Your Legal Rights When Accused of Gold Smuggling at Delhi Airport: Legal Defenses available to alleged Accused of Gold Smuggling Cases
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Being accused of gold smuggling can be a daunting experience. This blog will provide a wholesome guide regarding the legal rights of a person who gets accused in a gold smuggling case, specifically at Delhi airport, under Indian laws, focusing on the Customs Act of 1962. Knowing these legal rights is essential, as it will help one to know about his remedies in those difficult times, including the right to remain silent, the right to legal representation, and things to expect during police questioning and detention. This will ensure that the person accused or alleged or detained as a gold smuggler, as the case may be, is well-informed and prepared to protect himself through his rights from the law enforcement agencies.
Following are discussed some legal provisions specifically from the Customs Act, 1962, describing the rights of the accused of gold smuggling at Delhi airport or terminal:
• As per Section 102 of the said Act, the person accused of gold smuggling can make a request that his search be conducted before a gazetted officer of customs or a magistrate. This will ensure that whatever search is done, it will be in the presence of a higher authority, ensuring transparency and fairness. In case the person accused is female, then her search can only be conducted by another female. If the gazetted officer of customs and magistrate finds no reasonable ground for the search of the accused, they can order the discharge of the accused person. And if the search is going to be conducted, it shall be ensured that there are at least two or more persons present there to attend and witness the search, and whatever items are seized during the search, a list of those items shall be prepared, which is to be signed by those witnesses.
• Section 104 of the said Act provides that whenever any person is arrested by a customs officer, he has the right to be informed about the grounds on which such arrest has been done, and without unnecessary delay, the arrested person shall be presented before a magistrate. Now, if the arrested person has not done any offence related to prohibited goods or not made any evasion of duty exceeding Rs. 50 lakhs, then that person cannot be arrested without a warrant, as they would be non-cognizable. Moreover, such offences under this Act are even bailable, which means an accused person can be granted bail by the customs officers who have the powers of officer-in-charge of a police station subject to provisions of CrPC, 1898.
• As per Section 108 of the said Act, the gazetted officer of customs has power to summon a person either for giving evidence or producing any document which they seem would be essential in the inquiry being conducted by them. However, if the officer agrees, the person can send his authorised agent in response to the summons. But a woman can claim exemption of Section 132 of the CPC, 1908, under this section for her attendance. One thing has to be kept in mind that whatever questions are going to be answered during the examination, the person or his authorised agent is bound to state the truth only because the statements given under this Section are admissible as evidence before the Court of law.
• Section 146-A of this Act also provides that if any person is required to present himself before a customs officer or Appellate Tribunal, then he has a right to send his authorised representative on his behalf to appear. However, in such cases, the accused person himself shall not be bound to attend personally for whatever reason called for. This Section also enlists that who can be an authorised representative, including the accused person’s relative or his regular employee; or a licensed customs broker; or any legal practitioner entitled to practice in Indian civil courts; or any other person who possesses the qualifications as specified by the Central Government in this behalf. Having an authorised agent or authorised representative ensures that the accused person can avail of professional legal assistance to navigate the complexities of the case and would provide better guidance to the accused in future actions to be taken.
• A person against whom any decision or order is passed under this Act has a right to appeal to appropriate authority in a specified time period. Section 128 and Section 129A of the said Act provide a legal right to appeal to the Commissioner (Appeals) within a period of 60 days and to the Appellate Tribunal within 3 months from the date on which the decision or order is communicated to the concerned party. This legal right of appeal allows the accused person to get the decisions made reviewed by a higher authority, ensuring an additional layer of legal scrutiny.
• As per Section 153 of the said Act, the accused person under a gold smuggling case has a legal right that every order, decision, summons, notice, or any other communication be sent to him through an appropriate mode, which can be done either by directly tendering him or his authorised representative; or by a registered port, speed post, or courier with acknowledgement due; or by sending to the accused person on his email address; or by publishing in the newspaper; or by affixing at some conspicuous place at the last known place of residence or business of that accused person.
• Section 110(2) of this Act states that if any goods are seized by a proper officer but no notice in regard to that is given under Section 124(a) of the Act within 6 months of the seizure of such goods, then the person whose goods are confiscated has a legal right to get his goods returned to him from the possession they were seized.
In the case of Rakesh Kumar Goyal v. NCT of Delhi & Anr. CRL.M.C. 1204/2010, the Delhi High Court has stated that Section 108 of the Customs Act tells that an offence is only committed if summons issued by a properly authorised officer is intentionally disregarded, and thus, a conviction cannot be sustained for disobeying a summons issued by an officer who lacks the authority or competence to do so.
In the case of Union of India v. Kisan Ratan Singh, 2020 SCC OnLine Bom 39, the Bombay High Court has reiterated that without corroboration by an independent and reliable witness, a statement recorded under Section 108 of Customs Act in isolation cannot be deemed reliable.
In conclusion, any person accused at Delhi airport or terminal under a gold smuggling case needs to handle the interactions with law enforcement officials and agencies in a strategic manner. Of course, it is advisable to cooperate with the officials, but one should keep in mind his rights as well. Only that information be provided which is asked for, and information beyond that be avoided from disclosure. If not confident regarding what would be right to say, insisting on a legal representative for oneself would be the best option. And a most important tip to remember is to keep a record of all the officials with whom interactions were made at any stage, their name, batch number, rank, and details of conversation. Having knowledge about basic legal rights will empower one to handle, if not whole, at least some chunk of the situation effectively and will ensure that a strong defence is built to protect oneself.
Authored By: Adv. Anant Sharma & Sahil Arora
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