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TMI BlogGuidelines for launching of prosecution in relation to offences punishable under Customs Act,1962X X X X Extracts X X X X X X X X Extracts X X X X ..... ficant changes have been effected in the Customs Act and other relevant enactments. Amendments and changes were made in section 135 of Customs Act, 1962 vide Finance Act, 2007 and Finance Act, 2013 relating to threshold limit/categorization of offences. Moreover, section 137 of Customs Act, 1962 , has been amended and provisions of compounding of offences had been incorporated through Finance Act, 2004 and Finance Act, 2009. Amendments were made in section 104 of the Customs Act, 1962 through Finance Act, 2012 and Finance Act, 2013 wherein certain offences were made cognizable and non-bailable and certain other offences were kept as non-cognizable and bailable. Revised guidelines for arrest and bail were accordingly issued by the Ministry vide order No.394/68/2013-Cus (AS) dated 17 th September, 2013. 3. Keeping in view the above changes, the following revised guidelines for prosecution in relation to offences punishable under Customs Act, 1962 are issued in supersession of the earlier guidelines on launching prosecution issued vide Ministry's letter No. 394/71/97-Cus (AS), dated the 22nd June, 1999 . 4. Guidelines for Prosecution: 4.1. Person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : The above threshold limits would not apply in case of persons indulging habitually in such violations or where criminal intent is evident in ingenious way of concealment, where prosecutions can be considered irrespective of the value of goods/currency involved in such professional or habitual offenders, etc. provided the cumulative value of 3 or more such offences in past five years from the date of the decision exceeds the threshold limit (s) indicated at sub para 4.2.1 above respectively. 4.2.3. Special Cases relating to FICN, arms, ammunitions, wild life etc.: The threshold limits mentioned in sub para 4.2.1 would also not apply in cases involving offences relating to items i.e. FICN, arms, ammunitions and explosives, antiques, art treasures, wild life items and endangered species of flora and fauna. In such cases, launching of prosecution should be considered invariably, irrespective of value of offending goods involved. 4.3. In respect of cases involving non-declaration of foreign currency by foreign nationals and NRIs (normally visiting India for travel/ business trips etc.) detected at the time of departure back from India, exceeding the threshold limits o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962:- 5.1. Prosecutions should not be launched as a matter of routine and/or in cases of technical nature, where the additional claim for duty is based solely on a difference of interpretation of the law. Before launching any prosecution, it is essential that the department should have sufficient evidence to prove that the person, individual or company, against whom prosecution is being considered, had guilty knowledge of the offence or had fraudulent intention of committing the offence, or in any manner possessed mens-rea which would indicate his guilt. It follows, therefore, that in the case of Public Limited Companies, prosecution should not be launched indiscriminately against all the Directors of the Company, but should be restricted to only such persons who have taken active part in committing, or have connived at, the offence relating to either of smuggling or of customs duty evasion or of mis-declaration of value, quantity etc. For this purpose, the Commissioner /Pr. Commr. or ADGRI / Pr. ADGRI should go through the relevant case file thoroughly and ascertain for themselves that the definite involvement of different partners/directors/executives/official ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in appeal/revision are not unduly delayed because the case record are required for purpose of prosecution, a parallel file containing copies of the essential documents relating to adjudication should be maintained. 6.4. The Superintendent in charge of adjudication section should endorse copy of all adjudication orders to the prosecution section. The Superintendent in charge of prosecution section should monitor receipt of all serially numbered adjudication orders and obtain copies of adjudication orders of missing serial numbers from the adjudication section every month. 7. Procedure for launching prosecution: 7.1. In all such cases, where prior approval of Chief Commissioner/Principal CC or DGRI/Pr. DGRI is necessary for launching prosecution, an investigation report for the purpose of launching prosecution (as per Annexure- I), should be carefully prepared and signed by the Assistant Commissioner / Assistant Director concerned. The investigation report, after careful scrutiny (for incorporation of all relevant facts) should be endorsed by the Commissioner/ Pr. Commr. or ADGRI/ Pr. ADGRI. The Chief Commissioner/Principal CC or DGRI / Pr. DGRI should ensure that a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, Commissioner /Pr. Commr. Or ADGRI / Pr. ADGRI shall record the reason for the same and the adjudicating authority shall be informed of the decision so that there is no need for him to examine the case subsequently from the perspective of prosecution. 