Customs Act, 1962 Section 105 — Power to search premises
Customs Act, 1962 · Power to search premises
Plain-English Explanation
Overview
Section 105 of the Customs Act, 1962 empowers Customs officers to search premises where they have reason to believe that goods liable to confiscation, or documents relevant to Customs proceedings, are hidden. This section is crucial for ensuring compliance with Customs laws and preventing smuggling or evasion of duties. It outlines the conditions under which a search can be conducted and refers to the procedures outlined in the Code of Criminal Procedure (CrPC).
Who Does This Apply To?
This section primarily affects:
- Businesses and individuals who import or export goods and may be suspected of concealing goods subject to Customs duty or relevant documents.
- Customs officers, specifically Assistant Commissioners, Deputy Commissioners of Customs, and officers specially empowered by the Board.
- Premises where such goods or documents are suspected to be hidden.
How It Works
Here's a step-by-step breakdown of how Section 105 operates:
- Reason to Believe: An Assistant or Deputy Commissioner of Customs (or a specially empowered officer in areas adjoining the land frontier or coast) must have reason to believe that goods liable to confiscation, or documents/things relevant to Customs proceedings, are hidden in a particular place.
- Authorisation or Self-Search: Based on this reason to believe, the officer can either:
- Authorise another Customs officer to conduct the search; or
- Personally conduct the search of the premises.
- Application of CrPC: The provisions of the Code of Criminal Procedure, 1898 (relating to searches) apply to searches conducted under Section 105, as far as may be. Note that the CrPC has been replaced with a new version, but Section 105 refers to the 1898 code.
- Modification to Section 165(5) CrPC: Sub-section (5) of Section 165 of the Code of Criminal Procedure, 1898 is modified such that wherever the word "Magistrate" appears, it is substituted with "Principal Commissioner of Customs or Commissioner of Customs." This essentially gives Customs Commissioners the same authority as a Magistrate in certain aspects of the search procedure.
Important Conditions & Exceptions
- Condition 1: The Customs officer must have a genuine reason to believe that goods/documents are concealed. A mere suspicion is not sufficient.
- Condition 2: The search must be conducted in accordance with the procedures laid down in the Code of Criminal Procedure, 1898, subject to the specified modification.
- Exception: The modification to Section 165(5) CrPC gives more power to Customs Commissioners, as they can perform certain functions related to the search that would normally be performed by a Magistrate.
Practical Example
Imagine a textile importer, "Shree Textiles," is suspected of under-invoicing fabric imports to evade Customs duty. The Deputy Commissioner of Customs receives credible information suggesting that Shree Textiles is concealing invoices and payment records at their warehouse, showing the actual higher prices paid.
Based on this, the Deputy Commissioner has reason to believe that documents relevant to a Customs proceeding are hidden at Shree Textiles' warehouse. He can either:
- Authorize a Customs Inspector to search the warehouse; or
- Personally lead the search of the warehouse.
During the search, if incriminating documents are found, they can be seized as evidence, potentially leading to the confiscation of the under-invoiced goods and penalties for Shree Textiles. The search must be conducted as per the Code of Criminal Procedure, 1898, including recording panchnama, etc.
Key Amendments
No major amendments since enactment. However, it's crucial to remember that the reference to the Code of Criminal Procedure, 1898 needs to be interpreted in the context of its modern equivalent.
No case laws found for this provision yet.
Browse all case laws →Frequently Asked Questions
What conditions must be met before customs officers can search premises under Section 105 of the Customs Act, 1962?
Under Section 105(1), an Assistant/Deputy Commissioner of Customs (or a specially empowered officer in land frontier/coastal areas) must have 'reason to believe' that goods liable to confiscation, or documents/things relevant to proceedings under the Customs Act, are secreted in a place. This 'reason to believe' is crucial, and a search without it could be challenged.
Does Section 105 allow for warrantless searches of private residences?
