JUDGMENT : 1. The present writ petition has been filed for the following prayers: a. YOUR LORDSHIP may be pleased to issue a Writ of Certiorari or a Writ in nature of Certiorari, or any other appropriate Writ, Order of Directions under Article 226 of the Constitution of India quashing and setting aside the impugned arrest memo F.No. DRI/AZU/CI/ENQ-12 (INT05/2015 (PT-PNP) dated 04th February, 2016 as well as also declare the above arrest illegal. b. YOUR LORDSHIP may be pleased to issue a Writ of Certiorari/Mandamus or a Writ in the nature of Certiorari/Mandamus, or any other appropriate Writ, Order or Directions directing the Respondents collectively herein to compensate the petitioner for the defamation of Petitioner's name and character due to the illegal arrest made by the Respondent No.4. c. YOUR LORDSHIP may be pleased to award exemplary damages to the Petitioner for unconstitutional action of unlawful arrest by the officers of the respondent No.1. d. xxx xxx xxx 2. Learned advocates Mr. Naresh Jain, Ms. Aarti Debnath, Ms. Laxmi Rungta with Mr. P.P. Majmudar appearing for the petitioner submitted that the petitioner Mr. Pawan Kumar Kaushik, is s/o. Late Sardar Mal Kaushik, having his office at A-601-607, Mangal Aarambh, Kora Kendra, Borivalli, (West), Mumbai-400 092. The petitioner is an NRI residing in Taiwan and managing and handling businesses in Taiwan over 32 years. From Taiwan, his firm exports various items to all over the world including India. In the year 2001, he incorporated companies in India named PNP Polytex Private Limited, and PNP Polymers Private Limited and started marketing quality and innovative products all over India. 3. Learned advocate for the petitioner submitted that respondent No.1 is the Union of India and the respondents No.2 to 4 are the officers of respondent No.1 exercising the powers and discharging duties conferred upon them under the provisions of the Customs Act, 1962 and the Rules and Regulations made thereunder (for short “the Act” and “the Rules” or “ the Regulations”), more particularly respondent No.2 is the Additional General Director Revenue Intelligence. The respondent No.3 is the Senior Intelligence Officer of Directorate of Revenue Intelligence, Ahmedabad Zonal Unit, who issued summons to the petitioner. The respondent No.4 is the Intelligence Officer of Directorate of Revenue Intelligence, Ahmedabad Zonal Unit, from the office of the respondent No.3, who had issued the impugned arrest memo and illegally arrest the petitioner. 4. The respondent No.3 is the Senior Intelligence Officer of Directorate of Revenue Intelligence, Ahmedabad Zonal Unit, who issued summons to the petitioner. The respondent No.4 is the Intelligence Officer of Directorate of Revenue Intelligence, Ahmedabad Zonal Unit, from the office of the respondent No.3, who had issued the impugned arrest memo and illegally arrest the petitioner. 4. The present petition has been field by the petitioner seeking to invoke extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India against the arrest memo dated 4th February, 2016 F.No.DRI/AZU/CI/ENQ-12 (INT-05/2015 (PT-PNP) (for short “the arrest memo”) issued by the respondent No.4 and also the arrest made by the respondent No.4. 5. The brief facts of the case are as under:- 5.1 In the year 2001, the petitioner incorporated companies in India named PNP Polytex Private Limited, and PNP Polymers Private Limited. (for short “petitioner's companies”), having its registered office at A-601-607, Mangal Aarambh, Kora Kendra, Borivalli, (West), Mumbai-400 092, and started marketing quality and innovative products all over India. 5.2 The investigation was initiated by the respondent No.3 with respect to the import of Nylon Mono Filament Yarn by the petitioner. In this regard, summon was received by the petitioner to appear before the respondent No.3 on 4th February, 2016 at 12:00 pm. 5.3 Thereafter, the respondent No.4 from the office of the respondent No.3 arrested the petitioner on 4th February, 2016 at 22:40 hours under Section 104 of the Customs Act, 1962 vide the impugned Arrest Memo alleging that the petitioner had committed an offence punishable under Section 135 of the Act. It was alleged that the petitioner was involved in the activity of importing the Nylon Mono Filament Yarn by resorting to over-valuation and also importing the Polyester Woven Fabrics by resorting to under valuation, in order to evade leviable anti-dumping duty and customs duty respectively, to the tune of approximately Rs.4.5 Crore. 5.4 Learned advocate for the petitioner has submitted that Section 104 of the Customs Act provides for power of arrest to customs officers. It provides blanket power to authorized officers to arrest any person if the officer has reason to believe that the said person has committed an offence punishable under Section 135 of the Customs Act, 1962. 5.4 Learned advocate for the petitioner has submitted that Section 104 of the Customs Act provides for power of arrest to customs officers. It provides blanket power to authorized officers to arrest any person if the officer has reason to believe that the said person has committed an offence punishable under Section 135 of the Customs Act, 1962. Similarly, provision for offences under Customs Act is contained under Sections 132 to 139 giving powers to the customs authorities to prosecute in case offence under the Customs Act is committed. The CBEC has from time to time issued circulars giving guidelines for arrest and prosecution. The latest guidelines for arrest and prosecution were issued in the year 2015 vide Circular Nos.27 & 28 dated 23.10.2015. These circulars have reduced the rigors of power to prosecute as well as to arrest vis-a-vis Sections 135 and 104 of the Customs Act. It was submitted by learned Advocate Mr. Jain that as far as the circular on the guidelines for prosecution issued in the year 2015 vide Circular No.27 of 2015 dated 23.10.2015 is concerned, this Court in its judgment in the case of Alberto Bestonso Vs. Directorate of Revenue (R/CR.MA/7285/2015) has held that the officers of the department shall act according to the said circular issued by the CBEC. In fact the entire guideline contained in the circular is reproduced by this Court for its compliance by customs officers. Thus, it was submitted that the said judgment gives a clear indication that the circular issued by the CBEC for prosecution as well as arrest for offences punishable under the Customs Act has to be followed by the Customs officials. 