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Bombay High Court

SHAUN STANY NORONHA AND ANRversusUNION OF INDIA AND ANR

Decided
Disposal
Disposed Off

Holding

The arrest was unlawful because the customs officer did not have a reasonable belief that the seized diesel was a prohibited good or that its market value exceeded Rs 1 crore, making the offence bailable; therefore, the magistrate’s order declaring it non‑bailable was set aside.

Summary

The petitioners, employees of Shiny Shipping, were arrested after customs officers seized about 120 KL of diesel and cash from the vessel M.V. Tina 4 and were denied bail by the Additional Chief Judicial Magistrate on the ground that the offences under Section 135(1)(i) of the Customs Act were non‑bailable. The petitioners challenged the legality of the arrest, arguing that the customs officer lacked a reasonable belief (‘reason to believe’) that the seized goods exceeded the monetary thresholds for a non‑bailable offence and that the goods were not notified as prohibited under the relevant provisions. The High Court examined the statutory test for arrest under Section 104 of the Customs Act, the requirement of a detailed computation of value and prohibited‑goods status, and the Supreme Court’s guidance in Radhika Agarwal. It held that the officer had no material to conclude that the market value exceeded Rs 1 crore or that the diesel was a prohibited good under Section 11 and sub‑clause (C) of Section 135. Consequently, the magistrate’s finding of non‑bailability was erroneous. The Court quashed the magistrate’s order, granted bail to the petitioners on bond, and imposed conditions for their future conduct.

Issues considered

  • Whether the customs officer had sufficient ‘reason to believe’ that the petitioners committed an offence punishable under Section 135(1)(i) making the arrest lawful.
  • Whether the seized diesel qualifies as ‘prohibited goods’ under Section 11 and sub‑clause (C) of Section 135, thereby rendering the offence non‑bailable under Section 104(6).
  • Whether the value of the seized diesel exceeded the Rs 1 crore threshold required for a non‑bailable classification under Section 104(6)(a).
  • Whether the magistrate erred in classifying the offence as non‑bailable without a detailed valuation and prohibited‑goods notification.

Legislation cited

Subjects

  • customs arrest
  • bail
  • non‑bailable offence
  • Section 104
  • Section 135
  • reason to believe
  • prohibited goods
  • valuation of seized goods
  • judicial review
  • customs seizure

Judgment

                                                                       -CRIWP338-2026.DOC

                                                                                   Santosh

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION
                                   CRIMINAL WRIT PETITION NO. 338 OF 2026
                      1. Shaun Stany Noronha
                      2. Sushant Kishor Manna                               ...Petitioners
                                          Versus
                      1. Union Of India
                      2. State of Maharashtra                              …Respondents
                      Mr. Aabad Ponda, Senior Advocate a/w Mr. Bhomesh Bellam,
                           for the Petitioners.
                      Smt. Megha Bajoria, Special PP, a/w Chirag Sawant for the
                           Respondent No.1-UOI.
                      Smt. R. S. Tendulkar, APP for State-Respondent No.2.

                                             CORAM:             N. J. JAMADAR, J.
                                             Reserved On:       3rd FEBRUARY, 2026
                                             Pronounced On:     6th FEBRUARY, 2026
                      JUDGMENT:-
                            Rule. Rule made returnable forthwith, with the consent of

                      the learned Counsel for the parties heard finally.

                      1.    This petition calls in question the legality and correctness

                      of an order dated 20th January, 2026, passed by the learned
ARUN
RAMCHANDRA
SANKPAL               Additional Chief Judicial Magistrate, Mumbai, whereby the
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL               learned Magistrate declined to release the petitioners on bail
Date: 2026.02.07
17:44:23 +0530


                      holding that the offences for which the Petitioners were

                      arraigned,    under Section 135(1)(i) of the Customs Act, 1962

                      (“the Customs Act”), were non-bailable.

                      2.    The petitioners claim to be the employees of Shiny

                      Shipping and Logistics Pvt. Ltd. (“Shiny Shipping”).          Shiny

                      Shipping owns multiple vessels including M. V. Tina 4, which is
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an Inland Vessel registered under the Inland Vessels Act, 1917.

The said vessel holds a valid licence for transporting petroleum.

Shiny Shipping, according to the petitioners, purchases High

Flash High Speed Diesel (“HFHSD”) regularly to fuel the engines

of the vessels.

3.    Pursuant to an intimation, on 17th January, 2026, the

officers attached to Rummaging and Intelligence Division of

Commissioner of Customs (Preventive) intercepted M. V. Tina4.

