COGNIZANCE OF OFFENCES UNDER SECTION 137 OF CUSTOMS ACT, 1962

[Mr. M. GOVINDARAJAN]

Section 137 (1) of Customs Act, 1962 (‘Act’ for short) provides that no court shall take cognizance of any offence under-

• Section 132 - False declarations, false documents etc. - Whoever makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particular, shall be punishable with imprisonment for a term which may extend to 2 years, or with fine, or with both.
• Section 133 - Obstruction of officer of customs - If any person intentionally obstructs any officer of customs in the exercise of any powers conferred under this Act, such person shall be punishable with imprisonment for a term which may extend to 2 years, or with fine, or with both.
• Section 134 -  Refusal to be X-rayed - If any person resists or refuses to allow a radiologist to screen or to take X-ray picture of his body in accordance with an order made by a Magistrate under section 103, or resists or refuses to allow suitable action being taken on the advice and under the supervision of a registered medical practitioner for bringing out goods liable to confiscation secreted inside his body, as provided in section 103, he shall be punishable with imprisonment for a term which may extend to 6 months, or with fine, or with both.
• Section 135 - Evasion of duty or prohibitions - If any person-

• 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
• acquires possession of or is in any way concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation; or
•  attempts to export any goods which he knows or has reason to believe are liable to confiscation; or
• fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods; or he shall be punishable-

• in the case of an offence relating to,-
  • any goods the market price of which exceeds Rs. crore; or
  • the evasion or attempted evasion of duty exceeding  Rs.50 lakhs; or
  • such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or
  • fraudulently availing of or attempting to avail of drawback or any exemption from duty, if the amount of drawback or exemption from duty exceeds   Rs.50 lakhs  or with imprisonment for a term which may extend to 7 years and with fine;
  • obtaining an instrument from any authority by fraud, collusion, willful misstatement or suppression of facts and such instrument has been utilized by any person, where the duty relatable to utilization of the instrument exceeds Rs.50 lakhs.
• Section 135A - Preparation - If a person makes preparation to export any goods in contravention of the provisions of this Act, and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will, he is determined to carry out his intention to commit the offence, he shall be punishable with imprisonment for a term which may extend to 3 years, or with fine, or with both.
• Section 135AA - Protection of data -  If a person publishes any information, that is furnished to customs by an exporter or importer under this Act, relating to the value or classification or quantity of goods entered for export from India, or import into India, along with the identity of the persons involved or in a manner that leads to disclosure of such identity, unless required so to do under any law for the time being in force or by specific authorization of such exporter or importer, he shall be punishable with imprisonment for a term which may extend to 6 months, or with fine which may extend to Rs.50000/-, or with both,

except with the previous sanction of the Principal Commissioner of Customs or Commissioner of Customs.

Thus it is evident that previous sanction as contemplated in Section 137 of the Customs Act, 1962, is essential for taking cognizance of the alleged offences.  Whether such sanctions may be granted by officiating Commissioner?  The following case law gives the answer for the same-

In IBRAHIM KUTTY ALAKKAL AND RAMEES K.T. VERSUS DEPUTY COMMISSIONER OF CUSTOMS AIR CUSTOMS, TRIVANDRUM - 2023 (12) TMI 491 - KERALA HIGH COURT, the Superintendent of Customs, Air Intelligence Unit, International Airport, Trivandrum intercepted the first accused on 26.10.2014 at 4.45 a.m. when he arrived at the Customs exit gate.  The said interception was on the basis of a specific intelligence that a passenger arriving by Emirates Flight from Dubai to Trivandrum would be trying to smuggle gold to the country by concealing on his person/checked in baggage.   On verification of the Indian customs declaration form, the officers noticed that the Accused No.1 did not declare anything dutiable. But the Customs Officers found in his trolley bag yellow metal in the form of bars, square in shape wrapped in black colored insulation tape were found and on examination it was found to be 24 carat gold weighing about 1 kg. each.  The total weight of the yellow metal was 3.479 kg.  The value of the alleged smuggled gold was Rs.94,97,670/-.  The accused smuggled that much of gold to evade payment of customs duty.

The Deputy Commissioner of Customs, Air Customs, Trivandrum filed a complaint. Action was initiated against the accused vide C.C. No. 592/2017.  An order was passed on 05.07.2023.  A revision petition was filed under Section 397 read with 401 of Code of Criminal Procedure, 1973, challenging the correctness, legality and propriety of the order dated 05.07.2023.

The petitioners submitted the following before the High Court-

• Previous sanction as contemplated in Section 137 of the Customs Act, 1962, is essential for taking cognizance of the alleged offences.
• The Principal Commissioner of Customs or Commissioner of Customs alone can accord sanction. 
•  The authority which accorded previous sanction is the Commissioner (Central Excise, Customs and Service Tax), Trivandrum.
• The said officer was not empowered to exercise the powers under Section 137 of the Customs Act and therefore the sanction in the instant case is illegal.
• When such specific authorities are empowered to accord sanction, even by excluding superior officers like Principal Commissioner of Customs or Chief Commissioner of Customs, the sanction accorded in this case by an officer who held only charge and not by the officer empowered by the statutory provision is illegal.

The Revenue submitted the following before the High Court-

• The Central Government by notification dated 07.03.2002 notified the Commissioner of Central Excise to be the Commissioner of Customs and therefore the officer accorded sanction has every empowerment under Section 137 of the Customs Act.
• The officer accorded sanction has every empowerment under Section 137 of the Customs Act. 

The High Court considered the submissions of the parties to the present writ petition.  The High Court did not agree with the contentions of the petitioner that the Central Government cannot exercise the powers of empowerment of various officers of customs. Section 4(2) enables only the Central Board of Indirect Taxes and Customs to authorize officers to hold various offices and not the Central Government.

The High Court observed that Section 4(2) governs only authorization of the officers enlisted therein by the Board to appoint officers below the rank of Assistant Commissioner or Deputy Commissioner of Customs, whereas notification dated 07.03.2002 was issued to classify the officers and appoint Commissioner of Customs.  The notification dated 07.03.2002 says that the Commissioner of Central Excise to be the Commissioner of Customs (Appeals) within their respective jurisdiction as specified under Rule 3 of the Central Excise Rules, 2002.  There is valid appointment of the Commissioner of Central Excise to be the Commissioner of the Customs.  The High Court held that the officer officiating as the Commissioner of Customs could validly accord sanction.  The petitioners cannot be heard to contend that such an officer did not have the power to discharge the functions and duties of the Commissioner of Customs under Section 137 of the Customs Act.

The High Court dismissed the revision petition. The High Court directed the petitioners that they may raise their contention as a defense at the trial.