6. Learned advocate for the petitioner has submitted that in this case, the CBEC had issued a circular prohibiting launching of prosecution with regard to evasion of the excise duty if did not exceed INR 10,000/- The Superintendent of Central excise had launched prosecution against the petitioner even though the amount of alleged evasion was less than INR 10,000/-. 7. Learned advocate for the petitioner submitted that the impugned arrest memo clearly shows that the petitioner was arrested on charge of undervaluation and over-valuation of goods. 7. Learned advocate for the petitioner submitted that the impugned arrest memo clearly shows that the petitioner was arrested on charge of undervaluation and over-valuation of goods. He has submitted that such over-valuation or undervaluation is treated as smuggling of goods under Section 2(39) of the Customs Act, 1962 as the same definition defines smuggling as an act or omission, which renders such goods liable for confiscation under Section 111 of the Customs Act. It was submitted that as per Section 111(m) of the Customs Act, undervaluation or over-valuation of goods makes it liable for confiscation. So in that sense, the word “smuggling” is used in the Arrest Memo as is very much clear from the references of such sections in the arrest memo itself. Therefore, the arrest is effected solely on charge of undervaluation and over-valuation of goods in the present case, which has resulted in alleged evasion of duty. 8. It is contended that two circulars issued by the CBEC in the year 2015 (Circular No. 27/2015 dated 23.10.2015 and Circular No.28/2015) clearly show that as far as the prosecution is concerned, as per Paragraph No.4.2.1.2. of circular, a willful mis-declaration in value or description, both shall be liable for prosecution if the offending goods is worth INR 1,00,000/- or more. However, so far as Circular No.28/2015 dated 23.10.2015 is concerned, which deals with the revised guidelines for arrest, as per sub-clause (c) of Paragraph No.2.3, arrest can be effected only in case of willful misdeclaration in “description” of goods. Therefore, whereas the prosecution post-adjudication is permissible for offence of overvaluation or undervaluation of the goods, arrest for such offence prior to its adjudication is not permissible as per the circular issued by the CBEC. It was submitted that the arrest can be made in cases of importation of the trade goods when restricted or prohibited items are imported. In the present case, goods imported by the petitioner are neither restricted nor prohibited. 9. Learned Advocate Mr. Jain has contended that a careful reading of both the circulars shall show that all the offences kept for prosecution has also been kept for arrest also, except for offence of mis-declaration of value in respect of importation of trade goods. In the present case, goods imported by the petitioner are neither restricted nor prohibited. 9. Learned Advocate Mr. Jain has contended that a careful reading of both the circulars shall show that all the offences kept for prosecution has also been kept for arrest also, except for offence of mis-declaration of value in respect of importation of trade goods. It was submitted that on a conjoint reading of both the circulars, it is quite apparent that the CBEC has given a clear direction that the offence of mis-declaration in value of importation of traded goods is though a prosecutable offence but not an offence for which arrest can be effected. 10. It was submitted by the learned advocate for the petitioner that it is a matter of fact that the dispute in valuation of goods is a very routine and common issue. Making arrest on such issues which are so subjective, shall make all the importers vulnerable to arrest which can never be the intention of the Legislature. Considering the same, the CBEC in its own wisdom issued the direction that prosecution could be launched if the offence of over-valuation or undervaluation is finally adjudicated and evidences are strong enough to convict the accused, but arrest cannot be effected for the same prior to its adjudication. He has further submitted that from the arrest memo, it is very much clear that the arresting officer has solely relied on Section 104 of the Customs Act, 1962 to effect the arrest. In the arrest memo, the arresting officer himself states that he was exercised the arrest by invoking Section 104 of the Customs Act. Thus, it is contended that the circular issued by the CBEC has been completely ignored. 11. Learned advocate Mr. Jain has submitted that Circular No.28 of 2015, as stated above, does not permit arrest for over-valuation or undervaluation of goods. Further, the arresting officer has not recorded reasons in the arrest memo as to why this is an exceptional situation. This shows lack of application of mind on the part of the arresting officer. 