During rummaging of the said vessel, approximately 120 KL

grey blackish coloured liquid purported to be diesel was found

concealed in forward freshwater tank and in service tank. Cash

amount of Rs.4,00,000/- was also found concealed in the ceiling

of the Master’s cabin. A seizure-memo was drawn.


4.    After initial interrogation, and recording of the statements

of the petitioners, they were arrested on 20th January, 2026. The

petitioners were served with their grounds of arrest and reasons

for arrest.    The petitioners were produced before the learned

Magistrate.


5.    The     Petitioners   contended   that,   the     arrest   of   the

petitioners was not in conformity with law and the threshold of

satisfaction and the pre-conditions for effecting the arrest of the

petitioners under Section 104(1) of the Customs Act were not
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satisfied. Secondly, from the documents annexed to the remand

report including the seizure-memo, the grounds of arrest and

the reasons for arrest, it became evident that the offences for

which the petitioners were arraigned were bailable and, thus,

the petitioners deserved to be enlarged on bail.


6.      The learned Magistrate found the arrest of the petitioners

in conformity with the provisions contained in Section 104 of

the Customs Act and the provisions of the Bharatiya Nagarik

Suraksha Sanhita, 2023, (“BNSS”). Recording that the offences,

for which the petitioners have been arraigned, are non-bailable,

the learned Magistrate declined to release the petitioners on

bail.


7.      Being aggrieved, the petitioners have invoked the writ

jurisdiction.


8.      I have heard Mr. Aabad Ponda, the learned Senior

Advocate for the petitioners, and, Smt. Megha Bajoria, the

learned Special P. P., for respondent No.1 – UOI.


9.      Mr. Ponda canvassed a two-pronged submission.          First,

the arrest of the petitioners was wholly illegal.       The test of

“reason to believe” was not satisfied. From the perusal of the

seizure-memo, the grounds of arrest and the reasons for arrest,


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it    becomes   evident   that   there   was,   no    “material”   with

respondent No.1 to justify an inference that, the petitioners had

committed the offences punishable under Clauses (A), (B) and

(C) of Section 135(1)(i) of the Customs Act. On the contrary, the

arrest memo would show a clear non-application of mind as the

officer effecting the arrest has recorded that the petitioners

committed the offences punishable under Sections 132 or 133 or

135 or 135A or 136 of the Customs Act.                 Such omnibus

reference to the offences allegedly committed by the petitioners,

in the alternatives, indicates that the arrest did not satisfy the

threshold of the reasonable belief that the petitioners had

committed the offences.


10.    Thirdly, Mr. Ponda would urge, even if the case of the

Customs Department is taken at par, yet, in the facts of case,

the offence allegedly committed by the petitioners would be

bailable.   Mr. Ponda would urge, on the own-showing of

respondent No.1 120 KL of gray blackish coloured liquid

purported to be diesel was found on the vessel. It was not the

case of respondent No.1 that by the alleged illegal import of

diesel there was evasion or attempted evasion of duty exceeding

Rs. Fifty Lakh or the market price of the allegedly illegally

imported commodity exceeded Rs.One Crore. Nor the Customs

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Department claimed that the seized commodity was notified

under sub-clause (c) clause (i) of sub-section (1) of Section 135.

Consequently, Clauses (a)(b) and (c) of sub-section (6) of Section

104 were not attracted. Once, the offence does not fall within

the ambit of clauses (a) to (e) of sub-section (6) of Section 104,

the resudiary sub-section (7) of Section 104, which declares all

other offences under the Customs Act as bailable, comes into

play.


11.     Mr. Ponda strenuously submitted that, having realized the

unsustainability of the case built against the petitioners till 20 th

January, 2026, an abortive attempt was made to bolster up the

prosecution case by producing before the learned Magistrate a

certificate purportedly issued by Sharani Associates, Chartered

Engineer and IBBI Registered Valuer, dated 20 th January, 2026,

to the effect that, the proximate quantity of the diesel found on

the vessel was 178 KL and, thus, the value of the illegally

imported goods was Rs.1,33,50,000/- at the rate of Rs.75/- per

liter. Secondly, a Notification purportedly issued by Director

General of Foreign Trade dated 13th November, 2019 was also

pressed into service to show that the offence was in relation to

prohibited goods and, thus, clause (b) of sub-section (6) of




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Section 104 was attracted. None of these documents stand to

scrutiny, submitted Mr. Ponda.