Yes, Section 105 empowers authorized customs officers to search premises if they have a 'reason to believe' that contraband goods or relevant documents are hidden there. While a warrant isn't explicitly required in the section itself, the procedure outlined in Section 105(2) incorporates aspects of the Code of Criminal Procedure regarding searches, offering safeguards.
What is the role of the Code of Criminal Procedure (CrPC) in searches conducted under Section 105 of the Customs Act?
Section 105(2) explicitly applies the provisions of the CrPC relating to searches to those conducted under the Customs Act, 1962, ensuring procedural fairness. Specifically, Section 165(5) of the CrPC is modified, substituting 'Principal Commissioner of Customs or Commissioner of Customs' for 'Magistrate', giving these customs authorities a similar role in overseeing the search process.
What happens if customs officers find items during a Section 105 search that are not related to the suspected offense?
While the primary focus of a Section 105 search is on goods liable to confiscation or documents relevant to Customs Act proceedings, any illegally possessed items discovered during a lawful search could potentially be seized. However, the seizure and subsequent action must align with the relevant laws pertaining to those specific items (e.g., laws related to prohibited items, illegal arms, etc.).
What legal recourse does a person have if they believe a search under Section 105 was conducted illegally or unfairly?
If a person believes a search under Section 105 was illegal, they can challenge the search's legality through legal channels. This could involve filing a writ petition in the High Court, alleging a violation of their fundamental rights or challenging the 'reason to believe' that initiated the search. Evidence of procedural lapses or malicious intent can strengthen their case.
Are there any penalties for obstructing a search being conducted under Section 105 of the Customs Act?
Obstructing a customs officer in the performance of their duties, including a search under Section 105, can attract penalties under other sections of the Customs Act and potentially under the Indian Penal Code. This could include fines and imprisonment, depending on the severity and nature of the obstruction.
How does the scope of Section 105 differ for searches conducted near the Indian land frontier or coast versus other areas?
Section 105(1) gives additional power to specially empowered customs officers near the land frontier or coast. In these areas, the Board can authorize specific officers by name to conduct searches, reflecting the heightened security concerns and potential for smuggling in these regions. Outside these areas, the power generally rests with Assistant or Deputy Commissioners of Customs.
Key Conditions & Requirements
| Condition | Details |
|---|---|
| Authorized Officer's Belief | Assistant/Deputy Commissioner or Board-empowered officer must have 'reason to believe' that goods liable to confiscation or relevant documents are secreted. |
| Existence of Goods or Documents | The belief must pertain to goods liable to confiscation, or documents/things useful for proceedings under the Customs Act. |
| Location of Goods/Documents | The goods/documents must be secreted in a place, triggering the search power. |
| Authorization to Search | The authorized officer may either conduct the search himself or authorize another customs officer to do so. |
| Application of CrPC Search Provisions | Search procedures under this section are generally governed by the Code of Criminal Procedure, 1898 (now replaced, but the principle remains) relating to searches. |
| Modification of CrPC Section 165(5) | Sub-section (5) of Section 165 of the CrPC is modified, replacing 'Magistrate' with 'Principal Commissioner of Customs or Commissioner of Customs'. |
Amendment History
Substituted by the Finance Act, 1999 (27 of 1999), section 100, for "Assistant Commissioner of Customs" (w.e.f. 11.05.1999). Earlier the words "Assistant Commissioner of Customs" were substituted by Act 22 of 1995, section 50, for the words "Assistant Collector of Customs" (w.e.f. 26.05.1995).
Now see the Code of Criminal Procedure, 1973 (2 of 1974).
Substituted by the Finance (No.2) Act, 2014 (25 of 2014), section 78, for "Commissioner of Customs" (w.e.f. 06.08.2014). Earlier the words "Commissioner of Customs" were substituted by Act 22 of 1995, section 50, for the words "Collector of Customs" (w.e.f. 26.05.1995).