PASAYAT, J. ( 1 ) ANTIQUITIES are, as Becon had written history defaced, or some remounts of history which have casually escaped the shipwreck of time. Faith and belief transform a piece of stone to be an idol or statue of God or Goddess. Conversely it becomes a show or decorative piece. It has become a matter of great concern that stone idols are being smuggled out of the country to become show-pieces in the drawing-rooms. This is not a new phenomenon, and even a century back such activities had caused concern as discussions infre would go to show. To regulate the export trade in antiquities and art treasures, to provide for prevention of smuggling of, fraudulent dealings in antiquities, and to provide for the compulsory acquisition of antiquities and art treasures for preservation in public places. The Antiquities and Art Treasures Act, 1972 (in short, the 'antiquities Act') has been enacted by Parliament in the Twenty-third Year of the Republic of India. ( 2 ) IT came to the notice of this Court that large quantities of antiquities which were stolen out of the places of worship are lying in different malkhanas of the State. Anxious considerations were given to work out modalities for preservation of these priceless articles which were taken out of the places of worship with the obvious object of selling them to unscrupulous dealers and in all likelihood they would have been smuggled out of the country. That is how suo motu action was taken on the basis of a report submitted by the Registrar (I and E) of this Court. ( 3 ) AT this juncture it is necessary to take note of various statutory enactments which have relevance. As referred to supra, the Antiquities Act is one such legislation. 'antiquity' and 'art treasure' have been defined as follows in Section 2 of the said Act. ( 3 ) AT this juncture it is necessary to take note of various statutory enactments which have relevance. As referred to supra, the Antiquities Act is one such legislation. 'antiquity' and 'art treasure' have been defined as follows in Section 2 of the said Act. " 'antiquity' includes - (a) (1) (i) any coin, sculpture, painting, epigraph or other work of art of craftsmanship; (ii) any article, object or thing detached from a building or cave; (iii) any article, object or thing illustrative of science art, crafts, literature, religion, customs, morals or politics in bygone ages; (iv) any article, object or thing of historical interest; (v) any article, object or thing declared by the Central Government, by notification in the Official Gazette, to be antiquity for the purpose of the Act, which has been in existence for not less than one hundred year; and (2) any manuscript record or other document which is of scientific, historical, literary or aesthetic value and which has been in existence for not less than seventy-five years; (b) 'art treasure' means any human work of art, not being an antiquity, declared by the Central Government by notification in the Official Gazette, to be an art treasure for the purposes of the Act having regard to its artistic or aesthetic value :provided that no declaration under this clause shall be made in respect of any such work of art so long as the author thereof is alive;"antiquities can be sold only under a licence as provided under Section 5. The licensee is required to maintain records, photographs and registers. Powers have been given to the Central Government for compulsorily acquiring the antiquities and art treasures under Section 19, and payment of compensation for such acquisition is provided for. The penal consequences which flow from breach of statutory prescription for making export of any antiquity or art treasure in contravention of Section 3 have been provided for, thereby regulating export trade in antiquities and art treasures. ( 4 ) BEFORE enactment of the Antiquities Act, the Antiquities (Export Control) Act, 1947 held the field. The said Act provided for controlling the export of objects of antiquarian or historical interest or significance. Experience in the working of the Act shows that in the modern set up the provisions contained therein are not sufficient with a view to preserving object of antiquity and art treasures in India. The said Act provided for controlling the export of objects of antiquarian or historical interest or significance. Experience in the working of the Act shows that in the modern set up the provisions contained therein are not sufficient with a view to preserving object of antiquity and art treasures in India. It was therefore felt desirable to make a comprehensive law to regulate the export trade in antiquities and art treasures and to provide for the prevention of smuggling of, and fraudulent dealings in antiquities. It was also considered necessary to make provision in such law for the compulsory acquisition of antiquities and art treasures for preserving in public places. It is to be noted that Antiquities Act was brought into force with effect from 5th April, 1976. The Indian Treasure-Trove Act, 1878 deals with treasure-trove. 