Customs Act, 1962 Section 104 — Power to arrest
Customs Act, 1962 · Power to arrest
Plain-English Explanation
Overview
Section 104 of the Customs Act, 1962, grants the power to designated customs officers to arrest individuals suspected of committing specific customs offenses. It also outlines procedures for handling arrests, bail, and the categorization of offenses as cognizable/non-cognizable and bailable/non-bailable. This section is crucial for enforcing customs laws and preventing revenue evasion.
Who Does This Apply To?
This section applies to:
- Customs Officers: Specifically, officers empowered by the Principal Commissioner of Customs or Commissioner of Customs to make arrests.
- Individuals: Persons suspected of committing offenses under Section 132, Section 133, Section 135, Section 135A, or Section 136 of the Customs Act, 1962.
- Magistrates: Who handle individuals taken into custody.
How It Works
- Power to Arrest: An empowered customs officer can arrest a person if they have "reason to believe" that the person has committed a specified offense.
- Informing of Grounds: After arrest, the officer must promptly inform the arrested person of the grounds for their arrest.
- Production Before Magistrate: The arrested person must be taken to a magistrate "without unnecessary delay."
- Bail Powers: The customs officer making the arrest has the same powers regarding bail as an officer-in-charge of a police station under the Code of Criminal Procedure.
- Cognizability and Bail: The section classifies certain offenses as cognizable and non-bailable based on the nature and value of the offense.
Important Conditions & Exceptions
- Condition 1: For offenses related to prohibited goods, or evasion/attempted evasion of duty exceeding ₹50 lakh, or fraudulently availing/attempting to avail drawback or any exemption from duty exceeding ₹50 lakh, or fraudulently obtaining an instrument where duty relatable to such utilisation exceeds ₹50 lakh, the offense is cognizable.
- Condition 2: Offenses punishable under Section 135 relating to evasion or attempted evasion of duty exceeding ₹50 lakh, or prohibited goods notified under Section 11 which are also notified under sub-clause (C) of clause (i) of sub-section (1) of Section 135, or import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds ₹1 crore, or fraudulently availing or attempt to avail of drawback or any exemption from duty provided under this Act, if the amount of drawback or exemption from duty exceeds ₹50 lakh, or fraudulently obtaining an instrument for the purposes of this Act or the Foreign Trade (Development and Regulation) Act, 1992, and such instrument is utilised under this Act, where duty relatable to such utilisation of instrument exceeds ₹50 lakh, are non-bailable.
- Exception: All other offenses under the Customs Act, 1962, not specifically mentioned above, are bailable and non-cognizable.
Practical Example
A textile importer, Mr. Verma, deliberately undervalues imported fabric to evade customs duty. Customs officers, based on intelligence, suspect he has evaded duty of ₹70 lakh. They are empowered to arrest Mr. Verma under Section 104 because the evaded duty exceeds ₹50 lakh, making the offense cognizable and non-bailable. The officers arrest Mr. Verma, inform him of the reason for the arrest, and present him before a magistrate as soon as possible.
Key Amendments
Significant amendments include the insertion of sub-sections (4), (5), (6), (7) and the Explanation clarifying the meaning of "instrument" to align with Explanation 1 to Section 28AAA of the Act, providing more clarity regarding the categorization of offenses and related bail provisions. These amendments were introduced to strengthen enforcement and address loopholes.
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Browse all case laws →Frequently Asked Questions
Under what circumstances can a Customs Officer arrest someone under Section 104 of the Customs Act, 1962?
A Customs Officer, authorized by the Principal Commissioner or Commissioner of Customs, can arrest a person if they have reason to believe that the person has committed an offense punishable under Sections 132, 133, 135, 135A or 136 of the Customs Act, 1962. The officer must inform the arrested person of the grounds for their arrest as soon as possible as per Section 104(1).
What happens after a person is arrested under Section 104 of the Customs Act, 1962?
After an arrest under Section 104(1), the arrested person must be taken to a Magistrate without unnecessary delay, as per Section 104(2). The Customs Officer has the same powers regarding bail as an officer-in-charge of a police station under the Code of Criminal Procedure, enabling them to release the person on bail (Section 104(3)).
What offences under the Customs Act are considered 'cognizable' according to Section 104?
As per Section 104(4), offenses relating to prohibited goods, evasion or attempted evasion of duty exceeding fifty lakh rupees, fraudulent availment of drawback/exemption exceeding fifty lakh rupees, or fraudulently obtaining instruments exceeding fifty lakh rupees are cognizable. This means the police can arrest without a warrant and start an investigation without the court's permission.
What offences under the Customs Act are considered 'non-bailable' according to Section 104?
