2019 (9) TMI 31 - HC - Customs

Prohibited goods - gold of third country origin - acquittal of the respondent / accused by the Court - criminal complaint - N/N. 9/1996, dated 22-1-1996 - Declaration of statement u/s 108 of CA - HELD THAT - This Court finds that after being apprehended by the S.S.B. the respondent was taken before the Customs Officer. He was not carrying the gold seized from him, in any baggage but was hiding the same in his clothes and shoes. Had the intention of the respondent been fair, he would have taken the confiscated gold in his baggage and would have declared the same after reaching Nepal from U.K. at the Airport itself or at Sonauli border. Then benefit of Section 79 or 80 of the Customs Act could have come to his rescue. In the present case the respondent never stated anything about his intention of declaration in his statement under Section 108 of the Customs Act. Therefore the judgment of the lower appellate Court dated 20-7-2018 giving benefit of Section 79 to the respondent is not in accordance with law and is hereby set aside. The counsel for the respondent has submitted that no useful purpose would be served by sending the respondent to jail again. - after overall consideration of fact situation, conviction of the appellant is confirmed as per trial Court s order. The Appellate Court s order is set aside and the remaining sentence of two months required by the respondent to be served is converted into fine of ₹ 15,000/-. Appeal allowed in part.

Issues Involved:
1. Legality of the respondent's acquittal by the Additional Sessions Judge.
2. Applicability of Sections 79 and 80 of the Customs Act, 1962.
3. Mens rea and intent of the respondent regarding the smuggling of gold.
4. Consideration of the respondent's statement under Section 108 of the Customs Act.
5. The impact of previous confiscation proceedings on the criminal case.
6. Appropriateness of sentencing and the application of Section 357 of Cr.P.C.

Issue-wise Detailed Analysis:

1. Legality of the Respondent's Acquittal by the Additional Sessions Judge:
The criminal appeal was filed against the acquittal of the respondent by the Additional Sessions Judge, Varanasi, who had overturned the trial court's conviction. The trial court had found the respondent guilty under Section 135(1)(i) of the Customs Act, 1962, for smuggling gold into India. The High Court scrutinized the lower appellate court's decision and found it was not in accordance with the law, thereby setting aside the acquittal.

2. Applicability of Sections 79 and 80 of the Customs Act, 1962:
The lower appellate court had granted the respondent the benefit of Sections 79 and 80 of the Customs Act, which pertain to exemptions for bona fide baggage and the return of improperly imported goods, respectively. However, the High Court noted that the respondent had not declared the gold as required under Section 77 of the Customs Act. The court emphasized that the benefit of Section 80 was incorrectly accorded as the respondent did not declare the gold, which was hidden in his clothes and shoes, indicating a lack of bona fide intent.

3. Mens Rea and Intent of the Respondent Regarding the Smuggling of Gold:
The High Court examined whether the respondent had the mens rea (criminal intent) necessary for a conviction under Section 135 of the Customs Act. The trial court had found that the respondent was aware that importing gold from a third country via Nepal was prohibited, as he admitted in his statement under Section 108 of the Customs Act. The High Court agreed with the trial court's assessment that the respondent's actions were illegal and done with criminal intent.

4. Consideration of the Respondent's Statement under Section 108 of the Customs Act:
The respondent's statement under Section 108 was pivotal. While the respondent argued that he bought the gold for his daughter's wedding and was not smuggling, the High Court found that his failure to declare the gold and the manner of concealment indicated otherwise. The court held that the respondent's partial statement about his intent did not negate the criminal aspect of his actions.

5. The Impact of Previous Confiscation Proceedings on the Criminal Case:
The High Court clarified that the proceedings related to the confiscation of gold were separate from the criminal proceedings under Section 135 of the Customs Act. The court noted that the previous confiscation proceedings had already determined the illegality of the respondent's actions, which supported the criminal case against him.

6. Appropriateness of Sentencing and the Application of Section 357 of Cr.P.C.:
The High Court considered the respondent's time already spent in jail and his personal circumstances, including his inability to meet his family and the financial hardships he faced. Citing the Supreme Court's guidance on the liberal use of Section 357 of Cr.P.C. to award compensation to victims, the High Court converted the remaining two months of the respondent's sentence into a fine of ?15,000/-. The court also ordered the release of the respondent's passport and allowed him to leave the country if no other cases were pending against him.

Conclusion:
The High Court partly allowed the appeal, confirming the respondent's conviction but modifying the sentence to a fine. The court emphasized the importance of declaring dutiable goods and upheld the principles of justice by considering the respondent's circumstances and the guidance from the Supreme Court on compensatory justice. The judgment directed the lower court to comply with the High Court's orders promptly.

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