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TMI Blog2020 (9) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ch exercise is justified by the tests specifically laid down in the Section itself, nevertheless, the existence of the said inherent power to make such orders as to secure the ends of justice, cannot be held to be inexistent. Taking the said rationale into account, the petition is held to be maintainable. The verified documents as verified by the Customs Department and as verified by the Attach (Consul), Embassy of the Kyrgyz Republic in India, it is apparent that the child of the petitioner No.1 born in the year 2018 is unwell. The record also indicates vide document dated 06.03.2020 as issued by the Embassy of the Kyrgyz Republic in India that vide paragraph 5 of the same that there is no one in the family of the petitioner No.1 to take care of her critically ill son and that her presence is required to ensure her son s good health and surgery. The petitioner No.1 is allowed to travel to Kyrgyzstan for a period of 45 days to get her child operated with the direction to the petitioner No.1 to return to India on the 46th day of her leaving India with the request to the Embassy of Kyrgyz Republic in India in Delhi, to ensure that the petitioner no.1 Ms. Aida Askerbekova, hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on before the learned Trial Court to travel abroad which was declined vide order dated 10.12.2019 of the learned CMM, Patiala House Courts, New Delhi observing to the effect:- These are two applications moved on behalf of applicants for permission to go abroad i.e. their home at Kyrgyz Republic. Arguments have already been heard. Reply has already been filed by the department opposing the applications on the ground that applicants are foreign nationals and they are required for further investigation which is still underway. It is further submitted that there is every possibility that accused person may indulged in similar type of smuggling activities if they are granted permission to go abroad. I have considered the arguments of both the parties. In view of submissions made and the fact that the applicants/accused are foreign nationals and investigation is going on, this application is dismissed. Applications stand disposed off. Copy of this order be given Dasti. 3. The petitioners herein being aggrieved by the order dated 10.12.2019 of the learned CMM, PHC, New Delhi filed CR No.881/2019 before the Sessions Court. Vide the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake it further difficult to ensure her presence. I do not find any reason to interfere with the impugned order. Revision petition is accordingly dismissed. 4. Vide the present petition, it has been submitted that the son of the petitioner no.1 is in a state of medical emergency and that the petitioners are completely impoverished and forced to live life in a state of great physical or mental distress and discomfort and that they may be allowed to travel back to their home for a particular period subject to conditions as the Court may deem fit to impose. It has been submitted further on behalf of the petitioner no.1 that the toddler son of the petitioner no.1 is scheduled to undergo a medical surgery, which he has been advised to undergo as soon as possible and that the petitioner no.1 is a single mother and is the sole bread earner in her family and that there is no one else in her family who can take care of her son s health during the medical emergency. 5. It has been submitted on behalf of the petitioner no.1 that the grant of permission to the petitioner no.1 for traveling abroad for the cure of her son s ill health which is becoming progressively worse, is a basic rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have perused the medical documents of his son as well. 4. That the said Hon'ble Court asked for the undertaking from us that Ms. Aida Askarbekova will come back as and when required by the Hon'ble Court. 5. That we have enquired and subsequently got acquicsced with the fact that there is no one in her family who could take care of her critically son. Further her presence is required unavoidably to ensure her son's good health and surgery. 6. In view of the above fact we undertake that under the circumstance M. Aida Askarbekova may get a leave from this Hon ble Court to travel (to) her home, we shall ensure her presence in India as and when required by the Courts or Custom Department. , the Embassy of Kyrgyzstan has thus vouched for the correctness of the medical documents of the son of the petitioner no.1 and also of the aspects that the son of the petitioner no.1 requires a medical surgery as soon as possible and that apart from the petitioner no.1, there is no one in the family to take care of her critically ill son and that her presence is thus, required unavoidably to ensure her son s good health and surgery. 7. Vide order dated 25.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the hearing of the present petition that the spouse of the petitioner no.2 was suffering from COVID-19 and a document in relation thereto was sought to be placed on record and was so placed on the record dated 23.06.2020 to state that Мr. Nаrmап Chalimbayev had been detected to have a RNA component of COVID-19 which document was certified vide a certificate dated 29.06.2020 by the Head of the Consular Section of the Embassy of Kazakhstan stating to the effect that Мr.Nаrmап Chalimbayev, husband of the petitioner no.2, a citizen of Kazakhstan is suffering from COVID-19. 