Steps to take Immediately after being allegedly Accused of Gold Smuggling at Delhi Airport: Legal Advice by Customs Lawyer for Gold Smuggling Cases in Delhi

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In the event that an individual is accused of gold smuggling at Delhi Airport, they should promptly take steps to safeguard themselves from any undesirable ramifications. Whatever has to be done needs to be done urgently because, in such situations, every second is crucial, and protecting one’s rights by accessing proper remedies and strengthening his defence is essential.

Following is a comprehensive guide which can act as a general set of guidelines telling what to do and what not to do:
• The most crucial thing to keep in mind while the whole process of investigation or inquiry is going on is to stay calm and think twice before speaking every single word or doing any act because under Section 108 of the Customs Act, 1962, the customs officer can summon such person, and whatever statement the person provides there could be considered admissible as evidence in the court of law. Section 138-B of this Act also aligns with it, saying that any statement made and signed by a person before a gazette officer could be admitted as evidence in the interests of justice under certain situations.
• Our legal system is based on the foundation that every individual shall be given a fair chance to represent himself, no matter how grave or serious the offence is. Thus, a person accused in a gold smuggling case also has a right to represent his version, and for an expert opinion, he could always consult and get defended by a legal practitioner of his choice as per Article 22(1) of the Indian Constitution.
• If any search is to be conducted by the customs officers in regard to Section 100 or Section 101 of the said Act, then, as per Section 102 of this same Act, the accused must ensure that those customs officers bring two or more persons to attend and witness that search. Whatever is to be searched and seized, everything shall be done in the presence of those witnesses, and a list of all the items seized shall be signed by those witnesses.
• It is essential to have knowledge of the charges under which the accused is or will be arrested because, under some provisions, the accused can get bail as a right, being a bailable offence, and some of those offences under certain circumstances are non-cognizable as well. Thus, by utilizing Section 104 of the said Act, the accused person can get to know about the grounds for his arrest and ensure that he be taken before a magistrate in due time. Also, as the customs officers in this case be governed by and subject to the provisions of the Code of Criminal Procedure, 1898, they have to give an opportunity to the accused to contact any of his trusted people who would assist him in securing legal help and arranging bail for him.
• Collecting evidence is also a crucial aspect, as it will help the accused to strengthen his case and act as his defence. For this, Section 110 of the said Act requires the customs officials to properly note down the details of the goods they seized believing to be involved in smuggling, including their description, quantity, quality, country of origin, mark, numbers, and other particulars. The accused can in such a situation ensure that whatever things are seized, they are accurately recorded and, if possible, request a copy of the seizure memo. And in case of any documents being seized, the accused can himself make copies thereof or take extracts therefrom in the presence of the customs officers.
• As far as possible, the accused shall try to collect and remember the details of the incident that took place. From noting down the names of the customs officers involved to the time and place of the incident and any conversation that took place throughout the investigation or inquiry. These details are crucial as they could support his case, especially if the legality of the confiscation of the goods under Section 111 or Section 113 is to be challenged.
• If the accused person is found to have committed breach of any provisions of the Act or failed to comply with the customs regulations, especially while importing or exporting gold improperly, the accused person can land himself in the burden of severe penalties, including penalties for improper importation of goods, etc., as per Section 112 or penalty for an attempt to export goods improperly, etc., as per Section 114 of the said Act.
• Through Section 110-A of the said Act, a person whose gold has been seized can claim it back for the time till the order of the adjudicating authority is pending, upon taking a bond from such person in a proper form. Certain security and conditions can also be imposed on such person if the adjudicating authority deems it required.
• If any person is detained under the relevant provisions of this Act and he believes that such detention is unlawful or not in accordance with the provisions of this Act, then the person detained can challenge such detention in relation to the provisions of Section 167 of the Code of Criminal Procedure, 1973 (Section 187 of the BNSS) before the concerned Magistrate and can ensure that a proper procedure is followed under the case. Any illegality in the detention can be treated as a ground for the release of such person and availing compensation, if the court deems fit.
• If the accused accepts that the accusations levied are based on a genuine mistake or ignorance of him, the accused can consider making a voluntary disclosure by making an application to the Settlement Commission under Section 127-B of the said Act to settle the case. In this, the accused has to provide complete and true details of his duty liability, which was till now not disclosed to the proper officer.

In the case of Ramesh Chandra Mehta v. The State of West Bengal (1970) 72 BOMLR 787, the Supreme Court of India held that statements made to the Customs Officers at the stage of collecting information under Section 108 of the Customs Act, 1962, are admissible under the Court. The Court also mentions that as the person is not formally accused during that stage, he thus cannot avail of the protection provided under Article 20(3) of the Indian Constitution, which talks about protection against self-incrimination.

In the case of Mala Petrochemicals & Polymers v. The Additional Director General WP(C) 3965/2017, the Directorate of Revenue Intelligence (DRI) seized certain goods imported by the petitioner alleging misdeclaration on which the petitioner sought provisional release of his goods as per Section 110-A of the Customs Act. The High Court of Delhi in this case directed the Customs Department to provisionally release the goods but modified certain conditions with regard to bank guarantee. Thus, the Court in this case tries to maintain a balance between the needs of the importers while respecting the discretionary powers given to the customs authorities.

Thus, it would be important to reiterate in light of these cases and all the points discussed above that whatever statements are to be provided shall be given after due consideration, and if provided the chance to consult with the legal representative, that should be utilized to the fullest. Also, bonafide strategies shall be made to get provisional release of the goods if essential to the accused.
Authored By: Adv. Anant Sharma & Sahil Arora

 

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