done
something but to intercept him before he does it and to prevent him from doing it.
No offence is proved, nor any charge is formulated and the justification of such
detention is suspicion or reasonable probability and there is no criminal conviction
which can only be warranted by legal evidence. In this sense it is an anticipatory
action. Preventive justice requires an action to be taken to prevent apprehended
objectionable activities. In case of punitive detention the person concerned is
detained by way of punishment after being found guilty of wrong doing where he
has the fullest opportunity to defend himself where preventive detention is not by
way of punishment at all, but it is intended to prevent a person from indulging in
any conduct injurious to the society.
35. In the case of Sunil Fulchand Shah Vs. Union of India and Others,although
Hon''ble Mr. Justice G.T. Nanavati differed with the view of majority on the
question of law, but His Lordship pointed out the difference between preventive
detention and punitive one. His Lordship opined that the distinction between
preventive detention and punitive detention has now been well recognised.
Preventive detention is qualitatively different from punitive detention/sentence. A
person is preventively detained without a trial but punitive detention is after a
regular trail and when he is found guilty of having committed an offence. The basis
of preventive detention is suspicion and its justification is necessity. The basis of a
sentence is the verdict of the court after a regular trail. When a person is
preventively detained his detention can be justified only so long as it is found
necessary."
36. There are, indeed, few similarities and great differences between preventive
detention and punitive detention: both are sanctified by the Constitution of India.
Both are reflection of the sovereign power of the State. Both deprive a person of
personal liberty. Both have to be carried out and implemented under the due
process of law. In both, there are inbuilt safeguards in order to protect the liberty
of the person. Both are methods to protect the society from the dangerous
elements found within the society.
37. But while the preventive detention is the prerogative of the Executive, although
supervised by the Judiciary, punitive detention comes within the realm of judicial
or quasi-judicial bodies. While preventive detention is based on the future
possibility of the person''s dangerous actions, punitive detention is based on his
past illegal action. In preventive detention a presumption of the person being
dangerous to the society is drawn, in punitive detention the presumption of the
offender being innocent exists. Thus, while the preventive detention is based on
"jurisdiction of suspicion", the punitive detention is based on "jurisdiction of proof
beyond a reasonable doubt". While the object of preventive detention is to pre-
empt a person from doing an act which could pose a threat to the society at large,
the object of punitive detention is to punish a person for the illegal act already
committed by him. Hence, while the former is not a punishment, the latter is.
Moreover preventive detention is based on the subjective satisfaction of the
Executive; punitive detention, on the objective assessment of the Judiciary or the
quasi-judicial bodies. Hence, the very basis of preventive and punitive detention is
worlds apart. Therefore, the yardstick applicable to preventive detention is
inapplicable to punitive detention. Thus, penal provision cannot be interpreted on
the basis of the standards applicable to preventive detention. Hence, the
contention raised by Mr. Bajpai that the same yardstick would be applicable to
punitive detention as to the preventive detention is unacceptable.
38. Section 413 IPC cannot be interpreted in isolation. Falling under Chapter XVII
of IPC, dealing with ''Offences Against Property'', Sections 410 to 414 form a sub-
group entitled ''Of the Receiving of Stolen Property''. Thus, some of these
provisions would have to be read together.
39. Section 410 IPC defines the term ''stolen property'' as under:
Stolen property- Property, the possession whereof has been transferred by theft,
or by extortion, or by robbery, and property which has been criminally
misappropriated or in respect of which criminal breach of trust has been
committed, is designated as ''stolen property'', [whether the transfer has been
made, or the misappropriation or breach of trust has been committed, within or
without [India]]. But, if such property subsequently comes into the possession of a
person legally entitled to the possession thereof, it then ceases to be stolen
property.
40. Thus, according to this provision a property is deemed to be ''stolen'' if it is
transferred through one of the five modes, namely through theft, or through
extortion, or thorough robbery, or is subject of criminal misappropriation, or with
respect of which criminal breach of trust has been committed. Conversely, if the
property has not been transferred through one of these modes, then the property
is not a ''stolen property''. Or if the property comes back to the original owner,
then it ceases to be ''stolen property''.
