2011 (4) TMI 307 - HC - Customs

Misdeclaration - Notification No. 40 CUS dated 6-6-1970 - It is also submitted that the accused-applicant in his statement recorded under Section 108 of the Customs Act in reply to Question No. 17 he has stated that earlier the firm M/s. Ruby Impex was in the name of Vicky Chawala and he was the authorized signatory and from the last year his son has transferred the firm in his name - The Live cartridges, blank cartridges and brass scrap are liable for confiscation under the provisions of the Customs Act, 1962 and Foreign Trade Policy 2009-2014 as the import of live cartridges is prohibited as per the Trade Policy of the Government of India, Para 2.32 of Handbook of Procedures Vol. 1 of Foreign Trade Policy 2009-2014 read with provisions at Sl. No. 83 of Schedule A (Prohibition of Imports into India) - Bail is rejected since the accused-applicant is said to be a senior citizen aged about 75 years, therefore, the learned trial court is directed to conclude the trail expeditiously in accordance with law

Issues Involved:
1. Involvement in illegal importation under Sections 132, 135(1)(A) & (C), and 104 of the Customs Act, 1962.
2. Misdeclaration of restricted and prohibited items.
3. Validity of the accused-applicant's defense and procedural irregularities.
4. Consideration of bail application based on the nature of accusations and evidence.

Issue-wise Detailed Analysis:

1. Involvement in Illegal Importation:
The accused-applicant was implicated in Case Crime No. 29 of 2010 under Sections 132, 135(1)(A) & (C), and 104 of the Customs Act, 1962. The prosecution alleged that the firm M/s. Ruby Impex, Jalandhar, owned by the accused-applicant, imported 8 containers of scrap from M/s. Durgesh International, USA, misdeclaring restricted items (Lead Scrap) as Zinc Scrap and including prohibited items such as used/empty cartridges casings and live cartridges, violating Notification No. 40 CUS dated 6-6-1970 and the Foreign Trade Policy 2009-2014.

2. Misdeclaration of Restricted and Prohibited Items:
The accused-applicant argued that he was a bona fide importer with a valid Importer Exporter Code (IEC) and that the misdeclaration could not be attributed to him since the goods were loaded directly from the stockyard without his supervision. He contended that only one Bill of Entry was filed, and the goods were cleared after proper assessment. The defense also highlighted that the customs authorities did not take action under the Arms Act, suggesting the absence of live cartridges. The prosecution, however, maintained that the accused-applicant knowingly misdeclared the goods and failed to file Bills of Entry for the remaining containers, which contained Lead Scrap and live cartridges, violating multiple sections of the Customs Act and related policies.

3. Validity of the Accused-applicant's Defense and Procedural Irregularities:
The defense argued that the accused-applicant could not be held liable for misdeclaration as no Bills of Entry were filed for the remaining containers. They also pointed out procedural irregularities, such as the absence of expert authorities during the examination and the alleged duress under which the accused-applicant's statement was recorded. The prosecution countered by emphasizing the accused-applicant's awareness of the contents and the judicial nature of the proceedings under Section 108 of the Customs Act, making the recorded statement admissible.

4. Consideration of Bail Application:
The court considered factors such as the nature of the accusations, the severity of the punishment, and the potential for the accused-applicant to tamper with evidence or abscond. Given the serious allegations and the evidence presented, the court found the case unsuitable for bail. However, considering the accused-applicant's age (75 years), the court directed the trial to be concluded expeditiously.

Conclusion:
The court rejected the bail application, emphasizing the gravity of the charges under Sections 132 and 135(1)(A) & (C) of the Customs Act, 1962, and the substantial evidence against the accused-applicant. The trial court was instructed to expedite the trial process due to the accused-applicant's advanced age.

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