2016 (9) TMI 675 - HC - Customs

Smuggling of gold - section 135(1)(a) of the Customs Act, 1962 - inspection of goods declared - silver bricks contained gold - statements made under Section 108 of Customs Act, 1962 - Whether sanction Ex.PW-1/B granted by the Commissioner of Customs was proved given that the sanctioning authority was not examined as a witness? - Held that - the case of Directorate of Revenue Intelligence Vs. Mohd. Anwar 2010 (10) TMI 366 - DELHI HIGH COURT is relied upon. Even though the sanctioning authority has not been examined, it has been proved through the testimony of R.K.Duwan, Inspector, ICD, PW-1 that the sanction Ex.PW1/B had been duly accorded by the sanctioning authority. Whether the retraction of the accused persons were placed before the sanctioning authority at the time of grant of sanction? - Held that - whether the sanction was granted by the Commissioner of Customs after due application of mind was a matter of evidence and was not relevant at the stage of framing of the charge - contention of accused could not be accepted. Whether a prima-facie case of commission of offence under Section 135(1)(a) of the Customs Act, 1962 was made out against A-2 to A-5? - Held that - Section 135(1)(a) of the Customs Act, 1962 provides that any person knowingly in any way concerned in the evasion of payment of duty would be liable under the section - the order discharging A-1 and A-2 has been set aside while upholding the same qua A-3 to A-5. Petition dismissed - decided against petitioner.

Summary

Issues:
1. Validity of sanction under Section 135(1)(a) of the Customs Act, 1962.
2. Placing of retraction of accused before the sanctioning authority.
3. Establishment of a prima facie case against accused under Section 135(1)(a) of the Customs Act, 1962.

Analysis:

Issue 1:
The Customs Department filed a complaint against five accused under Section 135(1)(a) of the Customs Act, 1962. The learned ACMM discharged the accused due to invalid sanction Ex.PW-1/B. In the revision, the Additional Sessions Judge deliberated on whether the sanction was valid. Relying on legal precedents, it was held that the authenticity of the sanction was not in question, and it was a public document. The Judge concluded that the sanction had been duly accorded by the sanctioning authority, even though the authority was not examined.

Issue 2:
Regarding the contention that the retraction of the accused was not placed before the sanctioning authority, the Judge ruled that this was not relevant at the charge-framing stage. The crucial aspect was whether the sanction was granted after due application of mind, which was a matter of evidence and not a prerequisite during the charge-framing process.

Issue 3:
In determining the prima facie case against the accused, the Judge noted the recovery of undeclared gold by A-1 and the admission of A-2 regarding his involvement in smuggling. A-3 was found not to have sufficient incriminating evidence against him, and A-4 had no evidence linking him to the offense. The Judge emphasized that liability for smuggling required direct involvement in arranging or abetting the import of smuggled goods. Therefore, A-3 was not found to have a prima facie case against him.

The judgment set aside the discharge of A-1 and A-2 while upholding the decision regarding A-3 to A-5. The Court dismissed the petition after agreeing with the findings of the Additional Sessions Judge, noting the lack of infirmity in the impugned order.