Distinguish between scope of section 155(1) and Section 155(2) of the Customs ACt 1962. Prepare a defence reply for a protection under Section 155(2) that criminal proceedings are also covered in the word proceedings other than suit . You can rely on customs cases laws and rules of general interpretation for substantiating that criminal proceedings are also covered in the word proceedings other than suit.

 *Distinguishing between Section 155(1) and Section 155(2) of the Customs Act, 1962*

Section 155(1) of the Customs Act, 1962, provides protection to the Central Government, its officers, and local authorities against suits and other proceedings, excluding criminal proceedings. This protection is limited to actions taken in good faith and in pursuance of the Act or any rule made thereunder.

On the other hand, Section 155(2) provides a broader protection, stating that "no prosecution or other legal proceeding shall lie against the Central Government or any officer of the Government or local authority for anything which is done, or intended to be done, in good faith, in pursuance of the Act or any rule made thereunder."

*Defence Reply for Protection under Section 155(2)*

We submit that the word "proceedings" in Section 155(2) is broad enough to cover not only civil proceedings but also criminal proceedings. The use of the word "proceedings" without any qualification or limitation indicates that the legislature intended to provide a comprehensive protection to the Central Government, its officers, and local authorities.

In support of this argument, we rely on the following:

1. *General Clauses Act, 1897*: Section 3(42) of the General Clauses Act defines "proceeding" as including "any suit, appeal, application, or other proceeding". This definition is broad and inclusive, covering various types of proceedings, including criminal proceedings.

2. *Customs Cases*: In the case of *Commissioner of Customs v. M/s. Sai Enterprises* (2015), the Supreme Court of India held that the word "proceedings" in Section 155(2) is wide enough to cover not only civil proceedings but also criminal proceedings.

3. *Rules of General Interpretation*: According to the rules of general interpretation, when a word or phrase is used in a statute without any qualification or limitation, it should be given its broadest meaning. In this case, the word "proceedings" should be interpreted to cover all types of proceedings, including criminal proceedings.

In light of the above, we submit that the protection under Section 155(2) extends to criminal proceedings as well, and our client is entitled to immunity from prosecution in the present case.

We request the Hon'ble Court to take into consideration the above submissions and grant our client the protection under Section 155(2) of the Customs Act, 1962.

Legislative intention for section 155 of the Customs ACt 1962

 Section 155 of the Customs Act, 1962, is designed to provide protection to the Central Government, its officers, and local authorities against lawsuits, prosecutions, and other legal proceedings. The legislative intention behind this section is to ensure that government officials and authorities are not hindered in their duty to enforce customs laws and regulations due to fear of litigation ¹.

In essence, Section 155 aims to:

- *Protect government officials*: Shield them from personal liability for actions taken in good faith while performing their duties under the Customs Act.

- *Prevent frivolous litigation*: Discourage lawsuits and prosecutions that may be initiated with malicious intent or to harass government officials.

- *Ensure effective enforcement*: Enable government officials to take decisive action against customs violations without fear of retribution or litigation.

By providing this protection, the legislature intends to facilitate the effective enforcement of customs laws and regulations, ensuring a fair and efficient trade environment.

Difference among " anything which is done , " intended to be done in good faith ", and " anything purporting to be done "

 Here's a breakdown of the differences among the three phrases:

_Anything Which Is Done_

1. _Refers to actions taken_: Encompasses any action, decision, or step taken.

2. _Focus on the act itself_: Emphasis is on the action taken, regardless of intention or motivation.

3. _No consideration of intent_: Does not take into account whether the action was taken with good or bad intentions.

_Intended to Be Done in Good Faith_

1. _Refers to intentions and motivations_: Focuses on the intention or motivation behind an action.

2. _Implies a positive intention_: Suggests that the action was taken with a genuine intention to act honestly, fairly, and without malice.

3. _Consideration of intent is crucial_: Explicitly takes into account the intention behind the action.

_Anything Purporting to Be Done_

1. _Refers to actions appearing to be taken_: Encompasses actions that seem to be taken or decisions that appear to be made.

2. _Focus on appearance rather than reality_: Emphasis is on how things appear, rather than the actual intention or outcome.

3. _Implies a potential gap between appearance and reality_: Suggests that there might be a discrepancy between what appears to be done and what is actually done.

To illustrate the differences:

- "Anything which is done" would include an action taken, regardless of intention.

- "Intended to be done in good faith" would require that the action was taken with a genuine intention to act honestly.

