Antiquities Act Doesn't Restrict Right Of A Person To Own Or Possess An Art, Artifact Or Antiquity: Kerala High Court

Justice Bechu Kurian Thomas held thus:

“….it is evident that the Antiquities Act does not restrict the right of a person to own or possess an art, artifact or an antiquity. If an antiquity is owned or possessed by a person, law restricts that antiquity from being taken out of the country. 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, no consequence is envisaged under the Antiquities Act. Further, if in case the Central Government wants to possess and own an antiquity, they will have to acquire it by paying compensation. In view of the above analysis of the statutory provisions of the Antiquities Act, it is evident that a person is entitled to possess any idol, irrespective of its age.”

The petitioner was found travelling with two idols in the back seat of his car. The allegation was that the petitioner was unable to explain the possession and ownership of the idols and was charged under Section 53A of the Kerala Police Act for keeping possession of stolen property. The Trial Court held that the idols were antique pieces and termed it as ‘incredible archaeological properties’ belonging to the 18^th century. The trial court sentenced the petitioner to undergo imprisonment till the rising of the court. This was upheld by Sessions Court. Thus, the petitioner preferred criminal revision petition before the High Court.

Advocate T N Manoj, counsel for the petitioner contended that the provisions of Antiquities Act do not prohibit a person from possessing an idol which was an antique piece.

Public Prosecutor K A Noushad submitted that the burden of proving that a property is validly possessed or owned by the accused under Section 53A of the Kerala Police Act was on the person who claims such ownership, otherwise it would mean that the idols were stolen.

The Court on an analysis of the provisions of the Antiquities Act found that Section 2 defines antiquity, Section 3 of the Antiquities Act prohibits export of antiquities by any person other than the Central Government or its authorized agency, Section 5 restricts the sale of an antiquity otherwise than through a license, Section 14 states that the Central Government must specify those antiquities which are to be registered, Section 19 gives power to the Central Government to acquire any antiquity on payment of compensation under Section 20, Section 23 states that an officer authorised by the Central Government alone can search and seize an antiquity, Section 24 vests the power to determine whether an article is an antiquity or not upon the Director General of the Archaeological Survey of India (ASI) or by an officer not below the Director of ASI.

Based on the afore provisions, the Court held that the Antiquities Act do not restrict the right the right of the petitioner to possess the idols, irrespective of its age. The Court also held that the finding of the Documentation Officer of the Archaeological Department at Thrissur that the idols were of 18^th century without any scientific study cannot be relied upon and could only be considered as an assumption or guesswork. The Court also found that the Documentation Officer was not the competent authority under Section 24 of the Antiquities Act to seize the idols even if they were antiquities.

The Court considered Section 53A of the Kerala Police Act under which the petitioner was charged for possession of stolen property. The Court observed that the petitioner was not able to prove the ownership of idols by any documents as they were movables and that by itself would not mean he has stolen it. The Court also found that no one has reported that such idols were stolen. The Court also reiterated the civil law principle possession is nine-tenths ownership and held that police could not have assumed that the idols were stolen. Court observed thus:

“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. 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.”

Thus, the Court set aside the conviction of the petitioner under Section 53A of the Kerala Police Act. The idols seized from the petitioner was already directed to be released to him based on an earlier order of the Court and that order was made absolute.

Case title: Rajesh V State of Kerala

Citation: 2023 LiveLaw (Ker) 418

Case number: Crl. Rev. Petition No. 805 of 2016