Expert Legal Tips for Defending against alleged Gold Smuggling Charges at Delhi Airport: Best Legal Tips by Customs Lawyer in Delhi for alleged Gold Smuggling Cases

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Section 2(39) of the Customs Act, 1962 defines “smuggling” as any act or omission which renders the goods, including gold, liable to be confiscated under Section 111 or Section 113 of this Act. Through this definition, it becomes clear that, as per the Customs Act of 1962, charges of gold smuggling can be levied upon an individual if he either improperly imports or exports any amount of gold, which could lead to its confiscation because of the violation of the customs laws in India. Defending such charges of gold smuggling is crucial, as it could lead to severe consequences in the personal and professional life of the person from whom the gold is seized.

Following are discussed a few legal tips which can be used to defend the gold smuggling charges levied upon an individual while travelling at Delhi Airport:
• Initially, two sections are required to be discussed, which deal with the burden of proof and culpable mental state. Section 123 of the Customs Act of 1962 says that whenever any goods, including gold, are seized by the customs authorities believing it to be a smuggled item, the burden of proving that such gold is not a smuggled good rests upon the person from whose possession the gold is seized or from the person who claims to be the owner of such seized gold. Also, as per Section 138-A of the said Act, the court shall presume that the person has a culpable mental state to conduct a particular offence, but at the same time, gives an opportunity to that person also to prove that he had no such mental state regarding the said charges of offence. Both of these legal provisions ensure that the person upon whom a charge of gold smuggling is levied shall be provided with an opportunity to present his defence against such charges, and the accused shall not be straightaway held guilty under the offence. The person shall produce evidence or challenge the charges by demonstrating that the accused had no knowledge that there was gold in his possession or that the gold might be intentionally planted by someone else.
• Through Section 106 of the said Act, the customs officers are provided with the right to stop any vehicle, aircraft, or animal if they believe that such conveyances are being used to smuggle goods, including gold. For ensuring whether their belief is correct or not, they can also search and examine such conveyances by all reasonable means. Now if, during such a search, the officers find any gold and charge such person under the gold smuggling charges, the said person’s primary defence strategy at that moment can be to challenge the procedure followed during such a search and seizure. The accused can challenge that the protocols required to be followed were not complied with, rendering such a search illegal, leading to the exclusion of seized evidence, and the accused might also get free from the gold smuggling charges as well.
• Under Section 108 of the said Act, the gazetted officers of customs have the power to summon any person in the hope of getting any evidence in relation to any matter during inquiry. The person is, although bound to speak the truth, one thing has to be kept in mind that whatever statements are going to be delivered here, such statements can be used in the legal battle as these statements are admissible under the law as evidence. However, this Section itself provides a defence to tackle this critical situation; that is, the accused, if the officer directs, can ask for his authorised agent to attend such summons on his behalf. This way, the accused can send someone having experience to deal with the customs and gold smuggling matter and can represent him, protecting his image and property in the dispute.
• If the gold of a person is seized by the customs authorities and such person is accused under the legal provisions of the gold smuggling, he can take defences as provided under Section 110 and Section 124 of the said Act. As per Section 110(2), when any goods are being seized by the customs officers and no notice for the same is provided within six months of such seizure, such person from whom the gold is seized can ask for the return of the gold, and the authorities cannot deny it. And as per Section 124, before making an order for the confiscation of the gold, a notice shall be furnished to such person, which shall mention the grounds on which the gold is proposed to be confiscated. A reasonable time to revert to such notice and an opportunity of hearing have to be given to such person. Absence of all these protocols can be alleged as denial of basic principles of law and fair hearing, and the accused can use all this as a defence in favouring his case.
• For preparing a strong defence, the accused shall engage with him a legal representative having expertise in the matters of customs and gold smuggling cases. Section 146-A of the said Act also allows the person to appear in certain situations through his authorised representative, and that provision includes a legal practitioner as an authorised representative. Thus, wherever possible, the accused shall prefer to send his representative so that the accused do not even unintentionally utter any statement which hampers his defence and the matter.

Above were discussed some of the defences which were already mentioned in the Customs Act of 1962. Now, following are some of the general defences which a person can use against the charges of gold smuggling upon him:
• All the documents relevant to the gold, including purchase or sale receipts, import or export documents, documents verifying legitimacy of the ownership upon the gold, evidences signifying that duties were paid, or that the gold was brought for personal uses, etc. All such documents and evidence are essential to support the defence.
• Witnesses shall be prepared, as their testimonies play a crucial role in deciding the case. Eye-witnesses or character witnesses references are vital in proving the innocence of the accused, especially in situations where there are charges of the gold being smuggled.
• Digital evidence or CCTV footage from the Delhi Airport or Terminal can help in corroborating the accused’s version of events.
• The claims made by the customs authorities regarding the weight, origin, and quality of the gold to make it fall under the category of being smuggled shall be re-examined in his own presence. A forensic examination of the gold shall be done to trace its origin to contradict the customs claims.
• The credibility of the officials can be challenged through extensive and effective cross-examination, which could expose inconsistencies or procedural violations made by the customs officials in their testimonies.
• Precedents have to be cited where the courts have earlier also acquitted individuals on similar charges due to procedural lapses or lack of sufficient evidence.
In conclusion, it would be correct to say that defending a gold smuggling case is a very challenging and complicated task which requires a strategic legal approach revolving around the provisions of the Customs Act of 1962. Finding the procedural errors and presenting strong evidence in defence would benefit the accused, and an experienced practitioner can very well handle all this who has expertise in the customs laws.
Authored By: Adv. Anant Sharma & Sahil Arora

 

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