'treasure' for the purpose of the said Act which shall be hereinafter referred to as the 'treasure Act' means anything of any value hidden in the soil, or in anything affixed thereto. The procedure on finding treasure is laid down in Section 4 of the Treasure Act. The power to acquire the treasure on behalf of Government has been given under Section 16. The penal consequences which flow if the finder of any treasure fails to give the notice, or does not either make the deposit or give the security as required to be done under Section 4, or alters or attempts to alter such treasure so as to conceal its identity, the share of such treasure, or the money in lieu thereof as prescribed in Section 20. The abettors are also made offenders under Section 21 of the Treasure Act. The Central Government has also enacted the Ancient Monuments and Archaeological Sites and Remains Act, 1958 to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects. The said Act is hereinafter referred to as the 'ancient Monuments Act'. The said Act is hereinafter referred to as the 'ancient Monuments Act'. In Section 2 (b) of the said Act 'antiquity' has been defined to read as follows :" (B) 'antiquity' includes - (i) any coin, sculpture, manuscript, epigraph, or other work of art or craftsmanship, (ii) any article, object or thing detached from a building or cave, (iii) any article, object or thing illustrative of science, art, craft, literature, religion, customs, morals or politics in by gone ages, (iv) any article, object or thing of historical interest, and (v) any article, object or thing declared by the Central Government, by notification in the Official Gazette, to be an antiquity for the purposes of this Act,which has been in existence for not less than one hundred years?" ( 5 ) THE Ancient Monuments and Archaeological Sites and Remains Act, 1958 repealed the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 and Section 126 of the States Reorganisation Act, 1956. The Ancient Monuments Preservation Act, 1904 also ceased to have effect in relation to ancient and historical monuments and archaeological sites and remains declared by or under the Act to be of national importance, except as respects things done or omitted to be done before the commencement of the new Act. The object of enacting the Ancient Monuments Preservation Act, 1904, as appears from the Statement of Objects and Reasons was to preserve to India its ancient monuments in antiquarian and to prevent the excavation by unauthorised persons of sites of historic interest and value. In 1898 the question of antiquities exploration and research arrested attention and the necessity of taking steps for the protection of monuments and relics of antiquity was impressed upon the Government of India. It was then apparent that legislation was required to enable the Government to discharge their responsibilities in the matter and a Bill was drafted on the lines of the existing Acts of Parliament modified so as to embody certain provisions which have found a place in recent legislation regarding the antiquities of Greece and Italy. A greater number of more famous buildings in India are already in possession or under the control of the Government; but there are others worthy of preservation which are in the hands of private owners. Some of these have already been insured or are fast falling into decay. A greater number of more famous buildings in India are already in possession or under the control of the Government; but there are others worthy of preservation which are in the hands of private owners. Some of these have already been insured or are fast falling into decay. The provisions were stated to be in general accordance with the policy enunciated in Section 23 of the Religious Endowments Act, 1863, which recognised and saved the rights of the Government to prevent injury to and preserve buildings remarkable in their antiquity and for their historical or architectural value or required for the convenience of the public. It also dealt with the movable object of historical or artistic interest and these may be divided into two classes; the first consists of ornaments, enamels, silver and copper vessels, Persian and Arabian Manuscripts, and curios general. These are for the most part portable and consequently difficult to trade, they are as a rule artistic; are of historic interest and it would be impracticable even were it desirable to prevent a dealer from selling and a traveller from buying them. The sculptural carvings, images, has-reliefs, inscriptions and the like form a distinct class by themselves, in that their value