12.   An effort was made by Mr. Ponda to demonstrate that the

report of Sharani Associates is inherently unreliable.     In any

event, there was no material to show that the value of the goods

exceeded Rs.1 Crore when the petitioners were arrested.       The

claim of the Customs Department that the seized goods were

prohibited goods is belied by the facts that there is no

Notification under sub-clause (c) of clause (1) of sub-section (1)

of Section 135.    Mere declaration of the goods as prohibited

goods by a Notification under Section 11 of the Customs Act is

not sufficient to make the offences in relation to such goods

non-bailable.     Therefore, the learned Magistrate committed a

grave error in law in holding that the offences were non-bailable

and depriving the personal liberty of the petitioners. Thus, this

Court must intervene by exercising judicial review.


13.   A very strong reliance was placed by Mr. Ponda on the

judgment of the Supreme Court in the case of Radhika Agarwal

vs. Union of India and others1.

14.   Per contra, Smt. Bajoria submitted with equal tenacity

that, no case for exercise of judicial review is made out. The

1     (2025) 6 Supreme Court Cases 545.
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petitioners   are in effect assailing an order passed by the

learned Magistrate denying the bail.          Thus, a writ petition

against such an order is not tenable. The petitioners will have

to work out their remedies to seek bail in accordance with the

provisions of law.   The impugned order neither suffers from

jurisdictional error nor patent illegality and, thus, cannot be

interfered with in exercise of writ jurisdiction. It was urged that

the writ jurisdiction cannot be used as a substitute for bail

proceeding especially at the nascent stage of the investigation.


15.    To buttress these submissions, Smt Bajoria placed

reliance on the observations in the case of Radhika Agarwal

(Supra) in relation to powers of judicial review under Article 32

and Article 226 of the Constitution of India, when the arrest of a

person is challenged.


16.   Smt. Bajoria joined the issue on the aspect of the

necessity of arrest by canvassing a submission that the

conscious possession of illegally imported prohibited commodity

is prima facie evident from clandestine concealment of the

commodity in non-cargo tanks. In addition, unaccounted cash

amount was recovered. From the attendant circumstances, the

statutory threshold of reasonable belief of the commission of the

offence can be said to have been satisfied.

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17.   Smt. Bajoria would urge that the grounds of arrest

disclose the requisite material and satisfaction. The contentions

of the Petitioners as regards inadequacy of the grounds of arrest

and the reasons of arrest to satisfy the test of necessity of arrest

do not merit acceptance at this stage, was the thrust of the

submission of Smt. Bajoria. Reliance was placed on the

judgment of the Supreme Court in the case of Kasireddy

Upender Reddy Vs State of Anhdra Pradesh and Ors 2

18.   Smt. Bajoria would urge the satisfaction arrived at by the

learned Magistrate that the offences appeared to be non-

bailable, at this stage, cannot be faulted at. A submission was

sought to be canvassed that the valuation of the illegally

imported commodity and the qualification of the commodity are

matters    of   investigation.   The    seizure   memo    and   the

contemporaneous documents do record that the quantity found

was approximately 120 KL. The exercise of quantification of the

commodity and the market price thereof was underway and the

relevant documents were placed before the learned Magistrate

before the remand order. Therefore, the Petitioner cannot draw

any mileage from the said fact, especially at the stage of

remand. Neither the arrest nor the remand is vitiated on the


2     2025 LiveLaw (SC) 628.
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basis of mere contestation of the quantity and value of the

illegally imported commodity.


19.   Smt. Bajoria further urged that, the offence allegedly

committed by the Petitioners does fall within the ambit of clause

(b) of sub-Section (6) of Section 104 and has, thus, been rightly

held by the learned Magistrate to be non-bailable.


20.   The notifications issued by the Director General of Foreign

Trade under Section 5 of the Foreign Trade (Development and

Regulation) Act, 1992, render the seized goods prohibited goods

for the purpose of Clause (b) of sub-Section (6) of Section 104 of

the Customs Act. To this end, Smt Bajoria placed reliance on

the judgments of the Supreme Court in the cases of Union of

India and Ors Vs M/s Raj Grow Impex LLP & Ors 3 and Union of

India and Ors Vs Agricas LLP & Ors Etc4.


21.   Lastly Smt. Bajoria would urge that, even if it is held that

the offences were bailable, neither the arrest nor the remand

order can be said to be without jurisdiction, and, thus, the

proper course for the Petitioners would be to seek bail and not

assail the impugned order by invoking the writ jurisdiction.




3     (2021) 18 SCC 601.
4     (2021) 14 SCC 341.
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22.     To start with it may be apposite to note the provisions

contained in Section 135 and Section 104 of the Customs Act.

