Common Legal Mistakes to Avoid when allegedly Accused of Gold Smuggling at Delhi Airport: Best Defense Strategies for Alleged Accused in Gold Smuggling Case in Delhi

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Being accused in a gold smuggling case is a terrifying scenario, and thus efforts shall be made to avoid every hurdle wherever there’s even a pinch of chance that the accused can complicate the case by making any mistake even unintentionally. In such scenarios, the provisions of the Customs Act, 1962, work as a helping hand, guiding the accused with the strategies to focus on and avoiding common legal mistakes which can significantly affect the outcome of the case.

Following are some of the common legal mistakes which the accused charged under the gold smuggling case usually perform but that need to be avoided:
• Most of the time, the accused fails to understand the depth of the situation and the charges levied upon him with regard to gold smuggling at Delhi Terminal and underestimates the severity of the consequences if convicted under the Customs Act of 1962. As per Section 135 of this Act, if the accused is found guilty under the charges of fraudulently evasion of duty, or misdeclaration of the value of gold, or attempts to export gold even after knowing that it would be confiscated, the accused can be held liable for imprisonment for a term which may extend to seven years along with a fine. Thus, if the accused misjudges the situation or fails to understand these consequences, he may take decisions which might not be in his best interest, such as not appealing a conviction in time or accepting a plea deal without fully comprehending its implications.
• Statements made to the customs officials during the investigation, inquiry, or interrogation by the accused suspected in any gold smuggling case can land him in trouble as those statements can be used as evidence against him and strengthen the case of the prosecution. Under Section 108 of this Act, any gazetted custom officer can summon any person, including the accused, with regard to any particular case and ask him to provide evidence for the same. Now, mostly the accused persons commit a mistake that they, without the aid of a legal expert or representative, give statements or evidence voluntarily to the best of their knowledge as they deem fit, but sometimes some crucial information, which might not be required to disclose, gets disclosed and the accused gets land in trouble. Thus, it is always advisable that whenever any interaction with customs officers is going to be done, always prefer to take a legal consultant for support, which will ensure that the accused person’s rights will be protected.
• Once the accused got charged under a gold smuggling case or suspects or has reason to believe that he could be charged for such an offence, then he should initiate collecting evidence in support of his defence from that very moment. As per Section 123 of the said Act, the burden of proving that the goods which are alleged or believed to be smuggled goods are actually not smuggled ones is on the person itself from whose possession those goods are recovered or who claims to be the owner of such goods. Section 111-114 of this same Act deals with confiscation of goods improperly imported or exported, along with penalty for the same. Thus, the accused should be very well prepared with the evidence through which he could prove that the goods, including gold, which he tried to import to or export from India are being done legally and after completion of all the regulations. The importers or exporters shall not dispose-of the receipts or documentation of the legal purchase of gold immediately once the goods are dispatched from their source, as they are essential evidence of such purchase, importation, exportation, or even can be used in case there’s some error in the declaration. This would be vital in contesting the charges; failing to gather makes it harder to build a robust defence.
• Through Section 146-A of the said Act, the accused is provided a right to get appear by his authorised representative at certain instances where the accused person himself has to appear before the customs officers or the Appellate Tribunal in regard to proceedings under this Act. But many a times, the accused persons did not avail themselves of this right of seeking the aid of an expert legal counsel or practitioner who is well equipped with the customs laws and specific nuances related to gold smuggling cases. A legal practitioner familiar with the required laws can provide some relief to the accused and might find instances for the removal of his charges through challenging the evidence presented by the officials, questioning the legality of the search or seizure conducted upon the accused, and/or negotiating at places where it is appropriate by asking the authorities for a lesser charge or penalty.
• Following the principle that bail is the rule and jail is the exception, the accused who is arrested can be released on bail under Section 104 of the said Act. This release on bail can be conditional as well, and the accused sometimes fails to fulfil those conditions, in the contravention of which his bail gets cancelled, making it difficult for him to apply for any bail again in the future. Revocation or cancellation of the bail can attract some additional legal consequences as well under relevant provisions of the Act. Moreover, failure to comply with the conditions could also be interpreted by the prosecution as indicating that the accused has accepted his guilt and that he is hiding to avoid its consequences. This could have a negative impact on the case and may weaken the case in his favour.

In the case of Mohd. Tufail v. Union of India and Anr. Crl. M. Appl. 57731/2022 and 6061/2022, the High Court of Judicature of Allahabad released the two applicants on bail in connection with cases of gold smuggling under Section 135(1)(A) and 135(1)(B) of the Customs Act. The Court specified certain conditions while granting bail, including appearance before the Trial Court on the dates specified and neither to make any form of inducement to any person acquainted with the facts nor to tamper with any evidence related to the case. In the end, the Court held that in case of breach of any of its conditions, the prosecution can file an application for the cancellation of the bail before this Court.

In the case of M/s. GND Cargo Movers v. Commissioner of Customs (Customs Appeal No. 50776/2019), the appellant, Customs Broker, challenged an earlier order which revoked his Customs Broker licence and ordered the forfeiture of his security deposit. In appeal, he made a statement under Section 108 of the Customs Act, 1962, in which he admitted that he did not verify the antecedents of the importer and affirmed the fact that the imports were made through a dummy IEC holder. These statements were used as evidence in the case, which ultimately led to the finality of the decision of revocation of the broker’s licence and forfeiture of the security deposit. And at last, the appeal filed by the appellant got dismissed by the Customs Appellate Tribunal.

In conclusion, the best piece of advice which can be given to any person accused under a gold smuggling case would be to stay alert till the moment he is not completely free of all the charges imposed upon him. And during the time the process of investigation, inquiry, or trial is going on, try every possible remedy, but only after due diligence.
Authored By: Adv. Anant Sharma & Sahil Arora

 

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