Chapter XXIA CrPC | Provisions Of Plea Bargaining Applicable To Offences U/S 132 & 135 Of Customs Act: Delhi High Court

In a case concerning illegal smuggling of gold by two Kazakh nationals, the Delhi High Court upheld the plea bargain reached between the Smuggler Respondent, Consul at the Kazakh Embassy, Air Customs Officer, and Senior SPP for the Customs Department vide Mutually Satisfactory Declaration (MSD). Per the MSD, the Respondent pled guilty to Sections 132 and 135(1)(a) and (b) of the Customs Act, 1962. In return, the Respondent shall plead for a lenient sentence from the Court. Accordingly, Trial Court sentenced her to a period of imprisonment already undergone along with a fine under the relevant provisions of the Customs Act, 1962. The Petitioner viz, Customs Department, Government of India appealed before the Delhi High Court against the judgment, praying for extended sentencing of 7 years rigorous imprisonment and fine to the Respondent. Section 265A, CrPC The Government pleaded before the Court that plea bargaining was not available in the instant case related to a socio-economic offense as per Section 265-A of the Code of Criminal Procedure, 1973. Section 265-A refers to the plea bargaining compromise for offenses with punishment other than death or life imprisonment or imprisonment exceeding 7 years. Section 265A(1) with the exception to socio-economic offences, is reproduced below for reference: 265A. Application of the Chapter.—(1) This Chapter shall apply in respect of an accused against whom— (a) the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or (b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining 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. Applicability of Plea Bargaining The Court categorically rejected the Petitioner's contention that the plea bargaining under Chapter XXIA of the CrPC did not apply to offenses under Section 132 and 135 of the Customs Act. Had the legislature intended to exclude the applicability of Chapter XXIA to plea bargaining, it would have notified the same, it opined. The Court cited various Orders of the Court to this effect. Justice Subramonium Prasad held that: "A person accused of offences under the Customs Act, 1862, has two options – (i). to compound the offences under Section 137(3) of the Customs Act, 1862, by following the procedure and punishment laid therein, or (ii). to file an application for plea bargaining under Chapter XXIA Cr.P.C. Had the legislature intended to exclude the applicability of Chapter XXIA Cr.P.C. to those enactments where there are provisions for compounding the offence, then it would have explicitly mentioned the same in Chapter XXIA Cr.P.C. Chapter XXIA Cr.P.C. was introduced to include all statutes, save those that were specifically excluded under Section 265-A(2). It cannot be said that the legislature was unaware of the Customs Act, 1962, while devising the chapter on plea bargaining. Therefore, the presence of Section 137(3) of the Customs Act, 1862, will not take away the applicability of Chapter XXIA Cr.P.C." Faulting the Petitioner for dishonoring the MSD reached between the Customs Officials and the Petitioner, the Court chided the Union for resorting to an untenable case to book the Respondent for an extended punishment of 7 years: "The government is supposed to be a fair litigant. It cannot and should not resort to such legally untenable arguments in order to challenge orders of the Court which it finds to be unfavourable". The Court observed that in Plea Bargain's absence, the Petitioner may be liable to a maximum imprisonment of 3 years or with a fine or both. However, a Plea Bargain was reached in this case. Further, the Respondent had fulfilled all the conditions of the Plea Bargain, absolving her of all liability. Holding The Court upheld the Trial Court judgment and directed the Petitioner to release the passport of the Respondent in the following terms: "this Court finds no legal infirmities in the Order on sentence dated 24.09.2021, passed by the learned ACMM-01, Patiala House Courts, New Delhi, in C.C. No. 2193/2020 sentencing the Respondent herein to undergo imprisonment for a period already undergone and pay a fine of Rs. 50,000/- for offences under...

Chapter XXIA CrPC | Provisions Of Plea Bargaining Applicable To Offences U/S 132 & 135 Of Customs Act: Delhi High Court

Prateek Chakraverty

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