Customs - Acts 1962, Chapter-XVI, Offences and Prosecutions.
CHAPTER XVI - OFFENCES AND PROSECUTIONS
132. False declaration, false documents, etc.
133. Obstruction of officer of customs
134. Refusal to be X-rayed
135. Evasion of duty or prohibitions
135A. Preparation
135B. Power of court to publish name, place of business, etc., of persons
convicted under the Act.
136. Offences by officers of customs.
137. Cognizance of offences. -
138. Offences to be tried summarily.
138A. Presumption of culpable mental state.
138B. Relevancy of statements under certain circumstances.
138C. Admissibility of mirco films, facsimile copies of documents and computer
print outs as documents and as evidence
139. Presumption as to documents in certain cases.
140. Offences by companies. -
140A. Application of section 562 of the Code of Criminal Procedure, 1898, and of
the Probation of Offenders Act, 1958
CHAPTER XVI - OFFENCES AND PROSECUTIONS
- False declaration, false documents, etc.
- Whoever
makes, signs or uses, or causes to be made, signed or used, any declaration,
statement or document in the transaction of any business relating to the
customs, knowing or having reason to believe that such declaration,
statement or document is false in any material particular, shall be
punishable with imprisonment for a term which may extend to six months, or
with fine, or with both.
- Obstruction of officer of customs. - If any person
intentionally obstructs any officer of customs in the exercise of any powers
conferred under this Act, such person shall be punishable with imprisonment
for a term which may extend to six months, or with fine, or with both.
- Refusal to be X-rayed. - If any person -
- resists or refuses to allow a radiologist to screen or to take X-ray
picture of his body in accordance with an order made by a Magistrate
under section 103, or
- resists or refuses to allow suitable action being taken on the
advice and under the supervision of a registered medical practitioner
for bringing out goods liable to confiscation secreted inside his body,
as provided in section 103,
he shall be punishable with imprisonment for a term which may extend to
six months, or with fine, or with both.
- Evasion of duty or prohibitions. -
- Without prejudice to any action that may be taken under this Act, if
any person -
- is in relation to any goods in any way knowingly concerned in
mis-declaration of value or 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 such goods, or
- acquires possession of 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 111or section 113, as the case may be, or
he 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:
Provided that in the absence of special and adequate reasons to
the contrary to be recorded in the judgment of the court, such
imprisonment shall not be for less than three years;
- in any other case, with imprisonment for a term which may
extend to three years, or with fine, or with both.
- attempts to export any goods which he knows or has reason to
believe are liable to confiscation under section 113,
- If any person convicted of an offence under this section or under
sub-section (1) of section 136 is again convicted of an offence under
this section, then, he shall be punishable for the second and for every
subsequent offence with imprisonment for a term which may extend to
seven years and with fine :
Provided that in the absence of special and adequate reasons to the
contrary to be recorded in the judgment of the court such imprisonment
shall not be for less than one year.
- For the purposes of sub-sections (1) and (2), the following shall
not be considered as special and adequate reasons for awarding a
sentence of imprisonment for a term of less than one year, namely:-
- the fact that the accused has been convicted for the first time
for an offence under this Act;
- the fact that in any proceeding under this Act, other than a
prosecution, the accused has been ordered to pay a penalty or the
goods which are the subject matter of such proceedings have been
ordered to be confiscated or any other action has been taken against
him for the same act which constitutes the offence;
- the fact that the accused was not the principal offender and was
acting merely as a carrier of goods or otherwise was a secondary
party to the commission of the offence;
- the age of the accused.
135A. Preparation. - If a person makes
preparation to export any goods in contravention of the provisions of this Act,
and from the circumstances of the case it may be reasonably inferred that if not
prevented by circumstances independent of his will, he is determined to carry
out his intention to commit the offence, he shall be punishable with
imprisonment for a term which may extend to three years, or with fine, or with
both.
135B. Power of court to publish name, place of
business, etc., of persons convicted under the Act. -
- Where any person is convicted under this Act for contravention of any of
the provisions thereof, it shall be competent for the court convicting the
person to cause the name and place of business or residence of such person,
nature of the contravention, the fact that the person has been so convicted
and such other particulars as the court may consider to be appropriate in
the circumstances of the case, to be published at the expense of such person
in such newspapers or in such manner as the court may direct.
- No publication under sub-section (1) shall be made until the period for
preferring an appeal against the orders of the court has expired without any
appeal having been preferred, or such an appeal, having been preferred, has
been disposed of.
- The expenses of any publication under sub-section (1) shall be
recoverable from the convicted person as if it were a fine imposed by the
court.
