THE APPLICATION OF GOOD BEHAVIOUR BOND UNDER CRIMINAL PROCEDURE CODE FOR OFFENCES CHARGED UNDER CUSTOMS ACT 1967(ACT 235)

Introduction: There are cases where the accused feels appropriate to apply to the Court for a discharge conditionally or unconditionally under Criminal Procedure Code (CPC). A conditional discharge is commonly known as good behaviour bond (binding over). How to apply: The application for good behaviour bond is made orally at the mitigation and sentencing stage pursuant to Section 173A or 294 of CPC. The distinction between Section 173A and 294 of CPC:- Section 173A - A binding over without a conviction being recorded when the charge is proved against the accused. Section 294 - A binding over upon conviction being recorded first. The pre-requisite for the application of Section 294 of CPC:- 1. The accused must be a first offender; 2. The accused has been convicted for the offence; 3. The accused good character; 4. The accused past history; 5. The accused age; 6. The accused health; or 7. The accused mental condition; or 8. The trivial (insignificant) nature of the offence; or 9. Any extenuating (mitigating) circumstances under which the offence was committed. The application of Section 294 of CPC for offences charged under Customs Act 1967:- The amendment of Criminal Procedure Code vide Criminal Procedure Code (Amendment) Act 2016 (Act A1521) which came into force on 1st March 2017 added Section 294(6)(a) to the effect that Section 294 of CPC shall not apply if the offender is charged with a “serious offence”. This significant amendment removes the discretion of the Magistrate/Judge to grant good behaviour bond if the offence charged fall under the definition of a “serious offence”. The Customs Act 1967 had not defined any of its Customs offences as “serious offence”. Nevertheless, the Subsection 3(1) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 has defined “serious offence” as any of the offences specified in the Second Schedule [Section 3, definition of “serious offence”] which includes offences under Section 133, 135 and 137 of Customs Act 1967. Although, the Customs Act 1967 had not define any of its offences as “serious offence” but the offences committed under Customs Act 1967 is serious in nature. Upon realizing the seriousness of the offence and taking into account of the public interest element, the Parliament had amended the Customs Act 1967 in which the amendments came into force on 2nd January 2019 to impose more stringent penalties for offences under Section 133, 134, 135, 136, 137 and 138 of Customs Act 1967. In addition to that, the amendments had introduced a new Section 119A of Customs Act 1967 to give power to the Court to order the accused to pay the customs duty and penalty payable under this Act when the accused is found guilty of an offence under the same Act. Thus, the said amendments had proved the utmost intention of Legislature to codify offences under Customs Act 1967 as “serious offence” to enable the authorities in curbing tax revenue offences (economical offences) driven through underground trade. In short, the failure to define “serious offence” in the Customs Act 1967 is merely a lacuna (gap).