Section 104 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 104 gives an empowered customs officer the power to arrest a person he believes has committed a specified offence, requires the person to be taken to a magistrate without unnecessary delay, gives the officer the powers of a police station's officer-in-charge on bail, and then sorts offences into cognizable or non-cognizable and bailable or non-bailable, with money thresholds. This article explains the section as printed in the text on the CBIC portal updated to 30 March 2022.
An officer empowered by general or special order of the Principal Commissioner or Commissioner who has reason to believe that a person has committed an offence punishable under section 132, 133, 135, 135A or 136 may arrest the person and must inform him of the grounds (sub-section (1)). The person must be taken to a magistrate without unnecessary delay (2). Offences relating to prohibited goods or to evasion of duty exceeding fifty lakh rupees (and two other categories) are cognizable (4); other offences are non-cognizable (5). A narrower set of offences under section 135 is non-bailable (6); all others are bailable (7).
The text consulted is the CBIC copy last updated on 30 March 2022 (the Act as amended up to the Finance Act, 2022). Later Finance Acts may have changed this section, so check it before acting.
Where section 104 fits
Section 104 sits in Chapter XIII, "Searches, seizure and arrest". It follows the search powers in sections 100 to 102 and section 103, and is followed by the powers to search premises in sections 105 to 106A. The offences themselves are in later chapters of the Act, which other articles in this series cover.
If you or a colleague faces arrest or summons in a customs matter, our legal dispute resolution team can help you read the section and plan the response.
Sub-section (1): the power to arrest
Sub-section (1) was substituted with effect from 13.07.2006 by section 24 of the Taxation Laws (Amendment) Act, 2006 (29 of 2006), and some words in it were omitted with effect from 1-8-2019, as the footnotes print. As it stands in the copy:
| Element | Text |
|---|---|
| Who | An officer of customs empowered in this behalf by general or special order of the Principal Commissioner of Customs or Commissioner of Customs |
| Condition | Has reason to believe that any person has committed an offence punishable under section 132, section 133, section 135, section 135A or section 136 |
| Power | May arrest such person |
| Duty | Shall, as soon as may be, inform him of the grounds for the arrest |
The list of sections is printed in the text; this article does not explain the offences, which belong to other provisions.
Sub-section (2): production before a magistrate
Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate.
Sub-section (3): bail powers
Where an officer of customs has arrested a person under sub-section (1), he shall, for the purpose of releasing the 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). The footnote says "Now see the Code of Criminal Procedure, 1973 (2 of 1974)". The reader should check the current procedural and penal law for the corresponding provision.
Sub-section (4): cognizable offences
Sub-section (4) was substituted with effect from 28.05.2012 by section 126 of the Finance Act, 2012 (23 of 2012). It says that, notwithstanding anything in the Code of Criminal Procedure, 1973 (2 of 1974), any offence relating to the following shall be cognizable:
| Clause | Offence relating to |
|---|---|
| (a) | Prohibited goods |
| (b) | Evasion or attempted evasion of duty exceeding fifty lakh rupees |
| (c) | Fraudulently availing or attempting to avail drawback or any exemption from duty provided under the Act, where the amount of drawback or exemption exceeds fifty lakh rupees |
| (d) | Fraudulently obtaining an instrument for the purposes of the Act or the Foreign Trade (Development and Regulation) Act, 1992, where the instrument is utilised under the Act and the duty relatable to such utilisation exceeds fifty lakh rupees |
The footnotes show that the figure in clause (b) was substituted, and clauses (c) and (d) were inserted, with effect from 1-8-2019 by the Finance (No.2) Act, 2019 (23 of 2019). The text consulted does not say what the earlier figure was and this article does not state it.
Sub-section (5): everything else is non-cognizable
Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable.
