Prosecution: Cognizance, Compounding and Evidence

In one line

These sections say who may be prosecuted, who must permit it, how a prosecution may be avoided, and what may be proved and how. Precisely: section 136 offences by officers of customs; section 137 cognizance and compounding; section 138 summary trial; section 138A the presumption of culpable mental state; sections 138B and 138C the relevancy of statements and of computer and microfilm evidence; section 139 presumptions as to documents; section 140 offences by companies; and section 140A probation.

Why prosecution needs its own evidentiary rules

Because customs offences are proved from documents and statements, not from eyewitnesses. Nobody sees an undervaluation happen; it is established from invoices, correspondence, ledgers, and what people said to officers under section 108. And in a modern case the material is electronic.

And because the mental element is the hardest part. Section 135 requires knowledge or fraudulent intent, and a trader will say the mistake was his accountant's. Section 138A supplies a presumption of culpable mental state precisely because, without it, the offence would be almost unprovable.

The balance is that each of these aids is rebuttable and conditioned, and stating the conditions is what makes an answer accurate rather than alarming.

The provisions

Section 136, offences by officers of customs. Section 136(1) provides that 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 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.

Section 136(2) provides that any officer of customs who:

(a) requires any person to be searched for goods liable to confiscation or any document relating thereto, without reasonable ground for believing that he has such goods or document secreted about his person; or

(b) arrests any person without reasonable ground for believing that he has been guilty of an offence punishable under section 135; or

(c) searches or authorises any other officer of customs to search any place without reasonable ground for believing that any goods, documents or things of the nature referred to in section 105 are secreted in that place,

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.

Section 136(3) provides that 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.