- Offences by officers of customs. -
- If any officer of customs enters into or acquiesces in any agreement
to do, abstains from doing, permits, conceals or connives at any act or
thing whereby any fraudulent export is effected or any duty of customs
leviable on any goods, or any prohibition for the time being in force
under this Act or any other law for the time being in force with respect
to any goods is or may be evaded, he shall be punishable with
imprisonment for a term which may extend to three years, or with fine,
or with both.
- If any officer of customs, -
- requires any person to be searched for goods liable to
confiscation or any document relating thereto, without having reason
to believe that he has such goods or document secreted about his
person; or
- arrests any person without having reason to believe that he has
been guilty of an offence punishable under section 135; or
- searches or authorises any other officer of customs to search
any place without having reason to believe that any goods, documents
or things of the nature referred to in section 105 are secreted in
that place,
he shall be punishable with imprisonment for a term which may extend
to six months, or with fine which may extend to one thousand rupees,
or with both.
- If any officer of customs, except in the discharge in good faith
of his duty as such officer or in compliance with any requisition
made under any law for the time being in force, discloses any
particulars learnt by him in his official capacity in respect of any
goods, he shall be punishable with imprisonment for a term which may
extend to six months, or with fine which may extend to one thousand
rupees, or with both.
- Cognizance of offences. -
- No court shall take cognizance of any offence under section 132,
section 133, section 134 or section 135, except with the previous
sanction of the Commissioner of Customs.
- No court shall take cognizance of any offence under section 136, -
- where the offence is alleged to have been committed by an
officer of customs not lower in rank than Assistant Commissioner of
Customs, except with the previous sanction of the Central
Government;
- where the "offence is alleged to have been committed by an
officer of customs lower in rank than Assistant Commissioner of
Customs except with the previous sanction of the Commissioner of
Customs.
- Any offence under this Chapter may, either before or after the
institution of prosecution, be compounded by the Chief Commissioner of
Customs on payment, by the person accused of the offence to the Central
Government, of such compounding amount as may be specified by rules.
- Offences to be tried summarily.- Notwithstanding
anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an
offence under this Chapter other than an offence punishable under clause (i)
of sub-section (1) of section 135 or under sub-section (2) of that section
may be tried summarily by a Magistrate.
138A. Presumption of culpable mental state.
-
- In any prosecution for an offence under this Act which requires a
culpable mental state on the part of the accused, the court shall presume
the existence of such mental state but it shall be a defence for the accused
to prove the fact that he had no such mental state with respect to the act
charged as an offence in that prosecution.
Explanation. - In this section, "culpable mental state" includes intention,
motive, knowledge of a fact and belief in, or reason to believe, a fact.
- For the purposes of this section, a fact is said to be proved only when
the court believes it to exist beyond reasonable doubt and not merely when
its existence is established by a preponderance of probability.
138B. Relevancy of statements under certain
circumstances. -
- A statement made and signed by a person before any gazetted officer of
customs during the course of any inquiry or proceeding under this Act shall
be relevant, for the purpose of proving, in any prosecution for an offence
under this Act, the truth of the facts which it contains, -
- when the person who made the statement is dead or cannot be found,
or is incapable of giving evidence, or is kept out of the way by the
adverse party, or whose presence cannot be obtained without an amount of
delay or expense which, under the circumstances of the case, the court
considers unreasonable; or
- when the person who made the statement is examined as a witness in
the case before the court and the court is of opinion that, having
regard to the circumstances of the case, the statement should be
admitted in evidence in the interests of justice.
- The provisions of sub-section (1) shall, so far as maybe, apply in
relation to any proceeding under this Act, other than a proceeding before a
court, as they apply in relation to a proceeding before a court.
138C. Admissibility of mirco films, facsimile
copies of documents and computer print outs as documents and as evidence.
-
- Notwithstanding anything contained in any other law for the time being
in force, -
- a micro film of a document or the reproduction of the image or
images embodied in such micro film (whether enlarged or not); or
- a facsimile copy of a document; or
- a statement contained in a document and included in a printed
material produced by a computer (hereinafter referred to as a "computer
print out"), if the conditions mentioned in sub-section (2) and the
other provisions contained in this section are satisfied in relation to
the statement and the computer in question,
shall be deemed to be also a document for the purposes of this Act and
the rules made thereunder and shall be admissible in any proceedings
thereunder, without further proof or production of the original, as
evidence of any contents of the original or of any fact stated therein
of which direct evidence would be admissible.
- The conditions referred to in sub-section (1) in respect of a computer
print out shall be the following, namely :-
- the computer print out containing the statement was produced by the
computer during the period over which the computer was used regularly to
store or process information for the purposes of any activities
regularly carried on over that period by the person having lawful
control over the use of the computer;
- during the said period, there was regularly supplied to the computer
in the ordinary course of the said activities, information of the kind
contained in the statement or of the kind from which the information so
contained is derived;
- throughout the material part of the said period, the computer was
operating properly or, if not, then any respect in which it was not
operating properly or was out of operation during that part of that
period was not such as to affect the production of the document or the
accuracy of the contents, and
- the information contained in the statement reproduces or is derived
from information supplied to the computer in the ordinary course of the
said activities.