41. Section 411 IPC is as follows:
Dishonestly receiving stolen property--Whoever dishonestly receives or retains any
stolen property, knowing or having reason to believe the same to be stolen
property, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
42. In the case of Trimbak Vs. The State of Madhya Pradesh, the Hon''ble Supreme
Court had opined that it is the duty of the prosecution in order to bring home the
guilt of a person under S. 411 IPC to prove (1) that the stolen property was in the
possession of the accused, (2) that some person other than the accused had
possession of the property before the accused got possession of it, and (3) that the
accused had knowledge that the property was stolen property. Thus, these three
elements have to be kept in mind while examining the conviction of an accused for
offence under S. 411 IPC.
43. Of course, in the case of AIR 2002 491 (SC) the Apex Court has doubted the
proposition laid down in the case of Trimbak (supra) that in case an object is
recovered from an open space, it cannot be held to be in possession of the
accused. However, even this doubting does not dilute the principle laid down in the
case of Trimbak (supra). Hence, these principles would have to be kept in mind
while adjudicating upon the conviction for offence under Sections 411 and 413 IPC.
44. Section 413 IPC is as under:
Habitually dealing in stolen property- Whoever habitually receives or deals in
property which he knows or has reason to believe to be stolen property, shall be
punished with [imprisonment for life], or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to fine.
45. Sections 411 and 413 IPC prescribe two distinct, but inter-related offences.
There are certain similarities and differences between the two: both are concerned
with ''stolen property''. Under both the provisions, the offender must have the
''knowledge'' or a ''reason to believe'' that the property is stolen as defined in
Section 410 IPC. But while Section 411 IPC deals with ''dishonestly receiving'' or
''retaining'' stolen property, Section 413 IPC deals with habitually ''receiving or
dealing'' with stolen property. There is a difference between ''retaining'' and
''dealing''. ''To retain'' means to keep it in one''s possession or custody; ''to deal''
implies that the offender has certain concern with the property either by keeping it
in his possession, or parting with the ownership, or possession of the property
through any of the modes of transfer of property. Hence, the verb ''to deal'' is
broader in its scope than the verb ''to retain''. Most importantly, while Section 411
IPC lays down punishment for one time act, Section 413 IPC prescribes punishment
for a series of similar acts which would prove the ''habit'' of the offender.
Furthermore, while Section 411 IPC punishes a single act with a term of three
years, or with fine, or with both, Section 413 IPC punishes a series of act with life
imprisonment. Thus, Section 413 IPC is a more aggravated form of Section 411
IPC. It prescribes harsher and ''a punishment different kind'' as the person has
been indulging in similar act of receiving and retaining stolen property over a
period of time.
46. But the moot question is whether in order to establish ''habit'' or ''habitually
receives or deals with'', one needs mere existence of FIR''s, or the offender has to
be convicted of offense u/s 411 IPC, two or more times, in order to infer ''habit''?
As mentioned above, there is a clear cut distinction between preventive detention
and punitive one. In preventive detention, considering the previous conduct of a
person as reflected in a series of FIR''s, the Executive can safely infer that the
person is ''dangerous'' or ''habitually deals with stolen property'', or is ''anti-social''
in his conduct or behaviour. Drawing this inference on a subjective basis, the
Executive can detain the person preventively.
47. However, the same inference on subjective manner cannot be applied in
punitive detention for the following reasons: firstly, the function of preventive
detention and punitive detention are different. Secondly, preventive detention is
based on suspicion, punitive detention, on proof or evidence produced during a full-
fledged trial. Thirdly, in punitive detention the offender is presumed to be
''innocent'' till proven guilty. It is the bounden duty of the State to prove the guilt
of the offender. Moreover, the proof has to be ''beyond a reasonable doubt''. Mere
existence of series of FIR''s does not amount to ''proof, as a FIR is nothing but
allegations made by the complainant. Allegations are not ''proof of the fact. The
allegations have to be established and proved through cogent and convincing
evidence. Further, a series of charge-sheets for offence u/s 411 IPC would not
tantamount to ''proof. For, charge-sheet is nothing but conclusions drawn by the
investigating agency. It is not even binding on the trial court. Thus, a series of
FIR''s or a series of charge-sheets would not ipso facto establish ''habit'' or
''habitually dealing with or receiving'' stolen property.
