Customs Act, 1962

Granting bail to a woman held for over four years in an NDPS and Customs case involving more than a commercial quantity, the Supreme Court noted she had not cross-examined witnesses until she engaged her own counsel. It directed all trial courts to tell accused persons of their right to legal-aid counsel and to record the offer, the response and the action taken before witnesses are examined (paras 3-13).

A three-Judge Bench rejected the challenges to the arrest powers under the Customs Act and the GST Acts, holding Sections 69 and 70 of the GST Acts within Parliament's power under Article 246-A. The Arvind Kejriwal safeguards apply: arrests need recorded reasons to believe based on material, written grounds of arrest and the Code's protections, and anticipatory bail is available even before an FIR (Khanna CJI, paras 46, 60, 70, 75, 77).

Doubting Kanhaiyalal and Raj Kumar Karwal, a two-judge Bench referred to a larger Bench whether an NDPS investigating officer is a police officer and whether a Section 67 statement can be treated as a confession (paras 28-29, 38-40). The NDPS Act "is purely penal in nature" (para 32). The appellant's further sentence was suspended and bail granted pending the reference (para 43).

The Supreme Court acquitted a man convicted of carrying two kilograms of heroin because a consent memo that only asked him to choose between a Gazetted Officer and a Magistrate did not inform him of his right under Section 50 of the NDPS Act (paras 9-10, 12). On confessions to Customs officers, the Bench chose to follow Noor Aga rather than Kanhaiyalal (para 11).

The Supreme Court upheld Sections 35 and 54 of the NDPS Act, which reverse the burden of proof, but held that the presumption arises only after the prosecution proves the foundational facts, including possession, beyond reasonable doubt (paras 84, 88-89). It set aside an Afghan airline crew member's conviction for 1.4 kg of heroin: the carton, bulk and samples were never produced, the bulk was destroyed without a Section 52A order, and the customs confession could not alone sustain a conviction (paras 170-171).

Allowing the State's appeal, the Supreme Court restored a conviction for keeping smuggled gold. An illegal police search does not vitiate the seizure or the trial on a customs complaint (para 10). Even where the Section 123 presumption is unavailable, the prosecution may prove from circumstances that gold was smuggled and that the accused knew it (paras 16, 19-23). The words "acquires possession" in Section 135(1)(b) are not limited to an owner or purchaser (para 23).

The Supreme Court upheld a bullion dealer's conviction for possessing smuggled and undeclared gold. It held that "any person" whom a customs officer may examine under Section 107 of the Customs Act includes a suspect and potential accused, at any place including the Customs House, and that the gold-control penalty covers smuggled gold (paras 3, 15-16). Refusing leniency, it said professional economic offenders deserve jail (paras 18-21).

A five-judge Bench of the Supreme Court held that a customs officer, under the Sea Customs Act, 1878 or the Customs Act, 1962, is not a "police officer" under Section 25 of the Evidence Act, because he cannot submit a report under Section 173 of the Code of Criminal Procedure (paras 4, 9, 24-26). A person questioned or arrested in a customs enquiry is not "accused of an offence" under Article 20(3) until a complaint is filed before a Magistrate (paras 10, 13, 27-28).

A five-judge Bench of the Supreme Court held that an Assistant Collector of Customs authorising a search under Section 105 of the Customs Act, 1962 need not record the reasons for his belief, and that Section 165(1) of the Code of Criminal Procedure does not import that requirement (paras 7, 9). Section 105 lays down a policy and effective checks, so it does not offend Article 14 (para 9). The appeal against the dismissal of a writ petition failed (para 11).