Offences and Penal Provisions, Customs Manual of India 2023 explains
Indian Customs Manual 2023 under chapter 30 updated till 31st December 2022 explains in details about Offences and Penal Provisions in India.
The Offences and Penal Provisions guidelines and rules in India is explained broadly as Seizure of offending goods, Confiscation of seized goods, Confiscation of conveyances and packages etc, Penalties in respect of improper importation of goods, Penalties in respect of improper exportation of goods, Mandatory penalty in certain cases, Other penalties, Adjudication of confiscations and penalties, Arrest, Punishment for Customs offences, Offences by Customs officers, Presumption of culpable mental state, Cognizability and Bailability, Prosecution, Issue of Summons and Compounding of Offences.
The following doubts about Offences and Penal Provisions in India are also clarified under this extract from Indian Customs Manual 2023:
How does Customs department in India handle offending goods?
What are the confiscation process in India?
Process of imposing fine to confiscated goods in India
In India, what are the procedures and amount of fine charged to persons on Narcotics,l FICN, Arms and ammunitions?
How does Indian customs impose penalty and other punishment under smuggling cases in India?
What is the process undertaken by India on Seizure of offending goods
How do Customs in India handle Confiscation of seized goods? What are the adjudicating procedures in India under confiscation of seized goods?
Indian customs rules on treating goods with smuggled goods
What are the customs rules and regulations on confiscation of goods and confiscation of conveyance in India?
Penalties in respect of improper importation of goods under Indian Customs Manual 2023
India Customs rules and regulations on Penalties in respect of improper exportation of goods
Mandatory penalty charged by Indian customs on default of payment of additional duty, interest on import duty and other such dues to government.
Customs rules in India on penalties against persons knowingly or intentionally makes, signs or uses, or causes to be made, signed or used.
Indian customs rules on Adjudication of confiscations and penalties
Arresting rules, guidelines and procedures of Customs Department in India.
Punishment for Customs offences, Indian customs rules and regulations
Offences by Customs officers, Rules of Indian customs 2023
The rules and guidelines by Indian customs on Presumption of culpable mental state
Rules on Cognizability and Bailability in India under Customs Manual 2023
Prosecution process of Indian customs as per Customs Manual 2023
Process and rules on Issue of Summons from Customs Department of India, Customs manual 2023
Compounding of Offences, Customs Manual 2023 guidelines
Seizure of offending goods
Confiscation of seized goods
Confiscation of conveyances/packages etc.
Penalties in respect of improper importation of goods
Penalties in respect of improper exportation of goods
Mandatory penalty in certain cases
Other penalties
Adjudication of confiscations and penalties
Arrest
Punishment for Customs offences
Offences by Customs officers
Presumption of culpable mental state
Cognizability and Bailability
Prosecution
Issue of Summons
Compounding of Offences
The details of Chapter 30 of Indian Customs Manual about offences and Penal Provisions in India is extracted below from Indian Customs Manual 2023 updated till 31.12.2022:
Chapter 30: Offences and Penal Provisions
1. Introduction:
1.1 Persons involved in import or export activity in violation of prohibitions or restrictions in vogue or
with the intent to evade duties or fraudulently claim export incentives are liable for strict penal
action under the Customs Act, 1962. The offending goods can be confiscated and heavy fines and
penalties imposed on the persons concerned. In fact, sensitive goods like narcotics, FICN, arms
and ammunitions, etc. are absolutely confiscated. There are also provisions for arrests and
prosecution to deter smuggling or commercial fraud, which seriously affects the economic security.
1.2 In the context of penal provisions under the Customs Act, 1962 the term “smuggling” has vast
connotations and means “any act or omission which will render such goods liable for confiscation
under Sections 111 or 113 of the said Act”.
1.3 In general terms, the word “penalty” means punishment under the law, i.e., such punishment as is
provided in penal laws. It also means the sum payable as a punishment for a default. The Customs
Act, 1962 contains specific provisions for imposition of penalty in case of contraventions of the
legal stipulations.