48. Something more is required to establish that the offender is in ''the habit of
dealing with'' or ''receiving stolen property''. Since the offence u/s 413 IPC is inter-
related with and is an aggravated form of Section 411 IPC, the State would have to
prove and establish that the offender was convicted repeatedly, twice or more than
twice, for offence u/s 411 IPC so as to establish beyond a reasonable doubt that he
is in the ''habit of dealing with or receiving stolen property. Therefore, the
conviction u/s 413 IPC is based on repeated convictions for offence u/s 411 IPC.
Due to previous conviction, ''a punishment of different kind'' is prescribed in
Section 413 IPC which the accused is required to undergo.
49. Hence, while prosecuting a person for offence u/s 413 IPC, the prosecution has
to prove the following factors: firstly, the property in question has been ''stolen''
from a place. Thus, the prosecution must bring the property within the ambit of
Section 410 IPC--within the definition of ''stolen property''. Secondly, the offender
has been dealing with or receiving stolen property. Thirdly, the offender knew or
had a reason to believe the property to be stolen. Fourthly, he has been repeatedly
convicted, i.e. twice or more than twice, of offence u/s 411 IPC. It is only after the
prosecution establishes these factors that the court would be legally justified in
concluding that the offender is ''habitually dealing with or receiving stolen property
and in imposing the punishment as prescribed by Section 413 IPC.
50. Admittedly, the appellant was involved in six different FIR''s. Undoubtedly, so
far the appellant has been convicted only by the learned trial court at Jaipur. He
continues to face the trials in the other FIR''s mentioned above. Hence, prior to his
conviction by the learned Judge, the appellant was never convicted for offence u/s
411 IPC. Therefore, there is no evidence to infer that the appellant is in ''the habit
of receiving stolen property''. Hence, his conviction for offence u/s 413 IPC is
clearly unjustified.
51. The learned trial Judge has applied two different yardsticks for convicting the
appellant and for convicting his co-accused, Vaman Narain Ghiya. While convicting
Vaman Narain Ghiya, the learned Judge has held that in order to convict an
accused of offence u/s 413 IPC, he should be convicted at least twice for offence
u/s 411 IPC. Applying this yardstick on the co-accused, he has convicted Vaman
Narain Ghiya for offence u/s 413 IPC. However, when it came to the appellant, the
learned judge has ignored the said principle and has merely held that since there
are six other FIR''s for offence u/s 411 IPC, therefore, the appellant''s habit of
receiving stolen property can be inferred. Hence, the appellant can be convicted for
offence u/s 413 IPC. To say the least, two different yardsticks cannot be applied to
identically placed accused persons in the same trial. To do so would not only create
judicial chaos, but most importantly would violate the fundamental rights of the
accused under Article 14 and 21 of the Constitution of India. Hence, the appellant''s
conviction for offence u/s 413 IPC is clearly unsustainable.
52. The prosecution case against the appellant and other co-accused persons was
that they are in possession of, selling, or exporting or attempting to export antique
sculptures out of India. Hence, the crux of the prosecution case is that the
appellant was dealing with "antique" sculptures. Therefore, the prosecution was
required to firmly establish, through cogent and convincing evidence, that the
sculptures allegedly recovered from the appellant on the basis of his statement u/s
27 of the Evidence Act were actually ''antiques''.
53. The trial court is neither an expert in art history, nor in antiquities. The fields of
art history and antiquities are as specialized as ballistics and medical jurisprudence.