11. Learned advocate Mr. Jain has submitted that Circular No.28 of 2015, as stated above, does not permit arrest for over-valuation or undervaluation of goods. Further, the arresting officer has not recorded reasons in the arrest memo as to why this is an exceptional situation. This shows lack of application of mind on the part of the arresting officer. A mandatory circular giving guidelines for arrest has been given a complete go-by and directly rigorous provisions of Section 104 of the Customs Act have been applied for effecting an requirement of taking approval from the Additional Director General (ADG) was only an empty formalities as the ADG, who should have given the approval to arrest only after great circumspection, has not done so, as nowhere in the arrest memo reflects need to arrest. Thus, he submitted that the sanction given by the ADG without any application of mind also makes the arrest illegal and void. 12. Learned advocate Mr. Jain has placed reliance in the case of Makemytrip (India) Pvt. Ltd & IBIBO Group Pvt. Ltd. V. Union of India & Ors., 2016 (44) S.T.R. 481 (Del), wherein the Delhi High Court in Paragraphs No.92 and 93 has made the following observation;- “92. At this stage, it is required to be noticed that it had to be first satisfied that MMT itself had committed an offence and, therefore, Mr. Pallai, being in charge of the affairs of the MMT, had committed an offence. Significantly, with there being no reference whatsoever to the circular dated 17th September, 2013 or the further amendment brought out to the said circular by the Circular No. 1010/17/2015 dated 23rd October, 2015 there was a clear non application of mind. The circular dated 23rd October, 2015 prescribes the revised monetary limit in Central Excise and Service Tax Cases. This is issued by the CBEC and refers in turn to circular No 1009/16/2015-CX of the same date where monetary limits have been prescribes for launching prosecution. It has been decided that prosecution should be launched where the evasion of the central excise duty was more than Rs. 1 crore. Henceforth, arrest of a person for the offence under Section 89(1) (d) read with 89 (1) (ii) of the FA would be made only.” 13. Learned advocate Mr. It has been decided that prosecution should be launched where the evasion of the central excise duty was more than Rs. 1 crore. Henceforth, arrest of a person for the offence under Section 89(1) (d) read with 89 (1) (ii) of the FA would be made only.” 13. Learned advocate Mr. Jain has contended that it is pertinent to mention that the adjudicating authority has fully exonerated the petitioner and its company from charge of over-valuation and undervaluation vide order no.S/26-Misc-113/2016-17/ICD(M) dated 28.05.2019. The import by the petitioner was found to be comparable with the price with other contemporaneous import. No mention was made in the arrest memo as to market price of goods imported and bald allegation of undervaluation and over-valuation is made to effect the arrest. 14. Learned advocate for the petitioner submitted that as per Section 104(4) of the Customs Act, the present offence of evasion or attempted evasion of duty above Rs.50,00,000/- is made cognizable. By virtue of Section 104(6) of the Customs Act, the alleged offence is also made non-bailable. This is a major change in the Customs Act of 2012 making the offence under the Custom Act cognizable, which prior to it was non-cognizable. In this context, he has placed reliance on the decision of this Court in the case of Rakesh Manekchand Kothari vs. Union of India, 2015 (8) TMI 1341, wherein in Paragraph No.20, it is referred and it is submitted that it has been held that it is mandatory to comply with Section 154 of the Criminal Procedure Code, 1973 (Cr.P.C.) if offence is held to be cognizable. It was submitted that similar view has been taken by the Bombay High Court in the case of Amrutlal Kaluram Purohit Vs. Union of India & Ors. in Cri. Writ Petition No.572 of 2018 - judgment dated 10.4.2018, wherein by way of interim order, it was held that no arrest will be made without following the procedure prescribed under the Cr.P.C. It was submitted that in present matter it is a matter of fact, admitted by the Customs Department that in the present case, though the arrest was made in February 2016, till date no F.I.R. or complaint has been filed against the petitioner. 15. 15. Learned advocate for the petitioner submitted that it is also an admitted fact that the officials of the Customs Department have not yet made up their mind whether to launch prosecution against the petitioner or not. In the judgment of this Court in the petitioner's own case, the Customs Department itself has admitted that no F.I.R. or complaint has been filed against the petitioner. He submitted that the Customs Department has denied the petitioner's status of an accused by not registering the FIR or complaint against the petitioner and continued to seek documents and information to be used against him in prosecution in complete disregard of Article 20(3) of the Constitution of India in spirit. 16. Learned advocate Mr.Jain has further urged that the Apex Court in the case of Arnesh Kumar vs State of Bihar, 2014 (8) SCC 273 has held that where the arrest is to be made for an offence punishable with imprisonment for a term which may extend upto seven years, Police Officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person for making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. Thus, he submitted that the arrest of the petitioner may be declared illegal and the respondents may be directed to pay appropriate compensation. 17. A fortiori, learned Assistant Solicitor General of India Mr. Devang Vyas appearing for the respondent No.3 has urged that the present petition needs not be entertained since the arrest warrant, at the relevant time, was issued as there was sufficient material, which required arrest of the petitioner and the arrest warrant is in absolute consonance with Section 104 of the Customs Act. He submitted that the circular cannot overrule/dilute the statute. He has submitted that the circular is only merely administrative guidelines. By referring to Clause-2 of circular dated 17.09.2013, he has submitted that the same refers to the value and thereafter revised guideline was issued. He submitted that the circular cannot overrule/dilute the statute. He has submitted that the circular is only merely administrative guidelines. By referring to Clause-2 of circular dated 17.09.2013, he has submitted that the same refers to the value and thereafter revised guideline was issued. It was submitted that the petitioner in order to manipulate the actual transaction value, had arranged invoices from his own associated firm M/s Energy Most Co. Ltd., Taiwan and during the course of inquiry, it