The relevant part of Section 135 reads as under:


      135. Evasion of duty or prohibitions.


      (1)    Without prejudice to any action that may be taken under this

      Act, if any person—


             (a) is in relation to any goods in any way knowingly

             concerned in misdeclaration of value or in any

             fraudulent evasion or attempt at evasion of any duty

             chargeable thereon or of any prohibition for the time

             being imposed under this Act or any other law for the

             time being in force with respect to such goods; or


             (b) acquires possession of or is in any way concerned in

             carrying, removing, depositing, harbouring, keeping,

             concealing, selling or purchasing or in any other

             manner dealing with any goods which he knows or has

             reason to believe are liable to confiscation under

             section 111 or section 113, as the case may be; or


             (c) attempts to export any goods which he knows or

             has reason to believe are liable to confiscation under

             section 113; or




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          (d) fraudulently avails of or attempts to avail of
          drawback or any exemption from duty provided
          under this Act in connection with export of goods;
          or

          (e) obtain an instrument from any authority by
          fraud,     collusion,     wilful      representation       or
          suppression of facts and such instrument has been
          utilised by such person or any other person,

he shall be punishable,—

          (i) in the case of an offence relating to,—

               (A)    any goods the market price of which
               exceeds one crore of rupees; or

               (B) the evasion or attempted evasion of duty
               exceeding fifty lakh of rupees; or

               (C) such categories of prohibited goods as the
               Central Government may, by notification in the
               Official Gazette, specify; or

               (D) fraudulently availing of or attempting to
               avail of drawback or any exemption from duty
               referred to in clause (d), if the amount of
               drawback or exemption from duty exceeds fifty
               lakh of rupees; or

               (E)     obtaining     an      instrument    from     any
               authoirity    by     fraud,       collusioin,      wilful
               mistatement or suppression of facts and such
               instrument has been utilised by any person,
               where the duty relatable to utilisation of the
               instrument exceeds fifty lakh rupees.



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              with imprisonment for a term which may extend to
              seven years and with fine:

                     PROVIDED that in the absence of special
                     and adequate reasons to the contrary to be
                     recorded in the judgment of the Court, such
                     imprisonment shall not be for less than one
                     year;

              (ii) in any other case, with imprisonment for a term
              which may extend to three years, or with fine, or
              with both.

23.   Section 104 of the Code reads as under:


       “104. Power to arrest.

                 (1) If an officer of customs empowered in this
       behalf by general or special order of the Principal
       Commissioner of Customs or Commissioner of Customs
       has reason to believe that any person has committed an
       offence punishable under section 132 or section 133 or
       section 135 or section 135A or section 136, he may
       arrest such person and shall, as soon as may be,
       inform him of the grounds for such arrest.

                 (2) Every person arrested under sub-section
       (1) shall, without unnecessary delay, be taken to a
       magistrate.

                 (3) Where an officer of customs has arrested
       any person under sub-section (1), he shall, for the
       purpose of releasing such 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



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has and is subject to under the Code of Criminal
Procedure, 1898 (5 of 1898).

            (4) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), any
offence relating to—

       (a) prohibited goods; or

       (b)    evasion   or     attempted   evasion   of   duty
       exceeding fifty lakh rupees; or

       (c) fraudulently availing of or attempting to avail
       drawback or any exemption from duty provided
       under this Act, where the amount of drawback
       or exemption from duty exceeds fifty lakh
       rupees; or

       (d) fraudulently obtaining an instrument for the
       purposes of this Act or the Foreign Trade
       (Development and Regulation) Act, 1992 (22 of
       1992), and such instrument is utilised under
       this Act, where duty relatable to such utilisation
       of instrument exceeds fifty lakh rupees.

Shall be cognizable.

            (5) Save as otherwise provided in sub-section
(4), all other offences under the Act shall be non-
cognizable.

            (6) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973, (2 of 1974) an offence
punishable under section 135 relating to—

      (a)     evasion   or    attempted    evasion   of   duty
      exceeding fifty lakh rupees; or


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              (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; or

              (c) import or export of any goods which have not
              been declared in accordance with the provisions
              of this Act and the market price of which exceeds
              one crore rupees; or

              (d) fraudulently availing of or attempt to avail of
              drawback or any exemption from duty provided
              under this Act, if the amount of drawback or
              exemption from duty exceeds fifty lakh rupees; or

              (e) fraudulently obtaining an instrument for the
              purposes of this Act or the Foreign Trade
              (Development and Regulation) Act, 1992 (22 of
              1992), and such instrument is utilised under
              this Act, where duty relatable to such utilisation
              of instrument exceeds fifty lakh rupees.

