Case Note & Summary
The Assistant Commissioner of Customs, Marine and Preventive Wing, Bombay appealed against the judgment and order dated 11th October, 1999 passed by the Additional Collector of Customs, 8th Court, Esplanade, Mumbai in C.C. No. 15/CW/88 whereby the accused nos. 1 and 3 were acquitted of the offences punishable under Section 135(1)(a) and 135(1)(b) of the Customs Act, 1962 and Section 5 of the Imports Exports (Control) Act, 1947 read with Sections 34 and 120-B of the Indian Penal Code. The case of original accused no.2 was separated. The appeal abated against respondent no.2 (original accused no.3) as per order dated 9th October, 2015. The complainant's case was that accused no.1 imported goods of foreign origin at the instance of accused no.2 under the Transfer of Residence (T & R) facility. The goods landed in India but no one came forward to claim them. During investigation in another case, officers located two containers which had come on the ship Lakoti Express Voy No.25E. One container contained seven packages with marking "MAPARI BOMBAY" booked at Dubai in the name of accused nos.1 and 2. The goods included electrical items like Refrigerator, Air-Conditioner etc., which the complainant alleged were brand new. The trial court acquitted the accused. The High Court considered the appeal and found that the prosecution failed to prove that the goods were not used personal effects and that the accused had any fraudulent intent. The court noted that the Transfer of Residence facility allows import of used personal effects, and the prosecution did not adduce sufficient evidence to show the goods were brand new or that the accused intended to evade duty. The court also observed that the accused had not claimed the goods, which could indicate abandonment rather than fraud. The High Court dismissed the appeal, upholding the acquittal.
Headnote
A) Customs Law - Acquittal - Section 135 Customs Act, 1962 - Transfer of Residence Facility - The prosecution appealed against acquittal of accused for importing brand new goods under Transfer of Residence facility. The court held that the prosecution failed to prove that the goods were not used personal effects and that the accused had fraudulent intent. The acquittal was upheld as the evidence did not establish the essential ingredients of the offence. (Paras 1-9)
Issue of Consideration
Whether the acquittal of the accused for offences under Section 135(1)(a) and 135(1)(b) of the Customs Act, 1962 and Section 5 of the Imports Exports (Control) Act, 1947 read with Sections 34 and 120-B of the Indian Penal Code was correct.
Final Decision
The High Court dismissed the appeal and upheld the acquittal of the accused.
Law Points
- Burden of proof on prosecution to establish goods were not used personal effects
- Transfer of Residence facility
- Section 135 Customs Act
- 1962
- Section 5 Imports Exports (Control) Act
- 1947
- Sections 34 and 120-B IPC
