XXXX vs. Deputy Commissioner of Customs & Others
We were fortunate to deal with a unique criminal case before the Appellate Court seeking to set aside a conviction wherein the appellants were held liable for the import of a bio fertilizer which contained an element named Oxymatrine and the authority concluded it was an insecticide. They further proceeded with adjudicatory proceedings before the CESTAT claiming it to be a misdeclaration/classification of an insecticide and fraudulent evasion of duty without obtaining a registration under section 17 of the Insecticide Act,1992. While things stood thus they simultaneously granted sanction to criminal prosecution and initiated criminal proceedings.
In a peculiar string of circumstances, the trial Court acquitted the accused from the offence under the Insecticide Act,1968 but however held the accused guilty under the Customs Act while being held guilty of importing an insecticide and mis-declaring goods. The appellants were also accused of violation of the import policy under the Foreign Trade Act,1992. The trial was conducted at a rapid rate with grave lapse in procedures and the prosecution adopted a discretionary and arbitrary mode of trial.
The Hon’ble Appellate Court passed a detailed judgment setting aside the conviction and gave exhaustive findings recording each and every point for consideration which cannot be reduced to a short note. The focal points of importance are as follows:
- The provisions of the Indian Evidence Act, Criminal Procedure Code, Customs Act & Insecticide Act go hand in hand in a case of criminal prosecution for customs misdeclaration
- Prosecution should establish a case beyond reasonable doubt
- Physical evidence is the property of the Court and ought to be produced during a trial. In the absence of physical evidence, the object of a fair trial is defeated
- Procedure to draw samples of homogeneous substance has to be strictly complied with and the chain of custody of the samples have to be proved during trial
- A report of a private lab is not maintainable
- The author of a report has to depose during the trial
- Strict compliance of section 65-B of the Indian Evidence Act
- Sanction for prosecution under section 31 of the Insecticide Act mandatory
- For prosecution under the Customs Act, section 138-C has to be complied with in order to rely on documents establishing the accused to have admitted to the offence
- 10.Statements under section 108 of the Customs Act cannot be marked through any other officer for a proceeding under section 132 & 135(1)(a) of the Customs Act except by the deposing witness.
- 11.Outcome of an adjudicatory proceedings cannot be the foundation to fasten a conviction of an accused
- 12.Permissible limit of a substance as per law has to be established by the prosecution
- 13.In matters of forensic crimes, expert opinion is vital as per the Indian Evidence Act
- 14.Search warrants through which alleged incriminating evidence against the accused is recovered has to be produced before the trial Court.