       Shal be non-bailable.

                 (7) Save as otherwise provided in sub-section
       (6), all other offences under this Act shall be bailable.

                 [Explanation.—For      the   purposes    of     this
       Section, the expression “instrument” shall have the
       same meaning as assigned to it in Explanation 1 to
       section 28AAA.




24.   Sub-Section (1) of Section 104 empowers the empowered

Customs Officer to arrest a person, if he has reason to believe

that such person has committed an offence punishable under

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Sections 132, 133, 135, 135A or 136 of the Customs Act. Upon

arrest such Officer is enjoined to inform the arrestee the

grounds for such arrest, as soon as may be. Sub-Section (2) of

Section 104 casts a duty to take the arrested person before a

Magistrate without unnecessary delay. Sub-Section (3) of

Section 104 confers on the Officer effecting the arrest, the

powers conferred on the Officer in-charge of a Police Station in

the matter of release of such person on bail or otherwise. Sub-

Section (4) of Section 104 designates the offences specified

under Clauses (a) to (d) as cognizable and rest of the offence as

non-cognizable.


25.   Sub-Section (6) of Section 104 is of critical significance in

the context of controversy at hand. Five categories of offences

punishable under Section 135 specified in Clauses (a) to (e) are

declared non-bailable. The rest of the offences under the

Customs Act are bailable.


26.   In the context of controversy at hand, Claues (d) and (e) of

sub-Sectioin   (6)   of   Section   104   are   not     attracted.   The

controversy revolves around the question as to whether there

were reasonable grounds for arrest of the Petitioners in relation

to offences punishable under Section 135(1)(i)(A), (B) and (C),

and, secondly, whether those offences fall within the dragnet of

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(a), (b) and (c) of sub-Section (6) of Section 104 and, thus, non-

bailable.


27.   The first question that would warrant consideration is

whether there were reasons to believe that the Petitioners had

committed the offences punishable under Sections 132, 133,

135, 135A or 136 of the Customs Act and, there was necessity of

arrest. The expression used in sub-Section (1) of Section 104 is

“has reason to believe that any person has committed an

offence”.


28.    What is the import of the said expression? Whether the

said expression is equivalent to reason to believe that a person

is guilty of the offence? And what standard applies to satisfy the

threshold or pre-conditions for arrest? were the questions, the

Supreme Court was called upon to consider in the case of

Radhika Agarwal (Supra) .

29.   After comparing and contrasting the provisions contained

in Section 19(1) of the Prevention of Money Laundering Act,

2002 (“the PMLA Act”) and Section 104 (1) of the Customs Act,

the Supreme Court enunciated that there was substantially no

difference between a person being guilty of an offence and a

person committing an offence.


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30.   Applying plain language interpretation, the Supreme

Court exposited that, a person being guilty of an offence and a

person committing an offence is self-same and identical in so far

as Section 19(1) vis-a-vis Section 104(1) is concerned. The

Supreme Court, further, clarified that the absence of the term,

“on the basis of material in his possession” which precede the

“reason to believe” in Section 19(1) of the PMLA Act and which

does not find mention in Section 104(1) of the Customs Act,

does not make any qualitative difference on the threshold of the

satisfaction of necessity of arrest on the basis of reasonable

belief to be specified under Section 104(1) of the Customs Act. It

was in terms observed that, the fact that Section 104 (1) does

not explicitly require a Customs Officer to have, “material in

their possession” does not imply that a Customs Officer can

conclude that an offence has been committed out of thin air or

mere suspicion. The threshold for arrest under Section 104(1) of

the Customs Act is higher than that under Section 41 of the

Code of Criminal Procedure, 1908, by stipulating that the

Customs Officer may only arrest a person if they have, “reason

to believe” that a person has committed an offence. A person is

said to have a “reason to believe” a thing, if they have sufficient

cause to believe that thing but not otherwise. This represents a


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more stringent standard than the “mere suspicion” threshold

provided under Section 41.


31.   With reference to the provisions that explicitly classify

offences into bailable and non-bailable, as well as cognizable

and non-cognizable under sub-Sections (4) to (7) of Section 104

of the Customs Act, the Supreme Court emphasised in clear and

explicit terms that, “the reasons to believe” must reflect these

classification when justifying an arrest.”

