10:00 - 19:00

Our Opening Hours Mon. - Fri.

9069.666.999

Call Us For Free Consultation

Facebook

Twitter

Linkedin

GPlus

Laws on Prevention of Gold Smuggling in India: Lawyers Advice

 > Anticipatory Bail & Regular Bail  > Laws on Prevention of Gold Smuggling in India: Lawyers Advice

Laws on Prevention of Gold Smuggling in India: Lawyers Advice

Gold Smuggling is a criminal offence in India and there are different Central laws which prevent and prohibit the same. Having said that, there are a catena of criminal defenses which are available to the accused in the case of Gold Smuggling. There also exists cogent and compelling grounds to obtain Bail in the case of Gold Smuggling. Thus, over here we shall be discussing the entire law on Gold Smuggling in India in the light of top ten leading criminal cases and/or judgments on Gold Smuggling in India.

What are the Central Laws on Gold Smuggling in India?

  1. Custom Act (CA), 1960
  2. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974
  3. Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976
  4. Unlawful Activities (Prevention) Act [UAPA], 1967

Detailed Analysis of the Laws on Gold Smuggling in India
Custom Act (CA), 1960:
Section 2(39) of the Customs Act, 1960 defines ‘Smuggling’. Section 2(39) of the aforesaid Act 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 Customs Act (CA), 1960. Section 111 and Section 113 of the aforesaid Act empowers the officer of Custom to confiscate illegal import and export of goods. Section 11(1) of the Customs Act (CA), 1962 confers power to the Central Government to prohibit, either subject to such condition or absolutely (to be fulfilled after and before clearance), import or export of any goods by notification in the Official Gazette. Further, section 11(2) of the Customs Act (CA), 1962 enlists 22 purposes for which Central Government can prohibit, either subject to such condition or absolutely (to be fulfilled after and before clearance), import or export of any goods under section 11(1) of the Customs Act(CA), 1962. Among such 22 purposes enlisted in section 11(2) of the Customs Act (CA), 1960, the purpose listed under section 11(2)(c) of the aforesaid Act is for the prevention of Smuggling and another purpose listed under section 11(2)(f) of the aforesaid Act is for the prevention of injury to the economy of the country by the uncontrolled import or export of gold, silver or any other goods.

Section 101(1) of the Customs Act(CA), 1962 empowers officer of customs, who is empowered in this behalf by the Commissioner of Customs through general or special order, to search any person if has reason to believe that such person has secreted about his identity or his good which is liable to confiscation. As per section 101(2) of the Customs Act (CA), 1962, the term goods used in section 101(1) of the aforesaid Act is for gold, diamond, manufactures of gold or diamonds etc.

According to section 102(5) of the Customs Act, 1960, if the person to be searched is female, then such female shall be searched by the only female. Section 103 of the Customs Act, 1960 empowers concerned officer to screen or X-ray bodies of persons who are suspected of being carrying gold inside their bodies. But such screening and X-ray shall be conducted after the consent of the Magistrate under section 103(4) of the Customs Act, 1960. Upon finding gold inside the body, the magistrate without unnecessary delay shall require under section 103(4) of the Customs Act, 1960 registered medical practitioner to take out such gold from the body of such person.

Section 100 and 101 of the Customs Act, 1962 empowers the officer of customs to search any person whom he has reason to believe that such person is concealing his identity and gold which is liable to be confiscated under section 111 and section 113 of the Custom act 1962. The Assistant Commissioner or officer of customs, specially empowered, can search any premises under section 105(1) of the Custom act, 1962 under their jurisdiction if he has reason to suspect that Gold Smuggling is being committed. The concerned officer also has power under section 106(1) of the Custom act, 1962 to stop or compel to stop any conveyance like aircraft, vessel or animal and search that conveyance if he has reason to suspect that Gold Smuggling is being committed. Upon searching, if such officer founds or has reason to believe that such person is involved in gold smuggling, then under section 104(1) of the Customs Act (CA), 1962 such officer can arrest such person. After arresting such a person, the concerned officer has to immediately produce the arrested person before the concerned Magistrate. If the concerned officer founds gold upon search, then he may under section 110(1) of the Customs Act, 1962 seize such gold.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974: This act was enacted to put curb on cases of Smuggling activities such as Gold Smuggling. Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 confers power to:-
i. Central Government,
ii. State Government,
iii. Officer appointed by the Central Government in this behalf but such officer shall not be below rank of the Joint Secretary

To detain any person to prevent him from:-
i. smuggling goods, or
ii. abetting the smuggling of goods, or
iii. engaging in transporting or concealing or keeping smuggled goods, or
iv. dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
v. harbouring persons engaged in smuggling goods or in abetting the smuggling of goods.