2. Seizure of offending goods:
2.1 In terms of Section 110 of the Customs Act, 1962 an officer of Customs can seize any goods, if he
has reason to believe that the goods are liable to confiscation under the said Act. If it is not
practicable to seize any such goods, the proper officer may serve on the owner of the goods an
order that he shall not remove, part with, or otherwise deal with the goods except with the previous
permission of such officer. The proper officer may also seize any documents or things which, in his
opinion, will be useful for, or relevant to, any proceeding under the said Act. The person from whose
custody any documents are seized shall be entitled to make copies thereof or take extracts there
from in the presence of an officer of customs.
2.2 The person from whom the goods are seized is issued Show Cause Notice, usually within 6 months,
otherwise the goods shall be returned to the person from whose possession they were seized.
However, Principal Commissioner of Customs or Commissioner of Customs may, for reasons to
be recorded in writing, extend the time period to further period, for issue of Show Cause Notice, for
a period not exceeding 6 months and inform the person from whom such goods were seized before
the expiry of the period so specified. Further, where any order for provisional release of the seized
goods has been passed under section 110A, the specified period of six months shall not apply.
Further, Section 110 of Customs Act, also provides for the proper officer may seize any documents
or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act.
However, the person from whose custody any documents are seized shall be entitled to make
copies hereof or take extracts there from in the presence of an officer of customs.
2.3 In case the seized goods are perishable or hazardous in nature or prone to depreciate in value
over time or for reasons of constraints in space, or for any other relevant consideration, the Central
Government can specify the goods or class of goods by notification of such goods which shall as
soon as be after seizure be disposed by the proper officer before the conclusion of the proceedings
in such manner as determined by the Central Government after following the procedure specified.
3. Confiscation of seized goods:
3.1 The word “confiscation” implies appropriation consequential to seizure. The essence and the
concept of confiscation is that after confiscation, the property of the confiscated goods vests with
the Central government.
3.2 The adjudicating authority makes the decision regarding confiscation of goods. The
specific/different categories of violations under which the import or export goods are liable to
confiscation, are enumerated in Section 111 and 113 of the Customs Act. In general, any goods
imported which are unloaded or attempted to be unloaded at any place other than appointed under
clause (a) of section 7 for the unloading of such goods; or any goods imported through any routes
other than notified under clause (c) of Section 7 of the Customs Act, 1962; also the goods which
are imported or attempted to be imported or brought into Indian customs waters, contrary to any
prohibition imposed by or under Customs Act, 1962 or any other law for the time being in force;
also any dutiable or prohibited goods attempted to be cleared by way of concealment, undeclared
in arrival manifest or import manifest, mis-declaration in quantity, description or value etc., are liable
to be confiscated. The imported or export goods are also liable to confiscation if there is an intention
to evade Customs duty or to fraudulently avail the exemption / benefits available subject to any
condition or under various export promotion schemes, such as Drawback, EOU etc. Also liable to
confiscation are goods entered for exportation which does not correspond in respect of value or in
any material particular with the entry made or in the case of baggage with the declarations made
under Section 77 of the Customs Act, 1962.
3.3 Smuggled goods may be confiscated even if its form has been changed. In case the smuggled
goods are mixed with other goods in such manner that the smuggled goods cannot be separated
from such other goods, then the whole of goods are liable to be confiscated as per Section 120 of
the Customs Act, 1962.
4. Confiscation of conveyances/packages etc.:
4.1 In addition to confiscation of goods, the conveyances, i.e., any vessel or any aircraft which is or
has been within Indian customs waters / in India or any vehicle, which is or has been in a customs
area, while constructed, adapted, altered or fitted in any manner for the purpose of concealing
goods shall be liable to confiscation; also any conveyance or animal used, as a means of transport/
or in the carriage, in the smuggling of any goods shall be liable to confiscation; also any
conveyance from which any warehouse goods cleared for exportation, or any other goods cleared
for exportation under a claim for drawback, are unloaded, without the permission of the proper
officer are liable to confiscation as per Section 115 of the Customs Act, 1962.
4.2 As per Section 118 of the Customs Act, 1962, in case where any goods imported in a package are
liable to confiscation, the package and any other goods imported in that package shall also be liable
to confiscation. Also in case where any goods are brought in a package within the limits of customs
area for the purpose of exportation and are liable to confiscation, the package and any other goods
contained therein shall also be liable to confiscation.
4.3 The goods used for concealing smuggled goods are liable to confiscation as per Section 119 of the
Customs Act, 1962. [in this section “goods” do not include a conveyance used as a means of
transport.]
