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TMI BlogProsecutionX X X X Extracts X X X X X X X X Extracts X X X X ..... y of the sections 132, 133, 134, 135, 135A or 136 of the Customs Act, 1962 after a careful consideration of the nature of offence, the role of the person concerned and evidence available to substantiate the guilty knowledge/mensrea. 15.2.2 Threshold limit for launching prosecution and exceptions has been prescribed in Circular No. 12/202- Customs dated 16.08.2022: A. Exceptions: The 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). B. 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 shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector General/Principal Director General of Revenue Intelligence (Pr. DGRI), as the case may be, will be essential for launching of prosecution in respect of cases covered under sub paras 4.2.1.2 and 4.2.2 above. 15.3 The following aspects may also be kept in view while considering launching of prosecution for offences under the Customs Act, 1962 : - 15.3.1 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 offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endent of each other in nature and (iv) the findings against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. In view of aforesaid observations of Hon ble Supreme Court, it is reiterated that if the party deliberately delays completion of adjudication proceedings, prosecution may be launched even during the pendency of the adjudication proceedings, where offence is grave and qualitative evidences are available. 15.4.3 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. 15.4.4 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 adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to avoid delays, Commissioner/Pr. Commr. or ADGRI/Pr. ADGRI/adjudicating authority should indicate, at the time of passing the adjudication order itself as to whether he considers the case fit for prosecution, so that it could be further processed for launching prosecution. Where at the time of adjudication proceedings, no view has been taken on prosecution by the adjudicating authority, the adjudication section shall resubmit the file within 15 days from the days of issue of 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. 15.5.5 It is observed that the delays in the Court proceedings occur due to the non-availability 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it/Hqrs of DRI pertaining to those prosecution cases and similar regular monitoring to be carried out by ADGRI/Pr. ADGRI concerned. 15.8 Appeal against Court order in case of inadequate punishment/acquittal : 15.8.1 Commissioner/Pr. Commr. responsible for the conduct of prosecution or ADGRI/Pr. ADGRI (in respect of cases booked by DGRI), should study the judgement of the Court and, where it is found that the accused person have been let off with light punishment than what is envisaged 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. 15.8.2 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. 15.9 Procedure for withdrawal of prosecution 15.9.1 Procedure for withdrawal of sanction order of prosecution In cases where prosecution has been sanctioned but not filed and new facts or evidence have come to the notice of the Commissionerate or the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the court. 15.10 Compounding: Section 137 of Customs Act, 1962 provides for compounding of offences by the Chief Commissioner. The provisions regarding compounding of offence should be brought to the notice of person being prosecuted and such person be given an offer of compounding by the Commissioner/Principal Commissioner or ADGRI/Principal ADG DRI as per Circular No. 54/2005-Cus., dated 30.12.2005. 15.11 Prosecution Register and dissemination of information 15.11.1 A Prosecution 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. 15.11.2 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 14-9-2009 for monthly reporting of such cases to the Directorate of En ..... X X X X Extracts X X X X X X X X Extracts X X X X
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