was established by irrefutable documentary evidences gathered from the banks and some other departments that the applicant had made tri-party agreement with M/s.Energy Most Co. Ltd., wherein the other two parties viz. M/s.Afco Asia Ltd, Taiwan and M/s. PNP Polymers Private Limited, Mumbai/Surat were owned and controlled by the applicant only. 18. Learned Assistant Solicitor General of India Mr. Devang Vyas placed reliance on the judgment dated 19.09.2017 passed in Criminal Misc. Application No. (for cancellation of bail) No.21674 of 2017 with Special Criminal Application No.4824 of 2017 and submitted that the Court had specifically observed, more particularly, in paragraph No.16 that the petitioner is yet to attend the status of an accused arrested for commission of offence, Article 20(3) of the Constitution cannot be made applicable, which would protect the petitioner from operation of Section 108 of the Customs Act. 19. Learned Assistant Solicitor General of India Mr. Devang Vyas submitted that the fact of the judgment in the case of Rakesh Manekchand Kothari vs. Union of India & 2 are different and in case of Makemytrip (India) Pvt. Ltd. & IBIBO Pvt Ltd, Vs. Union of India & Ors. also refers that the facts do not apply in the present case, whereas in Arnesh Kumar (supra), the same was passed while observing the provision of Section 498-A of the Indian Penal Code, 1860, which states no straight-jacket formula is possible. He submitted that the power of arrest of an accused in concerned, the same would fall under Chapter-XIII and in particular Section 104 of the Customs Act. Section 104 of the Customs Act came to be amended vide Act 23 of 2012 and Act 17 of 2013. 20. He submitted that the power of arrest of an accused in concerned, the same would fall under Chapter-XIII and in particular Section 104 of the Customs Act. Section 104 of the Customs Act came to be amended vide Act 23 of 2012 and Act 17 of 2013. 20. The learned Assistant Solicitor General of India urged that so far as the arrest of the petitioner is concerned, the case of the petitioner squarely falls under Section 104 of the Customs Act in as much as the petitioner, who was arrested on the basis of statutory provisions of Section 104 for the offence punishable under Section 135 of the Customs Act and for the reason as recorded in the arrest memo itself. It was also submitted that the petitioner has knowingly involved himself in mis-declaration amounting to smuggling as also clearly involving himself in indulging evasion of duty as also import export of goods by resorting to non-declaration/mis-declaration from duty exceeding Rs.50,00,000/-. The petitioner was arrested after following all requirements, as also after arrest, all procedures as contemplated under the law were followed. 21. Learned Assistant Solicitor General of India Mr. Devang Vyas submitted that so far as reliance by the petitioner on the guidelines issued by the department are concerned, the same are explanatory in nature and the same can never over ride the statutory provisions. It was submitted that the guidelines have remained constant so far as the Clauses-2.1 and 2.2. are concerned and the arrest of the petitioner is absolutely in accordance with the same as also Section 104 of the Customs Act. 22. The learned Assistant Solicitor General of India further submitted that it appears that the petitioner has knowingly concerned himself in mis-declaration of import value by arranging manipulated invoices from Taiwan based firms/companies viz. M/s.Energy Most. Co. are concerned and the arrest of the petitioner is absolutely in accordance with the same as also Section 104 of the Customs Act. 22. The learned Assistant Solicitor General of India further submitted that it appears that the petitioner has knowingly concerned himself in mis-declaration of import value by arranging manipulated invoices from Taiwan based firms/companies viz. M/s.Energy Most. Co. Ltd., Taiwan and M/s.Right Prosper Inc., Taiwan, both owned by one Mr.David (as per his own statement recorded under Section 108 of the Customs Act, 1962) and by his conscious role of purchasing, carrying, selling the imported goods, as set out above, and as admitted by him in his voluntary statement, he has rendered himself liable to penal action and punishment with imprisonment for a term which may extend to seven years and with fine under Section 135 of the Customs Act, 1962 read with provisions of the Foreign Trade Policy and the Foreign Trade (Development & Regulation) Act, 1992. It was thus contended that the petitioner has consciously and knowingly indulged in the smuggling of goods and was fully aware that the said goods were liable for confiscation under the provisions of Section 111 of the Customs Act, 1962 and hence, he has committed an offence punishable under Section 135 of the Customs Act, 1962 and has rendered himself liable for imprisonment for a term, which may extend to seven years and with fine and therefore, the offence is cognizable, non-bailable and triable by a First Class Magistrate in terms of the Schedule to the Criminal Procedure Code, 1973. 23. Learned Assistant Solicitor General of India Mr. Devang Vyas submitted thus, as can be seen, the case of the petitioner squarely falls under Section 135 of the Customs Act and subsequent dropping of a show cause notice vide order dated 28.05.2019 would not absolve the petitioner from the criminality involved. 24. It was further submitted that since the record collected clearly goes to show that there is prima facie case against the petitioner and the arrest memo is absolutely in accordance with the scheme of Sections 104 and 135 of the Customs Act, 1962, the arrest cannot be termed as illegal requiring it to be quashed exercising extraordinary jurisdiction under Article 226 of the Constitution of India and hence, no compensation can be granted to the petitioner. 25. Lastly, it was submitted by the learned Assistant Solicitor General, Mr. 25. Lastly, it was submitted by the learned Assistant Solicitor General, Mr. Devang Vyas that the petitioner has an alternative remedy for instituting a civil suit for claiming appropriate compensation. 