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TMI Blog2017 (1) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... going on before the Hon'ble Additional Chief Metropolitan Magistrate Court, Ahmedabad. (D) Your Lordships may be pleased to grant any other appropriate relief as may be deemed just, fit and proper in the interest of justice." It appears from the materials on record that the office of the Directorate of Revenue Intelligence (DRI), Zonal Unit, Ahmedabad, received an information that the applicant herein, a resident of Mumbai, had acted as an Operator in the Imports of Cars/SUVs and was also involved in assisting the fraudulent import of the high end Cars/SUVs in breach of the provisions of the Customs Act and the prohibitions imposed on the import into India under the Foreign Trade Policy. The applicant was apprehended by the authorities and a summons was issued under Section 108 of the Customs Act for the purpose of interrogation. It appears that in his statement recorded under Section 108 of the Customs Act, he admitted his role as an operator being involved in assisting the actual importers in misdeclaration and undervaluation in the import of the cars/SUVs from M/s.Hyperformance Cars Ltd., U.K.. The allegations against the applicant are that he helped the actual importers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Officer, DRI, Ahmedabad." The applicant was ordered to be released on bail by the Metropolitan Magistrate, Court No.3, Ahmedabad, vide order dated 29th December 2009 subject to certain terms and conditions. The terms and conditions imposed are : (1) the applicant shall extend full cooperation to the Investigating Officer in the investigation; (2) the applicant shall remain present on every first and fifteenth of the month before the Directorate of Revenue Intelligence (DRI); and (3) the passport shall be handed over to the Directorate of Revenue Intelligence (DRI). It also appears from the materials on record that the applicant herein preferred an application for discharge under Section 245(2) of the Code of Criminal Procedure. The said application was rejected by the Additional Chief Metropolitan Magistrate, Ahmedabad, dated 8th April 2013. The principal grievance voiced by the learned counsel appearing for the applicant herein is that almost nine years have passed but till this date no complaint has been lodged for the offence under Section 135 of the Customs Act. According to the learned counsel, the personal liberty of his client could be said to have been infringe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or launching of prosecution in relation to offences punishable under Customs Act, 1962- reg. Attention of the field formations is invited to the existing prosecution guidelines issued by the Ministry vide order No.394/71/97-CUS (AS) dated 22.06.1999 revising the guidelines issued vide order No.711/16/84-CUS (AS) dated 21st May, 1990 and 20th February, 1992. 2. Since then, several significant 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 17th September, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) wilful mis-declaration in value / description ; (b) concealment of restricted goods or goods notified under section 11 of the Customs Act, 1962 where FOB value of the offending goods is Rs. 1,00,00,000/- (Rupees one crore) or more. 4.2.2. Exceptions: 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 invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for launching of prosecution in respect of cases covered under sub paras 4.2.1.2 and 4.2.2 above. 5. The following aspects may also be kept in view while considering launching of prosecution for offences under the 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 misdeclaration of value, quantity etc. For this purpose, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 6.3. Prosecution need not be kept in abeyance on the ground that the party has gone in appeal/revision. However, in order to ensure that the proceeding 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication order to the adjudicating authority/Commissioner to take a view of prosecution. Where the prosecution is proposed before the adjudication 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 nonavailability 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saged in the Customs Act, 1962 or has been acquitted despite the evidence being strong, the question of filing appeals under law should 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Register in the form as Annexed to this circular should be maintained in the prosecution cell of 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 Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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