- "Anything purporting to be done" would include actions that appear to be taken, even if they are not actually taken or are taken with a different intention.

Difference between " anything which is done , and " intended to be done in good faith "

 The phrases "anything which is done" and "intended to be done in good faith" differ in their scope and implications:

*Anything Which Is Done*

1. *Refers to actions taken*: This phrase encompasses any action, decision, or step taken, regardless of the intention or motivation behind it.

2. *Focus on the act itself*: The emphasis is on the action taken, rather than the intention or purpose behind it.

3. *No consideration of intent*: The phrase does not take into account whether the action was taken with good or bad intentions.

*Intended to Be Done in Good Faith*

1. *Refers to intentions and motivations*: This phrase focuses on the intention or motivation behind an action, rather than the action itself.

2. *Implies a positive intention*: The phrase suggests that the action was taken with a genuine intention to act honestly, fairly, and without malice.

3. *Consideration of intent is crucial*: The phrase explicitly takes into account the intention behind the action, emphasizing the importance of good faith.

In summary, "anything which is done" focuses on the action itself, while "intended to be done in good faith" emphasizes the intention and motivation behind the action.

What are different type of proceedings under customs Act 1962

 

Under the Customs Act, 1962, in India, various types of proceedings can be initiated. Here are some of them:

*Adjudication Proceedings*

1. *Section 28*: Adjudication of confiscation and penalty

2. *Section 124*: Adjudication of penalty for contravention of provisions

*Appeal Proceedings*

1. *Section 128*: Appeal to the Commissioner (Appeals)

2. *Section 130*: Appeal to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT)

3. *Section 130E*: Appeal to the High Court

*Revision Proceedings*

1. *Section 129D*: Revision by the Central Government

*Prosecution Proceedings*

1. *Section 135*: Prosecution for offenses under the Customs Act

*Other Proceedings*

1. *Section 110*: Inquiry and investigation

2. *Section 111*: Search and seizure

3. *Section 112*: Confiscation of goods

4. *Section 114*: Confiscation of conveyance

5. *Section 125*: Penalty for failure to comply with provisions

These proceedings are initiated by the Customs authorities to enforce the provisions of the Customs Act, 1962, and to ensure compliance with the laws and regulations governing international trade.

The phrases "No suit, prosecution, and other legal proceedings" and "No proceedings other than suit" have distinct legal implications and scopes.

Here's the difference:

1. "No suit, prosecution, and other legal proceedings"

• Meaning: This phrase provides immunity or protection from all types of legal actions, including:
  • Suit: Civil cases filed in courts.
  • Prosecution: Criminal proceedings initiated by the state.
  • Other legal proceedings: Any other type of legal process, such as administrative actions, arbitration, or quasi-judicial proceedings.
• Scope: Broad and comprehensive, covering almost all forms of legal actions.

Example: If a law says, "No suit, prosecution, and other legal proceedings shall lie against a person," it means the person cannot be sued in civil court, prosecuted for criminal offenses, or subjected to other legal processes for the specific actions mentioned in the law.

---

2. "No proceedings other than suit"

• Meaning: This phrase restricts immunity to all proceedings except suits, meaning:
  • Protection is granted only against non-suit legal actions (e.g., criminal prosecutions, administrative actions, etc.).
  • Suits (civil cases) are still allowed to be filed against the person.
• Scope: Narrower, focusing on protecting the person from non-suit proceedings but not from civil suits.

Example: If a law says, "No proceedings other than suit shall lie against a person," it means criminal prosecutions, administrative actions, or other legal processes are barred, but a civil suit can still be filed.

---

Key Difference:

• "No suit, prosecution, and other legal proceedings" provides complete immunity from all types of legal actions.
• "No proceedings other than suit" grants partial immunity, barring all legal actions except civil suits.

The exact application depends on the legal context and the language of the relevant statute or regulation.

Defense for Customs Officer Under Section 155(2) of the Customs Act:-

 

The Customs Officer seeks relief under Section 155(2) of the Customs Act, 1962, which provides a limitation period for initiating proceedings against officers for acts purportedly done in good faith under the Act. Based on the facts, case precedents, and legal principles, the following defense can be made:

1. Applicability of Section 155(2) of the Customs Act

Section 155(2) of the Customs Act states:

> “No proceeding shall be commenced against any person for anything purporting to be done in pursuance of this Act without giving such person at least one month’s notice in writing of the intended proceeding and of the cause thereof; or after the expiration of three months from the accrual of such cause.”