depends upon their local connection, Such antiquities may, as in the case of those of Swet, be found outside India or in Native States and thus the Legislature cannot reach directly; while as regards the British territory and under the existing law, it is impossible to go beyond the provisions of the Indian Treasure Trove Act, 1878 (6 of 1878 ). ( 6 ) THE question before the Apex Court in Joseph Fathen v. The State of Kerala, AIR 1965 SC 1514 was the whether 'ancient monuments' as defined in concerned State Act and in Central Act is definition comprehensive enough to take in an archaeological site or remains, and whether the Acts apply to both ancient monuments strictly so- called and to archaeological sites or remains. While enacting the Ancient Monuments and Archaeological Sites and Remains Act, 1959, the legislature took note of the Entry 67 of the Union List, Entry 12 of the State List and Entry 40 of the Concurrent List. While enacting the Ancient Monuments and Archaeological Sites and Remains Act, 1959, the legislature took note of the Entry 67 of the Union List, Entry 12 of the State List and Entry 40 of the Concurrent List. The purpose of enacting such statute was to clearly demarcate the area of operation of the field and to avoid confusion existing and overlapping of jurisdiction arising from the corresponding Act of 1904. It was noted as follows :"under the Government of India Act, 1935, the subject 'ancient and historical monuments; archaeological monuments; archaeological sites and remains' fell within Entry 15 of the Federal List. Under the Constitution, this subject has been distributed under three different heads, namely,-Entry 67, Union List - Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance. Entry 12, State List - Ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance, andentry 40, Concurrent List - Archeological sites and remains other than those declared by or under law made by Parliament to be of national importance. There are at present two Acts in force relating to ancient monuments - the Ancient Monuments Preservation Act, 1904, and the Ancient and Historical Monuments and Archeological Sites and Remains (Declaration of National Importance) Act, 1951. The Act of 1951 merely declares certain monuments, etc. to be of national importance and the Act of 1904 applies also to such monuments. While the Constitution has distributed the subject-matter under three different heads, the Act of 1904 governs all ancient monument whether falling in the Central field or the State field, and vests all executive power in the Central Government. The position of the existing law relating to ancient monuments is far from satisfactory. The present Bill purports to be a self-contained law at the Centre which will apply exclusively to ancient monument, etc. of national importance falling under Entry 67 of List I and to archaeological sites and remains falling under Entry 40 in the Concurrent List. Simultaneously, the State Governments would be advised to enact a similar law in respect of ancient monuments, etc. falling under Entry 12 in the State List. of national importance falling under Entry 67 of List I and to archaeological sites and remains falling under Entry 40 in the Concurrent List. Simultaneously, the State Governments would be advised to enact a similar law in respect of ancient monuments, etc. falling under Entry 12 in the State List. In this manner, the Central and State fields will be clearly demarcated and the existing confusion and overlaping of jurisdiction arising from the Act of 1904 will be limited. "the State of Orissa has also enacted the Orissa Ancient Monuments Preservation Act, 1956. Definition of 'ancient monuments' in the aforesaid Act which is hereinafter referred to as the 'orissa Ancient Monuments Act' is more or less in similar lines as that of the Ancient Monuments Act enacted by the Central Government. ( 7 ) ENACTMENT of these legislations and the prescription for penal consequences amply demonstrate the legislative intent to preserve ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archeological excavations and for the protection of sculptures, carvings and other like objects. Antiquities and art treasures are treasures which provide an insight to the social systems prevalent in ancient India, and their protection to trace the history of civilisation and the progress made are immense. These are not intended to be show pieces in the drawing-rooms of people. To protect smuggling of these priceless articles laws have been enacted. The question is whether these priceless articles would be kept lying in the malkhanas of the State. In most of the cases the trial is over long before, and no- body is coming forward to claim ownership thereof obviously because of stringent conditions prescribed for any person who claims to be the