7.5. It is observed that the delays in the Court proceedings occur due to the non-availability of records required to be produced before the Magistrate. As a matter of practice, whenever a case is taken up for seeking the approval for launching prosecution, an officer should be nominated/designated, who shall immediately take charge of all documents, statements and other exhibits, that would be required to be produced before a Court. The list of exhibits etc. should be finalised in consultation with the Public Prosecutor at the time of drafting of the complaint. Such exhibits should be kept in the safe custody. Where a complaint has not been filed even after a lapse of three months from the receipt of sanction for prosecution, the reason for delay shall be brought to the notice of Chief Commissioner/Principal CC or DGRI / Pr. DGRI by the Commissioner /Pr. Commr. or ADGRI / Pr. ADGRL as the case may be, who are responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be considered within the time period. 10.2. The case of acquittal by the Court can be appealed against in terms of section 378(4) of Cr. P.C. by the complainant. In these cases approval of the Chief Commissioner/Principal CC or DGRI/Pr. DGRI as the case may be should be obtained before filling appeal. 11. Procedure for withdrawal of prosecution 11.1. Procedure for withdrawal of sanction order of prosecution In cases where prosecution has been sanctioned but not filed and new facts or evidences have come to the notice of the Commissionerate or the DGRI which warrant review of the sanction for prosecution, it should be immediately brought to the notice of the sanctioning authority. After considering the new facts and evidences the sanctioning authority may recommend withdrawal of sanction order to the next higher authority. In case Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI is the sanctioning authority, the recommendation will be submitted to Chief Commissioner / Principal CC or DGRI / Pr. DGRI. The recommendation will be submitted to the Board (Member of Policy Wing concerned) in such cases where sanctioning authority is Chief Commissioner / Principal CC or DGRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissionerate headquarters/Custom House/DRI formations. Wherever the prosecution is compounded under section 137 of CA'62 by the Chief Commissioner, suitable endorsement may be kept in the prosecution register. 13.2. It may be mentioned that offences under section 132 and 135 of the Customs Act, 1962 are scheduled offences under the Prevention of Money Laundering Act, 2002(PMLA). In Customs' prosecution cases warranting action under PMLA, instructions have been issued vide F. No.394/51/2009-Cus (AS) dated 14.09.2009 for monthly reporting of such cases to the Directorate of Enforcement in the prescribed format. Once cognizance of complaint in respect of offence under section 132 and 135 of CA'62 filed by the Department is taken by the court, and reference has been made to the Directorate of Enforcement for taking action under PMLA, suitable remarks should be made in the prosecution register. In case, the prosecution under PMLA is separately proposed to be launched by the Directorate of Enforcement, and intimation is received to that effect in the prosecution unit of the Commissionerate/ DRI, suitable entry should be kept in the register for app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining courses on. prosecution/arrests etc. from time to time and also should incorporate a series of lectures on this issue in the courses organized for anti-smuggling. The Commissioner / Pr. Commr. or ADGRI / Pr. ADGRI should judiciously sponsor officers for such courses. 18. The field formations are hereby directed to circulate these guidelines to all the formations under their charge. Difficulties, if any, in implementation of the aforesaid guidelines may be brought to the notice of the Board. 19. Please acknowledge receipt of this circular. Encl: As above Yours faithfully, (A.C. MALLICK) Under Secretary to the Govt. of India ANNEXURE I INVESTIGATION REPORT FOR THE PURPOSE OF LAUNCHING PROSECUTION AGAINST------------------------- COMMISSIONERATE------------------------------------/Divisions 1. Name address of the person (s) including legal persons. 2. Nature of offence including commodity : 3. Charges : 4. Date/Period of offence 5. Amount of duty Evasion/value of contraband goods involved : 6. Particulars of persons proposed to be prosecuted : (a) Name (b) Father's name (c) Age------------------Sex------ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of filling of complaint Date of taking of cognisance by court Name of counsel 10 11 12 13 14 15 Date of judgment Appeal status date/court in which filed Date of hearing Date of referral to Directorate of Enforcement Remarks/signature with name and date (Officer filling the complaint) 16 17 18 19 20 ******************** Notes : - 1. Substituted vide M.F. (D.R.) Circular No. 46/2016-Cus., dated 4-10-2016 , before it was read as 6. Stage for launching of prosecution: Normally, prosecution may be launched immediately on completion of adjudication proceedings. However, prosecution in respect of cases involving offences relating to items i.e. FICN, arms, ammunitions and explosives, antiques, art treasures, wild life items and endangered species of flora and fauna may prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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