Faced with various styles of sculptures in India, from Chola to Pala, from Khajaraho
style to Vijaynagar style, overwhelmed by the endless number of Gods and
Goddesses of the Hindu, Buddhist and Jain pantheon, a court is likely to be lost in
the labyrinth of art and antiquities. Moreover, both knowledge about the art style,
and about the technology and methodology used to classify a piece of art as an
antique are essential. Thus, expert opinion is sine quo non. Section 45 of the
Evidence Act not only defines who is an expert, but also makes his/her testimony
relevant and admissible. According to the said provision "When the Court has to
form an opinion upon a point of foreign law or of science or art,...the opinions upon
that point of persons specially skilled in such foreign law, science or art...are
relevant facts. Such persons are called experts." Therefore, before a court can
convict a person of an offence under the AAT Act, the requirement of expert
opinion is fundamental to prove that the art objects are genuine antiques. For,
instances are not lacking when even the experts have been fooled into treating a
good fake copy as a genuine piece of art. According to Hari Manjhi (P.W. 69) who
was the Director of ASI, fake copies of antiques are available in the market.
Hence, it was imperative that the ''antiqueness'' of the
artifacts/paintings/sculptures be proved beyond a reasonable doubt.
54. According to Gauri Chatterji (P.W. 70) two Expert Committees were
constituted. Both the Committees were headed by G.C. Chawley. While the first
Committee consisted of four experts besides G.C. Chawley, the second Committee
consisted of five experts besides G.C. Chawley. Admittedly, G.C. Chawley died
prior to deposing before the learned trial court at Jaipur. According to Hari Manjhi
(P.W. 69), Gauri Chatterji (P.W. 70) and Dr. G.T. Shinde (P.W. 78) none of them
were members of either of the two Expert Committees. But still, the prosecution
did not examine any other member from either of these two Expert Committees as
a witness. Hence, there is no witness to inform the court about the basis on which
the Expert Committees reached their conclusion with regard to the antiqueness of
the objects examined by them.
55. Gauri Chatterji (P.W. 70) clearly admits that she is an IAS officer and not an
expert in antiques, or in fine arts, or in archeology. On the other hand, Hari Manjhi
(P.W. 69) and Dr. G.T. Shinde (P.W. 78) also admit in their testimony that they
were not members of either of the Expert Committees formed by the ASI. But for
producing Ram Singh (P.W. 76), the IO, the prosecution has not produced any
other ''expert''. Thus, the prosecution case is marked by glaring absence of an
expert witness. The court is left with the opinion of Ram Singh (P.W. 76), the
investigating officer, with regard to the nature of the recovered art objects: the
court is left floundering.
56. In the case of State of Himachal Pradesh Vs. Jai Lal and Others,the Apex Court
elaborated on the function and need for having an expert opinion. Referring to
Section 45 of the Evidence Act, it observed as under:
18. An expert is not a witness of fact. His evidence is really of an advisory
character. The duty of an expert witness is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of the conclusions so as to enable the
Judge to form his independent judgment by the application of this criteria (sic) to
the facts proved by the evidence of the case. The scientific opinion evidence, if
intelligible, convincing and tested becomes a factor and often an important factor
for consideration along with the other evidence of the case. The credibility of such a
witness depends on the reasons stated in support of his conclusions and the data
and materials furnished which form the basis of his conclusions.
57. Further, according to both Gauri Chatterji (P.W. 70) and Dr. G.T. Shinde (P.W.
78) detailed reports were prepared by the Expert Committees which were
available in their office. But the said detailed reports were never produced by the
prosecution before the trial court. According to Gauri Chatterji (P.W. 70), she did
not attach the detailed report with the Authorization Letter (Ex. P. 227) issued by
her. She merely attached a summary of the report as list ''C'' (Ex. P. 225). Thus,
the prosecution has withheld vital documents from the trial court. Therefore, the
trial court ought to have drawn adverse inference against the prosecution. But the
learned Judge has failed to do so. If the detailed reports were produced it would
have falsified the case of the prosecution. Thus, the non-production of the detailed
reports should be read against the prosecution.
