Partly allowed

Mushtaq Ahamad Banday v. the State, Represented by

Madras HC7 Apr 2022CRL OP/4709/2022

Case brief

AI extract

What is this about?

This Court dismissed anticipatory bail for a partner of an antique shop unable to prove lawful possession of seized idols, necessitating custodial interrogation. Conversely, interim bail for the shop's manager and salesman was made absolute as their custodial interrogation is not required.

What did the court decide?

Crl.O.P.No.4709 of 2022 dismissed; interim bail in Crl.O.P.No.5526 of 2022 made absolute.

Mushtaq Ahamad Banday Vs the State, Represented by — Criminal Trial and Appeal | Madras HC (2022)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

Reserved on : 04.04.2022 Pronounced on : 07.04.2022

¶3

Coram::

¶4

THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

¶5

Criminal Original Petition Nos.4709 & 5526 of 2022

¶6

Crl.O.P.No.4709 of 2022

¶7

Mushtaq Ahamad Banday, (Aged 68 years), Son of Mohammed Yusuh Banday, F1, Old No.5, New No.9, Aiswaryam Apartments, H.D.Raja Street, Eldams Road, Alwarpet, Teynampet, Chennai – 600 018. ... Petitioner/Accused in Crl.O.P.No.4709 of 2022 /versus/

¶8

The State, Represented by the Inspector of Police, Idol Wing CID, PTC Campus, Ashok Nagar, Chennai – 600 083. ... Respondent/Complainant in Crl.O.P.No.4709 of 2022

¶9

Prayer: This Criminal Original Petition is filed under Section 438 of Cr.P.C., pleased to enlarge the petitioner on bail in the event of arrest in IWCID Crime No.7 of 2021 on the file of the respondent to such other surety satisfaction to the Additional Chief Judicial Magistrate Court, Kumbakonam in Thanjavur District.

¶10

For Petitioner : Mr.V.Raghavachari

¶11

For Respondent : Mr.S.Santhosh, Government Advocate (Crl.Side)

¶12

https://hcservices.ecourts.gov.in/hcservices/

¶13

Crl.O.P.No.5526 of 2022

¶14

P.Hari,

¶15

Son of N.R.K.Perumal.

¶16

Mohd Mushtaq Sofi,

¶17

Son of Late Abdul Gaffar Sofi. ... Petitioners/Accused

¶18

/versus/

¶19

The State, Represented by the Inspector of Police, Idol Wing CID, PTC Campus, Ashok Nagar, Chennai – 600 083 ... Respondent/Complainant

¶20

Prayer: This Criminal Original Petition is filed under Section 438 of Cr.P.C., pleased to enlarge the petitioner on bail in the event of arrest in IWCID Crime No.6 of 2022 on the file of the respondent to such other surety satisfaction to the Additional Chief Judicial Magistrate Court, Kumbakonam in Thanjavur District.

¶21

For Petitioner : Mr.V.Raghavachari

¶22

For Respondent : Mr.S.Santhosh, Government Advocate (Crl.Side)

¶23

COMMON ORDER

¶24

The petitioner in Crl.O.P.No.4709 of 2022 is one of the partner of M/s.Cottage Arts Emporium. Apprehending arrest for the alleged possession of antique idols and manuscripts is before this Court seeking anticipatory bail.

¶25

The petitioners in Crl.O.P.No.5526 of 2022 are the Manager and Salesman of the said M/s.Cottage Arts Emporium from 1983 and from there 4 idols and 11 manuscripts were seized during the search conducted on 17/02/2022 and 18/02/2022.

¶26

This Court, granted interim bail to these petitioners in Criminal Original Petitions, on condition to participate in the investigation and produce the documents sought by the Investigating Officer to prove that the possession of the seized articles are licit and directed the respondent to file status report.

¶27

Particularly, in respect of the petitioner in Crl.O.P.No.4709 of 2022, who is the partner in the firm. This Court, while granting interim bail on 03.03.2022 directed him to appear

¶28

https://hcservices.ecourts.gov.in/hcservices/

¶29

before the Investigating Officer for the next seven days and produce all the relevant documents. Till then, the petitioner should not be arrested and posted the matter on 11.03.2022 for filing status report of the investigation.

