Arrest - CBEC's Customs Manual 2023 - Customs

10. Arrest: 10.1 To effectively tackle the menace of smuggling and other serious economic offences including commercial frauds, apart from penal action in Departmental adjudication, the Customs Act, 1962 provides for criminal prosecution in a Court of law. Prosecution action can also be taken for providing false documents/declaration to the Customs and for obstructing Customs officers in their work. 10.2 As provided under section 104(1), 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. Also, every arrested person arrested under sub-section (1) shall, has to be taken without unnecessary delay to the nearest Magistrate. Further, the arrested person is to be dealt with by the Magistrate, as per the provisions of the Code of Criminal Procedure, 1898. The power to remand an arrested person to judicial custody vests in the Magistrate by virtue of Section 165 of the Cr.PC. 10.3 Though under Section 104 of the Customs Act, 1962 Principal Commissioner of Customs or Commissioner of Customs are empowered to delegate to an officer of Customs by general or special order, powers of arrest of persons guilty of offence punishable under Section 135 of the said Act, extreme circumspection and care is to be exercised at senior level in exercising these powers and ordering arrests. Arrest should be resorted to only in cases of sufficient grave nature. 10.4 Persons involved in Customs related offence cases who may be liable to prosecution should not be arrested in routine unless exigencies of certain situations demand their immediate arrest. At times, prior to prosecution, arrests (s) may be necessary to ensure proper investigations and penal action against the persons (s), as otherwise the person involved in the offence may hamper investigations or disappear from the scene/area such as in cases involving outright smuggling by Sea/Air/Land route. 10.5 In all commercial fraud cases in relation to regular imports or exports, before arresting any person(s) the Principal Commissioner of Customs or Commissioner of Customs concerned should be approached by the Investigating Officer and the Principal Commissioner of Customs or Commissioner of Customs should be personally satisfied that there are sufficient grounds warranting arrest of the person(s). These grounds/reasons should also be recorded by the concerned Principal Commissioner of Customs or Commissioner of Customs in writing on file before the arrest is ordered and affected by the proper officer. 10.6 As far as possible, in other than commercial fraud cases warranting prosecution under Section 135 of the said Act, where arrest is considered necessary prior clearance and approval for arrest may be taken from Principal Commissioner of Customs or Commissioner of Customs. However, there could be situations, for example in outright smuggling cases in remote areas (and sometimes even in town seizure or international passenger clearance offence cases) where it may not be administratively possible to get prior permission of concerned Principal Commissioner of Customs or Commissioner of Customs before effecting arrest. In such cases, the decision to arrest a person in accordance with the guidelines - taking due note of the offence against the person which has come to light in investigations carried out, should be taken at the minimum level of the concerned Assistant Commissioner/Assistant Director recording the reasons in writing. Further, in such cases, the concerned Assistant Commissioner/ Assistant Director or other higher officer (lower than Principal Commissioner of Customs or Commissioner of Customs) who has ordered arrest, should immediately after arrest furnish a report incorporating reasons for arrest, to the jurisdictional Principal Commissioner of Customs or Commissioner of Customs and his satisfaction for the arrest made should also be kept on record in writing. 10.7 The guidelines for arrest are summed up as follows: i. Offences under the Customs Act, 1962 are either (i) bailable; or (ii) non-bailable. Since arrest takes away the liberty of an individual, the power must be exercised with utmost care and caution in cases where a Commissioner of Customs or Additional Director General has reason to believe on basis of information or suspicion that such person has committed an offence under the Act punishable under the Sections 132 or 133 or 135 or 135A or 135AA or 136 of the Customs Act, 1962. ii. Arrest of persons in terms of Section 104(1) of Customs Act, 1962 should be resorted to only where the facts and situations of a particular case demand such action. Persons involved should not be arrested unless the exigencies of certain situations demand their immediate arrest. These situations may include circumstances like ensuring proper investigation, to prevent such person from absconding, cases involving organised smuggling of goods or evasion of Customs duty by way of concealment, masterminds or key operators effecting proxy/ benami imports/exports in the name