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Criminal Defense of Discharge in Gold Smuggling Cases: Legal Advice

 > Anticipatory Bail & Regular Bail  > Criminal Defense of Discharge in Gold Smuggling Cases: Legal Advice

Criminal Defense of Discharge in Gold Smuggling Cases: Legal Advice

Section 2(39) of the Customs Act (CA), 1962 states that smuggling, in relation to goods, means that any act or omission which will render such goods liable to be confiscated under section 111 or section 113 of the said act. Section 111 and Section 113 of the aforesaid Act empower the officer of Customs to confiscate illegal import and export of goods. Section 11(1) of the Customs Act (CA), 1962 empowers the Central Government to prohibit, either subject to such condition or absolutely (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 pro to forfeit the illegally acquired property by the only means mentioned under section 3 of said Act.

Criminal Defense: Discharge of the Accused
Section 239 of the Code of Criminal Procedure (Cr.P.C.), 1973 empowers the Magistrate to discharge the accused after considering the chargesheet and the documents submitted by Police under section 173 of the Code of Criminal Procedure, 1973, examination of the accused, if any, and giving the prosecution and the accused an opportunity of being heard.

The Hon’ble Supreme Court in case of Vikram Johar v. State of U.P. [Cri. Appeal No. 759/2019] has held that the court while considering the application under section 239 of the Code of Criminal Procedure (Cr P C), 1973 should exercise its judicial mind to determine whether a case is triable or not. Further held that proceeding under section 239 of the said act is not a mini-trial by marshaling the evidence.

Adi Malik v. State [Crl M A 7424/2019], herein the accused was convicted for offences under sections 454/ 380/ 34 of the Indian Penal Code (IPC), 1860. The accused pleaded guilty and thereby the Magistrate convicted him. However, the Hon’ble Delhi High Court observed that the trial court failed to comply with sections 239 and 240 and held that section 239 of the Code of Criminal Procedure (Cr P C), 1973 obligates the trial court to satisfy itself with regard to compliance of provisions of section 207. Section 207 ensures that all document furnished to the trial court under section 173 of the Code of Criminal Procedure (Cr P C), 1973, is also provided to the accused. Thereafter, the trial court has to comply with section 239 of the Code of Criminal Procedure (Cr P C), 1973 which empowers a Magistrate to discharge the accused after finding no reasonable ground for the offences with which he is charged in the complaint. Therefore, the court observed failure of the justice in the present case due to non-compliance of the said sections and set aside conviction order.

In State of Punjab v. Narinder Singh [Cri Rev No 179/1990], herein the Hon’ble Punjab and Haryana High Court had held that power of the Session Court to discharge the accused under section 227 of the Code of Criminal Procedure (Cr P C), 1973 is wider than the power of Magistrate under section 239 of the Code of Criminal Procedure (Cr P C), 1973. Under section 239 of the Code of Criminal Procedure (Cr P C), 1973 the word used is ‘groundless’ meaning no ground at all but in section 227 of the Code of Criminal Procedure (Cr P C), 1973 the phrase used is ‘no sufficient ground’ meaning there might be few grounds but they are not worth considering.

The aforementioned ground is the finest criminal defense available with accused which would save a lot of time, money, and reputation. The application of the discharge has to be made before framing of charge but if it is made after framing of charge then it would not be considered.
Authored By: Adv. Anant Sharma & Satwik Sharma

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