¶30

When the matter came up on 11.03.2022, the Learned Government Advocate (Crl.Side) for the respondent police, filed status report and submitted that, the petitioner has reported to the investigation Officer for enquiry but has not produced the necessary documents regarding ownership and source of the idols and manuscripts seized from the petitioner. Therefore, this Court directed the petitioner to produce all the documents in connection with the material seized from him and time was granted till 5.30 p.m., on 14.03.2022 before the respondent police. When the matter once again called on 15.03.2022, this Court adjourned the matter with direction to the petitioners to surrender their passport to the custody of the Hon'ble High Court, Madras. Accordingly, the petitioners were surrendered their passport to the Registrar General, High Court, Madras on 22.03.2022 and the petitioner (Crl.O.P.No.4709 of 2022) has participated in the investigation, had produced documents which are in his possession and given a letter on 25.03.2022 stating that, he does not have any bills regarding the idols of Gajasamharamoorthy and other two items since it relates to the year before 2005 and other documents were submitted, as per the instructions of the High Court, Madras.

¶31

Heard the submissions made by the Learned Counsel for the petitioners and the Learned Government Advocate (Crl.Side) for the Respondent.

¶32

According to the prosecution, on 17/02/2022, the Deputy Superintendent of Police attached to Idols Wing CID, received a reliable information that antique idols are concealed at the premises of M/s.Cottage Arts Emporium located at No.55/29, T.T.K. Road, Alwarpet, Chennai and kept ready for export to foreign Countries clandestinely. Immediately, the Deputy Superintendent of Police, conveyed the information to his Higher Officials and after intimation to the Additional Chief Judicial Magistrate, Kumbakonam, the Special Court constituted for trial of idol theft cases, he proceeded to the suspected premises and conducted search. The search conducted on 17/02/2022 ended in seizure of 3 metal idols (Natarajar - 63 x 53 cm - 13.600 kgs, Natarajar 23.5 x 14 cm – 2 kgs and Krishna 25 x 8 cm – 600 grams) and 11 boxes of manuscripts inscribed with Buddha preaching were seized on suspicion to be antique and stolen. During the search which was continued on the next day a metal idol of Gajasamharamorthy (107 x 70 cm – 48.5 kgs) was seized.

¶33

The Salesman Mr.Mohamed Mustaq Shofi, who was present during the search has informed the respondent police that the owners of the shop are Mr.Kurshid Ahmed Panday and Mr.Mustaq Ahmed Panday. One Mr.Hari is the Manager of the shop. They all were summoned to

¶34

https://hcservices.ecourts.gov.in/hcservices/

¶35

appear before the Investigating Officer with relevant documents for legal possession of the seized articles. They did not produce any necessary documents, but approached this Court for anticipatory bail.

¶36

The Learned Counsel for the petitioner has submitted the invoices/cash memo purportedly issued by the Sewa Singh & Sons, Manufacturer and Exporters of Indian Curios, Copper, Brass ware and Handicrafts No.1012, Chawri Bazaar, Jama Masjid, Delhi. The invoice dated 20.08.2017 and this invoice includes one dancing “Shiva” of 9 inches along with other Nataraja pieces. Those documents does not tally with the description of two Nataraja idols seized from the petitioner's premises. Likewise, the petitioner has not produced any document to prove ownership of the idol namely Gajasamharamoorthy. In this connection, the Investigating Officer addressed a letter to HR & CE Department forwarding photocopies of four idols seized from the petitioner premises to verify from the record and intimate any of them were stolen from the Temples in Tamil Nadu and investigation is awaited.

