TMI Blog2022 (1) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962, will not take away the applicability of Chapter XXIA Cr.P.C. In the instant case, a perusal of the Application under Section 265-B Cr.P.C. filed by the Respondent herein, the Reply to the Application dated 22.09.2021, Statement of the Respondent dated 24.09.2021 as well as the Questions put to her, Statement dated 24.09.2021 of the Second Secretary, Embassy of the Republic of Kazakhstan, Statement of Senior SPP for the Customs Department dated 24.09.2021, the MSD dated 24.09.2021, and the consequent judgement dated 24.09.2021, indicates that the procedure that is to be adhered to for plea bargaining under Chapter XXIA Cr.P.C. has been astutely followed with nothing amiss. In the instant case, the gold recovered from the person of the Respondent weighs 1875 grams, which amounts to ₹ 67,70,400/-. The contention of Mr. Kumar that the total value of the gold recovered from both the accused (including Respondent herein) is ₹ 1,13,74,272/- and that total value of the gold recovered from both the accused should be considered while deciding the quantum of punishment is without any merit. This Court finds weight in the submission that the punishment that is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) Kazakhstan passport no. N08622501 issued on 26.02.2013; d) One old and used Mobile Phone of Samsung Brand; e) Currency: INR-200, USD-520; and VI. Old and used personal effects. iii. It is stated that on examination from a jewellery appraiser who submitted an Appraisement Report dated 11.09.2019, according to which the yellow metal was found to be gold. The report for both the passengers is as follows:- Sr. No. Description of Gold Purity Weight (in Gms.) Value Appraised (in Rs.) 1. Pax-1 04 gold strips moulded into circular shape 995 3150 1,13,74,272/- 2. Pax-2 04 gold strips moulded into circular shape 995 1875 67,70,400/- Total 5025 1,81,44,672/- iv. The rate of Gold as per Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstantial evidence, it was established that both the Pax and had knowingly involved themselves in smuggling activities and were liable to be prosecuted under Sections 132, 135(1)(a) 135(1)(b) of the Customs Act, 1962. ix. It is stated that Pax-1 and Respondent herein were enlarged on bail vide Order of the Ld. CMM, Patiala House Courts, New Delhi with the condition imposed that they would not travel abroad without the permission of the Ld. Trial Court. An application moved by Pax-1 and Respondent herein seeking permission to travel abroad was dismissed vide Order dated 10.12.2019. A revision petition filed against the same was dismissed by the Ld. Sessions Court vide Order dated 30.05.2020, and an appeal against this Order before this Court was dismissed vide Order dated 31.08.2020. However, Pax-1 had been granted permission to go abroad, subject to conditions. x. It is stated that the Respondent herein filed a fresh application seeking permission to travel abroad before the Ld. CMM which was subsequently granted vide Order dated 06.01.2021. An appeal against this Order by the Petitioner herein was allowed by this Court vide Order dated 04.03.2021, and an SLP ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for two months. Thereafter, vide Orders dated 27.09.2021 and 29.09.2021, the Ld. Trial Court directed for the Respondent s passport to be released by 29.09.2021. xv. Aggrieved by Orders dated 24.09.2021, 27.09.2021 and 29.09.2021, passed by the learned ACMM-01, Patiala House Courts, New Delhi, in C.C. No. 2193/2020, the Petitioner has approached this Court by way of the instant petition. 3. At the outset, Mr. Satish Kumar, learned Senior Government Standing Counsel appearing for the Petitioner, submits that the instant case relates to socioeconomic offences and, therefore, the option of plea bargaining is not available as per Section 265-A Cr.P.C.. Mr. Kumar submits that, moreover, the Ld. Trial Court could not have proceeded with the application for plea bargaining without the consent of the Customs Department, i.e. the Petitioner. 4. Mr. Kumar submits that the quantum of punishment that has been imposed vide Order dated 24.09.2021 is contrary to Section 265-E Cr.P.C. He argues that the offence under which the Respondent has been convicted prescribes up to seven years of imprisonment with fine. He states that in the instant case, the Respondent s actions are squarely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears or pay a fine, or both. Ms. Bhayana, therefore, argues that the submission of Mr. Kumar that the offence under which the Respondent is convicted is punishable with imprisonment upto seven years is contrary to the facts of the case and the mandate of the law. She further states that Chapter XXIA Cr.P.C. is applicable to offences under the Customs Act, 1962. 8. The learned Counsel for the Respondent argues that the consent for plea bargaining had been categorically given by the Office of Commissioner of Customs as well as the Special Public Prosecutor for Customs, and that the procedure for plea bargaining has been duly followed. She submits that after consenting to plea bargaining, the Customs Department cannot now state that the Air Customs Officer and the SPP were not authorized to give their consent. She submits that the proper procedure under Chapter XXIA of the Cr.P.C. has been followed and the Respondent has already deposited the fine that has been imposed on her by the Ld. Trial Court. 