Legal principle

An arrest by an empowered customs officer under Section 104 of the Customs Act does not need a prior notice of appearance under Section 35(3) of the BNSS, but it must meet the Radhika Agarwal safeguards. Having the power to arrest does not mean it must be used, and anticipatory bail can be granted where the accused cooperates and custody is not shown to be necessary.

Court decision

The court held that the Section 35(3) BNSS notice does not apply to an arrest by an empowered customs officer under Section 104 of the Customs Act. Even so, it allowed both anticipatory bail applications because the applicants had since cooperated. If arrested, they are to be released on a personal bond of Rs.10,000 each with one surety, must appear before the authority on 07.10.2026, must not leave India without the court's permission and must deposit their passports.

Facts

On 17.03.2025 and 18.03.2025 the DRI and ATS Gujarat searched Flat No. 104, Avishkar Apartments, Paldi, Ahmedabad, rented by Meghkumar Shah. They recovered 882 gold bars, gold jewellery, watches and cash valued at Rs.109,33,83,948. Summons under Section 108 of the Customs Act were issued many times to Meghkumar and his father Mahendrakumar Shah, but they did not appear and allegedly went to Dubai through Nepal. Look out circulars were issued. They sought anticipatory bail (protection before arrest) for an offence under Section 135 of the Customs Act, arguing that DRI had to first give them a notice of appearance under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). After the Supreme Court gave interim protection, they appeared and gave statements, and the Supreme Court sent the matter back for decision.

Key provisions

• Section 104(1), Customs Act, 1962 — Power to arrest