According to section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974, the detained person shall be provided with grounds for his detention in pursuance of section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974. Section 5A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 states that the grounds of detention are severable. It means if there are five grounds of detention and among these five grounds two grounds are
i. vague,
ii. non-existent,
iii. not relevant,
iv. not proximately connected or connected not with such person, or
v. invalid for any other reason whatsoever
Then due to these two grounds order of detention under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 will not get invalid. Such an order of detention will be made on the other remaining grounds.

Order of detention under section 3(1) of the Customs Act, 1962 may be executed anywhere in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973. The place and conditions for the detention shall be as specified by the appropriate government through special or general order under section 5 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974.

Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976: Section 2 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 applies to that person who has been convicted under Custom Act (CA), 1962 or the convicted person under Custom Act (CA), 1962 has been convicted again under Custom Act (CA), 1962 and against whom an order of detention is passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974. This act also applies to a relative and every associate of the convicted person under Custom Act (CA), 1962 or against whom an order of detention has been passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974. Section 4 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 prohibits from holding property that is illegally acquired property. ‘Illegally acquired property’ according to section 2(c) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 includes that property, whether movable or immovable, which has been acquired from income, earnings or assets derived through smuggling.

A property derived through smuggling, whether before or after commencement of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976, is termed as Illegally acquired property.

The Section 14 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 put a complete bar on the jurisdiction of the court to hold trial under said act. Neither the court cannot put an injunction on any order passed by the Competent Authority or other authority empowered under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 nor can any civil court have jurisdiction to hold a trial in respect of any matter which the Appellate Tribunal or any competent authority under said Act.

Unlawful Activities (Prevention) Act [UAPA], 1967: Section 15(iii-a) of the Unlawful Activities (Prevention) Act [UAPA], 1967 states that “Terrorist act” is committed whenever any person does any act with intent to threaten or likely to threaten India for its Unity, Integrity, Security, Economic Security, Sovereignty or the people or any section of the people in India or in any foreign country with terror strike; or Likely to terror strike through bombs, dynamite or other explosive substances; or inflammable substances; or firearms or other lethal weapons; or poisonous or noxious gases or other chemicals; or by any other substances of a hazardous nature whether biological radioactive, nuclear or otherwise; or by any other means of whatever nature to cause or likely to cause damage to, the monetary stability of India by way of production or smuggling or circulation of high-quality counterfeit Indian paper currency, coin or any other material.

Gold Smuggling tend to cause damage to the monetary stability of India and further this can cause harm to the economic security of India. As per section 15(1)(iii-a) of the Unlawful Activities (Prevention) Act[UAPA], 1967, Gold Smuggling is a Terrorist act.

The Section 16 of the Unlawful Activities (Prevention) Act [UAPA], 1967 lays down punishment for Gold Smuggling i.e., imprisonment for more than five years and it may go upto imprisonment for life, and shall also be liable to fine. When any person conspires or attempts to commit or abet the conspiracy to commit Gold Smuggling or any other terrorist act, then such person shall be punished under section 18 of the Unlawful Activities (Prevention) Act [UAPA], 1967 with imprisonment for not less than 5 years and this may extend upto life imprisonment and shall also impose fine.

Gold Smuggling is a cognizable offence as per section 43-D(1) of the Unlawful Activities (Prevention) Act [UAPA], 1967. According to section 43-D(2)(a) of the aforesaid Act, the magistrate can allow police custody of the accused for 30 days. But, if the police require such custody to extend, the magistrate may allow to extend custody upto 90 days but in the judicial custody. In many cases, it is not possible to complete the investigation within 90 days, so if the court is satisfied with the report of the Public Prosecutor about the progress of the investigation and also grounds of the detention, then the Magistrate may again allow time upto 90 days for further investigation.

Section 45 of the Unlawful Activities (Prevention) Act [UAPA], 1967 put a bar on the court to take cognisance of the offences enumerated in the said act without the prior permission of the Central Government or the State Government.