of dummy or non-existent persons/IECs, etc. The decision to arrest should be taken in cases which fulfil the requirement of the provisions of Section 104(1) of Customs Act, 1962 and after considering the nature of offence, the role of the person involved and evidence available. iii. While the Act does not specify any value limits for exercising the powers of arrest, it is clarified that arrest in respect of an offence, should be effected only in exceptional situations which may include: a. Cases involving unauthorised importation in baggage/ cases under Transfer of Residence Rules, where the market value of the goods involved is Rs. 50,00,000/- (Rupees Fifty Lakh) or more; b. Cases of outright smuggling of high value goods such as precious metal, restricted items or prohibited items or goods notified under section 123 of the Customs Act, 1962 or offence involving foreign currency where the value of offending goods is Rs. 50,00,000/- (Rupees Fifty Lakh) or more; c. Cases related to importation of trade goods (i.e. appraising cases) involving wilful mis-declaration in description of goods/concealment of goods/goods covered under section 123 of Customs Act, 1962 with a view to import restricted or prohibited items and where the market value of the offending goods is Rs. 2,00,00,000/- (Rupees Two Crore) or more; d. Cases involving fraudulent evasion or attempt at evasion of duty involving Rs 2,00,00,000/- (Rupees Two Crore) or more; e. cases involving fraudulent availment of drawback or attempt to avail of drawback or any exemption from duty provided under the Customs Act, 1962, in connection with export of goods, if the amount of drawback or exemption from duty is Rs. 2,00,00,000/- (Rupees Two Crore) or more. In cases related to exportation of trade goods (i.e. appraising cases) involving (i) wilful mis-declaration in value / description ; (ii) concealment of restricted goods or goods notified under section 11 of the Customs Act, 1962, where market value of the offending goods is Rs. 2,00,00,000/- (Rupees Two Crore) or more. f. Cases involving obtaining an instrument from any authority by fraud, collusion, wilful misstatement or suppression of facts and utilisation of such instrument where the duty relatable to such utilisation of the instrument is Rs 2,00,00,000/- (Rupees Two Crore) or more. g. The above criteria of value mentioned in (a) (f) would not apply in cases involving offences relating to items i.e. FICN, arms, ammunitions and explosives, antiques, art treasures, wild life items and endangered species of flora and fauna. In such cases, arrest, if required, on the basis of facts and circumstances of the case, may be considered irrespective of value of offending goods involved. [Refer Circular No. 13/2022-Customs dated 16/08/2022] iv. There is no prescribed format for arrest memo but an arrest memo must be in compliance with the directions in .K B u . f W.B. [1997(1) SCC 416 (see para 35)]. v. Certain modalities that should be complied with at the time of arrest and pursuant to an arrest include (a) female offender should be arrested by or in the presence of woman Customs officers, (b) medical examination of an arrestee should be conducted by a medical officer in the service of Central or State Government and in case such medical officer is not available, by a registered medical practitioner soon after the arrest is made. If an arrested person is a female then such an examination shall be made only by, or under supervision of a female medical officer, and in case such female medical officer is not available, by a female registered medical practitioner, (c) it shall be the duty of the person having the custody of an arrestee to take reasonable care of the health and safety of the arrestee. vi. A person arrested for a non-bailable offence should be produced before Magistrate without unnecessary delay, as per Section 104(2) of the Customs Act, 1962. vii. Under Section 104(3) of the Customs Act, 1962 an officer of Customs (arresting officer) has the same powers as an officer in charge of a Police Station under the Cr.PC. Thus, a Customs officer (arresting officer) is bound to release a person on bail for offences categorized as bailable under the Customs Act, 1962 and release on bail must be offered to a person arrested in respect of bailable offence and bail bond accepted. If the conditions of the bail are fulfilled, the arrestee shall be released on bail forthwith. The arresting officer may, and shall if such a person is indigent and unable to furnish surety, instead of taking bail from such person, discharge him or her executing a bond without sureties for his appearance as provided under Section 436 of Cr.PC.in cases where the conditions for granting bail are not fulfilled, the arrestee shall be produced before the appropriate Magistrate without unnecessary delay and within 24 hours of arrest. [Refer Instruction F.No.394/71/97-Cus(AS), dated 22-6-1999 and Circular No. 38/2013- Cus., dated 17-9-2013, Circular 28/2015- Customs dated 23.10.2015]