Arrest Under the Customs Act

In one line

Section 104 permits a customs officer to arrest a person he has reason to believe has committed a listed offence, and it grades the consequences of that arrest. Precisely: section 104(1) confers the power; section 104(2) requires production before a magistrate; section 104(4) lists the cognizable offences; section 104(5) makes the rest non-cognizable; section 104(6) lists the non-bailable ones; and section 104(7) makes the rest bailable.

Why an arrest power exists in a fiscal statute

Because the preventive half of the Act must reach the person and not only the goods. Confiscation takes the consignment; penalty takes money; but an organised smuggling operation absorbs both as a cost of business. Only a power over the person deters the professional.

But it is the most serious power in the Act and it is used least. Adjudication is the ordinary course; prosecution is exceptional and needs sanction under section 137; arrest is exceptional even within prosecution. The section is therefore drawn narrowly, and its architecture has been redrawn three times, in 2012, 2013 and 2019, in response to litigation.

The provision

Section 104(1) provides that if an officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.

Note the five offences, and they should be named: section 132 false declaration and false documents; section 133 obstruction of an officer; section 135 evasion of duty or prohibitions; section 135A preparation; and section 136 offences by officers of customs. Arrest is not available for every contravention of the Act.

Note also the duty to inform the grounds, which is in the section itself and reflects Article 22(1).

Section 104(2) provides that every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate.

Section 104(3) provides that where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer in charge of a police station has and is subject to under the Code of Criminal Procedure.

Section 104(4), the cognizable offences. Notwithstanding anything contained in the Code of Criminal Procedure, an offence under section 135 relating to:

(a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or