According to Section 104(6), certain offenses punishable under Section 135 are non-bailable. These include evasion or attempted evasion of duty exceeding fifty lakh rupees, offenses related to specific prohibited goods (notified under Section 11 and 135(1)(i)(C)), import or export of undeclared goods with a market price exceeding one crore rupees, fraudulent availment of drawback/exemption exceeding fifty lakh rupees, and fraudulent use of instruments exceeding fifty lakh rupees.
What is the meaning of 'instrument' as used in Section 104 of the Customs Act, 1962?
The term "instrument" in Section 104 has the same meaning as assigned to it in Explanation 1 to Section 28AAA. This typically refers to documents or tools used for fraudulent activities related to customs duties and regulations, such as certificates or licenses.
Are all offences under the Customs Act arrestable and non-bailable?
No, not all offenses are arrestable or non-bailable. Section 104 distinguishes between cognizable and non-cognizable offenses, and bailable and non-bailable offenses. Generally, offenses involving significant duty evasion, prohibited goods, or fraudulent activities are more likely to be cognizable and non-bailable as specified in subsections (4) and (6) of Section 104.
How does Section 104 of the Customs Act interact with the Code of Criminal Procedure, 1973?
Section 104 explicitly modifies the application of the Code of Criminal Procedure, 1973. Subsections (4) and (6) specifically state "Notwithstanding anything contained in the Code of Criminal Procedure, 1973" to establish which offenses are cognizable and non-bailable, respectively. This overrides the general provisions of the CrPC to ensure stricter enforcement for serious customs offenses.
Key Conditions & Requirements
| Condition | Details |
|---|---|
| Authorized Officer's Belief and Arrest | An officer authorized by the Principal Commissioner/Commissioner of Customs must have reason to believe a person committed certain offenses (specified in s.132, 133, 135, 135A, or 136) before arresting them. |
| Informing Arrested Person | The arresting officer must inform the arrested person of the grounds for their arrest as soon as possible. |
| Presentation Before Magistrate | Every person arrested under this section must be taken to a magistrate without unnecessary delay. |
| Officer's Bail Powers | Customs officers have the same powers regarding bail as a police station in-charge under the Code of Criminal Procedure. |
| Cognizable Offenses Threshold | Offenses relating to prohibited goods or duty evasion exceeding fifty lakh rupees are cognizable. Includes fraudulent availment of drawback or exemption with amount exceeding fifty lakh rupees and fraudulent instrument utilization, related duty exceeds fifty lakh rupees. |
| Non-Bailable Offenses Threshold | Offenses punishable under section 135 involving duty evasion exceeding fifty lakh rupees, certain prohibited goods, undeclared goods exceeding one crore rupees, or fraudulent drawback/exemption exceeding fifty lakh rupees are non-bailable. Also, fradulent utilization of an instrument where related duty exceeds fifty lakh rupees. |
| Instrument definition reference | Definition of Instrument is the same definition as assigned to it in Explanation 1 to section 28AAA. |
Amendment History
Substituted by the Taxation Laws (Amendment) Act, 2006 (29 of 2006), section 24, for sub-section (1) (w.e.f. 13.07.2006). Sub-section (1), before substitution, stood as under: "(1) If an officer of customs empowered in this behalf by general or special orderof the Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under section 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest."
Substituted (w.e.f. 06.08.2014) for the words "Commissioner of Customs" by section 78 of the Finance (No. 2) Act, 2014 (25 of 2014).
Omitted (w.e.f. 1-8-2019) s. 73 (i) of the Finance (No. 2) Act, 2019 (23 of 2019).
Now see the Code of Criminal Procedure, 1973 (2 of 1974).
Substituted (w.e.f. 28.05.2012) by section 126 of the Finance Act, 2012 (23 of 2012). Before substitution, stood as under: "(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not be cognizable."
Substituted (w.e.f. 1-8-2019) s. 73 (ii) (A) of the Finance (No.2) Act, 2019 (23 of 2019).
Inserted (w.e.f. 1-8-2019) s. 72 (ii) (B) of the Finance (No.2) Act, 2019 (23 of 2019).
Substituted by the Finance Act, 2013 (17 of 2013), section 75, for sub-section (6)(w.e.f. 10.05.2013). Earlier sub-section (6) was inserted by Act 23 of 2012, section 126 (w.e.f. 28.05.2012). Sub-section (6), before substitution, by Act 17 of 2013, stood as under: "(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offences under this Act shall be bailable."
Substituted (w.e.f. 1-8-2019) s. 73 (iii) (A) of the Finance (No.2) Act, 2019 (23 of 2019).
Inserted (w.e.f. 1-8-2019) s. 73 (iii) (B) of the Finance (No.2) Act, 2019 (23 of 2019).
Inserted (w.e.f. 1-8-2019) s. 73 (iv) of the Finance (No.2) Act, 2019 (23 of 2019).