9. Ms. Bhayana, learned Counsel for the Respondent, relies on K.I. Pavunny v. Assistant Collector, (1997) 3 SCC 721, Vipin Kumar Kapur v. Shri. S.M. Ali, Intelligence Officer DRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant and witnesses under Section 200, issued the process under Section 204, but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years. (2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socioeconomic condition of the country. In exercise of the powers conferred under sub-section (2) of Section 265-A of the Code of Criminal Procedure, 1973, the Central Government hereby determine the offences under the following laws for the time being in force which shall be the offences affecting the socio-economic condition of the country for the purposes of sub-section (1) of Section 265-A of the said Act, namely,- (i) Dowry Prohibition Act, 1961 (ii) The Commission of Sati Prevention Act, 1987 (iii) The Indecent Representation of Women (Prohibition) Act, 1986 (iv) The Immoral Traffic (Prevention) Act, 1956 (v) Protection of Women from Domestic Violence Act, 2005 (vi) The Infant Milk Substi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where- (a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case; (b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-section (1). 265-C. Guidelines for mutually satisfactory disposition.- In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of Section 265-B, the Court shall follow the following procedure, namely:- (a) in a case instituted on a police report, the Court shall issue notice t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused; (b) after hearing the parties under clause (a), if the Court is of the view that Section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be; (c) after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment; (d) in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence. 265-F. Judgment of the Court.- The Court shall deliver its judgment in terms of Section 265-E in the open Court and the same shall be signed by the presiding officer of the Court. 265-G. Finali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application for plea bargaining by an accused, and the process thereafter. Section 265-C lays down the procedure that must be followed by the Court for working out an MSD, and Section 265-D talks about how the MSD report is to be submitted before the Court. Section 265-E entails the manner in which the Court is to dispose of a case after a MSD has been worked out. Section 265-F states that the Court shall deliver its judgement in terms of Section 265-E in open Court and the same shall be signed by the Presiding Officer of the Court. Section 265-G states that the judgement will be final and no appeal shall lie against it (except an SLP or a writ under Article 136 and Articles 226 227 of the Constitution of India, respectively). Section 265-H delineates the power of the Court in plea bargaining. Section 265-I states that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. Section 265-K notes that the statements or facts used by an accused in their application for plea bargaining shall not be used for any other purpose. 14. At the outset, it is pertinent to note that the Central Government has not notified the Customs Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the Respondent herein, the Reply to the Application dated 22.09.2021, Statement of the Respondent dated 24.09.2021 as well as the Questions put to her, Statement dated 24.09.2021 of the Second Secretary, Embassy of the Republic of Kazakhstan, Statement of Senior SPP for the Customs Department dated 24.09.2021, the MSD dated 24.09.2021, and the consequent judgement dated 24.09.2021, indicates that the procedure that is to be adhered to for plea bargaining under Chapter XXIA Cr.P.C. has been astutely followed with nothing amiss. 18. Further, the argument that the Petitioner had not consented to the procedure also cannot be countenanced. The statement of the Air Customs Officer dated 24.09.2021 categorically stating that there was no objection if the plea of guilt of the accused was accepted is on record, along with statement of Senior SPP, Satish Aggarwala, for the Customs Department dated 24.09.2021 stating that he adopts the Reply dated 22.09.2021 and that deterrent punishment should be awarded to the Respondent if her plea for plea bargaining is accepted. The consequent MSD dated 24.09.2021 has also been attested by the Senior SPP for Customs Department, the ACO, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from duty exceeds 1 [fifty 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 one year; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both. (emphasis supplied) 20. While Section 132 of the Customs Act, 1962, stipulates the punishment for false declaration, false documents, etc., Section 135 of the Customs Act, 1962, indicates the punishment for evasion of duty or prohibitions. Under Section 135(a) (b), any person who knowingly is concerned with the misdeclaration of the value of any good or in any fraudulent evasion of duty, or carries any good which he knows is liable to confiscation under Section 111 or Section 113 of the Customs Act, 1962, is liable to punishment as laid down under Section 135. The punishment in case of such offences, if the market price of the goods exceeds one crore of rupees, is imprisonment for a term which may extend to seven years and with fine. Further, this term cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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