2022 (1) TMI 137 - HC - Customs

Smuggling - Gold - Mutually Satisfactory Disposition - clubbing of gold in the possion of two persons - total amount of the recovered gold exceeds one crore of rupees - plea bargaining versus compounding of offences - quantum of punishment and fine - Section 132 135(1)(a) (b) of the Customs Act, 1962 - HELD THAT - The concept of plea bargaining was introduced in Indian criminal jurisprudence by way of amendment Act of 2005 in the Code of Criminal Procedure under Chapter XXIA. Chapter XXIA delineates the guidelines for a Mutually Satisfactory Disposition (MSD). Had the legislature intended to exclude the applicability of Chapter XXIA Cr.P.C. to those enactments where there are provisions for compounding the offence, then it would have explicitly mentioned the same in Chapter XXIA Cr.P.C. Chapter XXIA Cr.P.C. was introduced to include all statutes, save those that were specifically excluded under Section 265-A(2). It cannot be said that the legislature was unaware of the Customs Act, 1962, while devising the chapter on plea bargaining. Therefore, the presence of Section 137(3) of the Customs Act, 1962, will not take away the applicability of Chapter XXIA Cr.P.C. In the instant case, a perusal of the Application under Section 265-B Cr.P.C. filed by the Respondent herein, the Reply to the Application dated 22.09.2021, Statement of the Respondent dated 24.09.2021 as well as the Questions put to her, Statement dated 24.09.2021 of the Second Secretary, Embassy of the Republic of Kazakhstan, Statement of Senior SPP for the Customs Department dated 24.09.2021, the MSD dated 24.09.2021, and the consequent judgement dated 24.09.2021, indicates that the procedure that is to be adhered to for plea bargaining under Chapter XXIA Cr.P.C. has been astutely followed with nothing amiss. In the instant case, the gold recovered from the person of the Respondent weighs 1875 grams, which amounts to ₹ 67,70,400/-. The contention of Mr. Kumar that the total value of the gold recovered from both the accused (including Respondent herein) is ₹ 1,13,74,272/- and that total value of the gold recovered from both the accused should be considered while deciding the quantum of punishment is without any merit. This Court finds weight in the submission that the punishment that is to be imposed on the Respondent should correspond to the gold that has solely been recovered from her. Section 34 of the Indian Penal Code, 1860, cannot be made applicable to the instant case - As the market value of the gold recovered from the respondent herein is ₹ 67,70,400/-, she is liable to be sentenced to imprisonment for a period that may extend to three years, or may pay a fine, or both. This Court finds no legal infirmities in the Order - petition dismissed.

Summary

Issues Involved:
1. Applicability of plea bargaining under Chapter XXIA Cr.P.C. to offences under the Customs Act, 1962.
2. Quantum of punishment imposed on the Respondent.
3. Legality of the trial court's order directing the release of the Respondent's passport.

Issue-wise Detailed Analysis:

1. Applicability of Plea Bargaining:
The Petitioner argued that plea bargaining is not available for socioeconomic offences under Section 265-A Cr.P.C. and that the trial court could not proceed with plea bargaining without the Customs Department's consent. The Court noted that the Central Government has not notified the Customs Act, 1962, as a statute that excludes Chapter XXIA Cr.P.C. Therefore, plea bargaining is applicable to offences under Sections 132 and 135 of the Customs Act, 1962. The Court further clarified that an accused under the Customs Act, 1962, has the option to either compound the offences under Section 137(3) or file for plea bargaining under Chapter XXIA Cr.P.C. The Court found that the procedure for plea bargaining was properly followed, including the consent given by the Customs Department's representatives.

2. Quantum of Punishment:
The Petitioner contended that the total value of the gold recovered from both accused should be considered, which would mandate a minimum imprisonment of one year under Section 135(1)(i) of the Customs Act, 1962. The Court rejected this argument, stating that the punishment should correspond to the gold recovered solely from the Respondent, valued at ?67,70,400/-. As per Section 135(1)(ii), the Respondent is liable to imprisonment for a term up to three years or a fine, or both. The trial court's sentence of imprisonment for the period already undergone (43 days) and a fine of ?50,000/- was found to be consistent with the legal provisions.

3. Legality of the Order Releasing the Passport:
The Petitioner challenged the trial court's orders directing the release of the Respondent's passport. The Court upheld these orders, noting that the co-accused had already been granted permission to travel abroad. The Court emphasized that the government should act as a fair litigant and should not challenge court orders on legally untenable grounds.

Conclusion:
The Court found no legal infirmities in the trial court's orders. The petition was dismissed, and the Respondent's sentence and the order to release her passport were upheld.