26. I have heard the prolix arguments advanced by the respective sides. The relevant documents and the case law cited at the bar are also perused. 27. The main plank of the argument of both the respective side rests on the circulars issued by the respondent- department. There cannot be any cavil on the proposition of law, that the Government cannot amend the statutory rules by way of circulars but can always fill up the gap and issue instructions in the form of circulars or guidelines, which are not inconsistent with such rules, and the concerned authorities are required to follow the same. 28. The petitioner has premised his case on the contention that the rigors of sections 104(1) and 135 of the Customs Act as mentioned in section 104(1) of the Customs Act are reduced vide Circular No.28/2015 dated 23.10.2015, hence his arrest was illegal as the provisions of the circular are ignored while issuing the arrest memo. 29. The Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs (Anti-Smuggling), issued the F.No.394/68/2013-Cus (AS), Circular No.38/2013 on 17.09.2013 laying down the guidelines for arrest and bail in relation to offences punishable under the Customs Act, 1962. The relevant clauses of the Circular are incorporated as under: “Attention of the field formations is invited to the amendments to Section 104 of the Customs Act, 1962 vide Finance Act, 2013 (w.e.f. 10.05.2013) whereby all offences are bailable other than the categories of offences punishable under Section 135 of the Act ibid, which are classified as nonbailable. The relevant clauses of the Circular are incorporated as under: “Attention of the field formations is invited to the amendments to Section 104 of the Customs Act, 1962 vide Finance Act, 2013 (w.e.f. 10.05.2013) whereby all offences are bailable other than the categories of offences punishable under Section 135 of the Act ibid, which are classified as nonbailable. These are offences relating to; (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) prohibited goods notified under Section 11 of the Customs Act, 1962 (as amended) which are also notified under Sub-clause (C) of clause (I) of Section 135 of the Customs Act, 1962 (as amended);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. 2.1 The existing guidelines on the subject have been re-examined in the light of the above legislative amendments. As afore-stated, offences under the Customs Act, 1962 are placed in two categories i.e. (I) bailable; or (ii) non-bailable. Since arrest takes away the liberty of an individual, the power must be exercised with utmost care and caution in cases where a Commissioner of Customs or Additional Director of General has reason to believe on basis of information or suspicion that such person has committed an offence under the Act punishable under the Sections 132 or 133 or 135 or 135A or 136 of the Customs Act, 1962. It is emphasised that arrest of persons in terms of Section 104 (1) of Customs Act, 1962 should be resorted to only where the facts and situations of a particular case demand such action. Persons involved should not be arrested unless the exigencies of certain situations demand their immediate arrest. These situations may include circumstances; (i) to ensure proper investigation of the offence; (ii) to prevent such person from absconding; (iii) cases involving organised smuggling of goods or evasion of customs duty by way of concealment; (iv) masterminds or key operators effecting proxy/benami imports/exports in the name of dummy or non-existent persons/IECs, etc. These situations may include circumstances; (i) to ensure proper investigation of the offence; (ii) to prevent such person from absconding; (iii) cases involving organised smuggling of goods or evasion of customs duty by way of concealment; (iv) masterminds or key operators effecting proxy/benami imports/exports in the name of dummy or non-existent persons/IECs, etc. 2.2 The decision to arrest should be taken in cases which fulfill the requirement of the provisions of Section 104(1) of Customs Act, 1962 and after considering the nature of offence, the role of the person involved and evidence available. 2.3 While the Act does not specify and value limits for exercising the powers of arrest, it is clarified that arrest in respect of an offence, categorized as bailable offence, should be effected only in exceptional situations which may include; (a) Outright smuggling of high value goods such as precious metal, restricted items or prohibited items or goods notified under Section 123 of the Customs Act, 1962 or foreign currency where the value of offending goods exceeds Rs.20 Lakh. (b) In a case related to importation of trade goods (i.e. appraising cases) involving willful mis-declaration in description of goods of goods/concealment of goods/goods covered under Section 123 of the Customs Act, 1962 with a view to import restricted or prohibited items and where the CIF value of the offending goods exceeds Rs.50 Lakh.” The circumstances mentioned below Clause 2.1 refers to:- i) to ensure proper investigation; ii) to prevent such persons from absconding; iii) cases involving organized smuggling of goods or evasion of customs duty by way of concealment; and iv) masterminds or key operates effecting proxy/ benami imports/exports in the name of dummy or non-existent persons/IECs, etc. In the present case, indubitably, the arrest memo reveals that the petitioner has been arrested for the circumstance/situation mentioned in point no.