¶37

Further, it is admitted by the petitioner herein on 06.01.2016, Archaeological Survey of India, has informed the petitioner that a bronze Nataraja idol (Gajasamharamoorthy) height 107 cms, width 69 cms and base 28 cms, Brass Standing Buddha and Buddha Mantra Book are declared as antiquities by the Expert's Advisory Committee for Export of Non-Antiquities and has also informed the petitioner, if he has agreed by the declaration of the Expert's Advisory Committee, he can prefer appeal to the Director General of Archaeological Survey of India. It also appears that the petitioner had preferred an appeal but not participated in the enquiry proceedings before the Appellate Authority. The Investigating Officer has confirmed to the Directorate (Antiquities) Archaeological Survey of India. The Directorate of Archaeological Survey of India, on receiving the appeal from the petitioner has informed the petitioner to produce the objects for examination before the Appeal Committee vide letter No.6/1/APP/Ant/2004-2006/5653 dated 13^th December 2006 and the Cottage Arts Emporium has not attended the appeal meeting on the said date. Thus, it is clear that the idols which was declared as antiquities by the Committee of Experts though challenged by the petitioner by way of appeal, he has not perused the appeal since 2010. He has kept the idols in his possession and same recovered by the respondent police. On specific information that they were packed and kept ready for Exports. The petitioner herein during the course of investigation has admitted that, he does not have documents to show the source of the said idols. In the said circumstances, this Court is of the view that, antique idols and manuscripts not properly accounted for his legal possession, attracts the penal provisions.

¶38

Taking into consideration of the gravity of offence in spite of affording opportunity to the petitioner to explain the lawful possession of those antiquities, the petitioner/Mushtaq Ahamad Banday

¶39

https://hcservices.ecourts.gov.in/hcservices/

¶40

is unable to provide satisfactory document. Hence, custodial interrogation of this petitioner/Mushtaq Ahamad Banday is necessary to find out the source. Accordingly, the petition for anticipatory bail in Crl.O.P.No.4709 of 2022 is dismissed as against the petitioner/Mushtaq Ahamad Banday. In so far as, the petitioners (P.Hari and Mohd Mushtaq Sofi) in Crl.O.P.No. 5526 of 2022, they are Manager and Salesman of M/s.Cottage Arts Emporium. They are only an employees under Mushtaq Ahamad Banday. Therefore, the custodial interrogation of these petitioners in Crl.O.P.No.5526 of 2022 is not required and their cooperation for investigation is necessary, as and when required for interrogation. Hence, interim bail granted to these petitioners in Crl.O.P.No. 5526 of 2022 on 09.03.2022 is made absolute.

¶41

In the result,

¶42

(i).The Criminal Original Petition No.4709 of 2022 is

¶43

dismissed.

¶44

(ii).The Criminal Original Petition No.5526 of 2022, interim anticipatory bail is made absolute.

¶45

-sd/-

¶46

07/04/2022

¶47

This order, on being produced, be punctually observed and carried into execution by all concerned

¶48

TRUE COPY

¶49

Sub-Assistant Registrar (Statistics/C.S.) High Court, Madras - 600 104.

¶50

¶51

1 THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, KUMBAKONAM IN

¶52

THANJAVUR DISTRICT.

¶53

2 THE REGISTRAR GENERAL, HIGH COURT, MADRAS.

¶54

3 THE INSPECTOR OF POLICE, IDOL WING CID, PTC CAMPUS, ASHOK NAGAR, CHENNAI-600 083.

¶55

4 THE PUBLIC PROSECUTOR HIGH COURT, MADRAS.

¶56

https://hcservices.ecourts.gov.in/hcservices/

¶57

5 THE SECTION OFFICER, E.R.SECTION, HIGH COURT, MADRAS.

¶58

+2 CC to M/S.V.RAGHAVACHARI Advocate on payment of necessary charges SR.NOs.5287 & 5383

¶59

CRL OP.Nos.4709 & 5526 /2022 Date :07/04/2022 RW 08/04/2022

¶60

https://hcservices.ecourts.gov.in/hcservices/

Mushtaq Ahamad Banday v. the State, Represented by

Case brief

What is this about?

What did the court decide?

Mushtaq Ahamad Banday v. the State, Represented by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kalaimani Vs State Rep.by

S.Meganathan Vs the State Rep by

Ramu @ Ramanathan Vs State Rep.by

V.P.Krishnasamee Vs State Rep by

M.Kolanji Vs the State Rep.by

R.Sundaresan Vs a.Nandaa Kumar