Power to arrest
Section 104 of the Customs Act, 1962 deals with power to arrest. 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 has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136 The Act came into force on 01 Feb 1963.
1[(1) If an officer of customs empowered in this behalf by general or special order of the 2[Principal Commissioner of Customs or Commissioner of Customs] has reason to believe that any person 3*** 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.]
(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate.
(3) Where an officer of customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police-station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898).
4[(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence relating to--
(a) prohibited goods; or
(b) evasion or attempted evasion of duty exceeding fifty lakh 5[rupees; or],
shall be cognizable.
6[(c) fraudulently availing of or attempting to avail drawback or any exemption from duty provided under this Act, where the amount of drawback or exemption from duty exceeds fifty lakh rupees; or
(d) fraudulently obtaining an instrument for the purposes of this Act or the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), and such instrument is utilised under this Act, where duty relatable to such utilisation of instrument exceeds fifty lakh rupees.]
(5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable.
7[(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) an offence punishable under section 135 relating to--
(a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or
(b) prohibited goods notified under section 11 which are also notified under sub-clause (c) of clause (i) of sub-section (1) of section 135; 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 5[rupees; or], shall be non-bailable.
6[(e) fraudulently obtaining an instrument for the purposes of this Act or the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), and such instrument is utilised under this Act, where duty relatable to such utilisation of instrument exceeds fifty lakh rupees.]
(7) Save as otherwise provided in sub-section (6), all other offences under this Act shall be bailable.]
6[Explanation.--For the purposes of this Section, the expression "instrument" shall have the same meaning as assigned to it in Explanation 1 to section 28AAA.]
Section 104, The Customs Act, 1962 (Act 52 of 1962).
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
This section refers to
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Union of India vs Padam Narain Aggarwal Etc
Court's Decision & Legal Precedent
A court cannot grant blanket anticipatory bail protecting an accused from arrest for any non-bailable offence, nor can it impose conditions such as prior notice before arrest on the statutory power of arrest vested in investigating authorities under section 104 of Customs Act. Anticipatory bail must be specific to identified offence(s), based on applicant's reasonable apprehension of arrest for a non-bailable offence, and cannot include conditions that interfere with or obstruct the legitimate investigative authority and statutory powers of arrest. The jurisdiction to grant anticipatory bail is discretionary but must be exercised within statutory limits and cannot be used to impose judicial obstacles to investigation.
On this section: Power of Customs officer to arrest person reasonably believed to have committed specified offences (sections 132, 133, 135, 135A, 136). Court held that this power is statutory, circumscribed by objective considerations, and cannot be subject to judicial conditions like prior notice.
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Om Prakash vs Union of India
Court's Decision & Legal Precedent
Offences under the Central Excise Act, 1944, and offences under Section 135 of the Customs Act, 1962, are non-cognizable in the sense that police officers cannot arrest without warrant and cannot investigate without Magistrate's order under Section 155 Cr.P.C. However, such offences are also bailable, because (1) they relate to recovery of revenue rather than punishment for grave crimes, (2) Sections 20 and 104(3) mandatorily empower officers to release arrested persons on bail, (3) the legislative scheme indicates intent that such offences should be bailable, and (4) the deeming language in Sections 9A and 104(4) making offences non-cognizable does not negate bailability. Non-cognizable and bailable are separate characteristics, and a statute can make offences both non-cognizable (restricting arrest authority) and bailable (entitling accused to bail).
On this section: Section 104(1)-(3) grants power to arrest and Section 104(4) makes offences non-cognizable. Court holds provisions are pari materia with Central Excise Act and offences are bailable based on same reasoning.
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Baby Devassy Chully @ Bobby vs Union of India
Court's Decision & Legal Precedent
When a person accused of smuggling is in jail but has been granted bail which he has not availed, preventive detention under COFEPOSA Act can be validly imposed if the Detaining Authority was conscious that the detenu could come out at any moment and indulge in prejudicial activities, provided all procedural safeguards are followed and the detaining authority demonstrates application of mind to relevant facts. The principle from Binod Singh that preventive detention should not be imposed when there is no imminent possibility of release is not violated when bail option is available and could be availed at any time.
On this section: Authority for arrest of persons involved in smuggling; used for arresting co-accused persons; Section 108 used for recording statement of detenu
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section Ed.: Section 104 of the Customs Act, 1962 also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate without unnecessary delay. 38. The law thus, on the one hand, allows a Customs Officer to exercise power to arrest a …
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… The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section Ed.: Section 104 of the Customs Act, 1962 also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate without unnecessary delay. 38. The law thus, on the one hand, allows a Customs Officer to exercise power to arrest a …
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… The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section Ed.: Section 104 of the Customs Act, 1962 also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate without unnecessary delay. 38. The law thus, on the one hand, allows a Customs Officer to exercise power to arrest a …
Questions about Section 104
What have the courts held on Section 104 of the Customs Act?
Union of India vs Padam Narain Aggarwal Etc (03 Oct 2008) is the leading judgment on this section among those set out below: Power of Customs officer to arrest person reasonably believed to have committed specified offences (sections 132, 133, 135, 135A, 136). Court held that this power is statutory, circumscribed by objective considerations, and cannot be subject to judicial conditions like prior notice. Another 2 judgments on this section are set out below, all of them from the Supreme Court. They run from 2008 to 2012.
How do I find court cases under Section 104 of the Customs Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: Customs Act 1962 104, section 104 Customs Act 1962, section 104 of the Customs Act. People searching for it also type customs act 1962 section 104 and 104 customs act punishment. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 3 reported judgments on this section are set out on this page, beginning with Union of India vs Padam Narain Aggarwal Etc (03 Oct 2008).
What should I read with Section 104 of the Customs Act, and has it changed?
Its own text turns on section 11 (Power to prohibit importation or exportation of goods), section 28AAA (Recovery of duties in certain cases), section 132 (False declaration, false documents, etc), section 133 (Obstruction of officer of customs), and on 3 further provisions, so none of them can safely be read on its own. 2 other provisions in this corpus refer back to it.
When did Section 104 of the Customs Act come into force?
Section 104 of the Customs Act, cited as Customs Act 1962 104, came into force on 01 Feb 1963, having been enacted on 13 Dec 1962. It is in force as at the date shown on this page.
Other sections of this Act
- 28. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded2145 words
- 2. Definitions1638 words
- 129A. Appeals to the Appellate Tribunal1170 words
- 27. Claim for refund of duty1060 words
- 127C. Procedure on receipt of an application under section 127B1056 words
- 138C. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence872 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.