owner of these articles. ( 8 ) AS an illustrative case the officials of the Department of Tourism and Culture, Youth Service. Government of Orissa and the State Museum were asked to indicate their views about the period to which some of the antiquities stored in Puri Malkhana related to. The Superintendent of the State Museum has given the following details about the stone-sculptures and metal-sculptures. Stone Sculpturesthe stone sculptures form part of temple decorations and others are cult deities of Buddhist and Hindu pantheons and probably being worshipped in Buddhist and Hindu shrines. These can be from 9th to 13th C. A. D. 1. The Superintendent of the State Museum has given the following details about the stone-sculptures and metal-sculptures. Stone Sculpturesthe stone sculptures form part of temple decorations and others are cult deities of Buddhist and Hindu pantheons and probably being worshipped in Buddhist and Hindu shrines. These can be from 9th to 13th C. A. D. 1. Male figure (secular sculpture)-13th C. A. D. 2. Mother and child-13th C. A. D. 3. Padmapani-Avalo-kitesvara-9th C. A. D. 4. Garuda-18th C. A. D. 5. Gaje-Vidala-13th C. A. D. 6. Nayika-12th - 13th C. A. D. 7. Nayika-12th - 13th C. A. D. 8. Nayika-12th - 13th C. A. D. 9. Nayika-12th - 13th C. A. D. 10. Standing Padmapani Avalokitesvara-10th - 11th C. A. D. 11. Mithuna-12th - 13th C. A. D. 12. Mithuna-12th - 13th C. A. D. 13. Seated Avalokitesvara-9th - 10th C. A. D. 14. Seated Vajrapani Avalokitesvara-9th - 10th C. A. D. 15. Male deity-13th C. A. D. Metal Sculpturesthe metal sculptures (Brass, Bronze and Astadhatu) are obviously from temples and Mathas where these are being worshipped. Some of the metal sculptures are rare ones like the sadabhuja-Gouranga. These are of 18th-19th C. A. D. 1. Sadabhuja Gouranga (comination of Ramakrishna and Gouranga)-18th Century A. D. 2. Krishna (Gopal)-18th Century A. D. 3. Male deity (Right hand brokent)-18th Century A. D. 4. Krishna-18th Century A. D. 5. Krishna-19th C. A. D. 6. Krishna-19th C. A. D. 7. Radha-19th C. A. D. 8. Radha-18th C. A. D. 9. Radha-18th C. A. D. 10. Radha-18th C. A. D. 11. Vishna-Narayan-17th - 18th C. A. D. 12. Radha-18th C. A. D. 13. Gouranga-18th C. A. D. 14. Sakhi-18th C. A. D. 15. Krishna (Ohokra)-18th - C. A. D. The report is quite revealing and shows pricelessness of the objects. They can provide immense material for study of the Hindu and Buddhist culture in the State of Orissa. Courts Malkhanas are certainly not the places of storage of such articles. They should be in public gaze for the academicians and historians to make further study and provide valuable information, and materials which would be of immense help to the present and future generations. In the circumstances, we feel that proper and safe custody of these priceless articles, and with a view to provide interested persons - materials for their study and research, they can be handed over to the State Museum. In the circumstances, we feel that proper and safe custody of these priceless articles, and with a view to provide interested persons - materials for their study and research, they can be handed over to the State Museum. A suggestion was given that each Court may have a Museum where these articles can be exhibited. Attractive though the suggestion is, it has some practical difficulties and administrative problems. It would be appropriate if they are kept at the State Museum. If the concerned Department so feels convenient, it may make arrangement for its custody, storage and exhibition at such places as may be deemed proper. ( 9 ) AS has been observed by Duglas A. Allan in the Book 'the Organisation of Museums Practical Advice' (published by UNSSCO), a museum in its simplest form consists of a building to house collections of objects for inspection,study and enjoyment. A museum thus gathers for convenience under the one roof material which originally was widely distributed through both time and space. Secondly, it provides the identification and connotation of the objects as a first step towards understanding them. It makes the on - looker's thoughts travel far from things commonly known and from his immediate surroundings. Thirdly, a museum displays its collections under conditions conducive to enjoyment and study so that the visitor will be happy to enter the institution, to scrutinise the exhibits, to ponder over them and to return to see more. It is only when his curiosity and wonder have been aroused that the spectator is encouraged to step and consider the specimens before him - to think deeply about them and to embark upon a course of study. No other institution collects and displays examples of our three -dimensional world as an aid to general understanding; museums are unique. The primary function to collect is a public duty, for it is way of saving things