IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 16TH AUGUST 2006 / 25TH SRAVANA 1928 OP.No. 17755 of 2000(L) ----------------------- PETITIONER: ------------- T. SURESH, S/O. T. KUNHIKANDAN, KANAKKAT HOUSE, CHELAVOOR P.O., KOZHIKODE DISTRICT. BY ADV. SRI.T.SETHUMADHAVAN SRI.P.N.KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANA KANNAN RESPONDENTS: ---------------- 1. THE DIRECTOR GENERAL (ANTIQUITIES), ARCHAEOLOGICAL SURVEY OF INDIA, JAN PATH, NEW DELHI - 110 001. 2. THE SUPERINTENDENTING ARCHAEOLOGIST, ARCHAEOLOGICAL SURVEY OF INDIA, TRISSUR CIRCLE, ARANATTUKARA, TRICHUR - 680 618. 3. ASSISTANT COMMISSIONER OF POLICE, KOZHIKODE NORTH, KOZHIKODE DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SCGSC SRI.M.L.SURESH KUMAR, ADDL.CGSC R3 BY SRI. JAMES MATHEW KADAVAN, SR. GOVT. PLEADER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/08/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.17755/2000 ORDER ON C.M.P. No.29255/2000 IN O.P. NO.17755/2000 DISMISSED 16.08.2006 SD/- PIUS C. KURIAKOSE, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER IN CRL. M.P. 139/2000 DT.27.1.2000 OF THE COURT OF THE JUDICIAL 1ST CLASS MAGISTRATE, KUNNAMANGALAM. EXT.P2 : TRUE COPY OF THE ORDER IN CRL. M.C. NO.803/2000 DT.22.2.2000 OF THIS HON'BLE COURT. EXT.P3 : TRUE COPY OF THE LETTER NO.3/18/TSR/97-98/TECH./134 DT.16.1.2000 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P4 : TRUE COPY OF THE CERTIFICATE FORWARDED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P5 : TRUE COPY OF THE CERTIFICATE OBTAINED BY THE 3RD RESPONDENT FROM THE 1ST RESPONDENT DT.7.3.2000. EXT.P6 : TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE CHAIRPERSON OF STATE COMMISSION FOR HUMAN RIGHTS, TRIVANDRUM DT.28.4.2000. PIUS C. KURIAKOSE, J. ------------------------------- O.P. No. 17755 OF 2000 ----------------------------------- Dated this the 16th day of August, 2006 JUDGMENT The petitioner is a member of a financially well placed family, his father having been in liquor business for decades. The subject matter of this Writ Petition is an idol of Devi. According to the petitioner, he had been worshipping this idol for the last 20 years. The idol was given to him by his grandfather who wanted him to venerate the idol as a deity in the pooja room so that the same can be worshipped regularly. Petitioner says that he kept the idol on a pedestal in the pooja room and has been worshipping the idol every day. The idol was forcibly removed from the petitioner's pooja room by the police on 08.01.2000 who laid a charge against the petitioner in the Court of Judicial First Class Magistrate of Kozhikode-I as crime No.13/2000, invoking Sections 41(1) (d) and 102 of the Code of Criminal Procedure and Sections 414, 353 and 506(2) of IPC. The petitioner preferred a Crl.M.P. before the J.F.C.M of Kunnamangalam requesting the Court to secure the production of the idol which was the subject matter of Crime No.13/2000 so that the idol can be kept in safe custody. But it was reported to the Court that the idol was necessary for further investigation. The learned Magistrate dismissed the application. Crl.M.C No.803/2000 was filed before this WPC : 17755/2000 2 Court against the order of the learned Magistrate. This Court also dismissed the Crl.M.C. Exts.P1 and P2 respectively are copies of the orders passed by the learned Magistrate and this Court. The idol was being used for bonafide religious observances and therefore the petitioner badly needs the idol back. The Central Government is not entitled to acquire the idol since the same was used for bonafide religious observances. But the 3rd respondent-Assistant Commissioner of Police, Kozhikode North has even before the idol was produced before the Court put the same in the hands of the 2nd respondent i.e. Superintending Archaeologist, Archaeological Survey of India, Trichur and obtained a report from the 2nd respondent. Ext.P3 is copy of the letter sent by the 2nd respondent to the 3rd respondent. Ext.P4 is copy of the certificate forwarded by the 2nd respondent to the 3rd respondent on the same day. Under Ext.P4 certificate it is stated that the idol belongs to the medieval historical period and datable to 17th century and hence an antiquity. It is further stated that such idols can be kept in private custody only with a registration certificate issued under the provisions of the Antiquities and Art Treasures Act, 1972. It is further stated that holding of such an antiquity in Kerala