4.4 Where any smuggled goods are sold by a person having knowledge or reason to believe that the
goods are smuggled goods, the sale proceeds thereof shall be liable to confiscation as per Section
121 of the Customs Act, 1962.
5. Penalties in respect of improper importation of goods:
5.1 In terms of Section 112 of the Customs Act, 1962 any person, who, in relation to any goods, does
or omits to do any act which act or omission would renders such goods liable to confiscation under
Section 111 or abets the doing or omission of such an act, 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 111, shall be liable to penalties as follows:-
(i) In the case of goods in respect of which any prohibition is in force under the Customs Act,
1962 or any other law for the time being in force, to a penalty not exceeding the value of the
goods or Rs.5,000/-, whichever is the greater;
(ii) In the case of dutiable goods, other than prohibited goods, subject to the provisions of
section 114A, to a penalty not exceeding ten percent (10%) of the duty sought to be evaded
or Rs.5,000/-, whichever is higher; provided that where such duty as determined under subsection (8) of section 28 and the interest payable thereon under section 28AA is paid within
30 days from the date of communication of the order, the amount of penalty liable to be paid
by such person under this section shall be 25% of the penalty so determined.
(iii)In the case of goods in respect of which the value declared is higher than the value
thereof, to a penalty not exceeding the difference between the declared value and the value
thereof or Rs.5, 000/-, whichever is the greater;
(iv)In the case of goods falling both under (i) and (iii) above, i.e. goods in respect of which
any prohibition is in force and the value stated / declared is higher than the value thereof, to
a penalty not exceeding the value of the goods or the difference between the declared value
and the value thereof or Rs.5,000/-, whichever is the highest; and
(v) In the case of goods falling both under clauses (ii) and (iii) above, to a penalty not
exceeding the duty sought to be evaded on such goods or the difference between the
declared value and the value thereof or Rs.5,000/-, whichever is the highest.
6. Penalties in respect of improper exportation of goods:
6.1 In terms of Section 114 of the Customs act, 1962 any person, who, in relation to any goods, does
or omits to do any act which act or omission would render such goods liable to confiscation under
Section 113, or abets the doing or omission of such an act, shall be liable to penalties as follows:
(i) In the case of goods in respect of which any prohibition is in force under Customs Act,
1962 or any other law for the time being in force, to a penalty not exceeding three times the
value of the goods as declared by the exporter or the value as determined under the Customs
Act, 1962, whichever is the greater;
(ii) In the case of dutiable goods, other than prohibited goods, to a penalty not exceeding ten
percent (10%) of the duty sought to be evaded on such goods or Rs.5,000/-, whichever is
higher; PROVIDED that where such duty as determined under sub-section (8) of section 28
and the interest payable thereon under section 28AA is paid within 30 days from the date of
communication of the order, the amount of penalty liable to be paid by such person under
this section shall be 25% of the penalty so determined.
(iii)In the case of any other goods, to a penalty not exceeding the value of the goods, as
declared by the exporter or the value as determined under the Customs Act, 1962, whichever
is the greater.
7. Mandatory penalty in certain cases:
7.1 Section 114A of the Customs Act, 1962 deals with imposition of mandatory penalty in certain cases.
Thus, in cases where the duty has not been levied or has been short levied or the interest has not
been charged or paid or has been part paid or the duty or interest has been erroneously refunded
by reason of collusion or any willful misstatement or suppression of facts, the person who is liable
to pay the duty or interest, as the case may be, as determined under Section 28(8) of the Customs
Act, 1962 shall also be liable to pay a penalty equal to the duty or interest so determined. If such
duty or interest, as the case may be, as determined under sub-section (8) of section 28 and the
interest payable thereon under section 28AA is paid within 30 days from the date of communication
of the order, the amount of penalty liable to be paid by such person under this section shall be 25%
of the duty or interest, as the case may be, so determined. Further if the benefit of reduced penalty
under the first proviso shall be available subject to the condition that the amount of penalty so
determined has also been paid within the period of thirty days referred to in that proviso.
