BNSS Section 35(3) Notice Not Mandatory For Customs Act Arrests: Gujarat HC

The Gujarat High Court has ruled that the requirement of a prior notice of appearance under the Bharatiya Nagarik Suraksha Sanhita, 2023 is not a mandatory condition for arrests made by empowered officers under the Customs Act, 1962. This decision clarifies that special powers of arrest conferred by specific enactments remain protected from the general procedural defaults of the new criminal code, provided statutory safeguards are met.

In a detailed judgment, a bench of Justice Sanjeev J. Thaker adjudicated upon the anticipatory bail applications of individuals allegedly involved in a massive gold smuggling syndicate. The Court was tasked with determining whether the failure of the Directorate of Revenue Intelligence (DRI) to issue a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 the successor to Section 41A of the Code of Criminal Procedure, 1973 rendered a potential arrest illegal.

Section 35 BNSS vs Section 104 Customs Act

The Court analyzed the interplay between Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and Section 104 of the Customs Act, 1962. It noted that the Customs Act, 1962 classifies offences based on the nature of goods and monetary limits rather than just the term of imprisonment. The Court observed that Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 does not merely complement the Customs Act, 1962 but would add an unauthorized condition to the special power of arrest if applied strictly.

The Court, in its reasoning, observed: "Section 35(3) of the BNSS does not merely complement Section 104 of the Customs Act, 1962. If applied, it would add a condition to the power of arrest conferred by Section 104(1). Since the Customs Act makes a specific provision regarding the power of arrest, and that provision is saved by Sections 4(2) and 5 of the BNSS, 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, 1962."

Court Observations on Judicial Review

Referencing the precedent in Radhika Agarwal v. Union of India ( "(2025) 6 SCC 545": 2025 CaseBase(SC) 262), the High Court emphasized that the scope of judicial review over an officer's 'reason to believe' is limited at the nascent stage of investigation. The Court noted: "The scrutiny on the subjective opinion or satisfaction of the authorised officer to arrest the person could not be a matter of judicial review, inasmuch as when the arrest is made by the authorised officer on he having been satisfied about the alleged commission of the offences under the special Act, the matter would be at a very nascent stage of the investigation or inquiry."

The Court has following directions:

"(a) Shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) Shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court;

(c) Shall not obstruct or hamper the investigation, and shall not tamper with the evidence collected or yet to be collected by the Authority;

(d) Shall remain present before the concerned Authority on 07.10.2026, between 11:00 a.m. and 2:00 p.m.;

(e) Shall, at the time of execution of the bond, furnish their address to the Investigating Officer and the Court concerned, and shall not change their residence till the final disposal of the case or till further orders;

(f) Shall not leave India without the permission of the Court, and, if having a passport, shall deposit the same before the trial Court within a week;

(g) It is open for the investigating agency to move the learned trial Court for a direction under Section 483(2) of the BNSS to arrest the Applicants in the event of violation of any of the above conditions."

Background

The case arose from a search conducted by the DRI and ATS at an apartment in Ahmedabad, resulting in the seizure of 882 gold bars, jewellery, and luxury watches valued at over Rs. 109 crore. The prosecution alleged that the applicants had absconded to Dubai via Nepal immediately following the search and failed to comply with multiple summons issued under Section 108 of the Customs Act, 1962.

The applicants argued that they were entitled to anticipatory bail because no notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was served, citing Arnesh Kumar v. State of Bihar and Another ( "(2014) 8 SCC 273": 2014 CaseBase(SC) 560) and Satender Kumar Antil v. Central Bureau of Investigation and Others ( "2026 INSC 115": 2026 CaseBase(SC) 170). They further contended they had eventually joined the investigation following interim protection from the Supreme Court. The DRI maintained that the applicants had destroyed evidence (SIM cards) and that the organized nature of the crime necessitated custodial interrogation. The High Court, while ruling that the Section 35(3) notice was not mandatory, granted anticipatory bail on the merits because the applicants had eventually cooperated and the DRI failed to demonstrate a specific need for custody at this stage.

Case Details:
Case No.: R/CR.MA/22343/2025
Neutral Citation: 2026:GUJHC:62227
Case Title: Mahendrakumar Amrutlal Shah Versus State Of Gujarat & Anr.
Appearances:
For the Petitioner(s): Mr. J.S. Unwalla Sr. Advocate With Mr. Siddharth R. Kheskani With Mr Sumit B Sikarwar
For the Respondent(s): Mr. Nirak Sharma, App; Mr Utkarsh R Sharma Learned Senior Standing Counsel

Source: 2026 CaseBase(GUJ) 25663