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Section 104 of the Customs Act empower arrest of any person, including Officers of Customs u/s 136 of the Customs Act, who commits an offence in India or within the Indian customs waters, by the customs officers by an order of the principal or Commissioner of Customs as the case may be having reasons to believe that the above said offences has taken place. The offence committed ought to be punishable u/s 132 - false declaration and false documentation, u/s 133 - obstruction of an Officer, u/s 135 -evasion of duty or prohibitions, u/s 135 A preparation to export goods in contravention of provisions of the Act. and u/s 136 - offences by an officer of customs. The Offences are to be tried summarily u/s 138 of the customs Act.

Section 132 provides that any person who prepares,signs or uses, etc., declaration,statement, or document in relation to a business pertaining to the customs, knowing or reasons to believe is false, shall be punishable with imprisonment and fine. 

Section 133 of Customs Act refers to any person intentionally obstructs any officer of customs, and Section 135 refers to fraudulent evasion and attempt to evasion of customs duty. 

Section 135 A refers to a person makes preparation to export any in contravention of the provisions of the act, is punishable with fine and imprisonment of 3 years, and others as referred above fine with two years of imprisonment. 

The person arrested in the above provision without any delay i.e., within 24 hours will have to be taken to a magistrate. Further, an order of remand can be issued by the Magistrate for the detention of custody. Once a person arrested is u/s 104 of the Customs Act, then the provisions of section 167(2) of Cr. PC, 1973 gets attracted, and provisions contained therein have to be adhered. The detention in custody is legal only when the order of remand is issued. In case the order of remand had been expired, detention of custody is not legal, an extended/fresh remand order for detention is required for custody. After the remand or extended period, the person may be released on bail and the grant of bail for the offences will arise only in non -cognizable offences committed by the accused under Customs Act. 

The word and expression ' reasons to believe', Courts at its discretion may examine reasonable connections or a relevant bearing for the formation of belief. 

It is pertinent to not that the court deals generally cases of smuggling i.e.,Section 135 of the Act, strongly by deterrent sentence with nature of the cases after considering various factors.  Similarly, there must be an acquittal of the accused where the facts and circumstances of the case provide that there is no proper evidence to prosecute u/s 135 (1) (a) of the Act. 

Thus, it may be concluded preciously that where no clearance of the goods from the customs area is proved, under such circumstances no intention to smuggle goods by evading payment of customs duty. It can be concluded that where there is no intention, the question of intention to smuggle goods does not arise within the meaning of section 135. 

Disclaimer: The views expressed in the above article is purely personal view of the author, any reference or reproduction will not bind legal impact on the author under any circumstances. The readers are advised to read the relevant Act and Provisions contained and proceed.

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Category Taxation, Other Articles by - K.S.Ramaswamy Advocate