without certificate issued by the registering officer, Archaeological Museum, Trichur is an offence under the Antiquities and Art Treasuries Act, 1972. Petitioner points WPC : 17755/2000 3 out that Ext.P4 report has been made without informing the petitioner and the inspection stated to have been made by the 2nd respondent was in the absence of the petitioner. The petitioner has produced Ext.P5 which is copy of the certificate issued by the 1st respondent-The Director General(Antiquities), Archaeological Survey of India, New Delhi), dt. 7.3.2000. Under Ext.P5 the idol in question is declared as an antiquity by the 1st respondent. The petitioner placed his grievance before the Chairperson for Human Rights and Ext.P6 is copy of the petition filed by the petitioner in that regard. Ext.P6 sets out the entire set of proceedings and happenings in relation to the detention of the idol from his custody. The petitioner points out that even if the idol in question is an antiquity or an art treasure, the same is one used for bonafide religious observances and therefore the idol is not available to be acquired by the Government compulsorily. 2. Making the above averments the petitioner has raised several grounds and filed this Writ Petition seeking the following reliefs: i. issue a writ of certiorari quashing Ext.P5; ii. issue an appropriate writ declaring that the idol presently in the custody of the 3rd respondent even if it is an antiquity or Art Treasure is one used by the petitioner for bonafide WPC : 17755/2000 4 religious observances; iii. issue a writ of mandamus commanding the 3rd respondent o hand over the idol to the petitioner forthwith. iv. issue a writ of mandamus forbidding the respondents 1 & 2 from interfering in any manner with the possession and enjoyment of the idol belonging to the petitioner. 3. A detailed counter affidavit has been filed by the 2nd respondent on behalf of respondents 1 & 2. No counter affidavit has been filed by the 3rd respondent or by anybody else on his behalf. In the counter affidavit, it is stated that the idol in question was produced by the 3rd respondent before the 2nd respondent for opinion. The 2nd respondent is the licensing officer for carrying out business in antiquities as per the provisions under Section 6 of the the Antiquities and Art Treasures Act, 1972 and Rules thereunder. The 2nd respondent is also the Convenor of Expert Committee for Export of Non-Antiquities or any export of Art objects in the entire Kerala, parts of Tamil Nadu and Lakshadweep. The 3rd respondent after confiscating the idol, presented the same to the 2nd respondent for his opinion as an expert with more than 30 years of experience in the filed of Archaeology. The 2nd respondent after carefully examining the object opined that the idol was an antiquity and the 3rd respondent was also asked to take up the matter with the Director General(1st respondent), since the Director General was the WPC : 17755/2000 5 final authority for determining whether an object is an antiquity as per Section 24 of the Antiquities and Art Treasures Act, 1972. Accordingly, the idol was examined on 7th February 2000 by the Director General's nominee, i.e., Director (Antiquities). The Director (Antiquities) was assisted by an Expert Committee to arrive at a conclusion and finally the object was declared as an antiquity vide Ext.P5. The opinion furnished by the 2nd respondent under Ext.P4, therefore is just his opinion. The 2nd respondent could only say whether the idol confiscated is likely to be an antiquity. The 2nd respondent's opinion will always remain the same and any hearing opportunity given to the petitioner will not change the opinion since the opinion is formed on the basis of the inspection of the material examined by the 2nd respondent. No prejudice has been caused to the petitioner due to the action of the 1st respondent also. The idol was examined by experts. The 1st respondent is assisted by a Committee of Experts in this regard. The 1st respondent is not the punishing authority. 