Sub-section (6): non-bailable offences
Sub-section (6) says that, notwithstanding anything in the Code of Criminal Procedure, 1973, an offence punishable under section 135 relating to any of the following shall be non-bailable:
| Clause | Offence relating to |
|---|---|
| (a) | Evasion or attempted evasion of duty exceeding fifty lakh rupees |
| (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 |
| (c) | Import or export of any goods which have not been declared in accordance with the Act and the market price of which exceeds one crore rupees |
| (d) | Fraudulently availing or attempting to avail drawback or any exemption from duty, if the amount of drawback or exemption exceeds fifty lakh rupees |
| (e) | Fraudulently obtaining an instrument for the purposes of the Act or the Foreign Trade (Development and Regulation) Act, 1992, where the instrument is utilised under the Act and the duty relatable to such utilisation exceeds fifty lakh rupees |
The sub-section was substituted by the Finance Act, 2013 (17 of 2013) with effect from 10.05.2013; clauses (d) and (e) and the amended words were put in with effect from 1-8-2019 by the Finance (No.2) Act, 2019. The sub-section is printed with the words "shall be non-bailable" after clause (e).
Sub-section (7): everything else is bailable
Save as otherwise provided in sub-section (6), all other offences under the Act shall be bailable.
Explanation: "instrument"
For the purposes of the section, "instrument" has the same meaning as assigned to it in Explanation 1 to section 28AAA. The text does not say more here.
How the classifications fit together
| Question | Provision | Answer |
|---|---|---|
| Who may arrest? | (1) | An empowered officer with reason to believe an offence under section 132, 133, 135, 135A or 136 has been committed |
| What must the officer do on arrest? | (1), (2) | Inform grounds as soon as may be; take the person to a magistrate without unnecessary delay |
| Is the offence cognizable? | (4), (5) | Only if it falls in clauses (a) to (d) of (4); otherwise non-cognizable |
| Is it non-bailable? | (6), (7) | Only if it is a section 135 offence in clauses (a) to (e) of (6); otherwise bailable |
Note that the two sets of thresholds are not identical. Prohibited goods are cognizable under (4)(a) whether or not notified; under (6)(b), non-bailability attaches to a narrower set (prohibited goods notified under section 11 that are also notified under the relevant sub-clause of section 135). The one-crore market price test appears only in (6)(c).
Example. Delta Exports Pvt Ltd's director is alleged to have evaded duty of an amount exceeding fifty lakh rupees. An empowered officer, having reason to believe an offence under section 135 has been committed, may arrest him and must inform him of the grounds. He must be taken to a magistrate without unnecessary delay. Under (4)(b) the offence is cognizable, and under (6)(a), if it is a section 135 offence on evasion above that figure, it is non-bailable. An offence below those figures would, under (5) and (7), be non-cognizable and bailable.
Practical points
- Ask for the grounds. The officer must inform you of the grounds of arrest as soon as may be.
- Expect production before a magistrate. Sub-section (2) requires it without unnecessary delay.
- Know which category the allegation falls in. Cognizable and non-bailable status depends on the type of offence and the amounts as printed.
- Keep documents ready. Amounts of duty, drawback, exemption and market price decide the category.
- Seek advice at once. Bail powers are linked to the procedural Code; the reader should check the current procedural and penal law for the corresponding provision.
Summons and examination are in sections 107 and 108.
Need help in an arrest or prosecution matter?
Arrest and bail turn on the exact words and figures of the section. Our team can help you work through them. See our legal dispute resolution page.
Key takeaways
- An empowered officer with reason to believe an offence under section 132, 133, 135, 135A or 136 has been committed may arrest and must inform the person of the grounds.
- The person must be taken to a magistrate without unnecessary delay.
- The officer has the powers of an officer-in-charge of a police station on bail, under the Code the section names; check the current procedural law.
- Offences on prohibited goods, or duty evasion, drawback, exemption or instrument fraud above fifty lakh rupees, are cognizable; all others are non-cognizable.
- Certain section 135 offences, including undeclared goods with a market price above one crore rupees, are non-bailable; all others are bailable.
- Later Finance Acts may have changed this section; check before acting.
Read next
- Sections 100 to 102: search of suspected persons
- Sections 105 to 106A: search of premises, conveyances and inspection
- Sections 107 and 108: examination of persons and summons
- Penalties under the Customs Act: sections 112 to 117
Disclaimer: Based on the Customs Act, 1962 as published on the CBIC Tax Information Portal, updated to 30 March 2022 (amended up to the Finance Act, 2022), as consulted on 2 October 2026. Finance Acts of 2023 and later, and the current rules, regulations and notifications, should be checked. This article is general information, not legal advice; check the official text before acting.