BNSS appearance notice not required before arrest under Customs Act, Gujarat HC rules; grants anticipatory bail in ₹109-crore gold seizure case

The Directorate of Revenue Intelligence (DRI) searched a flat rented by the applicants’ son and recovered 882 gold bars, jewellery, watches, cash and other items valued at approximately ₹109.33 crore.

The prosecution alleged that the applicants failed to respond to summons issued under Section 108 of the Customs Act, 1962, and absconded to Dubai through Nepal.

Following interim protection from the Supreme Court, they returned and joined the investigation.

They sought anticipatory bail under Section 482 of the BNSS, including on the ground that no notice under Section 35(3) of the BNSS had been issued.

The Supreme Court left the issues open and directed the High Court to decide the applications expeditiously.

Whether Section 35(3) of the BNSS requires a customs officer to issue a notice before arresting a person under Section 104 of the Customs Act

Whether the absence of a Section 35(3) notice, by itself, entitled the applicants to anticipatory bail, including if Section 35 were assumed to apply

Whether, in the circumstances of the case, custodial interrogation was necessary or anticipatory bail should be granted on the merits

Sections 4(2) and 5 of the BNSS apply the general criminal-procedure framework to offences under other laws, subject to special provisions and powers conferred by those laws; a special provision prevails to the extent of inconsistency.

Section 104(1) of the Customs Act empowers a specially authorised customs officer to arrest a person where the officer has reason to believe that the person committed a specified offence; Section 108 separately empowers customs officers to summon persons whose attendance is necessary.

The Court held that Section 35(3) of the BNSS does not apply to an arrest under Section 104 because it would add a precondition to the special statutory power of arrest.

In any event, under Section 35, notice is required where arrest is not required under Section 35(1); it is not an absolute prerequisite where the statutory grounds for arrest exist.

Applying Radhika Agarwal v. Union of India, (2025) 6 SCC 545, the Court noted that review of an arrest under a special statute is limited to compliance with statutory and constitutional safeguards, including the officer’s authority and the existence of material supporting the reason to believe; the sufficiency of that material is not ordinarily reviewed at the investigation stage.

It also considered Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, and Satender Kumar Antil v. CBI, 2026 INSC 115, on the operation of the notice-and-arrest framework.

The Court treated Section 104 of the Customs Act as a distinct statutory scheme governing customs arrests and held that importing Section 35(3) into that scheme would impose a condition absent from the special Act.

It further reasoned that, even if Section 35 applied, the prosecution’s allegations—including the applicants’ earlier non-appearance, their alleged absconding and the destruction of communication devices—provided a prima facie basis for the authority’s belief and its investigation-related concerns; consequently, absence of a notice did not independently warrant anticipatory bail.

On the merits, however, the applicants had appeared for questioning after receiving interim protection, complied with subsequent summons and offered further cooperation.

The prosecution did not identify a specific investigative purpose that required their custody at that stage.

The Court therefore concluded that the investigation could proceed without custodial interrogation.

Nevertheless, it allowed both applications and directed that, in the event of arrest or appearance in connection with the matter, the applicants be released on bail on personal bonds of ₹10,000 each with one surety of like amount, subject to conditions including cooperation with the investigation, non-interference with evidence or witnesses, attendance before the authority, surrender of passports and not leaving India without court permission.

The Court clarified that its observations would not affect the trial and would not restrict the investigating agency’s lawful powers.