(iii), which relates to evasion of the customs duty by way of concealment. Clause 2.2 refers to arrest being made subject to fulfillment of the requirement of the provisions of section 104(1) of the Customs Act, 1962, after considering the nature of offence, the role of the person involved and evidence available. Clause 2.2 refers to arrest being made subject to fulfillment of the requirement of the provisions of section 104(1) of the Customs Act, 1962, after considering the nature of offence, the role of the person involved and evidence available. It is not the case of the petitioner that the requirement of section 104(1) of the Customs Act which stipulates that an officer of customs empowered by general or special order of the Commissioner of Customs can arrest a person who has committed an offence punishable under Section 132 or Section 133 or Section 135 or Section 135-A or Section 136 of the Customs Act, by informing him the grounds for such arrest has been violated. 30. Thereafter, the Department issued two circulars on the same day i.e 23.10.2015. The first circular was Circular No.27/2015 followed by Circular no.28/2015. The Circular no.27/2015 was issued prescribing the guidelines for launching of prosecution in relation to the offences punishable under the Customs Act, 1962. Clause-4.1 and Clause-4.1.1 relate to person liable to be prosecuted. The same read as under; “4.1 Person liable to be prosecuted: As per the provisions of the Customs Act, 1962, prosecution may be launched against any person including legal person in respect of the offences covered under any of the sections namely 132, 133, 134, 135, 135A or 136 of the Customs Act, 1962. 4.1.1. The decision for launching prosecution should be taken in cases which fulfill the requirement of the provisions of any of the Sections 32, 133, 134, 135, 135A or 136 of the Customs Act, 1962 after a careful consideration of the nature of offence, the role of the person concerned and evidence available to substantiate the guilty knowledge/mensrea.” 31. Much stress has been laid down by the petitioner on clause 4.2.1.2 which states about Appraising Cases/Commercial Frauds, the same is reproduced as below: “4.2.1.2 Appraising cases/Commercial Frauds: (i) In cases related to importation of trade goods (i.e. appraising cases) involving- (a) willful mis-declaration in value/description; (b) concealment of restricted goods or goods notified under Section 11 of the Customs Act, 1962. where CIF value of the offending goods is Rs.1,00,00,000 (Rupees one crore) or more; (ii) In cases related to fraudulent availment of drawback or attempt to avail of drawback or any exemption from duty provided under the Customs Act, 1962, if the amount of drawback or exemption from duty is Rs.Rs.1,00,00,000 (Rupees one crore) or more;” As referred herein above, the Circular no.27/2015 has been issued for prescribing guidelines of launching prosecution. 32. The Circular No.28/2015 dated 23/10/2015 has been issued laying down the arrest and bail in relation to the offences punishable under Customs Act. The petitioner has emphasized on clause 2.3(c) of the Circular. It was the case of the petitioner that his arrest is in violation of the same, and hence his arrest may be declared illegal. The relevant clauses of the Circular No.28/2015 are as follows; 1. Attention of the field formations is invited to the guidelines for arrest and bail in relation to offences punishable under Customs Act, 1962 issued vide F.No.394/71/97-Cus (AS) dated 22.06.1999 and F.No. 394/68/2013-Cus(AS) dated 17.09.2013. The threshold limit (s) specified in the guidelines issued on 17.09.2013 has been further streamlined in accordance with guidelines issued for launching of prosecution in relation to offences punishable under Customs Act, 1962 vide Circular No. 27/2015-Customs [F.No.394/68/2013-Cus(AS)] dated 23.10.2015. 2. Accordingly, the para 2.3 of the existing guideline issued vide F.No.394/68/2013-Cus(AS) dated 17.09.2013 shall read as under:- 2.3 While the Act does not specify any value limits for exercising the powers of arrest, it is clarified that arrest in respect of an offence, should be effected only in exceptional situations which may include:- (a) Cases involving unauthorized importation in baggage/cases under Transfer of Residence Rules, where the CIF value of the goods involved is Rs.20,00,000/- (Rupees Twenty Lakh) or more; (b) Cases of outright smuggling of high value goods such as precious metal, restricted items or prohibited items or goods notified under Section 123 of the Customs Act, 1962 or offence involving foreign currency where the value of offending goods is Rs.20,00,000/- (Rupees Twney Lakh) or more; (c) In a case related to importation of trade goods (i.e. appraising cases) involving willful mis-declaration in description of goods/concealment of goods/goods covered under Section 123 of Customs Act, 1962 with a view to import restricted or prohibited items and where the CIF value of the offending goods is Rs.1,00,00,000/- (Rupees One crore) or more; 33. It is the case of the petitioner that since sub-clause (c) of para 2.3 only refers to arrest to be made in the case of description of goods/concealment of goods/foods covered under section 123 of the Customs Act, the arrest of the petitioner made for undervaluation of under section 111(m) of the Customs Act is illegal as the said clause does not refer to arrest to be made for any undervaluation of the goods. This Court is not impressed by the interpretation as put forward by the petitioner. It is pertinent to note that para 2 of the Circular No.28/2015 seeks amendment to para 2.3 of the guidelines issued vide F.No.394/68/2013, Cus(AS) dated 17.09.2013,i.e, the Circular No.38/2013 as referred previously. Thus, clause 2.3 of the Circular no.38/2013 which specifies the “value limits” for exercising powers of arrest has been amended. Significantly, the clause/para 2.1 of Circular No.38/2013 is not altered. The government of India in its wisdom has not thought it fit to amend clause/para 2.1 which prescribes arrest in cases/circumstance as mentioned therein. Hence, the arrest of the petitioner which is made in pursuant to the circumstances as envisaged under sub-clause/point no.