Abetment under Customs Act makes an important Concept while dealing with issuance of SCN. The aiding and abetting has not been defined in the Customs Act, 1962 and the rule made thereunder but this word is frequently used by us while preparing Show Cause Notice (SCN in short) and drafting Order/speaking order. This word has got mention in penal provisions such as Sections 112, 114 and 117 of the Customs Act, 1962 and call for applying these sections whenever there is offence of abetment. The word abet has wide import and different connotations. Therefore , it is required to understand it .
Defined in Indian Penal Code
Abetment is defined in Section 107 of the Indian Penal Code, 1860. The word “abet” has been also defined in Section 3 of the General Clauses Act,1897 but it has then same meaning as in IPC. Any criminal offence or civil wrong like violations under customs law may be committed by hands of one person and others are indirectly facilitating it. The level of participation may be different and liabilities can be fastened on them as per gradation of offence. There may be indirect hands whose role are less in commission of offence but cannot be ignored.
The section 107 of IPC says that the abetment is constituted by
- Instigating a person to commit an offence or
- Engaging in a conspiracy to commit it, or
- Intentionally aiding a person to commit it
A person is said to instigate another to do an act, when he actively suggests or stimulates him to do the act by any means of language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. The word instigate means to goad or urge or to provoke, incite, or encourage to do an act. The advice per se does not necessarily constitutes the offence of abetment by instigation. It connotes some active suggestion or support or stimulation to the commission of the act per se instigation.
Abatement by Conspiracy
Now coming to the second clause of abatement by conspiracy, the conspiracy consists of agreement of two or more persons to do an unlawful act or to do an lawful act by unlawful means. When two agree to carry it into effect, the very plot is an act per se and the act of the each of the parties is capable of being enforced for criminal object and same is considered as an offence. When the parties concert together, in pursuance of common object, the act of one parties, done in furtherance of the common object and in pursuance of concerted plan, is the act of all.
Going by the above explanation, it is cogent and clear that the ingredient of second category of abetment is agreement or common intention or common object in pursuance of a concerted plan. It means for hatching a conspiracy agreement between abettor and principal offender is needed.
This is the third category of abetment, wherein a person abets by aiding, when by act done either prior to or at the time of the commission of an act, he intends to facilitate and does in fact facilitate thereof. In order to constitute offence of this grade, the abettor must be shown to intentionally aiding the abettor. The language of this section clearly tells that the intention must be present. The intention simply means the purpose or design or doing an act forbidden by law. An act is an intentional, if it exists in idea before it exists in facts.
Reading of the above cogently tells us that presence of knowledge is an essential ingredient of offence of abetment.
Abetment vis-a-vis IPC
There is a marked difference between act of abatement under customs law and IPC. In IPC act of abetment is distinct offence except the intentionally aiding a person to commit the offence and survives even the offences is not committed. But in customs law abetment is not separately and independently punishable if it is not linked to liability of confiscation of goods.
Section 112 and 114 are the penal provisions for improper importation and exportation and only come into play when imported goods and export goods are liable for confiscation. These are applicable to two classes of person firstly who are committing the offence or directly contravening the provisions of Section 111 or 113 and secondly to such class of persons who are abetting the offence of those who are directly contravening the offence enumerated under section 111 or 113. It can be said that one is principal offender and other is abettor. This is how abetment is punishable under Customs Act. Even under Section 117 which is not an express penalty provisions for any certain offence abetment is punishable. The provisions of Section 117 is attracted in such situation for the contravention of provisions of customs act, whenever there is no corresponding penalty is prescribed expressly.
How Abetment is Punishable Under Customs Act
The question is why such arrangement for penalty for principal offender and also for abettor . Answer is under a customs transaction of import/export many stake holders are involved viz Customs Broker , S/Line, Freight Forwarder, CFS/ICD/Port authorities apart from importer/exporter. For the commissions and omission of importer and exporters penal provisions are directly applicable. But in the case of abetment penal provisions proceeds on the principle that it will not punish innocent stakeholders however it will be imposable against those who are assisting the importers and exporters in giving effect to the transaction with prior knowledge or animus. Without assistance of such auxiliary customs transaction cannot be effected. It is not the idea of the legislature to punish innocent subsidiary but those who are committing with knowledge means falling under the offence of abetment. This is how abetment is punishable under the customs act. In other words for punishing abettor mens- rea is necessary ingredient .
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