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TMI BlogArrests and or Prosecution for Customs Offences-Guidelines on Launching of Prosecution ArrestsX X X X Extracts X X X X X X X X Extracts X X X X ..... said letters. 2. Prosecutions should be considered and launched after very careful consideration of the nature of offence, the role of the person concerned and evidence available to substantiate the quilty knowledge/mens rea etc. Prosecution may be considered in the following categories of cases: (i) (a) Cases involving unauthorised importation in baggage / under Transfer of Residence Rules, where the CIF value of the goods involved is ₹ 5,00,000/- (Rupees five lakhs) or more; (b) Cases relating to importation of trade goods (i.e. appraising cases) involving deliberate mis-declaration/mis-classification with a view to importing banned or highly restricted items or with a view to attempt to defraud revenue or to smuggle goods in the guise of trade consignment and where the CIF value of the offending goods is ₹ 10,00,000/- (Rupees Ten lakhs) or more; (c) Other cases involving smuggling of goods and cases of attempted unauthorised exportation/smuggling of currency by outgoing passengers or town seizures, where the CIF value of the goods currency is ₹ 5,00,000/- (Rupees Five lakhs) or more; (ii) The above criteria would, however, not apply in cases of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e launched after due sanction by concerned Commissioner of Customs. Prior concurrence of the Chief Commissioner will be essential for prosecutions under category covering by (i) (b) above. 3. Arrests in Customs offence cases: (i) Persons involved in customs related offence cases who may be liable to prosecution should not be arrested in routine unless exigencies of certain situations demand their immediate arrest. Thus, at times, prior to prosecution, arrest (s) may be necessary to ensure proper investigations and penal action against the person (s), as otherwise the person involved in the offence may hamper investigations or disappear from the scene/area - such as in cases involving outright smuggling by Sea/Air/Land route. (ii) Arrest should be mae only when it is intended to prosecute the offenders and the monetary limits or conditions provided for prosecution would apply equally to arrests. (iii) Though under Sec. 104 of the Customs Act, Commissioners of Customs have been empowered to delegate to an officer of Customs by general or special order, powers of arrest of persons guilty of offence punishable under Sec. 135. Government would like extreme circumspection and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, 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 of the Directors like the Managing Director, Director in charge of marketing and/or sales, Director (Finance) or such other Directors who are concerned with the import/export of the goods. The intention should be to take recourse to the prosecution only against those 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 Commissioners should go through the relevant case file thoroughly and ascertain for themselves the definite involvement of different partners/directors/executives/officials, against whom reasonable evidence about their involvement in the offence exists and should be proceeded against, while launching the prosecution. For example the nominee Directors of the Financial Institutions, who are not concerned with day to day matters, should not be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation report, after careful scrutiny ( for incorporation of all relevant facts) and duly endorsed by the Commissioner, should be forwarded to the Chief Commissioner for approval, within a month of the adjudication of the case. A criminal complaint in a Court of Law in such cases, should be filed only after the approval of jurisdictions Chief Commissioner has been obtained. The chief Commissioners should ensure that a decision about launching of prosecution or otherwise, is taken after careful analysis of evidence available on record and communicated to the Commissioners, within a month of the receipt of the proposal from the Commissioners; (ii) In all other cases, where prior approval of Chief Commissioner is not required, the decision about launching of prosecution or otherwise should be taken by the Commissioner after careful application of mind and analysis of evidence brought on record. This should be completed within a month of adjudication of the case (unless it is decided to go for prosecution even prior to adjudication in certain category of cases/particular case, mentioned earlier); (iii) It is hardly necessary to emphasise that the prosecution once launched should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise, while carrying out inspection of the Commissionerates/Custom Houses, should specially check all the above mentioned points, and make a mention about implementation of the guidelines in their Inspection Reports. 7. Where a case is considered suitable for launching prosecution and where adequate evidence is forthcoming, securing conviction largely depends on the quality of investigation. It is, therefore, necessary for senior officers to take personal interest in investigations of important cases of smuggling/duty evasion and to provide quidance and support to the investigating officers at the stage of investigation itself. 8. It has also been noticed that the officers posted for prosecution work do not have proper training. The Director General. NACEN, Faridabad, should therefore, organise separate training courses on prosecution/arrests etc., from time to time and also should incorporate a series of lectures on this issue in the courses organised for for anti-smuggling. The Commissioners should judiciously sponsor officers for such courses. 9. Please acknowledge receipt of this letter. F.NO.394/71/97-CUS (AS) Your Faithfully, (Dr N K Soren) - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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