2020 (11) TMI 758 - CGOVT - Customs

Penalty overturned for Immigration staff in gold smuggling case due to lack of direct involvement

The Appellate Authority set aside the penalty imposed on an Immigration staff member involved in a gold smuggling operation due to lack of direct ... Smuggling - Gold - Baggage Rules - Conspiracy - absolute confiscation - levy of penalty u/s Section 112(a) - HELD THAT:- At the outset the Government observes that the officers of AIU have acted impulsively, and somewhat prematurely the passenger Shri Sahubar Sathik Hithayadullah was intercepted as soon as he stepped out of the Aircraft, at the aerobridge. It is therefore clear that the passenger was prevented from filing a declaration as required under Section 77 of the Customs Act, 1962. As a plan/conspiracy was in existence, the officers having specific intelligence could have made the interceptions after the transfer of the gold near the lifts. Further, the seizure of the gold took place at the aerobridge and according to the mahazar, the Respondent has not received the gold from the passenger nor has he come into contact with him or the gold. The entire case on the respondent has originated from the statement given by Shri Sahubar Sathik Hithayadullah in which he has stated that he was to proceed to lift to handover the gold to the Respondent. To put it shortly, there is no tangible involvement of the Respondent leading to seizure of gold. The passenger with gold was intercepted at the aerobridge itself, before the entire conspiracy took place. The officers along with the passenger contacted the respondent and intercepted him at the lift. However, by then the gold was already taken into possession by the officers, the intended plan of smuggling the gold out of Airport as a part of conspiracy did not take place, as the plan has not been executed. As the gold was seized before the respondent came in the picture, the offence associated with the mens rea was not allowed to happen. The Respondent never came in contact with the gold. It is thus evident that the Respondent has not done anything in relation to the gold that was seized. The Respondent never came in touch with the gold at all, as it was seized before he came into the conspiracy, and therefore there was no cogent act of commission or omission by the Respondent, which rendered the goods liable for confiscation - The subsequent actions of unravelling the conspiracy and implicating the applicant did not take place and therefore there is no reason for invoking Section 112(a) of the Customs Act, 1962. Penalty - HELD THAT:- The Government holds that Section 112(a) cannot be invoked in the case and penalty is not imposable. The penalty imposed is therefore rightly set aside. The impugned Appellate order is therefore to be upheld - Revision Application is liable to be dismissed. Issues:- Confiscation of gold under Customs Act, 1962- Imposition of personal penalties on individuals involved in smuggling- Appeal against the order of the Original Adjudicating Authority- Analysis of abetment charges against the Respondent- Consideration of penalty under Section 112(a) of the Customs Act, 1962Confiscation of Gold under Customs Act, 1962:The case involved the confiscation of 2300 grams of gold ingeniously concealed in a chocolate packet, intercepted at Chennai Airport. The gold was intended to be handed over to an Immigration staff for smuggling out of the airport. The original Adjudicating Authority confiscated the gold under relevant sections of the Customs Act, 1962 and the Foreign Trade Act, 1992.Imposition of Personal Penalties:Personal penalties were imposed on the individuals involved in the smuggling operation. The passenger carrying the gold was penalized along with an Immigration staff member who was identified as part of the conspiracy. However, the Appellate Authority set aside the penalty imposed on the Immigration staff member, citing lack of direct involvement in the smuggling activity.Appeal Against the Order:The Respondent filed an appeal against the original order, contesting the penalty imposed on him. The Commissioner of Customs (Appeals) observed that the Respondent had not come into contact with the gold and set aside the penalty considering that the conspiracy did not fully materialize.Analysis of Abetment Charges:The Government reviewed the case and noted that the Respondent was intercepted before the full execution of the smuggling plan. The Respondent had not received the gold nor had any tangible involvement in the conspiracy. The investigation revealed a conspiracy that did not reach fruition, leading to speculation about the Respondent's role in the offense.Consideration of Penalty under Section 112(a):The Government analyzed the application of penalty under Section 112(a) of the Customs Act, 1962. It was concluded that since the Respondent did not come into contact with the gold and the conspiracy was thwarted before completion, the penalty under Section 112(a) was not applicable. The Appellate order setting aside the penalty was upheld, and the Revision Application was dismissed.In conclusion, the judgment delves into the intricate details of the smuggling operation, the involvement of the individuals, and the legal provisions under the Customs Act, 1962. The decision emphasizes the necessity for direct involvement in an offense for the imposition of penalties and highlights the importance of evidence in establishing culpability.