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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 ..... 12.2019. 2. The allegations levelled against the petitioners by the Customs Authority are to the effect that they were intercepted on 13.09.2019 at the IGI Airport, New Delhi, having arrived from Almaty and 3150 gms of gold was recovered from the possession of the petitioner no.1 and 1875 gms of gold was recovered from the possession of the petitioner no.2 with the consolidated recovery as per the Customs Department being 5025 gms which was valued at Rs. 1,91,74,395/-. The petitioners were enlarged on bail vide the order of the ld. CMM, Patiala House Courts, New Delhi, with the condition imposed that they would not travel abroad without the permission of the Trial Court. The petitioners herein moved an application 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that firstly the embassy is not amenable to the jurisdiction of the Courts in India and therefore, the Court will not be able to enforce any undertaking given by the embassy of Republic of Kyrgyzistan. Secondly, once the applicant/revisionist leaves the shores of India and reaches Kyrgyzistan, she will have legal rights as per the laws of that country and no undertaking given by the embassy could be enforceable against her. In these circumstances I find, that if granted permission, the revisionists after leaving India may not return to join investigation or face prosecution or QuasiJudicial proceedings as the case may be and the absence of extradition treaty shall make 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 conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice dated 04.02.2020 by the revered office of the commissioner of Customs (Airport & General). We have been also aware about her pending case for the same cause in the Patiala House Court, New Delhi. 2. Further, the Hon'ble Court of Patiala House Court was pleased to grant bail to Ms. Aida Askarbekova. We have perused the said bail order accordingly. 3. That Ms. Aida Askarbekova sought permission from this Hon'ble Court to travel her home due to urgency, as her toddler son health is in precarious state and he has been advised to undergo a medical surgery as soon as possible. We 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he MEA of the Government of India vouching the correctness of issuance of the undertaking on behalf of the Embassy of Kyrgyz Republic dated 06.03.2020, letter no.202/2019 addressed to the District and Sessions Judge, PHC, New Delhi as having been issued by the Embassy of Kyrgyzstan in Delhi qua the Kyrgyz national Aida Askerbekova i.e. in relation to the petitioner no.1. 9. Though, it had been observed vide the impugned order that there was no ground for urgency put forth qua the petitioner no.2, a submission was made on 08.07.2020 during the 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Customs, IGI Airport, New Delhi vide ORDERIN-ORIGINAL-No. 69/Adj./2020 held the two petitioners i.e. the petitioners herein liable for a penal action under Section 112 and Section 114AA of the Customs Act, 1962 and held that there was no redemption offered for the seized gold especially for the reason that the petitioners herein had tried to clear from the Green Channel without declaration and both of them had tried to import gold concealed inside the body around the waist and thigh with the help of strings 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 Rs. 1,13,74,272/- (Rupees One Crore Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit that the powers of this Court under Section 482 of the Cr.P.C., 1973 can be sought to be invoked when there is no remedy provided under the Cr.P.C., 1973 for redressal of the grievance and that despite the previous petition having been filed as a revision against the order dated 10.12.2019 before the learned Trial Court, the petitioners herein were entitled to seek redressal in terms of Section 482 of the Cr.P.C., 1973. 18. Reliance is also placed on behalf of the petitioners 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:- "T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscate the proceeds of crime; 1.6.10 taking measures to locate, identify, restraint, seize and confiscate funds meant for purposes of terrorisms; and 1.6.11 providing other assistance consistent with the purposes of this Treaty. ..... ....." 20. On a consideration of the submissions that have been made on behalf of either side, as regards the contention raised on behalf of the 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. Undoubtedly, as observed by the learned Revisional Court vide the impugned order dated 30.5.2020 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 Claus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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