What is the Procedure for the Prosecution of the Accused charged with Gold Smuggling?
Procedure to Lodge complaint: Anywhere India, any person can take any of the following steps to complaint against Gold Smuggling:

 Dial 100 or visit near Police Station under whose jurisdiction such offence is taking place and give information regarding Gold Smuggling to the Officer in charge of that Police Station under Section 154(1) of the Code of Criminal Procedure, 1973. Code of Criminal Procedure, 1973 under Section 154(1) empowers every person to give information to an Officer in charge of a Police Station which in other word is called the First Information Report. The complaint can be made in both forms i.e., written as well as oral form.

 If the Officer in charge of a Police Station refuses to act on the complaint, then under Section 154(3) Code of Criminal Procedure, 1973 complaint in writing can be sent by post to the Superintendent of Police under whose jurisdiction offence of Gold Smuggling is taking place.

Confiscation by the Adjudicating Authority: If illegal Gold is recovered through a search conducted under section 100 and section 101 of the Customs Act (CA), 1962, then the person involved in Gold Smuggling, as well as such illegal gold, is liable to be confiscated under section 111 and 113 of the Custom Act (CA), 1962 and such persons involved in such Gold Smuggling are liable to the penalty under section 112 and 114 of the Customs Act (CA), 1962. However, Adjudicating Authority should pass an order of confiscation and penalty to the accused after giving reasonable opportunity and time to the accused of being heard under section 122A of the Customs Act (CA), 1962.

Forfeiture: According to section 24A of the Unlawful Activities (Prevention) Act [UAPA], 1967, illegal gold which is recovered by the officer of customs through search or otherwise, shall be forfeiture to the Central Government or the State Government. Section 25 of the Unlawful Activities (Prevention) Act [UAPA], 1967 confers power to investigating officer to confiscate such illegal gold or any other material which is liable to be forfeiture under section 24A(1) of the said act. However, Designated Authority, before passing an order of confiscation, shall issue a notice in writing informing grounds for such forfeiture to the person holding or in possession of such proceeds like illegal gold or any other material which is liable to be a forfeiture. The Designated Authority shall give reasonable opportunity and time to the accused of being heard under section 27 of the Unlawful Activities (Prevention) Act [UAPA], 1967.

Under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976, the Competent Authority upon reasonable suspicion that any person is holding illegally acquired property, then such authority after writing reason for such suspicion, issue show cause notice to such person and give a reasonable time of at least 30 days for representation. After considering all the facts placed before the competent authority and hearing such person, then such authority may under section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 order forfeiture of such illegally acquired property. If any person transfer by any mode illegally acquired property after receiving notice under 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976, then such transfer will be null and void under section 11 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976.

Detention by the Advisory Board: When the order of detention is passed against any person under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974. Upon reference to the Advisory Board under section 8(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974, such Advisory Board shall consider the reference and the materials placed before it and also call for the information, if so required, by the appropriate government or any other person acquainted with relevant facts. The Advisory board shall give reasonable opportunity and time to the accused of being heard under section 8(c) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. After considering all facts and hearing both sides, Advisory Board may under section 8(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 confirm or annul the order of detention under section 3(1) of the said act.

The maximum period of detention that can be awarded under section 8(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 is 1 year from the date of detention.

Court of Session: According to section 45 of Unlawful Activities (Prevention) Act [UAPA], 1967 or section 45 of the Customs Act (CA), 1962, no court can take cognisance of the case without prior permission of the concerned authority.

There are two kinds of trials i.e., Summon Trial and Warrant Trial. Sub-clause (w) and (x) of Section 2 of the Code of Criminal Procedure (Cr.P.C.), 1973 defines Summon case and warrant cases respectively. According to sub-clause (x) of Section 2 of the Code of Criminal Procedure (Cr.P.C.), 1973, offences that are punishable with death, imprisonment for life and imprisonment for a term exceeding 2 years are warrant cases. So, they will be tried as per Warrant Trial rules under Order 19. According to sub-clause (w) of Section 2 of the Code of Criminal Procedure (Cr.P.C.), 1973, cases that are not warranted triable are called Summon case. So, they will be tried as per Summon Trial rules under Order 20. Therefore, the offence of Gold Smuggling is the warrant triable case. As gold smuggling is punishable under section 18 of the Unlawful Activities (Prevention) Act [UAPA], 1967 with imprisonment for not less than 5 years and this may extend upto life imprisonment and shall also impose fine.