2nd respondent had given its decision on the basis of the object. Hearing the petitioner personally could not have changed the decision of the 1st respondent also. It was not necessary that the 1st respondent should know about the background of the ownership and the 1st respondent was to be guided only on the Principle of Archaeological norms to fix the WPC : 17755/2000 6 nature of the object as Antiquity or otherwise. The decision was a collective one with the approval of the competent authority-1st respondent. The decision was communicated to the 3rd respondent. Since the decision was purely on the basis of the material(idol), hearing the petitioner personally could not have improved matters for the petitioner. What has been done is to arrive at a fact finding decision. It is a final decision under the provisions of the Antiquities and Art Treasures Act, 1972. No prejudice has been caused to the petitioner due to non-hearing. All such cases are decided in the very same manner. Then lastly in para. 6 of the counter affidavit it is contended that the petitioner could have kept the object only as an Art Treasure and could not have worshipped as per the scheme prescribed in Hindu Agamas or Tantric Sastras since there is no trace of Chandanam or kumkum on any part of the idol. It is concluded that the petitioner had not worshipped the idol or constantly used the idol for worship by highlighting the point that the Siras Chakara is missing. The counter affidavit points out that broken idols are seldom worshipped and therefore the contention of the petitioner is baseless. 4. A detailed reply affidavit has been filed by the petitioner replying to the contentions raised in the counter affidavit. It is reiterated that the idol was one used in the petitioner's house for WPC : 17755/2000 7 religious observances and therefore the same cannot be treated as an antiquity as provided under the Antiquities and Art Treasures Act, 1972. The idol was given to the petitioner by his grandfather some 20 years back. The idol was taken from the pooja room in the petitioner's house. The very object for enactment of the Antiquities and Art Treasures Act, 1972 is to regulate the export trade in antiquities and Art Treasures; to provide for the prevention of smuggling and fraudulent dealings in antiquities, to provide for the compulsory acquisition of antiquities and art treasures for observation in public places. The compulsory confiscation of the idol from the residential house of the petitioner cannot be treated as an action taken under the Antiquities Act. The opinion made by the 2nd respondent and the report passed on that opinion as Exts.P3 & P4 is without understanding the status of the antiquity or treasure as defined under the Act. The opinion is without any basis. Even according to the 2nd respondent, the authority is the 1st respondent. In this case, the 1st respondent has acted on the basis of the representations submitted by the 2nd respondent. The basis for declaring it as an antiquity is not mentioned in Ext.P5. No opportunity was given by the 1st respondent to the petitioner for explaining the origin of the idol which was used for worship in his pooja room. The contention in the counter affidavit that personal WPC : 17755/2000 8 hearing will not improve matters is due to the incorrect understanding of the principles of natural justice. Since the idol was taken from the custody of the petitioner, the petitioner should have been heard before the same was declared as an antiquity. By the confiscation of the idol from the petitioner's residential house, the 3rd respondent had no jurisdiction to act under the Antiquities Act. If the 1st respondent wants to declare it as an antiquity, he should have invoked the powers conferred under Section 19 of the Act. Section 19 provides for an elaborate enquiry after affording sufficient opportunity to the person from whose custody the object or treasure is acquired. From the reading of the counter affidavit it is clear that there is no application of mind on the part of the 1st and 2nd respondents before declaring the object as an antiquity. They have not followed any guidelines or principles of Archaeological norms. The idol was of Devi kept in the pooja room of the petitioner, the same cannot be treated as an art treasure. The contention that the object is kept only as an art treasure and should not be worshipped as per the norms prescribed by the Agamas or Tantric Sastra is baseless. The further reason that there is no trace of chandanam or kumkum on any part of the idol and therefore it is to be presumed that the idol was not for worship, is without merit. The idol was all along in the custody of the 3rd respondent. Breaking WPC : 17755/2000 9 of the Siras Chakara was not known to the petitioner since when the same was given to the petitioner the Siras Chakara was missing. The 3rd respondent has not traced