2024 (6) TMI 315 - HC - Customs

Baggage - Dexamethasone - offence punishable under Section 135 (1) (ii) of the Customs Act 1962 - acquittal of the respondents was justified based on the evidence presented or not - HELD THAT - Dexamethasone is a dutiable item as per the provisions of the Customs Tariff Act 1975. It is item 3004.39.13 in the Schedule to the Act. Exts. P7 and P8 statements given by the respondents under Section 108 of the Customs Act were discarded by the trial court stating that it did not contain all the details. On going through the said statements it can only be said that the said observation of the trial court is incorrect. All necessary particulars regarding import of the article in question are stated in it. It is not a requirement of Section 108 that the person giving the statement should give an exhaustive statement in order for it to be acted upon. Either in Exts. P7 and 8 or in the retraction statement of DW-1 it was stated that the white powder they brought was Dexamethasone and despite such declaration the prosecution was initiated. Ext. P17 is the order in the adjudication proceedings in the matter. The defence set up by the respondents before the Adjudicating Officer (Additional Commissioner of Customs) has been recited in detail in Ext. P17. The respondents have no case that any contention beyond what has been recited in Ext. P17 were raised before the Adjudicating Officer. In that also no such contention was raised. In the light of the said evidence and circumstances the assertion by DW-1 first time before the court that he declared the article to be Dexamethasone cannot be believed - the prosecution proved beyond doubt that the respondents did not declare the contents of their baggage and that was with a view to evade payment of duty on the article they imported which is Dexamethasone. They thereby had committed the offence punishable under Section 135 (1) (ii) of the Customs Act. Hence on reversing the findings of the trial court the respondents are convicted of the said offence. The article imported by the respondents was ordered to be confiscated as per Ext. P17 by giving an option to them to redeem on payment of the duty penalty and fine. DW-1 stated that he redeemed the article by making payment of the duty penalty and fine. Taking that into account and the period elapsed after detection of the offence it is not proposed to sentence the respondents to imprisonment. The respondents are accordingly sentenced to pay a fine of Rs. 50, 000/- each and in default of payment to undergo simple imprisonment for a period of six months. Appeal allowed.

Summary

Issues Involved:
1. Whether the respondents declared the contents of their baggage as required u/s 77 of the Customs Act.
2. Whether the trial court's acquittal of the respondents was justified based on the evidence presented.

Summary:

Issue 1: Declaration of Baggage Contents u/s 77 of the Customs Act
The respondents arrived from Sharjah and were intercepted at the International Airport, Karipur. Their baggage contained cartons labeled "OMO stain remover powder," which were found to contain 'Dexamethasone' upon chemical examination. The prosecution alleged that the respondents did not declare these items to evade customs duty, thus committing offences u/s 132 and 135 of the Customs Act. The trial court acquitted the respondents, citing insufficient evidence and lack of independent corroboration. However, the appellate court found that the respondents did not declare the contents of their baggage as required u/s 77 of the Customs Act. The court noted that Dexamethasone is a dutiable item and the respondents' statements under Section 108 of the Customs Act were reliable despite being retracted. The court concluded that the respondents attempted to evade customs duty by not declaring the contents of their baggage.

Issue 2: Justification of Trial Court's Acquittal
The appellate court reviewed the trial court's decision, which had acquitted the respondents due to insufficient evidence and procedural delays in preparing the seizure mahazar. The appellate court emphasized that an appellate court has the power to re-appreciate evidence and come to its own conclusions. It found that the trial court's view was not plausible based on the evidence, particularly the testimony of PW-1 and the respondents' own admissions. The appellate court held that the prosecution proved beyond doubt that the respondents did not declare the contents of their baggage, intending to evade customs duty. Consequently, the appellate court reversed the trial court's acquittal, convicted the respondents u/s 135 (1) (ii) of the Customs Act, and sentenced them to pay a fine of Rs. 50,000/- each, with a default imprisonment of six months.

Conclusion:
The appellate court found that the respondents failed to declare the dutiable item, Dexamethasone, in their baggage, thereby committing an offence u/s 135 (1) (ii) of the Customs Act. The trial court's acquittal was overturned, and the respondents were convicted and fined.