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TMI Blog2019 (9) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Sashashtra Seema Bal (S.S.B.) searched him and found 4320 gms of gold of foreign origin worth Rs. 1,09,12,590/- in his pockets of jeans, jacket and shoes. He was produced before the Customs Officers and ultimately the gold recovered from him was confiscated on the ground of being gold of third country origin, import whereof was absolutely prohibited as per Notification No. 9/1996, dated 22-1-1996. 4. The proceedings of seizure were challenged before the Commissioner (Appeals) which was dismissed on 13-1-2016. The aforesaid order was challenged before Customs, Excise and Service Tax Appellate Tribunal, Regional Branch, Allahabad which by the order dated 22-2-2018 accorded benefit of Section 80 of the Customs Act to the respondent and directed the Customs Authorities to return the passport of the respondent and release the seized gold. The order dated 22-2-2018 of the Tribunal was challenged before this court by way of Customs Appeal No. 8 of 2018, under Section 130A of the Customs Act, 1962 by the Commissioner of Customs (Preventive). 5. This Court by the order dated 19-12-2018 set aside the order dated 22-2-2018 of the Tribunal upholding the confiscation of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not bona fide and while entering into in India he had hidden the gold in waist, jacket and shoes and he had no intention to declare the possession of gold to the Customs Authorities at Sonauli. In view of the Notification No. 9 of 1996, dated 22-1-1996 he was not entitled to bring in India, the gold of third country origin through Nepal which was prohibited as per the aforesaid notification. Learned Counsel for the appellant has relied upon judgment of Kerala High Court in the case of Assistant Commissioner of Central Excise & Customs, Thrissur v. Rajendra Prabhu, 2018 (361) E.L.T. 491 (Ker.), wherein the High Court held that in prosecution under Section 135 of the Customs Act, the proceedings of relating to confiscation has nothing to do. The findings of the case of confiscation proceedings are not relevant for deciding the criminal prosecution. In proceedings under Section 135 of the Customs Act, it is to be decided whether the respondent was having mens rea on the basis of which sentence can be imposed is to be considered. 10. Per Contra, Counsel for the respondent has submitted that the Notification No. 9 of 1996, dated 22-1-1996 is not applicable to the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same issue of extension of benefit of Section 80 was considered by this Court and it was held that since there was no declaration by the respondent under Section 77 of the Act therefore no benefit of Section 80 should have been granted to him by the Tribunal. 15. The counsel for the appellant has relied upon the judgment in the case of Asstt. Commissioner (Supra) wherein the Kerala High Court has held that the proceedings of confiscation and proceedings under Section 135 of the Customs Act stand at different footing, but in that case the consideration of material for the confiscation proceeding was different as stated in paragraph 5. In the present case the grant of benefit of Section 80 to the respondent was an issue in proceedings of confiscation and it is also the only issue in the present proceedings. 16. Therefore the judgment of the lower appellate Court dated 20-7-2018 giving benefit of Section 79 to the respondent is not in accordance with law and is hereby set aside. 17. A perusal of the record of the Court below shows that the respondent was in jail since 3-4-2014 and was enlarged on bail by this Court on 28-1-2015 in Crl. Misc. Bail Application No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ething to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. 21. In Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, the Supreme Court went a step further and observed that the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. 22. While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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