The Kerala High Court held that the person authorised under law to decide whether any article or object is an antiquity or not is the Director General of the ASI or an officer not below the Director of ASI as per section 24 of the Antiquities Act.

Since the seizure of the idols and terming it as an antiquity was legally improper, as only a person authorized by the Central Government under section 23 of the Kerala Police Act, 1960 could have seized the idols if they were antiquities, the High Court set aside the conviction of the revision petitioner for the offence under Section 53A of the Act.

The High Court held so while considering a revision petition challenging conviction for the offence under Section 53A of the Kerala Police Act, 1960, whereby two idols claimed to be owned and possessed by the revision petitioner landed him in a criminal case which he has been fighting for the last thirteen years, and for which he was convicted terming it as possession not accounted for.

A Single Judge Bench of Justice Bechu Kurian Thomas observed that “Petitioner was found in possession of a quinary idol. He did not possess any document to prove his ownership of the idol. However, till date, no one has complained of loss of any idol of the nature found in the possession of the petitioner. A mere assumption or doubt on the part of the police cannot take the place of proof, especially in the absence of any other person claiming ownership or possession of the idols”.

Stating that police are entitled to question the possession of a property in the hands of a person, the Bench observed that simply because the owner was unable to prove the title to the said property by virtue of any title deed, that by itself is not a reason to believe that the property is stolen.

Advocate T.N Manoj appeared for the Revision Petitioner, whereas Advocate Noushad K.A appeared for the Respondent.

The brief facts of the case were that while the revision petitioner was travelling in his car through a public road, the Sub Inspector of Mala Police Station, while on his routine vehicle inspection duty, found two idols of quinary metal kept beneath the back seat of his car. Asserting that he was unable to give a satisfactory explanation for the two idols, petitioner was alleged to have committed the offence under Section 53A of the Act of keeping in possession stolen property or property that could not be accounted for. The Trial Court concluded that the idols seized from the possession of accused were 'incredible archaeological properties' belonging to the 18th century', and not usually used in houses for worship. After finding that the idols are antique pieces and that the accused had not taken any steps to prove his ownership or right to them, the Trial Court found the accused guilty under Section 53A of the Act and sentenced him to undergo imprisonment till the rising of the court.

After considering the submission, the Bench found from a perusal of the provisions of the Antiquities Act, that the said Act does not restrict the right of a person to own or possess an art, artifact, or an antiquity, and if an antiquity is owned or possessed by a person, law restricts that antiquity from being taken out of the country.

The Bench also noted that if there is any antiquity in the possession of a person which has an age of more than 75 years, it is required to be registered with the Director of Archaeological Survey.

However, if in case such registration is not done, the Bench found that no consequence is envisaged under the Antiquities Act, and if in case the Central Government wants to possess and own an antiquity, they will have to acquire it by paying compensation.

“As the principle in civil law, possession is nine-tenths ownership, when the petitioner was found in possession of the idols and no law prevents such an idol from being possessed by a private person, it cannot be assumed that the idols were stolen property. An arbitrary or unsubstantiated suspicion by itself cannot be a reason to convict an accused under section 53A of the Act”, added the Bench.

Cause Title: Rajesh v. State of Kerala

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Kerala High CourtJustice Bechu Kurian Thomas

Pankaj Bajpai