7.2 If the duty or interest determined to be payable is reduced or increased by the Commissioner
(Appeals), the Appellate tribunal or, as the case may be, the Court, then for the purpose of this
section, the duty or interest as reduced or increased, as the case may be, shall be taken into
account. The duty or interest determined to be payable is increased by the Commissioner
(Appeals), the Appellate tribunal or, as the case may be, the Court, then, the benefit of reduced
penalty shall be available under the first proviso shall be available if the amount of the duty or the
interest so increased, along with the interest payable thereon, and 25% of the consequential
increase in penalty have also been paid within 30 days of the communication of the order by which
such increase in the duty or interest takes effect. If penalty has been levied under section 114A, no
penalty shall be levied under Sections 112 or 114 of the said Act. Any amount paid to the credit of
the Central Government prior to the date of communication of the order referred to in the first
proviso or the fourth proviso shall be adjusted against the total amount due from such person.
8. Other penalties:
8.1 If a person knowingly or intentionally makes, signs or uses, or causes to be made, signed or used,
any declaration, statement or document which is false or incorrect in any material particular, in the
transaction of any business for the purposes of the Customs Act, 1962, then in terms of Section
114AA of the said act, such person shall be liable to a penalty not exceeding five times the value
of goods.
8.2 In terms of Section 116 of the Customs Act, 1962 if any goods loaded in a conveyance for
importation into India, or any goods transshipped under the provisions of the said
Act or coastal goods carried in a conveyance, are not unloaded at their place of destination in India,
or if the quantity unloaded is short of the quantity to be unloaded at that destination, and, if the
failure to unload or the deficiency is not accounted for to the satisfaction of the Assistant/Deputy
Commissioner of Customs, the person incharge of the conveyance shall be liable:
(i) In the case of goods loaded in a conveyance for importation into India or goods
transhipped under the provisions of the Customs Act, 1962 to a penalty not exceeding twice
the amount of duty that would have been chargeable on the goods not unloaded or the
deficient goods, as the case may be, had such goods been imported;
(ii) In the case of coastal goods, to a penalty not exceeding twice the amount of export duty
that would have been chargeable on the goods not unloaded or the deficient goods, as the
case may be, had such goods been exported.
8.3 Any person who contravenes any provision of the Customs Act, 1962 or abets any such
contravention or who fails to comply with any provision of this Act, with which it was his duty to
comply, where no express penalty is elsewhere provided for such contravention or failure, shall be
liable to a penalty not exceeding Rs.1 lakh.
9. Adjudication of confiscations and penalties:
9.1 The Customs Act, 1962 enjoins quasi-judicial proceedings to be followed before any penalties are
imposed and any confiscation action etc., initiated against any offending goods. Apart from issuing
Show Cause Notice under Section 124 of the said Act, the persons concerned are required to be
given opportunity of representation in writing and personal hearing in the matter. The notice and
the representation may be at the request of the person concerned be made oral. Besides issue of
notice under section 124, the proper officer may issue a supplementary notice under circumstances
or manner prescribed by the Board. The adjudication authority is then required to pass final order
taking due note of all evidence brought on record.
9.2 As per Section 122 of the Customs Act 1962, in every case, in which anything is liable to
confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged:-
(a) Without limit, by a Principal Commissioner of Customs or Commissioner of Customs or a
Joint Commissioner of Customs;
(b) up to such limit by such officers, as the Board may, by notification, specify.
Board Notification 50/2018- Customs (N.T.) dated 8th June, 2018 specified the limits as below Table 30.1.
Table 30.1: Limits for confiscation of goods for respective Customs Officers
Sl.
No. Customs Officer Value of goods liable for
confiscation
(1) Assistant Commissioner of Customs or
Deputy Commissioner of Customs
Above rupees one lakh but not
exceeding rupees ten lakhs
(2)
A Gazetted Officer of Customs lower in
rank than an Assistant Commissioner of
Customs or Deputy Commissioner of
Customs
Not exceeding rupees one lakh
9.3 Generally, ‘mens rea’ is not required to be proof for the imposition of penalty under the provisions
of the Customs Act. The amount of penalty depends on the gravity of the offence and is to act as
a deterrent for the future.
