TaxTMI 
TaxTMI 
2022 (1) TMI 137
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.....09.2019, two passengers - Ms. Aida Askerbekova (Pax-1) and Ms. Begaim Akynova (Respondent herein - Pax-2) were intercepted at T-3, IGI Airport, New Delhi by Customs Officers. When asked to pass through the Door Frame Metal Detector Door (DFMD), a hard beep sound was heard, and Ms. Askerbekova and the Respondent herein were consequently served a notice under Section 102 of the Customs Act, 1962, in the presence of independent witnesses. ii. It is stated that the Respondent consented to personal and baggage search, which was conducted by Ms. Ambika Rani, ACS. This search led to the recovery of the following items: a) 3 yellow metal strips moulded into circular shape, total weighing 1875 grams appearing to be gold concealed inside the body around the waist and thigh with the help of strings; b) Boarding Pass of Flight No. KC 907 dated 11.09.2019; c) Kazakhstan passport no. N08622501 issued on 26.02.2013; d) One old and used Mobile Phone of Samsung Brand; e) Currency: INR-200, USD-520; and VI. Old and used personal effects. iii. It is stated that on examination from a jewellery appraiser who submitted an Appraisement Repor....
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.... in this SCN, the Adjudicating Authority ordered for total confiscation of the gold and also imposed a penalty of Rs. 20,00,000/- on Pax-1 and Rs. 12,00,000/- on Pax-2 (Respondent herein). viii. Investigation was carried out wherein it was found that the goods constituted as 'illegal import' in terms of Section 11A of the Customs Act, 1962, and that Pax-1 and Pax-2 (Respondent herein) had violated Sections 77 and 79 of the Customs Act, 1962, read with Section 11A of the Customs Act, 1962, and further read with the Baggage Rules, 1998. It is stated that from the facts and circumstantial evidence, it was established that both the Pax and had knowingly involved themselves in smuggling activities and were liable to be prosecuted under Sections 132, 135(1)(a) & 135(1)(b) of the Customs Act, 1962. ix. It is stated that Pax-1 and Respondent herein were enlarged on bail vide Order of the Ld. CMM, Patiala House Courts, New Delhi with the condition imposed that they would not travel abroad without the permission of the Ld. Trial Court. An application moved by Pax-1 and Respondent herein seeking permission to travel abroad was dismissed vide Order dated 10.12.2019. A revisio....
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....the plea of guilt made by the Respondent herein, the Ld. Trial Court vide Judgement dated 24.09.2021, convicted Respondent herein for committing offence punishable under Sections 132 and 135(1)(a) & (b) of the Customs Act, 1962. In its Order on sentence dated 24.09.2021, the Ld. Trial Court sentenced the Respondent herein to imprisonment for a period already undergone, i.e. 43 days, and to pay a fine of Rs. 50,000/- for offences under Sections 132 and 135(1)(a) & (b) of the Customs Act, 1962. Further, in case of default of payment of fine, the Respondent herein was directed to undergo simple imprisonment for two months. Thereafter, vide Orders dated 27.09.2021 and 29.09.2021, the Ld. Trial Court directed for the Respondent's passport to be released by 29.09.2021. xv. Aggrieved by Orders dated 24.09.2021, 27.09.2021 and 29.09.2021, passed by the learned ACMM-01, Patiala House Courts, New Delhi, in C.C. No. 2193/2020, the Petitioner has approached this Court by way of the instant petition. 3. At the outset, Mr. Satish Kumar, learned Senior Government Standing Counsel appearing for the Petitioner, submits that the instant case relates to socioeconomic offences and, therefo....
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....that due process had not been followed. 7. Per contra, Ms. Sangita Bhayana, learned Counsel for the Respondent herein, opposes Mr. Kumar's submission that the amount of the recovered gold was more than one crore of rupees. She states that as per the Complaint, the Respondent was caught carrying four gold strips moulded into circular shape weighing 1875 grams. She states that the value of the gold recovered from the Respondent is Rs. 67,70,400/-. She submits that the Respondent is covered by Section 135(1) Clause (ii) and is, at the most, liable to be imprisoned for a term which may extend to three years or pay a fine, or both. Ms. Bhayana, therefore, argues that the submission of Mr. Kumar that the offence under which the Respondent is convicted is punishable with imprisonment upto seven years is contrary to the facts of the case and the mandate of the law. She further states that Chapter XXIA Cr.P.C. is applicable to offences under the Customs Act, 1962. 8. The learned Counsel for the Respondent argues that the consent for plea bargaining had been categorically given by the Office of Commissioner of Customs as well as the Special Public Prosecutor for Customs, and that the p....
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....f the police station under Section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or (b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under Section 200, issued the process under Section 204, but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years. (2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socioeconomic condition of the country. In exercise of the powers conferred under sub-section (2) of Section 265-A of t....
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....rstanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence. (3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case. (4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where- (a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and ....
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....ith the provisions of this Code from the stage the application under sub-section (1) of Section 265-B has been filed in such case. 265-E. Disposal of the case.-Where a satisfactory disposition of the case has been worked out under Section 265-D, the Court shall dispose of the case in the following manner, namely:- (a) the Court shall award the compensation to the victim in accordance with the disposition under Section 265-D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under Section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused; (b) after hearing the parties under clause (a), if the Court is of the view that Section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case....
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....for plea bargaining filed under Section 265-B shall not be used for any other purpose except for the purpose of this Chapter. 265-L. Non-application of the Chapter.-Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).]" (emphasis supplied) 13. Section 256-A stipulates the application of Chapter XXIA. It states that the Chapter is not applicable to cases involving socio-economic offences under a law which has been notified by the Central Government or offences that have been committed against a woman, or a child below fourteen years of age. Section 265-B lays down the requirements for instituting an application for plea bargaining by an accused, and the process thereafter. Section 265-C lays down the procedure that must be followed by the Court for working out an MSD, and Section 265-D talks about how the MSD report is to be submitted before the Court. Section 265-E entails the manner in which the Court is to dispose of a case after a MSD has been worked out. Section 265-F states that the Court shall deliver its judgement in term....
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....y to the stand taken by the Petitioner in its reply. 16. The Reply of the Petitioner dated 22.09.2021 also categorically states that the Respondent had the option of either compounding the offences under Section 137(3) of the Customs Act, or could consider the option of pleading guilty. The relevant portion is reproduced hereinunder: "So it is prayed that in case the prayer of the applicant for plea-bargaining may be dismissed and instead the accused shall follow the procedure of Compounding of Offences specified under Section 137(3) of Customs Act, 1962. Moreover, as the accused is accepting the guilt, the accused may also consider the option of pleading guilty." 17. In the instant case, a perusal of the Application under Section 265-B Cr.P.C. filed by the Respondent herein, the Reply to the Application dated 22.09.2021, Statement of the Respondent dated 24.09.2021 as well as the Questions put to her, Statement dated 24.09.2021 of the Second Secretary, Embassy of the Republic of Kazakhstan, Statement of Senior SPP for the Customs Department dated 24.09.2021, the MSD dated 24.09.2021, and the consequent judgement dated 24.09.2021, indicates that the procedure that is....
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....ttempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113; or (d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods, he shall be punishable,- (i) in the case of an offence relating to,- (A) any goods the market price of which exceeds one crore of rupees; or (B) the evasion or attempted evasion of duty exceeding [fifty lakh] of rupees; or (C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or (D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds 1 [fifty lakh] of rupees, with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year; (ii) in any other case, with imprisonment for a term which may ....