out the Siras Chakara so far. 5. The petitioner has produced additional documents Exts.P7 to P9. Ext.P7 is copy of the first information report on the file of the J.F.C.M, Kunnamangalam. in Crime No.13/2000. Ext.P7 will show that the idol in issue was seized from the pooja room of the petitioner's house as a stolen article involved in Crime No.100/93. Ext.P8 is copy of the First Information Report in Crime No.100/93 of the Mankara Police Station, which has been filed before the J.F.C.M Court, Palakkad. The petitioner says that Crime No.13/2000 is attempted to be unjustifiably connected with Crime No.100/93. Ext.P9 is copy of the final report submitted before the J.F.C.M, Palakkad in Crime No.100/93. Ext.P9 will show that the investigation has been closed since the police has not been able to apprehend any of the undetected accused or to collect any evidence which will lead to apprehension of the accused. 6. I have heard the submissions of Sri. P.N.K.Achan, Senior counsel appearing on behalf of the writ petitioner and also those of the additional Senior Central Government Standing Counsel, Sri. M.L. Suresh Kumar for respondents 1 & 2. Mr. P.N.K.Achan would WPC : 17755/2000 10 make elaborate submissions on the basis of the various grounds raised and he adverted to Exts.P2 to P4, P6 to P9 in his submissions. My attention was invited to Section 19 of the Antiquities and Art Treasures Act, 1972 by the learned Senior Counsel. The learned additional Central Government Standing Counsel would oppose the submissions of the learned Senior Counsel. According to him, there is absolutely no warrant for interfering with Ext.P5 since the same has been passed by the 1st respondent on the basis of an inspection conducted with the assistance of a Committee of Experts. Argument of the petitioner that the idol in question which is now certified to be belonging to 17th Century was being used for religious observances cannot be correct since there is not even a trace of chandanam or kumkum on the same. 7. I have considered the rival submissions made before me in the light of various materials placed on record by the parties. Significantly, the 3rd respondent who either directly or through any police officers under him could have answered the serious allegations raised by the petitioner before the State Commission for Human Rights has not chosen to file any counter affidavit. Ext.P6 shows that serious allegations are raised by the petitioner against three police officers namely Sub Inspector of Police, Kasaba Police Station, Palakkad; Sub Inspector of Police, Shornur, Palakkad and WPC : 17755/2000 11 Sub Inspector of Police, Chevayur Police Station, Kozhikode. Therefore it has to be taken that the 3rd respondent is not keen on denying the averments in the writ petition which are directed against the 3rd respondent and also against the Sub Inspectors' of police against whom serious allegations are levelled in Ext.P6. Going by the materials placed on record it is clear to me that the writ petitioner belongs to the financially higher strata of the society. His father was in liquor business for quite a long time. Seizure of the idol was admittedly made during the investigation of crime No.13/2000 of the Chevayur Police Station. This seizure was on the basis of an apprehension in the mind of Sri.Sasidharan, Sub Inspector of Police, Sholayar and Sri.Suresh Kumar, Sub Inspector of Police, Kasaba that the stolen idol which is the subject matter of Crime No.100/93 of Mankara Police Station is being sold by the petitioner in his house. This will be clear from Ext.P7. Of course, a reading of Ext.P7 will further show that the response of the petitioner towards the police party who came to his house was extra aggressive, but what is more important in this case is whether the seizure of the idol which is the subject matter of this writ petition from the petitioner's house in connection with Crime No.100/93 was justified. Ext.P7 will reveal that the idols which were involved in Crime No.100/93 were 1) a Ganapathi idol, Devi Idol with six inches WPC : 17755/2000 12 height and an idol of Lord Muruga. It is beyond doubt that the idol which was seized from the petitioner's house has nothing to do with the idol which is subject matter of Crime No.100. In Crime No.100, final report is now submitted as Ext.P9. The report is to the effect that the crime remains undetected and no accused could be apprehended. The height of the idol which is the subject