On February 13, Kerala police set a record. It registered the 100th gold smuggling case through Karipur airport in a year.
That day, the police had confiscated gold worth Rs 97 lakh from two passengers who had managed to evade Customs check in the airport.
With this 100th catch, the police team led by Malappuram police chief Sujith Das had seized 80 kg gold worth Rs 42 crore in a year. In this period, the Customs had seized 690 kg gold from airports in Kerala.
Though relatively small, this police action of apprehending gold smugglers outside the airport has infuriated the Customs department.
According to the Customs department, a state government entity like the police has no jurisdiction to act on a subject -- the smuggling of gold through airports -- in the Union list.
Top sources in the Customs department say they are willing to even ignore the police encroachment into their domain. “Nabbing gold smugglers is something that deserves appreciation even if it is beyond their remit,” a top Customs official told Onmanorama.
The problem with police officers, according to the Customs, is that they fail to follow the procedures laid down in the law while arresting gold smugglers. This, Customs officials say, will eventually benefit the smuggler.
'Improper' police action
The Customs department makes its case by holding up Chapter 13 of the Customs Act, which deals with searches, seizure and arrest. It says only a 'proper officer' could carry out these functions.
'Proper officer' is an officer of customs assigned the functions of search, seizure and arrest by the Principal Commissioner of Customs or the Commissioner of Customs.
“We have not designated the police as the 'proper officer'. The Customs department has designated officers of other departments as the 'proper officer' along international borders but not in domestic areas. This is because we don't have staff along borders while we have adequate staff domestically,” a top official of the Central Board of Indirect Taxes and Customs told Onmanorama.
Search party
Then comes the procedural subtleties the Customs officials say the police tend to ignore.
Section 102 of the Customs Act states that when a person suspected of carrying illegal goods (gold, diamonds or their byproducts) is hauled up to be searched, he has to be immediately taken to the 'nearest gazetted officer of Customs' or a magistrate.
The search can be conducted only with the permission of the gazetted officer/magistrate.
Crucially, before conducting the search, the Customs officer will also have to invite two or more people to witness the entire search. A list of things seized from the suspect will have to be then signed by the witnesses.
Extraction of gold
If the officer feels a person has hidden the contraband inside his body, rectum for instance, he has to produce the suspect before a magistrate.
It is up to the magistrate to order an X-ray of the suspect's body. The magistrate will grant permission to extract the contraband from inside the suspect's body only after the X-ray result is analysed.
Customs officials say the police officers do away with most of these safety clauses written into the law like the need to have witnesses. “In the absence of proper witnesses, the smuggler can argue in the court that the contraband was placed on him by the police,” a top Customs official said.
They also allege that the police extract the contraband from within the suspect's body without getting the go-ahead from a magistrate.
The police, however, conceded this point. “But the magistrates have invariably accepted the gold that we have extracted from the intestine and rectum of suspects. This indicates that the court approves of our functioning,” a top police source said.
Police rationale
The police force is egged on to do what they do by two factors.
One, their work is carried out not within the airport premises but far outside the customs notified area, on public roads. “We had recently nabbed a consignment some 200 km away from Karipur,” a top police source involved in anti-smuggling operations said.
Two, Section 102 of the Criminal Procedure Code. Here is what Section 102 (1) says: “Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.”
High Court diktat
According to the police, they are also armed by the High Court verdict in the Dharmaraj Bhosale versus Assistant Director and Others case of 2014. This HC order specifically prohibits the handing over the recovered goods to “any agency directly”.
Here is what the order says: “...Once police receive information and proceed after due intimation to the jurisdictional magistrate, any currency recovered and seized has to be produced before the magistrate and not to be handed over to any agency directly.”
The court also lays down what the police have to do if the seized articles belonged in the domain of any other enforcement agency. “If the police have reasonable cause to believe that some other agency or authority has a right to claim over the seized articles, a report shall be filed before the magistrate indicating the authority or agency that may likely to claim a right over the seized articles.”
The top police source said that whenever the police had confiscated smuggled gold outside the customs notified area, it would submit the goods before the Judicial First Class Magistrate (JFCM) and also submit a report to the “line agency concerned”, in this case the Customs.
“If we apprehend hawala money, a report will be filed to the Income Tax department. If it is an elephant tusk, we will submit the tusk before the JFCM and file a report to the Forest department,” the police officer said.
In all gold smuggling cases, the police had mailed a report to the Joint Commissioner of Customs after submitting the seized goods before the JFCM. “It is up to the Customs to file a criminal miscellaneous petition (CMP) before the court and proceed further,” the officer said.
Trouble with magistrate
The Customs source said this rigmarole of routing the smuggled gold through the JFMC was time-consuming. “The accused who committed an offence under Customs Act has to be produced before the economic offences court in Ernakulam. By producing the case documents and seized goods before the magistrate court, considerable time is lost,” the source said.
Instead, the Customs wants the goods handed over to it directly.
Trouble with customs
Even if there was no High Court order prohibiting a direct transfer, the source said the police would still be wary of handing over the suspects to Customs.
It was in August last year that a Customs superintendent was nabbed by the police for smuggling gold out of the airport for a hefty bribe. “If we transfer the suspects to such officials, we might be accused of being in cahoots with corrupt Customs officers,” the officer said.
Arjun Ayanki factor
There is another reason why smuggled gold provokes the police into action. The smuggled gold taken outside the airport had often triggered law and order problems, which is a police domain.
Gold smuggling is so lucrative that gangs were formed to snatch the gold smuggled out of the airports by carriers. One kg of smuggled gold fetches a profit of over Rs 4 lakh for the operator, even after paying the carriers.
Till the middle of 2021, it was usual for lawless gangs to compete with one another to abduct carriers.
In July 2021, such a pirate gang led by Arjun Ayanki went after a group transporting smuggled gold and, in its desperation to get away, the wildly speeding chased car crashed into a heavy vehicle at Ramanattukara in Kozhikode.
All five in the car died instantly. “After the Ramanattukara incident, our striker force does regular checks outside the airport. Till date, no gang wars have been reported. It's our duty to keep track of gold smugglers,” the officer said.