9.4 Section 125 of the Customs Act, 1962 provides for option to pay fine in lieu of confiscation. The
proviso to section 125 states that redemption fine shall not exceed the market price of the goods
confiscated. This is the maximum penalty which can be levied. As per section 126 of the Customs
Act, 1962 when any goods are confiscated, such goods shall thereupon vest in the Central
Government. The officer adjudging confiscation shall take and hold possession of the confiscated
goods. Whenever the confiscation of goods is authorized as per the sub-section (1) of section 125,
of the Customs Act, 1962, the adjudicating authority MAY in the case of any goods where the
importation or exportation is prohibited under this Act or under any other law for the time being in
force, and SHALL, in the case any other goods, give to the owner of the goods (or from whose
possession or custody such goods have been seized), an option to pay in lieu of confiscation such
fine as the said officer / authority thinks fit. If the proceedings are deemed to be concluded under
the proviso to sub-section (2) of section28 or under clause (i) of sub-section (6) of section 28 in
respect of the goods which are not prohibited or restricted, the provisions of this section
(redemption fine) shall not apply. Without prejudice to the provisions of the proviso to sub-section
(2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the
case of imported goods the duty chargeable thereon.
9.5 Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such
goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges
payable in respect of such goods.
9.6 As per sub-section (3) of section 125 of the Customs Act, 1962, where the fine imposed under subsection (1) is not paid within a period of 120 days from the date of option given thereunder, such
option shall become void, unless an appeal against such order is pending.
10. Arrest:
10.1 To effectively tackle the menace of smuggling and other serious economic offences including
commercial frauds, apart from penal action in Departmental adjudication, the Customs Act, 1962
provides for criminal prosecution in a Court of law. Prosecution action can also be taken for
providing false documents/declaration to the Customs and for obstructing Customs officers in their
work.
10.2 As provided under section 104(1), If an officer of customs empowered in this behalf by general or
special order of the Principal Commissioner of Customs or Commissioner of Customs has reason
to believe that any person in India or within the Indian customs waters has committed an offence
punishable under section 132 or section 133 or section 135 or section 135A or section 136, he may
arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. Also,
every arrested person arrested under sub-section (1) shall, has to be taken without unnecessary
delay to the nearest Magistrate. Further, the arrested person is to be dealt with by the Magistrate,
as per the provisions of the Code of Criminal Procedure, 1898. The power to remand an arrested
person to judicial custody vests in the Magistrate by virtue of Section 165 of the Cr.PC.
10.3 Though under Section 104 of the Customs Act, 1962 Principal Commissioner of Customs or
Commissioner of Customs are empowered to delegate to an officer of Customs by general or
special order, powers of arrest of persons guilty of offence punishable under Section 135 of the
said Act, extreme circumspection and care is to be exercised at senior level in exercising these
powers and ordering arrests. Arrest should be resorted to only in cases of sufficient grave nature.
10.4 Persons involved in Customs related offence cases who may be liable to prosecution should not
be arrested in routine unless exigencies of certain situations demand their immediate arrest. At
times, prior to prosecution, arrests (s) may be necessary to ensure proper investigations and penal
action against the persons (s), as otherwise the person involved in the offence may hamper
investigations or disappear from the scene/area such as in cases involving outright smuggling by
Sea/Air/Land route.
10.5 In all commercial fraud cases in relation to regular imports or exports, before arresting any
person(s) the Principal Commissioner of Customs or Commissioner of Customs concerned should
be approached by the Investigating Officer and the Principal Commissioner of Customs or
Commissioner of Customs should be personally satisfied that there are sufficient grounds
warranting arrest of the person(s). These grounds/reasons should also be recorded by the
concerned Principal Commissioner of Customs or Commissioner of Customs in writing on file
before the arrest is ordered and affected by the proper officer.
10.6 As far as possible, in other than commercial fraud cases warranting prosecution under Section 135
of the said Act, where arrest is considered necessary prior clearance and approval for arrest may
be taken from Principal Commissioner of Customs or Commissioner of Customs. However, there
could be situations, for example in outright smuggling cases in remote areas (and sometimes even
in town seizure or international passenger clearance offence cases) where it may not be
administratively possible to get prior permission of concerned Principal Commissioner of Customs
or Commissioner of Customs before effecting arrest. In such cases, the decision to arrest a person
in accordance with the guidelines - taking due note of the offence against the person which has
come to light in investigations carried out, should be taken at the minimum level of the concerned
Assistant Commissioner/Assistant Director recording the reasons in writing. Further, in such cases,
the concerned Assistant Commissioner/ Assistant Director or other higher officer (lower than
Principal Commissioner of Customs or Commissioner of Customs) who has ordered arrest, should
immediately after arrest furnish a report incorporating reasons for arrest, to the jurisdictional
Principal Commissioner of Customs or Commissioner of Customs and his satisfaction for the arrest
made should also be kept on record in writing.