32.   The observations in paragraph 46 of the judgment in the

case of Radhika Agarwal (Supra) are of material salience in the

context of the controversy at hand and, hence, extracted below:


      “46. Thirdly, given the framework of the Customs Act,
      which explicitly classifies offences into bailable and non-
      bailable, as well as cognizable and non- cognizable, the
      “reasons to believe” must reflect these classifications when
      justifying an arrest. The reasoning must weigh in why an
      arrest is being made in a specific case, particularly given
      the specific severity assigned to the offence by the
      legislature. The reasoning must also state how the
      monetary   thresholds   outlined   in   the   Act   are   met.
      Subclauses (b) to (d) of Section 104(4) provide monetary
      thresholds for cognizable offences, while subclauses (a)
      and (c) to (e) of Section 104(6) provide those for non-
      bailable offences. The “reasons to believe” must include a
      computation and/or an explanation, based on factors such
      as the goods seized, from which a conclusion of guilt can

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      be drawn. This level of detail is crucial, as it facilitates
      judicial review of the exercise of the power to arrest. The
      department’s authority to arrest under Section 104 hinges
      on satisfying these statutory thresholds.”




33.   In relation to the claissification of the offences with

reference to Clauses (a) and (c) to (e) of sub-Section 104(6) — the

non-bailable offences — the Supreme Court has ordained that

reasons to believe must have a computation and/or an

explanation, based on factors such as the seized goods from

which a conclusion of guilt can be drawn. The necessity of such

computation and/or explanation was emphasised from the point

of view of facilitation of general review of the exercise of the

power of arrest. Thus, the broad submission on behalf of the

Respondent that at the stage of consideration of the challenge to

the validity of arrest and remand, the quantification and

valuation of seized goods need not to be delved into cannot be

unreservedly countenanced.


34.   Consistent with the aforesaid enunciation of law, if an

accused is alleged to have committed an offence of evasion of

duty or prohibition under Section 135 of the Customs Act in

relation to Clause (A) of sub-Section (1)(i) of Section 135, the

Officer effecitng the arrest must have reason to believe that the

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market price of the goods exceeds One Crore of Rupess; in

relation to Clause (B) that the evasion or attempted evasion of

duty exceeds 50 Lakhs Rupees and under Clause (C), the

offence is in relation to the specified category of prohibited

goods.


35.   Consequently, the material on record ought to justify that

the Customs Officer had reason to believe that the offences were

non-bailable under clauses (a) and (c) of sub-Section (6) of

Section 104 for evasion of duty exceeding Rs. 50 Lakhs or the

market price of the goods exceeds Rs. 1 Crore, respectively, and

for the applicability of clause (b) the goods were prohibited.


36.   Thus, when an accused person is produced before the

learned Magistrate with the allegations that the offences

allegedly committed by such person are non-bailable within the

meaning of Clauses (a) to (c), of sub-Section (b) of Section 104,

the enquiry in relation to the value of evaded duty, market price

of goods and the character of the goods, assumes significance.


37.   In the facts of the case at hand, clause (a) of sub-section

(6) of Section 104 of the Customs Act has, evidently, no

application.   It is not the case of the respondent that there was

evasion of duty exceeding Rupees Fifty Lakhs.


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38.   The contentious issue is, whether the allegedly illegally

imported goods i.e. diesel, is a “prohibited good” within the

meaning of clause (b) of sub-section (6) of Section 104. To retain

emphasis, clause (b) of sub-section (6) of Section 104 is

extracted below:

      “(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.”



39.   As noted above, Smt. Bajoria made a strenuous effort to

draw home the point that the Notification dated 13 th November,

2019 issued in exercise of powers conferred by Section 5 of the

Foreign Trade (Development and Regulation) Act 1992, by the

Director of General of Foreign Trade, renders the diesel imported

otherwise through State Trading Enterprises, a prohibited good.

Whether this submission is sustainable?


40.   Under Clause (33) of Section 2 of the Customs Act, unless

the context otherwise requires, “prohibited goods" means any

goods the import or export of which is subject to any prohibition

under this Act or any other law for the time being in force but

does not include any such goods in respect of which the

conditions subject to which the goods are permitted to be

imported or exported have been complied with.


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41.   Prohibited goods are thus defined as the goods, the import

or export of which is subject to prohibition under the Customs

Act or any other law for the time being in force, save and except

the goods which have been imported or exported in compliance

with the prescribed conditions.    Undoubtedly, the goods, the

import or export of which is prohibited under any other law also

constitute prohibited goods. However, the definitions under

Section 2 of the Customs Act are subject to the rider, “unless

the context otherwise requires.”