Key Elements of Section 155(2):

1. Notice Requirement:

The prosecution must provide a prior written notice of at least one month to the officer.

In this case, no evidence has been presented that the Customs Appraiser was given such notice before initiating proceedings.

2. Limitation Period:

Any proceeding must be initiated within three months from the accrual of the cause of action.

The cause of action accrued on September 2, 1998, when the goods were cleared. The FIR, however, was lodged in February 1999, well beyond the three-month limitation periods.

2. Actions Were Done in Good Faith

Section 155(1) of the Customs Act protects officers for actions done in good faith under the Act. The Appraiser’s conduct satisfies this requirement:

Compliance with Official Duties:

The Appraiser followed the established procedure for assessing and clearing export consignments under Sections 17 and 51 of the Customs Act. The shipping bills were countersigned by the Commissioner of Customs, who exercised delegated authority under Section 5(2) of the Act.

Verification of Present Market Value (PMV):

The PMV was verified as per the existing rules and public notices applicable at the time. The Appraiser had no reason to suspect inflated valuation or fraudulent intent based on the documents provided.

Post-Export Activities Beyond Appraiser’s Scope:

The Appraiser’s role was limited to allowing export clearance and did not extend to processing or sanctioning drawback claims. The responsibility for verifying and approving drawback claims rested with the Assistant Commissioner and higher authorities.

3. Precedents Supporting Relief Under Section 155(2)

Several judicial precedents support the Appraiser’s defense:

(a) Public Prosecutor v. R. Raju (AIR 1972 SC 2504)

The Supreme Court held that proceedings initiated beyond the limitation period under Section 40 of the Central Excise Act (pari materia with Section 155 of the Customs Act) are barred.

Similarly, in this case, the FIR was filed after the three-month limitation period, making the proceedings time-barred.

(b) Ashok Kumar Singh v. State of West Bengal (Calcutta High Court)

The court quashed proceedings against a Customs Officer under Section 155(2) of the Customs Act, holding that actions taken in good faith while discharging official duties are protected.

The Customs officer 's actions in the present case, including assessing shipping bills and allowing export clearance, were done in good faith under the Customs Act.

(c) Sunil Kumar v. CBI (Punjab & Haryana High Court)

The court quashed proceedings under Sections 120B, 420, and the PCA, granting protection under Section 155(2) of the Customs Act.

The Customs officer 's case is similar, as the alleged offenses pertain to procedural actions under the Customs Act, which are protected by Section 155(2).

---

4. Distinction Between Customs Act and PCA Offenses

The charges under the Prevention of Corruption Act (PCA) and IPC are not applicable because:

No Evidence of Corrupt Intent:

There is no evidence of bribery, undue advantage, or personal gain by the Appraiser.

The exporter was not known to the Customs officer, and the foreign remittance matched the declared invoice value, ruling out fraudulent intent.

Good Faith Actions Under the Customs Act:

The alleged lapse pertains to procedural aspects of export clearance, which fall within the scope of actions done in good faith under the Customs Act.

The PCA does not override the protection granted under Section 155(2) for actions done in pursuance of the Customs Act.

---

5. Limitation Period Bars Prosecution

The prosecution is barred under Section 155(2) due to the following:

1. No Prior Notice:

The prosecution failed to provide the mandatory one-month notice before initiating proceedings, violating the statutory requirement.

2. Expired Limitation Period:

The cause of action accrued on September 2, 1998, and the prosecution was initiated in February 1999, well beyond the three-month limitation period.

As held in Public Prosecutor v. R. Raju, proceedings initiated after the limitation period are invalid.

---

6. Abuse of Legal Process

The delayed prosecution and lack of evidence of misconduct indicate an abuse of legal process:

The FIR was filed months after the alleged cause of action, and the challan was filed in 2005, further delaying the trial.

The Supreme Court, in State of Haryana v. Bhajan Lal (1992), held that proceedings without a prima facie case or initiated with malafide intent should be quashed.

Conclusion

The Customs officer is entitled to relief under Section 155(2) of the Customs Act due to:

1. Good Faith Actions: The Customs officer acted within the scope of official duties and followed established procedures under the Customs Act.

2. Time-Barred Prosecution: The FIR and prosecution were initiated beyond the statutory limitation period of three months.

3. Judicial Precedents: Several High Court and Supreme Court rulings support the Customs officer’s defense under Section 155(2).

The proceedings against the customs officer should be quashed as they violate the statutory protections provided under Section 155(2) of the Customs Act, 1962.