The Delhi High Court has held that where a passenger carrying gold is intercepted by Customs officers before he reaches the stage of Customs clearance through the red or green channel, and before he has had the opportunity to make a declaration, such interception does not by itself establish the offences under Sections 132 and 135 of the Customs Act. In such circumstances, there is neither a false declaration or false document under Section 132, nor a completed or attempted fraudulent evasion of duty under Section 135, because the conduct at that stage amounts at best to preparation and not attempt.
The Court essentially asserted that mere concealment giving rise to suspicion is insufficient to sustain criminal conviction unless fraudulent evasion is proved beyond reasonable doubt.
A Single Judge Bench of Justice Neena Bansal Krishna examined the scope of Sections 132 and 135 of the Customs Act and focused on the stage at which the respondent was intercepted. The Bench noted that, on the prosecution’s own evidence, after immigration clearance a passenger was still required to obtain Customs clearance by proceeding through either the red or green channel.
Since the respondent was intercepted before he could proceed for Customs clearance, the Bench held that he had not yet reached the stage where any declaration for Customs purposes was required to be made. On that reasoning, the Bench found that no false declaration, false statement, or false document had been made by the respondent so as to attract Section 132 of the Customs Act.
As regards Section 135, the Bench observed that concealment of gold in a waist belt certainly created suspicion regarding the respondent’s intention to evade customs duty, but suspicion was not sufficient in a criminal prosecution. The Bench held that the prosecution had to establish beyond reasonable doubt that the respondent had indulged in fraudulent evasion or attempt at evasion. Since he was apprehended before he could undergo Customs clearance, the Bench treated the case as one of preparation rather than attempt.
The Bench further observed that while the respondent had brought gold into India, the prosecution had failed to prove any fraudulent evasion of duty, and therefore criminal liability under Sections 132 and 135 could not be sustained. The Bench also noted that there was no prohibition on import/export of gold as such, and that at best customs duty could have been imposed.
Briefly, the prosecution case was that on Feb 1991, the respondent arrived at IGI Airport, New Delhi from London by British Airways Flight No. BA-147 and was intercepted by Customs officers on suspicion. On personal search, 30 gold biscuits of 24 karat purity, weighing 3496.400 grams and valued at Rs. 12.23 lakhs were allegedly recovered from a waist belt worn under his pants and underwear. Based on the respondent’s statement under Section 108 of the Customs Act, seizure documents, travel documents, and the goldsmith’s certificate, a complaint was filed and cognizance was taken. After trial, the ACMM acquitted the respondent.
Appearances:
Pramod Bahuguna, SPP with Yachi and Debora Daimari, Advocates, for Petitioner
Aishwarya Dwivedi, Advocate, for Respondent