58. Undoubtedly, the prosecution has submitted lists/reports (Exs. P. 222, 223,
225, and 227) along with their covering letters as mentioned above. However,
documents do not prove themselves. [Ref. to Chaman Lal Vs. The State of Punjab,
The contents of the said lists/reports have to be proven. The prosecution has
examined Hari Manjhi (P.W. 69) to prove that Exs. P. 222, 223, 225 and 227
contain G.C. Chawley''s signatures. But merely by proving his signature, the
contents of the report do not stand proven. [Ref. to Birad Mal Singhvi Vs. Anand
Purohit, Moreover, Hari Manjhi (P.W. 69) has clearly admitted in his cross-
examination that "For those documents where I have identified G.C. Chaw ley''s
signature, like Exs. P. 222, 225, 227 and 223, I have merely identified his
signature. What is written in these documents, who wrote them, when they were
written, whether they contain truth or falsehood, I do not know."
59. Thus, obviously, the prosecution has failed to prove the contents of the
lists/reports, mentioned above. Yet, the learned Judge has relied upon them for
concluding that the recovered items were antique in nature.
60. Furthermore, a bare perusal of these documents reveals that they are
incomplete reports. For, the lists/reports have merely divided the objects into
''antique'' or ''non-antique''. It has not given a single reason for classifying an
object as ''antique'' or ''non-antique''. Therefore, the court is at a loss as to the
scientific basis on which an object was labeled as ''antique'' or ''non-antique''. While
dealing with the sculptures, the details are conspicuously missing. The lists/ reports
have merely mentioned that the sculpture is in stone. But they do not reveal the
type of stone, i.e. whether sandstone, marble, or granite; they have not revealed
the style details'' of the sculpture i.e. whether belongs to the Gupta style, Mathura
style, or Konark style. They have not revealed the dynasty under which the
sculpture was likely to be done, i.e. Kushan dynasty, Gupta dynasty, Pala dynasty,
or Prathihara dynasty. Further the lists/reports have not given the historical period
to which the sculpture belongs, i.e. whether it is a sculpture from the 2 Century
EBC, or 1 Century CE or from 9 -12 Century CE.
61. The sculptures allegedly recovered from the appellant have been mentioned in
the lists/reports (Exs. P. 222, and 227). However, there is some confusion about
the exact sculptures recovered from the appellant and their examination by the
Expert Committee. For while the prosecution claims that two sculptures of Lord
Shiva and Goddess Parvati were recovered from the appellant, in lists/report (Ex.
P. 227) at least four different statues of Lord Shiva and Goddess Parvati have been
mentioned. Out of these four sculptures which particular sculpture was recovered
from the appellant is unclear. Moreover, even for these sculptures of Lord Shiva
and Parvati, the lists/reports do not reveal as to which school they belong to: the
Pratihara-Paramar School, the Pala School, or to the Kalinga School. They do not
reveal the period or the dynasty when the sculptures could have been carved.
Furthermore, both Ex. P. 222, at Item No. 81 and Ex. P. 227, at Item No. 72 deal
with sculptures of Varah Avatar. However, as a single sculpture of Varah Avatar
was allegedly recovered from the appellant, it is unclear as to which of the two
sculptures mentioned in the lists/reports was recovered from the appellant. Thus,
the lists/reports (Ex. P. 222 and 227) are unclear, uncertain, and unconvincing.
62. The sculptures seem to have been classified as ''antique'' on the basis of their
looks. With regard to a "Devi" (A Goddess), recovered at the instance of a co-
accused, the list/report (Ex. P. 222, Item No. 114) merely states, "Devi sculpture
made out of stone, in which there are images of lions, and on both the sides
images of men and women have been carved, and which has been painted in pink
color, and which seems old." Hence, because the sculpture "seems old", therefore
it has been classified as ''antique''. However, there is no indication about the
subject-matter, the age, the period, the dynasty, the style of the sculpture.