which might otherwise disappear for ever. Objects are of intrinsic value or artistic in nature. Quality, condition, importance in illustrating art development, in representing a major artist or school, are other considerations of importance for museums to weight carefully when they collect. The concept of museum as the repository of 'cureos' or 'muses' is as old as the civilisation. Objects are of intrinsic value or artistic in nature. Quality, condition, importance in illustrating art development, in representing a major artist or school, are other considerations of importance for museums to weight carefully when they collect. The concept of museum as the repository of 'cureos' or 'muses' is as old as the civilisation. The museum can be stated to be 'any permanent establishment set up for the purpose of preserving, studying, enhancing by various means, and in particular of exhibiting it to the public for its delectalian and instruction. . . . . . . . artistic, historical, scientific and technological collections'. It is borne out to be a centre of culture, and effective instrument of education. ( 10 ) THE following modalities be observed for transfer of the articles from the Puri Malkhana to the State Museum. (1) Proper documentation of the objects will be prepared by the Museum with reference to the record available in the Court of the District Judge, Puri. As far as practicable, details like height, weight, peculiar features and special marks of identification if any shall be recorded. (2) Each of the items will be photographed in colour by the Museum along with the name of the District, i. e. , Puri. A set of photographs will be submitted to the High Court and another set of copies of those photographs would be submitted to the Judge-in-charge, Malkhana, Puri for official records. (3) Orissa State Museum will be fully responsible for their safe custody, and an undertaking to the effect shall be given to the Judge-in-charge, Malkhana. Form of undertaking and manner of its execution shall be finalised by the Secretary, Department of Tourism and Culture, Sports and Youth Services, Registrar (Inspection and Enquiry, Orissa High Court, and the Superintendent, Orissa State Museum. (4) The Superintendent of the Orissa State Museum, Bhubaneswar shall produce any of the items or all the items as and when necessary by the Court. He shall ensure proper identification, security and retrieval, as and when necessary. (5) The Superintendent of the Orissa State Museum or any other officer authorised by him will receive the articles from the Judge-in-charge, Malkhana, Puri after executing the bimanama and undertaking in presence of the District Judge, Puri, on behalf of the Orissa State Museum. (6) Malkhana shall keep separate record of articles handed over to Orissa State Museum. (5) The Superintendent of the Orissa State Museum or any other officer authorised by him will receive the articles from the Judge-in-charge, Malkhana, Puri after executing the bimanama and undertaking in presence of the District Judge, Puri, on behalf of the Orissa State Museum. (6) Malkhana shall keep separate record of articles handed over to Orissa State Museum. (7) The articles shall be brought under proper police protection to State Museum and for the said purpose District Administration and police personnel shall render necessary assistance. So far as Malkhanas in other District Courts are concerned, the modalities indicated above shall also be applicable. (8) After transfer, State Museum shall appropriately identify and separately display the items. Separate space shall be provided for display in a separate section styled "antiquities involved in judicial proceedings " (Courts property ). ( 11 ) ON completion of trial in cases where the material objects appear to be of antiquity value, the Judicial Officer dealing with the matter shall pass orders that those antiquities shall be handed over to the State Museum subject to observance of formalities indicated above. Copies of our order be sent to the Commissioner-cum-Secretary, Department of Tourism, Culture, Sports and Youth Services, Bhubaneswar, the Superintendent, Orissa State Museum, Bhubaneswar and all the District Judges of the State for necessary follow up action. The District Judge shall inform the other Judicial Officers in their respective districts, about the procedure to be followed as detailed above. We put up on record our appreciation for Shri D. N. Padhi, Commissioner-cum-Secretary, Department of Tourism, and Culture, sports and Youth Services, Government of Orissa, and Shri B. Samal, Superintendent of Orissa State Museum, Bhubaneswar, who have made valuable suggestions and supplied relevant materials for our consideration. The writ application is disposed of accordingly. ( 12 ) S. N. PHUKAN, C. J. : -. I agree. Order accordingly. .