The short answer
Customs and DRI officers can arrest without a warrant under section 104 of the Customs Act, but only on a recorded "reason to believe", with written grounds and production before a Magistrate. Most Customs offences are bailable. They become non-bailable only above the section 104(6) thresholds. Anticipatory bail is available, and the safeguards of criminal procedure apply to Customs arrests.
When Customs or DRI can arrest
Section 104(1) allows an empowered officer to arrest a person whom the officer has reason to believe has committed an offence punishable under section 132 (false declaration), 133 (obstruction), 135 (evasion of duty or prohibitions), 135A (preparation) or 136 (offences by officers). The person must be told the grounds as soon as may be (section 104(1)) and taken to a Magistrate without unnecessary delay (section 104(2)).
Safeguards that apply to a Customs arrest
- "Reason to believe" is a higher threshold than suspicion. It must rest on material and be recorded in writing, including why the case falls within the non-bailable thresholds.
- The grounds of arrest must be given in writing before production, so that the arrest can be challenged and bail sought.
- The arrest safeguards of criminal procedure apply to Customs officers: identification and an attested arrest memo, informing a nominated relative or friend, meeting a lawyer during interrogation (though not throughout it), and care for the arrested person's health. These were CrPC sections 41B, 41D, 50A and 55A, now BNSS sections 36, 38, 48 and 56.
- A lawyer may watch custodial interrogation from a visible distance but out of hearing.
- Arrest must not be used as a threat to extract payments. Amounts paid under coercion can be challenged.
Written grounds of arrest, in a language the arrested person understands, are required for all offences. If they are not supplied in writing at least two hours before the person is produced for remand, the arrest and remand can be challenged as illegal.
Bailable or non-bailable
| Category (section 104) | Bail position | Where bail is sought |
|---|---|---|
| Duty evaded above ₹50 lakh; undeclared goods with market price above ₹1 crore; specially notified prohibited goods; drawback, exemption or instrument fraud above ₹50 lakh | Non-bailable (s. 104(6)) | Magistrate (BNSS s. 480), then Sessions Court or High Court (BNSS s. 483) |
| Every other offence under the Customs Act | Bailable (s. 104(7)) | The arresting officer can release on bail (s. 104(3)); otherwise the Magistrate must grant it |
What courts weigh in non-bailable Customs cases
- The value and nature of the goods, and whether the documents actually support the threshold claimed.
- The role alleged: a carrier is in a different position from an organiser or financier.
- Whether the evidence is documentary and already seized, which reduces the risk of tampering.
- Roots in India, travel history and passport deposit. Foreign nationals need conditions they can actually meet.
- The maximum sentence. Even the higher Customs category carries up to seven years, far below NDPS levels.
Prosecution also needs the previous sanction of the Principal Commissioner or Commissioner (section 137), and many offences can be compounded (section 137(3)). Both points matter when arguing bail and planning the defence.
Anticipatory bail after a DRI or Customs summons
A summons under section 108 is not an arrest, and appearing in response to it is ordinarily required. Where the facts show a real and specific fear of arrest, such as a co-passenger's arrest, a search, or a valuation pushing the case above the thresholds, an application for anticipatory bail can be made under BNSS section 482. It can be made before any complaint is filed. Courts commonly grant protection on conditions requiring the person to join the investigation.
Section 108 statements
- A person summoned under section 108 must attend, produce documents and state the truth. A false statement has consequences of its own.
- Customs officers are not police officers, so these statements are admissible in evidence against the maker.
- A statement that was dictated, not read back, or obtained under pressure should be retracted promptly and in writing, ideally at the first production or by a letter to the officer. A retraction made months later carries little weight.
COFEPOSA: preventive detention
COFEPOSA allows detention without trial to prevent future smuggling or foreign exchange violations. It runs alongside the Customs case, not instead of it, and bail in the Customs case does not end the detention. It is challenged through a representation, the Advisory Board and a habeas corpus petition. The usual grounds are procedural.
- Documents. Every document the detaining authority relied on must be supplied with the grounds. A failure to do so violates Article 22(5).
- Speed. A representation must be decided with the utmost expedition. Unexplained delay, or a failure to supply the documents relied on, can make the detention unlawful.
- Live link. There must be a live and proximate link between past conduct and the need to detain now. Where that link and the procedure are satisfied, detentions in large gold-smuggling cases are upheld. There is no right to a lawyer before the Advisory Board as a matter of course.
How we assist
- Bail at the first production: checking the grounds, the recorded reasons and the threshold calculation.
- Anticipatory bail and representation at section 108 appearances.
- Retraction of statements and challenges to illegal arrest.
- Defence of section 135 prosecutions, compounding applications, and COFEPOSA representations and habeas corpus petitions.