Criminal Defense for Release of Conveyance in Gold Smmugling Cases: Legal Advice
Section 2(39) of the Customs Act (CA), 1962 states that smuggling, concerning goods, means that any act or omission which will render such goods liable to be confiscated under section 111 or section 113 of the Customs Act (CA), 1960. Section 111 and Section 113 of the aforesaid Act confers power to the customs officers to confiscate illegal import and export of goods. Section 11(1) of the said Act confers power upon Central Government to stop, either subject to such absolutely or condition (to be fulfilled after and before clearance), export or import of any goods by the notification in the Official Gazette.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 is legislated to detain a suspect or convict to prevent him from repeating the offence smuggling whereas the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 is promulgated to forfeit the illegally acquired property by the only means mentioned under section 3 of said Act.
Release of Conveyance:
When any conveyance like vessel, aircraft vehicle etc. or animal is confiscated under section 115(1) of the Customss Act (CA), 1962 while used as a means to smuggle or otherwise in contravention of provisions under Customs Act, 1962, then the owner of such conveyance or animal can may under section 115(2) of the Customs Act (CA), 1962 release by paying money amounting to the value of confiscated goods in lieu of the confiscation of the conveyance. The fine should not exceed the market price of the goods confiscated. However, section 115(2) of the Customs Act (CA), 1962 is only applicable when the conveyance or animal is used for the carriage of goods or passengers for hire.
In the case of A.P. Moller Singapore Pvt. Ltd. and Another Versus Assistant Director, Directorate of Revenue Intelligence, Bombay and Others [W. P. No. 3680/1990],1895 pieces of gold biscuits valued at Rs. 7,22,83,9922 were seized from the vessel and thereafter a penalty of Rs. 1,00,00,00 was imposed and the vessel was also confiscated under section 115(1) of the Customs Act (CA), 1962 with a redemption option for a fine of Rs. 10,00,000. But this decision was later on set aside by the Hon’ble Bombay High Court because the competent authority had not submitted any evidence corroborating such act was done with the connivance or knowledge of the owner himself, or/and his agent, if any, and the person in charge of the vessel.
In the case of Pankaj Kumar Sharma v. Union of India & Anr. [W.P.(CRL) 3008/2018], according to the complaint, the accused was apprehended by the customs officers for smuggling and upon investigation, it was discovered that the accused was the mastermind behind the act of smuggling. The smuggled goods values at Rs. 8,80,000/- were confiscated with a redemption fine of Rs. 6,00,000. The vehicle bearing No. BR-06-GA-1457 valued at Rs. 16,00,000/- was also confiscated under Section 115(2) of the Customs Act (CA), 1962 with redemption fine of Rs. 2,00,000/. The Hon’ble Delhi High Court also upheld the aforementioned order of the concerned while hearing the petition which sought to quash the detention order passed by the concerned authority in the present case.
The aforementioned ground is the best criminal defense which would help the accused to save a lot of time, money and reputation.
Authored By: Adv. Anant Sharma & Satwik Sharma