CRIMINAL OFFENCES UNDER CUSTOMS LAW
Persons who engage in smuggling or other illegal import/export practices, in violation of current prohibitions/restrictions, or with the goal to dodge tariffs or fraudulently claim export incentives, may face substantial penalties under the Customs Act. The products in question may be seized, and hefty fines and penalties may be levied. There are also procedures for arrests and prosecution to deter them from smuggling and business frauds, which have major economic and social consequences when it comes to sensitive products like drugs, guns, and ammunition.
Apart from penal action in departmental adjudication, the Customs Act provides for criminal prosecution action to effectively combat the threat of economic violations, including commercial frauds. The individuals involved may face criminal charges in a court of law. Providing fake documents to Customs and actively impeding Customs officials’ operations may also result in prosecution. A customs officer authorized in this capacity can arrest any individual guilty of a serious offence under the Customs Act, which is punishable under section 135 of the same Act. The individual who is being arrested has a legal right to be notified of the legal basis for their arrest. The said section also enjoys the right that provides that every person arrested under the Act has to be taken without unnecessary delay to the nearest Magistrate. As the Customs Act makes no provision for how a person detained should be dealt with by a Magistrate, the provisions of the Criminal Procedure Code that govern this element would apply to anyone arrested under the Customs Act. Section 165 of the Cr.P.C. gives the Magistrate the authority to remand someone to judicial custody.
The offences under the Customs Act can be broadly categorised in two categories – non-bailable or cognizable offences & bailable or non-cognizable offences;
Non-bailable or cognizable offences
If any person is knowingly involved in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to any goods, or acquires possession of such goods or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be punishable, in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine.
If any person convicted of an offence under Section 135(1) or Section 136 (1) (applicable to customs officers) of the Act is convicted of a second or subsequent offence under the same sections, he shall be punished for the second and each subsequent offence with imprisonment for a term that may extend to seven years and a fine.
Bailable or non-cognizable offences
This category includes offences punishable by imprisonment for a term of less than three years or only a fine. This category includes the following offences:
- If a person makes, signs, or uses, or causes to be made, signed, or used, any declaration, statement, or document in the course of any business relating to customs, knowing or having reason to believe that such declaration, statement, or document is false in any material particular, he is punishable by imprisonment for a term up to six months, or by fine, or by both under section 132 of the act.
- Any person who obstructs a customs officer in the exercise of any powers provided under this Act is punishable by imprisonment for a term up to six months, a fine, or both (section 133).
- Any person who resists or refuses to allow a radiologist to screen or take an X-ray picture of his body in accordance with a Magistrate’s order under section 103, or resists or refuses to allow suitable action to be taken on the advice and supervision of a registered medical practitioner for bringing out goods liable to confiscation secreted inside his body shall be punished.
- All offences under the Customs Act, excluding those listed under the heading “non-bailable or cognisable offences,” are punishable by imprisonment for up to three years, a fine, or both. In the absence of unique and sufficient reasons to be documented in the court’s verdict, however, such detention shall not be for less than one year under section 135(1).
- If a person makes preparations to export any goods in violation of the provisions of this Act, and it can be reasonably inferred from the circumstances of the case that, unless prevented by circumstances beyond his control, he is determined to carry out his intention to commit the offence, he shall be punished with imprisonment for a term up to three years or a fine or both under section 135A.
If Customs officials are detected abusing their powers or colluding/conniving with tax evaders, they will face harsh consequences, including criminal prosecution. Prosecution against a customs officer may be brought under section 136 of the Customs Act in the following circumstances:-
- A customs officer who connives in the act or thing by which any duty of customs levied on any goods is or may be evaded, or any prohibition for the time being in force under this Act or any other law for the time being with respect to any goods is or may be evaded, shall be punished by imprisonment for a term that may extend to three years, or by fine, or both.
- A customs officer may be punished with imprisonment for a term of up to six months, or a fine of up to one thousand rupees, or both, in cases of vexatious search, i.e. when any person is searched for goods subject to confiscation or any document related thereto without having reason to believe that he has such goods or document hidden about his person.
- If a customs officer arrests a person without having reasonable grounds to think that he has committed an offence punishable under section 135, he may be punished by imprisonment for up to six months, a fine of up to one thousand rupees, or both.
- If a customs officer searches or authorizes another customs officer to search any place without having reasonable grounds to believe that any goods, documents, or things of the nature described in section 105 are hidden there, he may be punished by imprisonment for up to six months, a fine of up to one thousand rupees, or both.