How does a Criminal Trial happens in the case of Gold Smuggling?

  1. Framing of Charge: After consideration, examination and hearing, Magistrate forms charges. Then, the accused will be tried for such charges.
  2. Plea of Guilty: Accused will be asked whether they plead guilty or has a defense to make. If the accused plead guilty, then he would be convicted guilty. But, if the accused does not plead guilty, then the court would proceed to hear prosecution.
  3. Evidence of Prosecution: The court will ask the Prosecution to put before it all evidence. It may also, on the application of Prosecution, issue summons to any witness directing him to attend or to produce any document or other thing.
  4. Evidence of Defense: The court will ask Defence to put before it all evidence. It may also, on the application of Defence, issue summons to any witness directing him to attend or to produce any document or other thing. The Court under section 313 of the Code of Criminal Procedure, 1973 also has the power to examine the accused and the statement given by him is admissible which can be used as evidence to prove the charges. The burden of proof under all the above-mentioned Act lies on the defense that he is completely innocent.
  5. Judgement of Acquittal or Conviction: After hearing both sides and considering all the evidence, Magistrate will acquit or convict the accused under section 248 (3) of the Code of Criminal Procedure, 1973.

What are the Criminal Defenses available to the Accused charged with Gold Smuggling?

  1. Requisition before search: A person who is to be searched under section 101(1) of the Customs Act (CA), 1960 may require under section 102(1) of the Customs Act (CA), 1960 the officer of customs to search him in the presence of the gazetted officer of customs or the Magistrate. On such request by the person, an officer of customs shall forthwith take him to the nearest gazetted officer of customs or magistrate. If such gazetted officer of customs or the Magistrate sees no reasonable grounds for searching, then he may discharge such person to be searched.
  2. Release of Conveyance: Where conveyance confiscated under section 115(1) of the Customs Act (CA), 1962 and such conveyance is used to transport goods or passengers for hire, the owner of such conveyance will get a chance under section 115(2) of the Customs Act (CA), 1962 to pay money amounting to the value of goods confiscated in lieu of the confiscation of the conveyance.
  3. Procedure for Discharge: After completion of inquiry by the Adjudicating Authority under section 122A of the Customs Act (CA), 1962 or the Designated Authority under Unlawful Activities (Prevention) Act [UAPA], 1967, if such authorities do not find any reasonable grounds for confiscation, then they may revoke the order of confiscation.
  4. Revocation of Detention Orders: Section 11 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFESPSA), 1974 confers power to the Central Government or the State Government to revoke or modify the order of detention under section 3(1) of the aforesaid act at any time.
  5. Temporary Release of the Detained Person: As per section 12 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFESPSA), 1974, confers power to the Central Government and the State Government to temporary release, at any time, any detained person under this act. Such temporary release can be grant either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release. The Appropriate Government while granting release under Section 12(2) of the aforesaid Act to the detained person may require him to enter into a bond with sureties for the due compliance of the conditions put by the Advisory Board at the time of the order of detention.
  6. Fine in lieu of Forfeiture: Under section 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976, if the illegally acquired property is less than one-half of the whole property and such property has not been proved to the satisfaction of the competent authority, then such authority shall give the option to the person affected for fine in lieu of forfeiture. Such a fine should be fine equal to one and one-fifth times the value of such part.
  7. Discharge: Magistrate, after considering the chargesheet and document submitted by Police and examination of the accused, may discharge the accused after considering the charge against the accused to be groundless. In this process, the prosecution is also given an opportunity of being heard.

How can a Accused obtain Bail who is charged with Gold Smuggling in India?
Gold smuggling is a cognizable and non-bailable offence as per Customs Act (CA), 1962 and Unlawful Activities (Prevention) Act, 1967.

  1. Anticipatory Bail: Section 438 of the Code of Criminal Procedure, 1973 confers special power to the Court of Session and the High Court to grant bail to the person before his arrest. But Section 43-D of the Unlawful Activities (Prevention) Act, 1967 prohibit anticipatory bail under section 438 of the Code of Criminal Procedure, 1973.
  2. Regular Bail: According to section 437(1)(i) of the Code of Criminal Procedure (Cr. P. C.), 1973, when an accused is arrested or detained by the police without a warrant and he is brought before the Magistrate, then such Magistrate may grant bail to the accused if prima facie there is no strong evidence against the accused. If such regular bail is refused by the Magistrate, then the accused can go before the Court of Session or the High Court invoking their special power under section 439(1) of the Code of Criminal Procedure (Cr. P. C.), 1973.
  3. Default Bail: If Chargesheet is not filed under section 173(1) of the Code of Criminal Procedure (Cr. P. C.), 1973 within 180 days of judicial custody, then the court may under section 167(2)(i)(a) of the Code of Criminal Procedure (Cr. P. C.), 1973 grant bail to the accused only if whatever evidence is gathered does not show prima facie commission of gold smuggling.