(iii) of para 2.1 stipulating arrest in a case where it is found that that there is an evasion of customs duty by way of concealment cannot be said as illegal. The conspectus of the discussion and analysis is that the reliance placed by the petitioner on the Clause/para 'c' of para 2.3 of Circular No.28/2015 dated 23rd October, 2015, is misplaced and misconceived. The arrest of the petitioner is governed by para 2.1 of the Circular No.38/2015 dated 17th September, 2013, and the arrest memo 4.02.2016 prima facie reveals that the petitioner had evaded the customs duty by way of concealment which resulted to a loss of government revenue to the tune of Rs.4.5 crores. Thus, the submission advanced by the petitioner that is arrest was in violation of the Circular no.28/2015 stands rejected since the same will not apply in his case as his arrest was governed by the provisions of para 2.1. of Circular No. 38/2013 dated 17.09.2013. 34. At this stage is would be apposite to refer to the provisions of section 104 of the Customs Act, which prescribes the power of arrest. Section 104 reads as under: 104. of Circular No. 38/2013 dated 17.09.2013. 34. At this stage is would be apposite to refer to the provisions of section 104 of the Customs Act, which prescribes the power of arrest. Section 104 reads as under: 104. Power to arrest.—(1) If an officer of customs empowered in this behalf by general or special order of the Commissioner of Customs has reason to believe that any person in India or within the Indian customs waters 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.] (1) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to magistrate. (2) Where an officer of customs has arrested any person under subsection (1), he shall, for the purpose of the releasing such person on bail or otherwise, have the same power and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the 2Code of Criminal Procedure, 1898 (5 of 1898). (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any offence relating to- (a) prohibited goods; or (b) evasion or attempted evasion of duty exceeding fifty lakh rupees, shall be cognizable. (c) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (4) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under section 135 relating to- (a) evasion or attempted evasion of duty exceeding fifty lakh rupees; or (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, shall be non-bailable. Clause b) of subsection 4) of section 104 prescribes offence of “evasion or attempted evasion of duty exceeding fifty lakh rupees”, shall be cognizable. 35. The arrest memo reflects that the case of the petitioner is covered under section 104 of the Customs Act, as he has been arrested for the offence punishable under section 135 of the Customs Act. The contention raised by the petitioner that subsequent dropping of the show cause notice vide order dated 28.5.2019 will dilute the arrest memo, does not merit acceptance since the same would not absolve the petitioner from criminal liability as the order dated 28.05.2019 is the consequence of civil proceedings, as the adjudicating authority has restricted its finding as regards the allegations made in the show cause notice concerning civil liability. Moreover, the circumstances which were prevailing at the relevant time when the arrest memo was issued will eclipse the civil proceedings. Looking to the allegations made in the arrest memo it cannot be deduced that no incriminating material was available against the petitioner at that relevant time. The arrest of the petitioner as per the provisions of the Customs Act cannot be termed as illegal in defiance with the provisions of Article 22 of the Constitution of India. Section 104 of the Customs Act mandates the procedure to be followed in cases of arrest. It is not the case of the petitioner that such procedure was not followed and the arrest was illegal in terms of the provisions of section 104 of the Customs Act. 36. The reliance placed on the various decisions of the Supreme Court and the respective High Courts will come to the rescue of the petitioner as they do not deal with the questions/points raised in the present petition. The order dated 10.4.2018 of the Bombay High Court in case of Amrutlal Kaluram Purohit, Cr.Writ Petition No.572 of 2018 and allied matters does not remotely connect with the facts of the present case. In the case of Makemytrip (India) (supra), the Delhi High Court was seized of the issue with relation to the Service Tax and the Court has examined the exercise of powers under section 91 read with section 90 and 89 of the Finance Act, 1994, by-passing the procedure set out in section 73A(3) and (4). Hence, the same will not apply the facts of the present case. Hence, the same will not apply the facts of the present case. In the case of Rakesh Manekchand Kothari (supra), the Division Bench of this Court was examining the issue of grant of bail for the offense of money laundering under the Prevention of Money Laundering Act, 2002. In the case of Alberto Bestonso (supra), the Coordinate Bench of this Court while referring to Circular No.394/68/2013 dated 23.10.2015 has only observed that the authorities may look into the matter in accordance with the said Circular. 37. The decision of the Supreme Court in the case of Arnesh Kumar (supra) refers to provisions of 498-A of the IPC where the Supreme Court has established the guidelines of arrest by the police officers for the offence under section 498A of the IPC and authorization of detention by the Magistrate. The arrest of the petitioner is governed by the provisions of section 104 of the Customs Act. The Coordinate Bench of this Court in the judgment in the case of Bhavin Impex Pvt. Ltd vs State of Gujarat, 2010 (2) GCD 1323 , after examining the provisions of the Central Excise Act vis-a-vis section 104 of the Customs Act in the light of the judgment of the Supreme Court in the case of Directorate of Enforcement vs Deepak Mahajan, 1994 (30) SCC 440 has held thus: 26. From the decisions referred to hereinabove, the following principles emerge:- (i) The main purpose of the provisions of Sections 9, 13, 18 and 19 of the Central Excise Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose. In order that they may carry out their duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. (ii) Mere conferment of powers of investigation into criminal