- Where over any period, the function of storing or processing information
for the purposes of any activities regularly carried on over that period as
mentioned in clause (a) of sub-section (2) was regularly performed by
computers, whether -
- by a combination of computers operating over that period; or
- by different computers operating in succession over that period; or
- by different combinations of computers operating in succession over
that period; or
- in any other manner involving the successive operation over that
period, in whatever order, of one or more computers and one or more
combinations of computers,
all the computers used for that purpose during that period shall be
treated for the purposes of this section as constituting a single
computer; and references in this section to a computer shall be
construed accordingly.
- In any proceedings under this Act and the rules made thereunder where it
is desired to give a statement in evidence by virtue of this section, a
certificate doing any of the following things, that is to say, -
- identifying the document containing the statement and describing the
manner in which it was produced;
- giving such particulars of any device involved in the production of
that document as may be appropriate for the purpose of showing that the
document was produced by a computer;
- dealing with any of the matters to which the conditions mentioned in
sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official
position in relation to the operation of the relevant device or the
management of the relevant activities (whichever is appropriate) shall
be evidence of any matter stated in the certificate; and for the
purposes of this sub-section it shall be sufficient for a matter to be
stated to the best of the knowledge and belief of the person stating it.
- For the purposes of this section, -
- information shall be taken to be supplied to a computer if it is
supplied thereto in any appropriate form and whether it is so supplied
directly or (with or without human intervention) by means of any
appropriate equipment;
- whether in the course of activities carried on by any official,
information is supplied with a view to its being stored or processed for
the purposes of those activities by a computer operated otherwise than
in the course of those activities, that information, if duly supplied to
that computer, shall be taken to be supplied to it in the course of
those activities;
- a document shall be taken to have been produced by a computer
whether it was produced by it directly or (with or without human
intervention) by means of any appropriate equipment.
Explanation. - For the purposes of this section, -
- "computer" means any device that receives, stores and processes
data, applying stipulated processes to the information and supplying
results of these processes; and
- any reference to information being derived from other
information shall be a reference to its being derived therefrom by
calculation, comparison or any other process.
- Presumption as to documents in certain cases.
- Where
any document -
- is produced by any person or has been seized from the custody or
control of any person, in either case under this Act or under any other
law, or
- has been received from any place outside India in the course of
investigation of any offence alleged to have been committed by any
person under this Act,
and such document is tendered by the prosecution in evidence against him
or against him and any other person who is tried jointly with him, the
court shall -
- presume, unless the contrary is proved, that the signature and
every other part of such document which purports to be in the
handwriting of any particular person or which the court may
reasonably assume to have been signed by, or to be in the
handwriting of, any particular person, is in that person's
handwriting, and in the case of a document executed or attested,
that it was executed or attested by the person by whom it purports
to have been so executed or attested;
- admit the document in evidence, notwithstanding that it is not
duly stamped, if such document is otherwise admissible in evidence;
- in a case falling under clause (i) also presume, unless the
contrary is proved, the truth of the contents of such document.
Explanation. - For the purposes of this section, "document" includes
inventories, photographs and lists certified by a Magistrate under
sub-section (1C) of section 110.
- Offences by companies.
-
- If the person committing an offence under this Chapter is a company,
every person who, at the time the offence was committed was in charge
of, and was responsible to, the company for the conduct of business of
the company, as well as the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished
accordingly :
Provided that nothing contained in this sub-section shall render any
such person liable to such punishment provided in this Chapter if he
proves that the offence was committed without his knowledge or that he
exercised all due diligence to prevent the commission of such offence.
- Notwithstanding anything contained in sub-section (1), where an
offence under this Chapter has been committed by a company and it is
proved that the offence has been committed with the consent or
connivance of, or is attributable to any negligence on the part of, any
director, manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be deemed to be
guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation. - For the purposes of this section, -
- "company" means a body corporate and includes a firm or other
association of individuals; and
- "director", in relation to a firm, means a partner in the firm.
140A Application of section 562 of the Code of
Criminal Procedure, 1898, and of the Probation of Offenders Act, 1958.
-
- Nothing contained in section 562 of the Code of Criminal Procedure, 1898
(5 of 1898), or in the Probation of Offenders Act, 1958 (20 of 1958), shall
apply to a person convicted of an offence under this Act unless that person
is under eighteen years of age.
- The provisions of sub-section (1) shall have effect notwithstanding
anything contained in sub-section (3) of section 135.