Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Anti-Smuggling)
Circular No. 38/2013-Customs
New Delhi, dated 17th September 2013
To
All Chief Commissioners of Customs
All Chief Commissioners of Customs (Preventive)
All Chief Commissioners of Customs & Central Excise
All Chief Commissioners of Central Excise
All Directors Generals
Web Master
Sir/Madam,
Subject – Guidelines for Arrest and Bail in relation to offences punishable
under Customs Act, 1962- reg.
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:
- evasion or attempted evasion of duty exceeding fifty lakh rupees; or
- 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 (l) of section 135 of the Customs Act, 1962 (as amended); or
- 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
- 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 135A 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:
- to ensure proper investigation of the offence;
- 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.
2.2 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.
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:
- 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.
- In a case 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 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:
- brief facts of the case;
- details of the person arrested;
- list of evidence against the person;
- relevant Section (s) of the Customs Act, 1962 or other laws attracted to the
case and to the arrestee;
- the grounds of arrest must be explained to arrestee and this fact noted in
the arrest memo;
- 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;
- 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;
- 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:
- Female offender should be arrested by or in the presence of woman Customs
officers.
- 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.
- 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 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.
(A.C. Mallick)
Under Secretary to the Government of India
F.No.394/68/2013-Cus (AS)
Encls: As above
FORMAT
Monthly Report on Persons Arrested under the Customs Act, 1962
(excluding NDPS Act) in a Zone
Sl. No |
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)