42.   On a plain reading of clause (b) of sub-section (6) of

Section 104, it becomes abundantly clear that the Parliament

has designedly provided a different connotation for the term

‘prohibited goods’ so as to render the offences in relation

thereto, non-bailable.   Firstly, the goods must be notified as

prohibited under Section 11 of the Customs Act. It implies that

if the goods are prohibited under any other provisions of the

Customs Act itself, they would not qualify as prohibited goods

under clause (b). Secondly, there is an added requirement,

namely, in addition to Notification under Section 11 those goods

shall also be notified under sub-clause (C) of clause (i) of sub-

section (1) of Section 135 of the Customs Act.      For ease of




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reference sub-clause (C) of clause (i) of Section 135(1) of the

Customs Act is again extracted below:

      “(C) such categories of prohibited goods as the Central
      Government may, by notification in the Official Gazette,
      specify;”



43.   A conjoint reading of clause (b) of sub-section (6) of

Section 104 and sub-clause (C) of clause (i) sub-section (1) of

Section 135 of the Customs Act, would indicate that there must

be a specific notification in respect of prohibited goods under

sub-clause (C) of clause (i) of Section 135(1) of the Customs Act.

It is elementary that the aforesaid provisions, being penal in

nature, and having a bearing upon the personal liberty of the

accused arraigned for the offence punishable under Section 135

of the Customs Act, require strict construction. Therefore, to fall

within the tentacles of clause (b) of sub-section (6) of Section

104 of the Customs Act the goods must first be notified as

prohibited goods under Section 11, and those goods must also

be notified under sub-clause (C) of clause (i) of Section 135(1) of

the Customs Act.


44.   It is not the case of the prosecution that there is such

Notification under Section 135(1)(i)(C) of the Customs Act

prohibiting the import of diesel. Mr. Ponda by way of illustration

drew attention of the Court to a Notification dated 13 th May,
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2008 issued under the said section specifying “fake currency

notes” as goods falling under the category of prohibited goods

for the purposes of the said section, to show that such power

has been resorted to.


45.   Reliance sought to be placed by Smt. Bajoria on the

judgments in the cases of Union of India vs. Agricas Llp and

others Etc.5 and Union of India vs. M/s. Raj Grow Impex LLP

and ors.6 is inapposite as those judgments do not deal with the

aspect of prohibited goods from the perspective of the offences

in relation thereto being bailable or non-bailable. Resultantly, it

must be held that the provisions contained in clause (b) sub-

section (6) of Section 104 have no application to the facts of the

case at hand.


46.   This propels me to the question of the offences being non-

bailable for the reason that the market price of the illegally

imported goods exceeded Rupees One Crore. A brief reference to

the contemporaneous documents would be necessary. Firstly

the seizure-memo records that approximately 120 KL of gray

blackish coloured liquid purported to be diesel was found on the

vessel. Secondly, in the grounds of arrest communicated to the



5     Transfer Petition (Civil) Nos.496-509/2020, dtd.26/8/2020.
6     Civil Appeal No(s). 2217-2218/2021 dtd.17/6/2021.
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petitioners it was reiterated that the total quantity of the diesel

was approximately 120 KL and the value of the seized goods was

more than Rupees Fifty Lakhs. Thirdly, in the reasons for arrest,

recorded by the Intelligence Officer, it was again recorded that

approximately 120 KL of diesel was found and seized and its

value was more than Rupees Fifty Lakhs. Lastly, in the

application filed before the Magistrate seeking judicial custody

of the petitioners, it was asserted that, in the statements of the

petitioners recorded under Section 108 of the Customs Act, the

petitioners conceded that approximate quantity of 120 KL           of

liquid,   purported   to   be   diesel,   was   found.    The   final

quantification of the imported goods i.e. purported to be high

speed diesel and its valuation could not be done at the time of

examination and rummaging as it was a weekend and surveyors

were not present.


47.   The aforesaid contemporaneous record thus unmistakably

indicates that at no point in time until the arrest of the

petitioners and their production before the learned Magistrate, it

was the case of the prosecution that the market price of the

allegedly illegally imported goods exceeded Rupees One Crore.

On the contrary, the fact that the value of seized goods was

stated to be above Rupees Fifty Lakhs, indicates that the

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Customs Officer effecting the arrest of the petitioners was alive

to the position that the value of the seized goods had a bearing

upon the complicity of the petitioners.