10.7 The guidelines for arrest are summed up as follows:
i. Offences under the Customs Act, 1962 are either (i) bailable; or (ii) non-bailable. Since arrest
takes away the liberty of an individual, the power must be exercised with utmost care and caution
in cases where a Commissioner of Customs or Additional Director General has reason to believe
on basis of information or suspicion that such person has committed an offence under the Act
punishable under the Sections 132 or 133 or 135 or 135A or 135AA or 136 of the Customs Act,
1962.
ii. Arrest of persons in terms of Section 104(1) of Customs Act, 1962 should be resorted to only
where the facts and situations of a particular case demand such action. Persons involved should
not be arrested unless the exigencies of certain situations demand their immediate arrest. These
situations may include circumstances like ensuring proper investigation, to prevent such person
from absconding, cases involving organised smuggling of goods or evasion of Customs duty by
way of concealment, masterminds or key operators effecting proxy/ benami imports/exports in
the name of dummy or non-existent persons/IECs, etc. The decision to arrest should be taken
in cases which fulfil the requirement of the provisions of Section 104(1) of Customs Act, 1962
and after considering the nature of offence, the role of the person involved and evidence
available.
iii. While the Act does not specify any value limits for exercising the powers of arrest, it is clarified
that arrest in respect of an offence, should be effected only in exceptional situations which may
include:
a. Cases involving unauthorised importation in baggage/ cases under Transfer of
Residence Rules, where the market value of the goods involved is Rs. 50,00,000/-
(Rupees Fifty Lakh) or more;
b. Cases of outright smuggling of high value goods such as precious metal, restricted items
or prohibited items or goods notified under section 123 of the Customs Act, 1962 or
offence involving foreign currency where the value of offending goods is Rs. 50,00,000/-
(Rupees Fifty Lakh) or more;
c. Cases related to importation of trade goods (i.e. appraising cases) involving wilful misdeclaration in description of goods/concealment of goods/goods covered under section
123 of Customs Act, 1962 with a view to import restricted or prohibited items and where
the market value of the offending goods is Rs. 2,00,00,000/- (Rupees Two Crore) or
more;
d. Cases involving fraudulent evasion or attempt at evasion of duty involving Rs
2,00,00,000/- (Rupees Two Crore) or more;
e. cases involving fraudulent availment of drawback or attempt to avail of drawback or any
exemption from duty provided under the Customs Act, 1962, in connection with export of
goods, if the amount of drawback or exemption from duty is Rs. 2,00,00,000/- (Rupees
Two Crore) or more. In cases related to exportation of trade goods (i.e. appraising cases)
involving (i) wilful mis-declaration in value / description ; (ii) concealment of restricted
goods or goods notified under section 11 of the Customs Act, 1962, where market value
of the offending goods is Rs. 2,00,00,000/- (Rupees Two Crore) or more.
f. Cases involving obtaining an instrument from any authority by fraud, collusion, wilful
misstatement or suppression of facts and utilisation of such instrument where the duty
relatable to such utilisation of the instrument is Rs 2,00,00,000/- (Rupees Two Crore) or
more.
g. The above criteria of value mentioned in (a) (f) would not apply in cases involving
offences relating to items i.e. FICN, arms, ammunitions and explosives, antiques, art
treasures, wild life items and endangered species of flora and fauna. In such cases,
arrest, if required, on the basis of facts and circumstances of the case, may be
considered irrespective of value of offending goods involved.”
[Refer Circular No. 13/2022-Customs dated 16/08/2022]
iv. There is no prescribed format for arrest memo but an arrest memo must be in compliance with
the directions in “ .K B u . f W.B.” [1997(1) SCC 416 (see para 35)].
v. Certain modalities that should be complied with at the time of arrest and pursuant to an arrest
include (a) female offender should be arrested by or in the presence of woman Customs officers,
(b) medical examination of an arrestee should be conducted by a medical officer in the service
of Central or State Government and in case such medical officer is not available, by a registered
medical practitioner soon after the arrest is made. If an arrested person is a female then such
anctorate of Enforcement for taking action
under PMLA, suitable remarks should be made in the prosecution register. In case, the
prosecution under PMLA is separately proposed to be launched by the Directorate of
Enforcement, and intimation is received to that effect in the prosecution unit of the
Commissionerate/DRI, suitable entry should be kept in the register for appropriate liaison
with the Directorate of Enforcement and further action as per the direction of Special Court.