63. Gauri Chatterji (P.W. 70) claimed in her testimony that the recovered objects
were scientifically tested in order to decide their antiquity. However, according to
Hari Manjhi (P.W. 69) and Dr. G.T. Shinde (P.W. 78) the recovered items were
declared to be antique on the basis of their ''appearance''. Admittedly, none of
these three witnesses were members of the two Expert Committees. Thus, the
very basis for declaring the individual items as antique or ''non-antique'' is
unknown. The prosecution should have examined the members of the Expert
Committees in order to establish the antiqueness of the recovered objects, in order
to clarify the basis on which the objects were held to be antiques. After all, the
members were the star witnesses for the prosecution to establish the antiqueness
of the objects. Since the prosecution has not produced the primary and the star
witness, their non-production should be read against it. Instead of presenting a
clear picture, the prosecution has presented a doodle. It has singularly failed to
prove its case about the ''antiqueness'' of the sculptures/ beyond a reasonable
doubt.
64. While cross-examining Hari Manji (P.W. 69), the defence not only asked him
about the different techniques employed by the experts to find out the age of an
object, but also suggested that fake copies of sculptures are readily done and are
readily available in the market. The witness did speak about Dendrochronology, a
technique used by the archeologists to date wooden objects, and about
Thermoluminescence Dating (TL Dating), test used for dating ceramic objects, and
about x-ray being used by the archeologists to date objects made out of other
materials. But according to him the Expert Committee did not apply these
techniques to the recovered sculptures.
65. According to him the experts had merely looked at the recovered items and
had declared the items to be ''antiques'' on the basis of their ''appearance''.
However, further in his cross-examination, he does admit that "today''s artists do
make fake copies of ancient sculptures which look just like the original." He further
admits that copies of antique sculptures are sold by art galleries and museums.
Once this admission is made by the Director, Archeological Survey of India, it was
for the prosecution to eliminate the possibility that the recovered items were not
mere fake copies of the original pieces. However, no such attempt was made.
Therefore, a grave doubt does exist that the recovered items may not be antiques
at all.
66. Most importantly, the lists/reports do not reveal the scientific criteria for
testing the accuracy of the conclusion. Therefore, the lists do no enable a court to
formulate its independent opinion. Naturally, the credibility of these lists would
depend upon the reasons stated in support of their conclusions and upon the data
and material furnished which formed the basis of their conclusion. However, the
lists are silent about the most vital and essential clues for the sculpture being
antique. Thus, the lists/reports (Exs. P. 222. 223. 225 and 227) are at best
inconclusive, vague, and unclear about the ''antiqueness'' of the recovered items.
Therefore, they do not establish the antiqueness of the art objects recovered from
the appellant.
67. In the case of Mahmad Hanif Shaikh Ibrahim Vs. State of Gujarat,a learned
Division Bench of the Hon''ble Gujarat High Court was seized with a case under the
Narcotic Drugs and Psychotropic Substance Act. It was dealing with the report of
the public analyst with regard to the contraband drug. However, the report did not
contain any reason for the conclusion drawn by the public analyst that the
substance was ''Charas''. Their Lordships of the Hon''ble Gujarat High Court
observed that "Now on perusal of the above report, by no stretch of imagination,
the same can be said to be full and complete, disclosing the scientific tests or
experiments performed by the public analyst. Except for the bare opinion and
assertion that the muddamal article was "Charas" there is indeed nothing on the
basis of which this Court can independently test and assess the truthfulness and
genuineness of the said Public Analyst''s Report, Exh. 12" Rejecting the said report
of the Public Analyst, Their Lordships acquitted the appellant for offence under the
NDPS Act.
68. Mr. Bajpai has pleaded that as the lists/reports are of government scientific
experts, u/s 293 Cr.P.C. the same can be taken into evidence without any proof,
and relied upon for convicting the appellant. However, the said plea is untenable.