10. The said communication dated 29.06.2020 issued by the Head of the Consular Section, Embassy of Kazakhstan in India was vouched to be correct by the Head of its Consular Section, Embassy of Kazakhstan in India. The Head of its Consular Section, Ulybek Tulekin, Head of Consular Section, Embassy of Kazakhstan in India was also present during the course of the hearing of the present petition on 22.07.2020 and accepted the correctness of the documents issued by the Embassy of Kazakhstan as placed on record and assured that the petitioners if granted permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which established their mens rea and that they had intentionally not declared the gold brought by them with an intention to evade the limit of the customs duty leviable on the goods and had attempted to smuggle the goods with intent to evade customs duty. 14. Vide the said order dated 06.07.2020 of the Commissioner of Customs, it was ordered to the effect:- ORDER 1. I deny the free allowance if any admissible to NOTICEE-1, Ms. Alda Askerbekova and Noticee-2 Ms. Begalm Akynovafor the various acts of commission omission. 2. I order absolute confiscation of the above said gold total weighing 3150 gms, appraised to ₹ 1,13,74,272/- (Rupees One Crore Thirteen Lakh Seventy four thousand Two hundred Seventy two only) seized from possession of the NOTICEE-1,Ms. Aida Askerbekova, under Section 111(d), 111(i), 111(j), 111(1), 111(m) and 111(o) of the Customs Act, 1962; 3. I also impose a penalty of ₹ 20,00,000/- (Rs. Twenty Lakh only) on the NOTICEE-1, Ms. Aide Askcrbckovo under Section 112 and 114AA of the Customs Act, 1962. 4. I order absolute confiscation of the above said gold total weighing 1875 gms, appraised to ₹ 67,70,400/- (Rupees Six ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners on the proceedings in case titled as Customs v. Mohammad Sadegh Sartipi , File No.VIII (AP)/10/P I/2795-B/Arrival/2020 , PS Customs under Sections 132/135 of Customs Act, to contend to the effect that in the said case, the accused was allowed to travel abroad with the accused made a submission that he shall not seek any extension of his stay abroad including on medical grounds, submitting to the effect that the said order of the duty MM/PHC/New Delhi has not been assailed by the Department of Customs. 19. Reliance is also placed on behalf of the petitioners on the treaty between the Republic of India and the Kyrgyz Republic on mutual legal assistance in criminal matters, which reads to the effect:- TREATY BETWEEN THE REPUBLIC OF INDIA AND THE REPUBLIC OF KYRGYZ REPUBLIC ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS The Republic of India and the Kyrgyz Republic, hereinafter referred to as the Parties''. Desiring to improve the effectiveness of both Parties in investigation, prosecution and suspension of crime, including terrorism, through co-operation and mutual assistance in criminal matters; have agreed as follows: PART I - GENERAL PR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent- Department of Customs placing reliance on the provisions of Section 397(3) of the Cr.P.C., 1973 which reads to the effect:- 397. Calling for records to exercise powers of revision. .. .. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. , that the present petition is not maintainable, in as much as, a revision petition had been filed by the petitioners against the order dated 10.12.2019 of the Trial Court, it is essential to observe that the present petition has been filed under Section 482 of the Cr.P.C., 1973 whereunder the inherent power of this Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure, 1973 or to prevent abuse of the process of any Court or otherwise to secure the ends of justice has been saved. 21. Section 482 of the Cr.P.C., 1973 reads to the effect:- 482. Saving of inherent powers of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2020 in CR No. 881/2019 there is no extradition treaty between India and the Republic of Kyrgyzstan. However, placed on record is the Treaty between the Republic of India and the Kyrgyz Republic on Mutual Legal Assistance in Criminal Trials with Article 1 thereof relating to the obligation to grant mutual legal assistance with paragraph 1.4 dealing specifically with criminal matters including investigations or proceedings relating to criminal offences concerning taxation, duties, customs and international transfer of capital or payments, including those for perpetuating terrorism. As per Clause 1.6 of this Treaty, assistance that is to be provided mutually between India and the Kyrgyz Republic relate to clause 1.6.8 to making persons in custody and others, including experts, available to evidence or to assist investigations through Clause 1.6.10 taking measures to locate, identify, restrain, seize and confiscate funds meant for the purposes of terrorism, thus as it has been undertaken by the Embassy of the Kyrgyz Republic through its Attach Counsel vide clause 6 of its verified document dated 6.3.2020 to the effect: 6. In view of the above fact we undertake that under the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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