Criminal Defense of Requisition Before Search in Gold Smuggling Cases | Criminal Law Attorney in Delhi NCR | Criminal Lawyer in Delhi NCR |
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“Gold smuggling is a criminal offense which is non-bailable and non-compoundable in nature. Gold smuggling is squarely dealt under the Customs Act of 1962 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974. There are only a limited criminal defenses available in a gold smuggling case. Further, there are limited grounds for bail in a gold smuggling case.
Section 2(39) of the Customs Act (CA), 1962 states that smuggling, concerning goods, means that any omission or act which would cause 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 officer 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 legislated to forfeit the illegally acquired property by the only means mentioned under section 3 of said act.
Requisition before Search: Best Criminal Lawyer Advice
On reasonable qualm, a customs officer or any other concerned officer is conferred with power under section 101(1) of the Customs Act (CA), 1962 to stop and search any person whoever is secretive about his goods or identity. But, section 102(1) of the Customs Act (CA), 1962 confers the right to the victim, who is to be searched, to ask the customs officer or any other concerned officer to conduct the search in presence of the Magistrate or the gazetted officer of customs. Thereafter, such officer is bound to acknowledge the request of the affected person. It is the duty of the officer to apprise the affected person about the right under section 102(1) of the Customs Act (CA), 1962. The object behind such a right is to ensure that no person is trapped or framed by the customs officer or any other concerned officer.
In the case of Saiyad Umar Saiyad v. State of Gujarat, 1995 SCC (Cri.) 564, the Hon’ble Supreme Court followed the decision of State of Punjab v. Balbir Singh and held that section 102 of the Customs Act (CA), 1962 and section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 are analogous. Therefore, it is mandatory for the prosecution to satisfy the court that the searched person was apprised about his option conferred under section 102 of the Customs Act (CA), 1962 i.e., option to be searched in the presence of a gazette officer or the Magistrate. Upon failure on part of the prosecution to satisfy the court in regard to the compliance of the aforementioned section, would vitiate all the proceedings.
In the case of Union of India v. Jasmine Jayantilal Thadesdwar and Anr. [Crl App No 389 of 1997], a tip was received that Respondent no. 1/ accused would smuggle gold and diamond through the green corridor. Thereafter, they intercepted respondent no. 1/ accused in the green corridor and carried out searched. Thereby, the officers recovered 9 pieces of gold weighing 504.900 gm approximately. The Hon’ble Bombay High Court observed that no prosecution witness had said anything about having appraised the accused of his right and asked whether he wanted to get his search in the presence of the Magistrate or the Gazetted Officer. Hence, on this ground alone, the search of the accused or seizure of gold by the customs officer has to be held as illegal by the Hon’ble High Court of Bombay.
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