For, Section 293 Cr.P.C. is as under:
293. Reports of certain Government scientific experts.
(1) Any document purporting to be a report under the hand of a Government
scientific expert to whom this section applies, upon any matter or thing duly
submitted to him for examination or analysis and report in the course of any
proceeding under this Code, may be used as evidence in any inquiry, trial or other
proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the
subject-matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend
personally, he may, unless the Court has expressly directed him to appear
personally, depute any responsible officer working with him to attend the Court, if
such officer is conversant with the facts of the case and can satisfactorily depose in
Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:--
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director Deputy Director or Assistant Director of a Central Forensic Science
Laboratory or a State forensic Science Laboratory;
(f) the Serologist to the Government.
69. A bare perusal of the provision shows that the said provision does not cover the
Expert Committee formed by the ASI. Therefore, the report of the Expert
Committee would necessarily have to be proved. Hence, Mr. Bajpai cannot take
the benefit of Section 293 Cr.P.C. and claim that the prosecution was not required
to prove the contents of the lists/reports (Exs. P. 222, 223, 225, 227).
70. In the case of Mahmad Hanif Shaikh Ibrahim (supra) Their Lordships of the
Hon''ble Gujarat High Court observed as under:
Merely because by virtue of Section 293 of the Code, his report could be admitted
in evidence and exhibited without giving evidence before the Court that by itself
does not mean that the same is to be accepted straightway as a conclusive proof of
evidence against the accused, more particularly when it does not contain even a
grain of material indicating on what scientific tests his opinion was arrived at.
Before the evidence of Public Analyst can be safely accepted and relied upon to
base the order of conviction and sentence, the Court must have an opportunity of
its own to independently assess and appreciate the same on the basis of scientific
tests, etc. Instead, if the Court is to surrender to any bare opinion of the Public
Analyst, that can amount to abdication of its judicial function, relegating itself to
mechanically record the order of conviction and sentence without doing anything
else.
71. We are in agreement with the judicial opinion expressed by Their Lordships of
the Gujarat High Court.
72. Further, in the case of Jai Lal & Ors. (supra) the Apex Court has opined that
"The report submitted by an expert does not go in evidence automatically. He is to
be examined as a witness in Court and has to face cross-examination. This Court in
the case of Haji Mohammad Ekramul Haq Vs. The State of West Bengal,concurred
with the finding of the High Court in not placing any reliance upon the evidence of
an expert witness on the ground that his evidence was merely an opinion
unsupported by any reasons."
73. Thus, the contentions raised by Mr. Bajpai with regard to the admissibility and
the probative value of the lists/reports mentioned above are clearly untenable.
74. In short, despite the submission of oral and documentary evidence the
prosecution has singularly failed to establish that the recovered items were,
indeed, ''antiques''. This is a gaping hole in the prosecution case. Hence, even if
the prosecution witnesses were to be believed that the sculptures were allegedly
recovered from the appellant''s house and farm, even then the prosecution has
been unsuccessful to establish the offence u/s 14 read with Section 25(2) of the AAT
Act.
75. The entire case against the appellant is based on circumstantial evidence.
However, the prosecution has failed to present all the links of the chain which
would point unerringly to the guilt of the appellant. Hence, it has failed to establish
its case against the appellant.
76. In the result, the appeal filed by the appellant is accepted. The judgment dated
20-11-2008 is hereby quashed and set aside. Consequently, this Court quashes and
set aside the appellant''s conviction under Sections 411, and 413 IPC, and u/s 14
read with Section 25(2) of the AAT Act. The appellant shall be set at liberty
forthwith, if not required in any other criminal case. As far as the trial property is
concerned, the prosecution has failed to establish its case. But the probability does
exist that perhaps the sculptures recovered during the investigation are
''antiques''. Hence, the State is directed not to return the trial property to the
appellant. Moreover, it is directed to seek the opinion of the ASI, and if necessary,
of other experts/agency in the field of art history and archeology, with regard to
the ''antiqueness'' of the recovered sculptures. In case the experts certify that the
sculptures are ''antiques'', then the State should preserve them for the benefit of
the public at large. After all, in such a case, the sculptures are part of our history,
heritage and culture. Thus, in the interest of the nation, such sculptures should be
publically displayed in a museum managed by the State. Hence, the State is
directed to carry out the necessary exercise as directed above within a reasonable
time.