Customs arrest for prohibited arms and ammunition upheld; prior BNSS notice was not required and bail was cancelled.

Customs arrest under section 104 of the Customs Act was not invalid for want of prior notice under section 35(3) of the Bharatiya Nagarik Suraksha Sanhita because that notice requirement applies only where arrest is not otherwise required under section 35(1). Imported arms and ammunition were treated as prohibited goods under a Customs notification, so the departmental circular fixing a monetary threshold for arrest did not apply. On the record, the material also justified cancellation of bail and custodial interrogation, including the seriousness of the alleged evasion, misleading emails, and the need for further investigation.

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Issues: (i) Whether the Magistrate was justified in treating the absence of notice under section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 as rendering the arrest and remand process illegal; (ii) whether the goods in question were prohibited goods and whether the departmental circular restricting arrest below a monetary threshold applied to imports of arms and ammunition; and (iii) whether the material on record justified cancellation of bail and custodial interrogation of the respondent.

Issue (i): Whether the Magistrate was justified in treating the absence of notice under section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 as rendering the arrest and remand process illegal.

Analysis: Section 35(3) applies only where arrest is not required under section 35(1). The arrest here was sought under the special power conferred by section 104 of the Customs Act, 1962, which authorises arrest where an empowered customs officer has reason to believe that an offence punishable under the specified provisions has been committed. That provision does not require prior notice of the kind contemplated by section 35(3). The reliance placed by the Magistrate on non-service of such notice was therefore legally erroneous.

Conclusion: The finding that absence of notice under section 35(3) invalidated the arrest was incorrect and was set aside.

Issue (ii): Whether the goods in question were prohibited goods and whether the departmental circular restricting arrest below a monetary threshold applied to imports of arms and ammunition.

Analysis: The imported items were arms and ammunition, and the record referred to a notification issued under section 11 of the Customs Act, 1962 prohibiting their import. The circular relied on by the accused carved out an exception for offences relating to arms and ammunition, making the monetary threshold inapplicable in such cases. The goods were therefore treated as prohibited goods and the circular did not bar arrest.

Conclusion: The goods were treated as prohibited goods, and the circular did not assist the respondent.

Issue (iii): Whether the material on record justified cancellation of bail and custodial interrogation of the respondent.

Analysis: The Court noted that the investigating agency had been denied an opportunity to file its say before bail was granted. It also found supporting circumstances of seriousness, including alleged misleading emails, the possibility of a broader evasion scheme, and the need for further interrogation. In that backdrop, the grant of bail was found to be unsustainable and custodial interrogation was considered necessary.

Conclusion: Bail was rightly cancelled and custody of the respondent was required for investigation.

Final Conclusion: The challenge to the bail order succeeded, the bail granted to the respondent was withdrawn, and the respondent was directed to surrender to the investigating agency in accordance with law.

Ratio Decidendi: Where customs arrest is exercised under section 104 of the Customs Act, 1962, prior notice under section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 is not a prerequisite, and in cases involving prohibited arms and ammunition the usual monetary threshold for arrest does not control the power to arrest or the need for custodial interrogation.

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