matter of the writ petition is 37 cms which will be about one and a half. It is not clear from the materials placed before me as to what was the fate of crime No.13/2000 in which the petitioner was actually arrested. No counter submissions were made to the submission of Sri.P.N.K. Achan that final report has been filed in that case also and that the petitioner has not been charge sheeted. In the absence of counter affidavit by the 3rd respondent or by any of the police officers who were involved in the investigation of Crime No.13 or 100, this Court will have to accept the submission of Sri. P.N.K.Achan that at least one of the Sub Inspectors concerned had an axe to grind against the petitioner. The other two crimes, which were registered against the petitioner were for offences against the Wild Life Protection Act and pertained not to the idol but to the kalaman kombu which was also seized from the petitioner's house. Thus I am inclined to conclude that seizure of the idol in question from the petitioner's house on the allegation that the idol was a WPC : 17755/2000 13 stolen property involved in Crime Nos.13 or 100 as the case may be, was without basis. But the question before me is whether Ext.P5 ought to be quashed on that reason alone. Ext.P5 is a cryptic order by which the 1st respondent has declared the idol in question as an antiquity. Eventhough through their counter affidavit 1st and 2nd respondents justifies Ext.P5 as being made on the basis of independant assessment made by the expert body there is nothing in Ext.P5 which will show that Ext.P5 is issued on the basis of any such assessment. I feel that an order in the nature of Ext.P5 declaring the idol which was seized from the custody of the petitioner as an antiquity should not have been passed by the 1st respondent without notice to the petitioner. Principles of natural justice are meaningful principles and I accept Mr.P.N.K.Achan's submissions that in the nature of this case the petitioner ought to have been given an opportunity to explain the circumstances under which he came to have the custody of what is now declared to be an antiquity. 8. Even if the object is an antiquity, then also, if the petitioner can establish the same to be used bonafide for religious observances, in which case the petitioner will be able to retain the possession of the same. Through the counter affidavit, respondents 1 & 2 contend very enthusiastically that the case of the petitioner WPC : 17755/2000 14 that the idol in question was being worshipped is false since the same does not contain even trace of chandanam and kumkum. Here again it should be remembered that it was the 3rd respondent who presented the idol before the 2nd respondent. The petitioner may have an explanation to offer as to why the idol in question in spite of his worship, does not contain traces of chandanam and kumkum. Yet another reason is highlighted in this context is that it is unusual to worship an idol which is broken. What is pointed out is that the idol in question does not have the Siras Chakara. The petitioner contends that when his grandfather handed over the idol to him there was no Siras Chakara and that even without the Siras Chakara the idol looked complete. This again I feel is a case worth considering. 9. The result is that Ext.P5 is quashed. There will a direction to the respondents to deliver back the idol in question to the petitioner. The petitioner will apply to the registering officer, Archeaological Museum, Trichur for a certificate for possessing the idol since I find that the version of the respondents that the idol is more than 100 years old is quite convincing. Delivery of the idol will be made by the respondents within six weeks of the petitioner producing a copy of this judgment before them and registration certificate from the Museum will be obtained by the petitioner within WPC : 17755/2000 15 4 months thereafter. If the petitioner is unable to obtain such registration, he will entail prosecution subject to the fresh orders to be passed by the 1st respondent. 10. The 1st respondent will hear the petitioner and pass fresh orders regarding Ext.P5 within six months of the petitioner making available a copy of this judgment before the 1st respondent. The petitioner is permitted to produce evidence before the 1st respondent so as to substantiate his contentions regarding the idol. The Original Petition is allowed as above. PIUS C. KURIAKOSE, JUDGE btt WPC : 17755/2000 16