48.   It appears that, after the petitioners were produced before

the Magistrate, a purshis was filed in Remand Application

No.76/2026 and the certificate of valuation issued by Sharani

Associates dated 20th January, 2026 was produced. In the said

certificate, the valuer reported that the approximate quantity of

diesel was 178 KL and the realizable value was Rs.1,33,50,000/-

at the rate of Rs.75/- per liter.      The brief justification for the

assessment is of material significance. It reads as under:

      “12.   Brief Justification
        We have physically examined the detained Barge. The
      storage Tanks filled with diesel were noted down for
      calculating the quantities. On Physical Examination we
      found documents pertaining to the barge. The cross sectional
      drawing showing the tank capacities were matched with the
      tanks examined filled with illicit Diesel.
       Measured quantities are in accordance with the drawing and
      on the quantity measurement made at the time of inspection.
       Please Note that there may be variation of 10% to 20% of
      volume in measurement.
       This report is based entirely on the personal inspection
      carried out by our Engineer and is issued without any
      prejudice or favor nor bindings.”


49.   Submissions were sought to be canvassed by the learned

Counsel for the parties based on the capacity of the tanks in

which the seized goods were illicitly concealed.         At this stage,


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this Court would not be justified in delving into such details,

especially having regard to the technical nature of the

assessment.


50.   Few   factors,   however,   become   clearly   evident.   The

assessment of the quantity is based on physical examination of

the storage tanks. Inferences are drawn by matching the cross

sectional drawing showing the tank capacity and the quantity

measurement at the time of inspection.         The possibility of

variation of 10 to 20% of volume in measurement is adverted to.

The certificate is issued without any prejudice or favour and on

non-binding basis.


51.   The core question before the Court is, can the personal

liberty be made to rest on such certificate which was not

available before the Customs Officer when the arrest of the

petitioner was effected. Incontrovertibly, the said certificate was

not taken into account by the Customs Officer to form a

reasonable belief that the petitioners had committed the offence

punishable under Section 135(1) of the Customs Act in relation

to the goods, the market price of which exceeded Rupees One

Crore.


52.   At this juncture, the decision of the Supreme Court in the

case of Radhika Agarwal (supra), especially the observations in
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paragraph 46 (extracted above), assume importance.         In the

absence of the quantification of the seized goods and valuation

thereof, the Customs Officer could not have formed a reasonable

belief that the petitioners had committed the offences which

appeared to be non-bailable. The crucial test of satisfaction of

the statutory mandate preceding the arrest of the petitioners

was thus not fulfilled.


53.   In the aforesaid view of the matter, respondent No.1

cannot be permitted to wriggle out of the situation by asserting

that the quantification of the seized goods at 120 KL was

approximate.     The submission that the matter was under

investigation and the process of quantification was underway

cannot be countenanced after the personal liberty of the

petitioners was jeopardized by first effecting the arrest. Nothing

prevented the Officer effecting the arrest to have the quantity of

the seized goods and value thereof certified before effecting the

arrest.


54.   The aforesaid factors were not adverted to by the learned

Magistrate while holding that the offences appeared to be non-

bailable.   Resultantly, the impugned order to the extent the

learned Magistrate declared the offences to be non-bailable and

rejected the prayer for bail deserves to be quashed and set aside.

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55.     Hence the following order:


                               :ORDER:


(i)     The petition stands allowed.


(ii)    The impugned order to the extent the learned Magistrate

declared the offences to be non-bailable and rejected the prayer

for bail stands quashed and set aside.


(iii)   Shaun Stany Noronha and Sushant Kishor Manna, the

petitioners    be   released    on   bail   in   File     No.CUS/PTRL/

OTH/1/2026-RSR(S)-R and I, on furnishing P.R. bond of

Rs.50,000/-, each, with one or more sureties in the like

amount.


(iv)    The petitioners shall mark their presence before the

Intelligence Officer, RSR R&I, Mumbai, on first Monday of every

month between 11.00 a.m. to 1.00 p.m. for the period of one

year or till conclusion of the trial, whichever is earlier.


(v)     The petitioners shall furnish their contact details and

residential address to the Intelligence Officer, RSR R&I,

Mumbai, and shall keep him updated in case there is any

change.




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                                                -CRIWP338-2026.DOC

(vi)    The petitioners 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 them from disclosing the

facts to court or any police officer.   The petitioners shall not

tamper with prosecution evidence.


(vii)   The petitioners shall regularly attend the proceedings

before the jurisdictional Court.


(viii) By way of abundant caution, it is clarified that the

observations made hereinabove are confined for the purpose of

determination of the entitlement for bail and they may not be

construed as an expression of opinion on the guilt or otherwise

of the applicant and co-assued and the trial Court shall not be

influenced by any of the observations made hereinabove.


Rule made absolute in the aforesaid terms.


Petition disposed.


                                          [N. J. JAMADAR, J.]




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