No Arrests in Customs below Rs.
50 lakhs Value, Smuggling Case Rs. 20 lakhs
[CBEC Circular No. 38 dated 17th
September 2013]
Subject - Guidelines for
Arrest and Bail in relation to offences punishable under Customs Act, 1962.
Attention of the field
formations is invited to the amendments to section 104 of the Customs Act, 1962
vide Finance Act, 2013 (with effect from 10.05.2013) whereby all offences are bailable other than the categories of offences punishable
under section 135 of the Act ibid, which are classified as non-bailable. These are offences relating to:
(a) evasion or attempted evasion of duty
exceeding fifty lakh rupees; or
(b) prohibited goods notified under section 11 of the Customs Act,
1962 (as amended) which are also notified under sub-clause(C) of clause(i) of
sub-section (1) of section 135 of the Customs Act,1962 (as amended); or
(c) 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 one crore rupees; or
(d) fraudulently availing of 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 fifty lakh rupees.
2.1 The existing guidelines on the subject have been re-examined in
the light of the above legislative amendments. As afore-stated, offences under
the Customs Act, 1962 are placed in two categories i.e. (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 l35A or 136 of the Customs Act, 1962.
It is emphasised that 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:
(i) to ensure proper investigation of the
offence;
(ii) to prevent such person from absconding;
(iii) cases involving organised smuggling of
goods or evasion of customs duty by way of concealment;
(iv) masterminds or key operators effecting
proxy/benami imports/exports in the name of dummy or
non-existent persons/IECs, etc.
2.2 The decision to arrests 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.
2.3 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,
categorized as bailable offence, should be effected
only in exceptional situations which may include:
(a) 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 foreign currency where the value of offending goods
exceeds Rs. 20 lakh.
(b) In a case related to importation of trade goods (i.e. appraising
cases) involving wilful misdeclaration 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 CIF
value of the offending goods exceeds Rs. 50 lakh.
2.4 There is no prescribed format for arrest memo but an arrest memo
must be in compliance with the directions in "D.K Basu
vs. State of W.B." reported as 1997 (1) SCC 416 (see para
35). The arrest memo should include:
(a) brief facts of the case;
(b) details of the person arrested;
(c) list of evidence against the person;
(d) relevant Section (s) of the Customs Act,
1962 or other laws attracted to the case and to the arrestee;
(e) the grounds of arrest must be explained
to arrestee and this fact noted in the arrest memo;
(f) a nominated person (as per details
provided by arrestee) of the arrestee should be informed immediately and this
fact also may be mentioned in the arrest memo;
(g) the date and time of arrest may be
mentioned in the arrest memo and the arrest memo should be given to person
arrested under proper acknowledgement;
(h) a separate arrest memo has to be made and
provided to each individual/arrestee.
2.5 Further, there are certain modalities that should be complied with
at the time of arrest and pursuant to an arrest, which include the following:
(i) Female offenders should be arrested by or in the presence of
woman Customs officers.
(ii) 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.
(iii) 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.
2.6 Further, in every case of arrest effected in accordance with the
provisions of section 104 (1) of the Customs Act, 1962, there should be
immediate intimation to the jurisdictional Chief Commissioner or DGRI, as the
case may be.
3.1 In regard to the grant of bail and terms of bail, a person
arrested for a non-bailable offence should be
produced before concerned Magistrate without unnecessary delay in terms of
provisions of Section 104 (2) of the Act.
3.2 Under sub-section (3) of section 104 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. Thus,
release on bail must be offered to a person arrested in respect of bailable offence and bail bond accepted for bailable offence. The amount of bail bond/surety for bailable offences should not be excessive and the bail
conditions should be informed by the arresting officer in writing to the
arrestee and also informed on telephone to the nominated person (as per details
provided by the arrestee) and the arrestee should be also allowed to talk to
nominated person. If the conditions of the bail are fulfilled by the arrestee,
he shall be released by the officer concerned 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. However, only 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 twenty-four (24)
hours of arrest.
3.3 Only in the event of circumstances preventing the production of
the arrestee before a Magistrate without unnecessary delay, the arrestee may be
handed over to nearest Police Station for his safe custody during night, under
proper Challan, and produced before the Magistrate on
the next day, and the nominated person of the arrestee may be also informed
accordingly.
4. The guidelines is issued vide F.No.
394/71/97-Cus(AS) dated 22.6.1999 (including the
threshold limit specified at para 2.3) stand modified
to the above extent.
5. Chief Commissioners/DGRI shall send a report on every arrest to
the concerned Member within twenty-four (24) hours of the arrest. To maintain an
all India record of arrests made under the Customs Act, 1962, a monthly report
of all persons arrested in the Zone shall be sent by the Chief Commissioner to
DRI (Hqrs) in the format prescribed and enclosed, by
the 5th of the succeeding month and the same would be compiled and
sent to Anti-Smuggling Unit, CBEC by 10th of every month zone wise.
6. The Chief Commissioners/Director Generals are hereby directed to
circulate the present guidelines to all the formations under their charge.
Difficulties, if any, in implementation of the aforesaid guidelines may be
brought to the notice of the Board.
F.No.394/68/2013-Cus(AS)
Format
Monthly
Report on Persons Arrested under the Customs Act, 1962
(excluding NDPS Act) in a Zone
|
SNo. |
Name, Designation and Age of the person
arrested |
Date of arrest: |
Commissionerate/DRI
Concerned |
Description and Value of the
seized/detained goods (Rs. In crores) |
Amount of Duty evaded (Rs. In crores) |
Role in evasion/smuggling of goods and
nature of evidence collected |
Appraising case/ outright smuggling case |
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Total |
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Enclosure
to the Circular No. 38/2013-Customs dated 17/09/2013 issued vide
F.No.394/68/2013-Cus(AS)