Facing Gold Smuggling Charges at Delhi Airport: Immediate Actions to Consider & Understanding Emergency Legal Procedures for Gold Smuggling Cases at Delhi Airport
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A gold smuggling charge is not at all a charge of a minor offence. It is a very serious nature of offence, and for someone whose profession revolves around importing and exporting goods, escaping himself from charges of gold smuggling is a very daunting task. Serious actions have to be taken to ensure that innocent people don’t have to struggle much in this hassle. The Customs Act of 1962 is one of those pieces of legislation which discussed the actions a person can take to deal with and defend these charges. A few of those immediate actions from this Act are discussed below:
• The first and foremost action the person charged shall take should be regarding securing a legal professional for his representation as soon as charges are levied upon him. Golf smuggling charges are highly complicated and involve multiple protocols to be followed before, during, and after accusing a person. Thus, a legal professional would guide the person charged with the do’s and don’ts in that situation. Such professionals would also aid in understanding the charges levied, checking the validity of the notice served and procedure to seize gold, if any, replying to such notices, etc. Section 146-A of this Customs Act, 1962, provides some relief to the person charged from appearing at certain places. This Section says that where a person is entitled or required to appear before the customs officers or the Appellate Tribunal, then at those places, the person charged can send his legal professional as his authorised representative. The reason to send the professional could be that such individual has a better understanding of laws, and if he had expertise in that area of customs, then he could ensure that whatever he says during his appearance, that would not worsen the charged person’s situation or have a negative impact on him, which a common man might not be able to do effectively.
Understanding the allegations and the related relevant provisions from the Customs Act, 1962, also provides an edge in the case; thus, a thorough knowledge of them would be beneficial for the person charged for the gold smuggling. A few of them are discussed in brief below:
• The term ‘smuggling’ is defined under Section 2(39) of the said Act, and according to this definition, any act or omission which renders the goods, including gold, liable to be confiscated under Sections 111 and 113 of this Act would be considered smuggling of goods.
• Section 111 and Section 113 of the said Act deal with confiscation of goods improperly imported and confiscation of goods attempted to be improperly exported, respectively. These Sections discussed certain ways through which if any goods, including gold, are imported or exported, then the same would be confiscated. Knowledge of these is essential, as when the person would be charged for gold smuggling, such person can counter the charges by proving that he did not opt for any wrong way for which his gold be confiscated and he be charged under smuggling the same.
• Section 135 of the said Act prescribed penalties for certain purposes, and its clause (1) sub-clause (c) prescribes punishment for attempting to export any goods, including gold, which could be confiscated under Section 113.
• Section 104 of the said Act provides power to the customs officers to arrest any person who they believe has committed any offence, apart from other provisions, under Section 135. Thus, the customs officers can arrest an individual in a gold smuggling case. However, the person arrested has to ensure the performance of certain legal protocols for this arrest. The customs officers have to inform the arrested person about the grounds on which the arrest is made, and after this arrest, such person be taken to the Magistrate. But if the person arrested is not covered under the provisions of non-bailable offences, then such an arrested person will be released on bail. Thus, the person shall demand bail as his right in situations wherever it is possible.
• Section 123 of the said Act says that in cases where goods, including gold, of a person are seized on the reasonable belief that they are smuggled goods, the burden of proving that those are not smuggled gold lies on the person from whom such gold was seized or the person who claims to be the owner of such gold. Thus, this provides an opportunity to prove with the relevant documents and evidence that the gold alleged to be smuggled is actually his own gold and the charges levied regarding the gold smuggling are wrong and false, and thus they be removed from him.
To deal with the gold smuggling charges, the person charged shall also have a basic understanding of the emergency legal procedures with regard to that situation. A brief overview of these emergency legal procedures is discussed below:
• Once a person is charged under a gold smuggling case, his gold is seized by the customs authorities. However, there are certain protocols which must be followed while this seizure is performed, which are discussed in Section 110 of the said Act. This Section says that when the gold of a person is seized, he must be furnished with a notice within 6 months of the seizure. In the absence of this notice within the prescribed period, the person from whose possession the gold was seized becomes entitled to get his gold returned to him.
• Section 124 of the said Act also talks about the issuance of a show cause notice to the owner of the gold or the person from whose possession the gold was seized before an order for confiscating the gold is made. The show cause notice must contain the grounds on which the gold is proposed to be confiscated. Also, a reasonable amount of time has to be provided to the person whose gold is seized to reply against the grounds of such show cause notice, and ensuring a fair and equal chance, such person charged of the gold smuggling be given an opportunity of being heard related to that matter.
• After the charges are framed and the adjudication authority makes a decision or order, the person could either be acquitted of the charges or held liable under those charges. If an unfavourable decision or order came in the favour of such charged person, he has an option to appeal to concerned higher authorities with regard to the same matter. Under Section 128 of the said Act, the aggrieved person can appeal to the Commissioner (Appeals) within 60 days of receiving the said order or decision. The next stage of appeal lies to the Appellate Tribunal, named Customs, Excise and Service Tax Appellate Tribunal (CESTAT) under Section 129-A. Aggrieved with the above authority’s decision, an application can be made to the Central Government for the annulment or modification of the above authority’s order or decision.
• A further appeal from the order of the Appellate Tribunal can be made to the concerned High Court under Section 130 of the Act. As a last resort, if the aggrieved person does not find a favourable decision anywhere, he can make an appeal to the Supreme Court under Section 130-E of the Act.
Concluding this blog by simply stating that following these above guidelines and formulating a correct action plan, one can defend the charges levied against him and enhance his chances of getting acquittal from the case.
Authored By: Adv. Anant Sharma & Sahil Arora
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