Sections 138-138B explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Three short sections in Chapter XVI deal with how customs offences are tried and proved. Section 138 allows summary trial of most offences under the chapter. Section 138A makes the court presume a culpable mental state where the offence needs one. Section 138B says when a statement made and signed before a gazetted officer of customs is relevant evidence.
This article follows the text as per the text on the CBIC portal updated to 30 March 2022 (the Act as amended up to the Finance Act, 2022). Please check later Finance Act changes to these sections before acting.
Section 138: offences under Chapter XVI may be tried summarily by a Magistrate, except offences punishable under section 135(1)(i) or 135(2). Section 138A: where the offence needs a culpable mental state, the court presumes it, but the accused may prove its absence, and a fact is proved only beyond reasonable doubt. Section 138B: a signed statement before a gazetted officer of customs is relevant to prove its contents in two cases, such as the maker being dead or cannot be found, or being examined as a witness where the court admits it in the interests of justice.
Section 138: offences tried summarily
Section 138 begins "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898)". The footnote says "See now the Code of Criminal Procedure, 1973 (Act 2 of 1974)". Please check the current procedural and penal law for the corresponding provision.
The rule is that an offence under Chapter XVI, other than an offence punishable under clause (i) of sub-section (1) of section 135 or under sub-section (2) of that section, may be tried summarily by a Magistrate. The excluded offences are the serious band of section 135(1), with the seven-year punishment, and the repeat-offender case in section 135(2). Our article on section 135 sets out those bands. The footnote shows the words "under clause (i) of sub-section (1) of section 135 or under sub-section (2) of that section" were substituted by the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973), section 8, with effect from 1 September 1973.
Two printing slips are visible in the copy: the heading is printed "Offences tobe tried summarily", and the body has "underthis". They are only joined words.
In practice, this means offences such as those in sections 132, 133, 134, 135A, 136 and the ordinary band of section 135 (clause (ii)) may be tried summarily. The text says "may", so summary trial is a power, not a duty. Our article on sections 132 to 134 covers the first three of those offences. If you face a complaint, a legal dispute resolution team can explain how the trial is likely to run.
Section 138A: presumption of culpable mental state
Section 138A was inserted by the Customs, Gold (Control) and Central Excises and Salt (Amendment) Act, 1973 (36 of 1973), section 9, with effect from 1 September 1973. It has two sub-sections.
Sub-section (1). In any prosecution for an offence under the Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state. It is a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
The Explanation says "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
Sub-section (2). For this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
What this means for the offences in the chapter: section 132 speaks of "knowing or having reason to believe", section 135(1)(b) and (c) speak of "knows or has reason to believe", and section 135(1)(a) speaks of being "knowingly concerned". These are mental states within the Explanation. Section 138A says the court presumes the existence of the mental state, and the accused can raise the defence of proving the absence of it.
Note the standard in sub-section (2). The text applies "beyond reasonable doubt" to the proving of the fact: the accused has to prove, to that standard, that he had no such mental state. The text does not say more than this, and this article adds nothing about how the courts apply the standard.
An example. Sunil Imports is charged under section 135(1)(b) with dealing in goods the owner is said to have reason to believe were liable to confiscation. Under section 138A the court starts from the presumption that the mental state existed. Sunil Imports can raise the defence that it had no such mental state, for example by placing its purchase records and correspondence before the court. The section says the defence is the accused's to prove.
Section 138B: relevancy of statements
Section 138B was inserted by the same 1973 Amendment Act, section 9. Sub-section (1) says a statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under the Act shall be relevant, for the purpose of proving, in any prosecution for an offence under the Act, the truth of the facts which it contains, in these two cases.
| Case | Condition |
|---|---|
| (a) | The person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable |
| (b) | The person who made the statement is examined as a witness in the case before the court, and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice |
Sub-section (2) says sub-section (1) shall, so far as may be, apply in relation to any proceeding under the Act other than a proceeding before a court, as they apply in relation to a proceeding before a court.
Look at the conditions of the text before reading too much into it:
- The statement must be made and signed, and it must be before a gazetted officer of customs, in the course of an inquiry or proceeding under the Act.
- It becomes relevant to prove the truth of the facts it contains only in the two cases above. The section is not a blanket rule that every such statement is automatically proof.
- Case (b) depends on the court's opinion, "having regard to the circumstances of the case" and "in the interests of justice".
- Sub-section (2) extends the same approach to proceedings other than before a court, so far as may be.
The summons power under which people are called to give statements is in section 108; our article on sections 107 and 108 covers it. Since a signed statement can later be used under section 138B, read it carefully and keep your own record of the circumstances before you sign.
How the three sections work together
- A complaint is filed after sanction under section 137(1).
- The offence may be tried summarily under section 138, unless it falls in the excluded band.
- Where the offence needs a culpable mental state, section 138A directs a presumption, with the accused able to prove its absence beyond reasonable doubt.
- Signed statements before gazetted officers may be relevant under section 138B in the two cases listed.
Our article on section 137 explains step 1. Our article on section 138C covers printouts and microfilms as evidence.
Need help with a customs prosecution or statement?
If you have been summoned, have given a statement, or are facing a complaint, it helps to understand how these sections may apply before the next step. Our team can help through legal dispute resolution.
Key takeaways
- Section 138: offences in Chapter XVI may be tried summarily by a Magistrate, except those punishable under section 135(1)(i) or 135(2).
- Section 138A: where the offence needs a culpable mental state, the court presumes it; the accused may prove its absence; proof means beyond reasonable doubt.
- "Culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
- Section 138B: a signed statement before a gazetted officer of customs is relevant in the two cases listed.
- Check the current procedural and penal law for the corresponding provision of the Code of Criminal Procedure.
Read next
- Section 137: cognizance and compounding of offences
- Section 138C: computer printouts and microfilms as evidence
- Sections 107 and 108: examination of persons and summons
- Section 135: evasion of duty or prohibitions, punishment
Disclaimer: Based on the Customs Act, 1962 as published on the CBIC Tax Information Portal, updated to 30 March 2022 (amended up to the Finance Act, 2022), as consulted on 2 October 2026. Finance Acts of 2023 and later, and the current rules, regulations and notifications, should be checked. This article is general information, not legal advice; check the official text before acting.