Section 35 BNSS | Notice For Appearance Under Section 35(3) Is Not A Mandatory Precondition For Arrest Under Section 104 Of The Customs Act: Gujarat High Court

"The requirement of notice under Section 35(3) of the BNSS would not apply to an arrest by an empowered officer of customs under Section 104 of the Customs Act... it would add a condition to the power of arrest conferred by Section 104(1)." Gujarat High Court, in a significant ruling dated 01 October 2026, held that the procedural requirement of issuing a notice of appearance under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, does not govern arrests made under Section 104 of the Customs Act, 1962.

A bench of Justice Sanjeev J. Thaker observed that Section 104 of the Customs Act prescribes a distinct and special procedure for arrest which remains saved by the provisions of Sections 4 and 5 of the BNSS.

Legal Framework and Special Enactments

The court underscored that while the BNSS serves as the general law of criminal procedure, Section 5 explicitly saves special or local laws and procedures prescribed by other statutes. Referring to the Supreme Court's interpretation in Radhika Agarwal v. Union of India, the bench noted that Section 104 of the Customs Act operates within a unique framework where the threshold for arrest—the "reason to believe" based on material in possession—is more stringent than the general threshold under Section 35 of the BNSS.

Distinction Between Customs Act and BNSS

The court clarified that Section 35(3) of the BNSS is not an independent requirement but rather a corollary to the decision-making process under Section 35(1) regarding whether an arrest is necessary. Conversely, the power to arrest under Section 104 of the Customs Act is vested specifically in empowered customs officers and is triggered by their subjective satisfaction regarding the commission of specified offences.

Application of Section 35 of BNSS

The bench further observed that even if Section 35 of the BNSS were to be considered applicable, the notice requirement is not an absolute or non-derogable condition that must precede every arrest. Relying on Satender Kumar Antil v. CBI, the court noted that where the conditions of Section 35(1)(b) are met, including the necessity to prevent tampering with evidence or ensuring the presence of the accused, the investigating agency is not precluded from effecting an arrest without a prior notice.

Court’s Limited Power of Judicial Review

The court emphasized that during the nascent stage of investigation, the judiciary must be cautious not to engage in "judicial overreach." It held that the court’s role is confined to verifying whether the statutory and constitutional safeguards have been complied with by the authorized officer, rather than scrutinizing the sufficiency or adequacy of the material upon which the "reason to believe" was formed.

Grant of Anticipatory Bail on Merits

Despite ruling that a prior notice under Section 35(3) was not mandatory, the court ultimately granted anticipatory bail to the applicants on the merits of their case. The bench noted that the applicants had already joined the investigation and complied with the summons issued under Section 108 of the Customs Act after receiving interim protection from the Supreme Court. The court found that the prosecution failed to demonstrate any specific requirement for custodial interrogation, particularly given the applicants' demonstrated willingness to cooperate.

The court allowed the anticipatory bail applications subject to stringent conditions, including the surrender of passports and an undertaking not to leave India without judicial permission. The court further clarified that the investigating agency remains at liberty to approach the trial court under Section 483(2) of the BNSS to seek the arrest of the applicants in the event of any violation of the bail conditions, including non-cooperation or tampering with evidence.

Date of Decision: 01 October 2026