TaxTMI 
TaxTMI 
2026 (5) TMI 1246
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....hereinafter referred to as the Act). 3. The prosecution/Appellant had filed a Criminal Complaint No. 19115/19 against the Respondent, Hemant Kumar Ishwar Das Singhvi, under Sections 132 and 135(1)(a) of the Customs Act, 1962. 4. The case of the Prosecution in brief, is that on 11.02.1991, the Respondent arrived at IGI Airport, New Delhi from London by flight No. BA-147 and was intercepted on suspicion, by the Customs Officer. On his personal search, gold biscuits weighing 3496.400 Grams, having value of Rs. 12,23,470/- (present value approximately Rs. 1,39,00,000/-) were recovered, which he concealed in his waist belt, having 15 pouches (two biscuits in each pouch). He was arrested by the Customs officer and thereafter, produced in the Court, where he was remanded to judicial custody. 5. On 15.02.1991, after conclusion of investigations, the Complaint was filed against the Respondent by the Customs Officer for offence punishable under Sections 132 and 135(1)(a) of the Act. 6. The learned ACMM, New Delhi took cognizance on the Complaint, on 25.02.1991. 7. The Prosecution examined three pre-charge witnesses. PW-1 Sh. R.C. Mahajan, Superintendent, has proved the volunta....
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.... hearing final arguments, acquitted the Respondent vide Judgment dated 26.09.2018. 19. Aggrieved by the acquittal, Union of India has filed the present Appeal. The grounds of challenge that it has not been appreciated that the connotation of the word 'made' under Section 132 of the Customs Act, 1962, herein includes "oral declaration" that the was carrying Gold on his person, as required under Section 77 of the Customs Act, 1962, to the concerned officer for the purpose of clearing it. 20. The Respondent has also been wrongly acquitted for the offence under Section 135(1)(a) of the Customs Act, 1962, as the learned Trial Court has decided the case on incorrect footing, by observing that it was a case of attempt to export, when in fact, it was a case of import. It has also not been appreciated that in terms of the Government Notification dated 23.12.1997, Application under Sections 110(1A), (1B) and (1C) of the Customs Act, 1962, was modified for early disposal of the case property, i.e. Gold. 21. Learned MM had given due notice to the Respondent and conducted the proceedings Ex.PW-2/G. Case property, i.e. Gold, was produced before learned MM and inventory i.e. Panchnama wa....
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....tatement. 26. It has not been appreciated that under the Customs Act, a statutory presumption of culpable mental state on the part of the Respondent should have been drawn in favour of the prosecution, in terms of Section 138A of Customs Act. 27. Respondent had taken contradictory defence in his Bail Application, in cross-examination of prosecution witnesses and suggestions put to the witnesses. In the Statement recorded under Section 313 Cr.P.C., the Respondent claimed that he has been falsely implicated in this case on account of altercation on the question of payment of duty and evaluation of goods with the Customs Officer, while he had made true declaration of the goods. 28. Complaint was filed by the Public Servant in discharge of his official duties and by no stretch of imagination recovered Gold in such huge quantity, could be presumed to have been planted upon the Respondent. There was no previous enmity with the Respondent and there was no basis to assume that Customs Officers would falsely implicate the Respondent. 29. A Prayer is therefore, made that impugned Judgment dated 26.09.2018 be set aside and the Respondent be convicted. 30. Detailed Reply has bee....
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....ishable with imprisonment for a term which may extend to 1 [two years], or with fine, or with both." 37. Section 132 of Customs Act therefore, makes a false declaration statement or documents etc. relating to customs, knowing it to be false, is an offence punishable for imprisonment for a term, which may extent to two years. 38. It was also asserted that he knowingly was involved in fraudulent evasion / attempt at evasion of the prohibition imposed on the import of Gold and thereby committed offence under Section 135(1)(a) of Customs Act, 1962. Section 135 of Customs Act deals with evasion of duty or prohibitions, its relevant part read as under: 135. Evasion of duty or prohibitions. - [(1) Without prejudice to any action that may be taken under this Act, if any person- (a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removin....
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.... Custom Clearance Card Ex.PW-2/E1 to E5, were also seized in the presence of those two witnesses. 44. PW-2 in his cross-examination, explained that after the Immigration clearance, the passenger is required to get the Customs Clearance. For this the prescribed procedure was that there is one Red Channel and one Green Channel. Admittedly, PW-2 intercepted the Respondent immediately after immigration clearance, when he was found carrying three check-in baggage and two hand baggage. 45. From the testimony of PW-2 and his admission, it is evident that it is after the Immigration Clearance, the Respondent was required to obtain the Customs Clearance, which was to either pass through the Red or Green Channel, as the case may be. 46. The interception of the Respondent was made prior to his being able to proceed for the Customs Clearance. In these circumstances, it cannot be said that the Respondent either made any false declaration, as none could be done by him, as he yet had not reached the stage of Customs clearance, due to his prior apprehension. In the circumstances, it cannot be said that there was any endeavour or attempt by him, to evade the Custom Duty. Had it been a case....