offences under Section 9 of the Act does not make the Central Excise Officer a police officer. (iii) A Customs Officer is not a member of the police force. He is not entrusted with the duty of maintaining law and order. He is entrusted with powers that specifically relate to the collection of customs duty and prevention of smuggling. (iii) A Customs Officer is not a member of the police force. He is not entrusted with the duty of maintaining law and order. He is entrusted with powers that specifically relate to the collection of customs duty and prevention of smuggling. The power to arrest, the power to detain, the power to search or obtain a search warrant and the power to collect evidence are vested in the Customs Officer for enforcing compliance of the provisions of the Sea Customs Act. The Customs Officer does not exercise, when enquiring into a suspected infringement of the Sea Customs Act, powers of investigation which a police officer may in investigating the commission of an offence. He is invested with the power to enquire into infringements of the Act primarily for the purpose of adjudicating forfeiture and penalty. He has no power to investigate an offence triable by a Magistrate, nor has he the power to submit a report under Section 173 of the Code of Criminal Procedure. He can only make a complaint in writing before the competent Magistrate. (iv) The expression “any person” includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling goods not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20 (3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provision of the Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of customs: when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate. His primary duty is to prevent smuggling and to recover duties of customs: when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate. (v) Where a Customs Officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do under Article 22(1) of the Constitution) for the purposes of holding an enquiry into the infringement of the provisions of the Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In case of an offence by infringement of the Customs Act and punishable at the trial before a Magistrate there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate. (vi) Arrest and detention are only for the purpose of holding effectively an inquiry under Sections 107 and 108 of the Customs Act with a view to adjudging confiscation of dutiable or prohibited goods and imposing penalty. At that stage there is no question of the offender against the Customs Act being charged before a Magistrate. Ordinarily, after adjudging penalty and confiscation of goods or without doing so, if the Customs Officer forms an opinion that the offender should be prosecuted, he may prefer a complaint in the manner provided under Section 137 with the sanction of the Collector of Customs and until a complaint is so filed, the person against whom an inquiry is commenced under the Customs Act does not stand in the character of a person accused of an offence under Section 135. (vii) The Customs Officer is a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties and prevention of entry into India of dutiable goods without payment of duty and of goods of which the entry is prohibited. (viii) A person arrested under Section 104 (1) of the Customs Act would fall within the ambit of the expression “suspected of the commission of any non-bailable offence”. (viii) A person arrested under Section 104 (1) of the Customs Act would fall within the ambit of the expression “suspected of the commission of any non-bailable offence”. A person arrested by a Customs Officer under Section 104 would be a person suspected of the commission of such an offence inasmuch as the arrest itself is made when the officer of customs has reason to believe that such person has been guilty of an offence punishable under Section 135 of the Customs Act. (ix) The police is the instrument for the prevention and detection of crime which can be said to be the main object of having the police. The powers of the customs officers are really not for such purpose and are meant for checking the smuggling of goods and due realization of customs duties and determining the action to be taken in the interest of the revenue of the country by way of confiscation of goods of which no duty has been paid and by imposing penalties and fine. 38. Thus, as per the afore-noted observations, mere confernment of the powers of investigation into criminal offences under Section 9 of the Customs Act does not make the Central Excise Officer a Police Officer. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest (which he is bound to do under Article 22(1) of the Constitution of India) for the purposes of holding an inquiry into the infringement of the provisions of the Customs Act, which he has reason to believe has taken place, there is no formal accusation of an offence. The Customs Officer is a revenue officer primarily concerned with the detection of smuggling and enforcement and levy of proper duties. A person arrested under Section 104 (1) of the Customs Act would fall within the ambit of the expression “suspected of the commission of any non-bailable offence”. It is also held that a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling goods is not a person accused of an offence within the meaning of Article 20 (3) of the Constitution. It is also held that a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling goods is not a person accused of an offence within the meaning of Article 20 (3) of the Constitution. As per the law enunciated in the aforementioned judgment, and the in light of the provisions of section 104 of the Customs Act and Circular No.38/2015 dated 17th September, 2013, it cannot be said that the arrest of the petitioner was illegal and the arrest memo is de hors the provision of statute or the circulars issued by the respondent department. 39. On the substratum of the forgoing analysis and observation, the writ petition fails. NOTICE discharged.