What are the Criminal Defenses & Grounds for Bail for an Accused who is charged with Gold Smuggling in India?
a. The enormity of the charge,
b. The nature of the accusation,
c. The severity of the punishment which the conviction will entail,
d. The nature of the evidence in support of the accusation,
e. The nature and gravity of the circumstances in which the offence is committed,
f. The position and status with reference to the victim and the witnesses,
g. The danger of witnesses being tampered with,
h. The likelihood of accused fleeing from justice,
i. Probability of the accused committing more offences,
j. The protracted nature of the trial,
k. Opportunity to the applicant for preparation of his defence and access to his counsel,
l. The health, age and sex of the accused person.

What are the options for filing an Appeal in a case of Gold Smuggling?

  1. Appeal for Forfeiture, Confiscation and Penalty:
    Under the Customs Act (CA), 1962, when the order of confiscation and penalty by the Adjudicating Authority under section 122A of the Customs Act (CA), 1962, then the aggrieved person may appeal before Commissioner (Appeal) under section 128(1) of the Customs Act (CA), 1962. Commissioner (Appeal) may confirm, modify or annul order under section 122A of the said act. Such appeal should be made within days from the date of the communication to him of such decision or order. Further, the person aggrieved by the order of confiscation and penalty by the Commissioner (Appeal) under section 128(1) of the Customs Act (CA), 1962 may appeal before the Appellate Tribunal under section 129(1) of the Customs Act (CA), 1962. As per section 28-L of the Customs Act (CA), 1962, proceedings before Adjudicating Authority or Appellate Authority are of civil nature. Under Unlawful Activities (Prevention) Act [UAPA], 1967, when forfeiture order is passed by the Designated Authority under section 25(3) of the Unlawful Activities (Prevention) Act, 1967, then aggrieved person by such order may prefer an appeal in the court under section 25(6) of the Unlawful Activities (Prevention) Act, 1967. Such court may then confirm or revoke the forfeiture order. If the court confirms the order, then the court shall further order for forfeiture of the proceed of terrorism such as gold. Any person aggrieved by the order of the court may appeal under section 25(6) of the Unlawful Activities (Prevention) Act, 1967 in the High Court under section 28(1) of the Unlawful Activities (Prevention) Act, 1967. As per section 29 of the Unlawful Activities (Prevention) Act [UAPA], 1967 order of forfeiture shall not interfere with other punishment like punishment for gold smuggling under section 16(1)(a) of the Unlawful Activities (Prevention) Act, 1967. Under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976, if any aggrieved person from order of forfeiture, the such person may appeal under section 12(1)(a) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976 in the Appellate Tribunal that is constituted by the Central Government under section 12(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SFEMA), 1976.
  2. Appeal before High Court:
    Section 374(2) of the Code of Criminal Procedure, 1973 states that any person who is found guilty on a trial held by the Session Judge or Additional Session Judge or any other Magistrate and on such trial the court has passed sentence of imprisonment for more than seven years. Then, such a convicted person may appeal in the High Court.
  3. Petition before Supreme Court:
    A Special Leave Petition under Article 136 of the Constitution of India, 1950 can be made to the Supreme Court of India. Article 136 confers power to the Supreme Court to provide special leave for appeal from any decree, judgment, sentence, determination, or order in any matter or cause passed or made by any tribunal or Court in the territory of India.