15.11.3 Further instructions have been issued vide F. No. 394/124/2011-Cus (AS), dated 17-7-
2012 clarifying that all offences under Customs Act, 1962 shall be within the ambit of ‘Plea
Bargaining’ and any application for the same shall be dealt with as per the provisions in
Chapter XXIA of Code of Criminal Procedure. Wherever ‘Plea Bargaining’ as per the
provisions of chapter XXIA of Cr Pc is permitted by the competent court, necessary
endorsement may be made in the prosecution register for proper record and monitoring.
Similar record may be kept in respect of appeal against court order and/or withdrawal of
prosecution as detailed in paras 10 to 12 above.
15.11.4 The field formations should upload/update the information regarding prosecution initiated
in the Management Information System (MIS) under prescribed Proforma.
15.12 Inspection of prosecution work :
Director General (Inspection) and Chief Commissioners/Principal CCs, while carrying out
inspection of the Commissionerates/Custom Houses, should specially check all the above
mentioned points, and make a mention about implementation of the guidelines in their Inspection
Reports.
15.13 Transitional Provisions :
All cases, where sanction for prosecution is accorded after the issue of this circular, shall be dealt
in accordance with the provisions of this circular irrespective of the date of the offence. Cases
where prosecution has been sanctioned but no complaint has been filed before the magistrate shall
also be reviewed by the prosecution sanctioning authority in light of the provisions of this circular.
15.14 Where a case is considered suitable for launching prosecution and where adequate evidence is
forthcoming, securing conviction largely depends on the quality of investigation. It is, therefore,
necessary for senior officers to take personal interest in investigations of important cases of
smuggling/duty evasion and also in respect of cases having money laundering angle and to provide
guidance and support to the investigating officers.
15.15 It has also been noticed that the officers posted for prosecution work do not have proper training.
The Director General, National Academy of Customs Excise and Narcotics (NACEN), Faridabad,
should therefore, organize separate training courses on prosecution/arrests etc. from time to time
and also should incorporate a series of lectures on this issue in the courses organized for antismuggling. The Commissioner/Pr. Commr. or ADGRI/Pr. ADGRI should judiciously sponsor
officers for such courses.
[Refer Circular No. 27/2015-Customs dated 23/10/2015]
16. Issue of Summons:
16.1 Power to summon persons to give evidence and produce documents in Customs Act flows
through section 108 of the Customs Act, 1962 which prescribes as follows: Any Gazetted Officer
of customs shall have power to summon any person whose attendance he considers necessary
either to give evidence or to produce a document or any other thing in any inquiry which such officer
is making under this Act. (2) A summons to produce documents or other things may be for the
production of certain specified documents or things or for the production of all documents or things
of a certain description in the possession or under the control of the person summoned. (3) All
persons so summoned shall be bound to attend either in person or by an authorised agent, as such
officer may direct; and all persons so summoned shall be bound to state the truth upon any subject
respecting which they are examined or make statements and produce such documents and other
things as may be required: (4) Every such inquiry as aforesaid shall be deemed to be a judicial
proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45
of 1860).
16.2 On issue of summons in Customs matters, the following guidelines have been issued by
Central Board of Indirect Taxes and Customs:
(i) Power to issue summons is generally exercised by Gazetted Officers (Appraiser /
Superintendent), though higher officers also issue summons. Summons by Appraiser/
Superintendent should also be issued after obtaining prior written permission from an Officer
not below the rank of the Assistant Commissioner with the reasons for issue of summons to
be reduced in writing.
(ii) Where for operational reasons it is not possible to obtain such prior written permission
oral/telephonic permission from such officer must be obtained and the same should be
reduced to writing and intimated to the officers according such permission at the earliest
opportunity.
(iii) In all such cases, where summons are issued, the officer issuing summons submit a report
or should record a brief of the proceedings in the case file and submit the same to the officer
who has authorized to issue the summons.
(iv) Further senior management officials such as CEO, CFO General Manager of large Company
or PSU should not generally be issued summons at the first instance They sh