Top Ten Landmark Criminal Cases on Gold Smuggling in India

  1. Bikramjit Singh v. State of Punjab [Cri. A. No. 667/ 2020]
    The Hon’ble Supreme Court observed that jurisdiction to try offences under the Unlawful Activities (Prevention) Act [UAPA], 1967 vests exclusively with Special Courts designated under section 11 or section 22 of the National Investigation Agency Act (NIA), 2008. In absence of designation of Special Courts under the NIA Act, it is only the Court of Session that can exercise jurisdiction in respect of offences under the Unlawful Activities (Prevention) Act [UAPA], 1967, including in regard to issues of bail/default bail. Furthermore, this is true regardless of whether NIA is carrying out the investigation or State Police.
  2. State of Maharashtra v. Surendra Pundlik Gadling [Cri. A. No. 335/ 2020]
    The Hon’ble Supreme Court has held that default bail under section 167 of the Code of Criminal Procedure, 1973 will not be granted based on the report of the Public Prosecutor. If the detailed report shows prima facie evidence of the commission of the offence and such custody extension request of the Public Prosecutor is supported by the Investigating Officer, then certainly constitute specific reasons for seeking an extension for the period of investigation, and satisfies requirements of section 43-D(2)(b) of the Unlawful Activities (Prevention) Act [UAPA], 1967.
  3. Continental Carbon (India) Ltd. v. Union of India [C. A. No. 10823/ 1967]
    The Hon’ble Supreme Court has held that Demurrage/storage charges, held, not payable for goods wrongly/improperly detained/seized by Customs Authorities. When the question of whether detention/seizure of goods is wrong/improper is pending adjudication, if the finding is in favour of the assesse, no demurrage/storage charges would be payable until the date on which such finding is rendered.
  4. Directorate of Enforcement v. Deepak Mahajan [Cri. A. No. 537/ 1990]
    The Hon’ble Supreme Court has held that “Accused” under section 167 of the Code of Criminal Procedure (Cr. P. C,), 1973 covers a person arrested under Section 104 of the Customs Act (CA), 1962. Magistrate has jurisdiction to authorise the detention of a person arrested under Section 104(1) of the Customs Act (CA), 1962 under Section 104(2) serves as a substitute to Section 167 (1) of the Code of Criminal Procedure (Cr. P. C.), 1973.
  5. IVRCL Infrastructure & Projects Ltd. v. Commissioner of Customs [C. A. No. 5282/2014]
    The Hon’ble Supreme Court has held that statements made to an officer of Customs under Section 108 of the Customs Act (CA), 1962 are admissible in evidence. Court has merely to scrutinise whether the admissions made were voluntary or otherwise.
  6. Mahender Kumar Kundia v. Union of India [C. A. No. 5282/2004]
    The Hon’ble Supreme Court has allowed the advocate for petitioner permitted to sit during the interrogation of the accused at a visible distance but beyond audibility.
  7. Narendra Pratap v. Asstt. Commissioner [Cri. Rev. No. 545/ 1978]
    The Hon’ble Calcutta High Court has held that the ingredients of the offence under Section 135(1)(b)(ii) are (i) that the goods are smuggled as they have been brought to India in contravention of Section 111 and (ii) that accused knew or had reason to believe that the goods were of that character did any of the acts specified in subsection (1)(b) of Section 135.
  8. State v. Mohd. Yakub [Cri. A. No. 335/ 1974]
    The Hon’ble Supreme Court has held that the expression “attempt” within the meaning of Section 135 of the Customs Act (CA), 1962 is wide enough to take in its fold any one or series of acts that are committed beyond the stage of preparation like moving the contraband goods deliberately to the place of embarkation. Though such act or acts being reasonably proximate but still they were done for the completion of the unlawful export.
  9. Jethanand v. Union of India 1979 [Cri. A. No. 8559/ 1979]
    The Hon’ble Calcutta High Court has held that the proper officer is not empowered to re-seize the goods after their return to the person who was in possession of those goods.
  10. CIT v. Piara Singh [C. A. No. 1597/ 1967]
    The Hon’ble Supreme Court has held that income generated from smuggling shall be taxed. In this case, a person bought gold in Pakistan and smuggled it into India and then he sold it at a profit. Hence, the income made by the person through gold smuggling will be taxed.

Gold Smuggling laws i.e., Custom Act (CA), 1960, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPSA), 1974 and the Unlawful Activities (Prevention) Act [UAPA], 1967 are sufficient to eradicate the practice of Gold Smuggling. But the main problem lies in the implementation of such laws. Enforcement agencies have to focus more on its implementation and judicial bodies should try to complete the trial earlier or in a short time because improper implementation and delay in completion of the trial will render such laws less effective.
Authored By: Adv. Anant Sharma & Satwik Sharma

No Comments

Leave a Comment