2025 INSC 272

W.P.(Crl.) No.336 of 2018 & Connected matters Page 1 of 63

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.336 OF 2018

RADHIKA AGARWAL … PETITIONER

VERSUS

UNION OF INDIA AND OTHERS … RESPONDENTS

W I T H

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.1534 OF 2018 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.2971 OF 2018 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.4078 OF 2018 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.7408 OF 2018 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.11049 OF 2018 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.244 OF 2019 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.3647 OF 2019 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.5153 OF 2019 )

W.P.(Crl.) No.336 of 2018 & Connected matters Page 2 of 63

CRIMINAL APPEAL NO S. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NOS.4322 -4324 OF 2019)

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.4546 OF 2019 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 9541 OF 2019 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.3366 OF 2020 )

CIVIL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.20310 OF 2021)

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6660 OF 2020 )

WRIT PETITION (CRIMINAL) NO.6 OF 2021

WRIT PETITION (CRIMINAL) NO.40 OF 2021

WRIT PETITION (CRIMINAL) NO.47 OF 2021

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.1031 OF 2021 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.1107 OF 2021 )

WRIT PETITION (CRIMINAL) NO.144 OF 2021

WRIT PETITION (CRIMINAL) NO.445 OF 2023

WRIT PETITION (CRIMINAL) NO.585 OF 2023

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.11839 OF 2019)

TRANSFERRED CASE (CRIMINAL) NO.5 OF 2018

WRIT PETITION (CRIMINAL) NO.118 OF 2019

WRIT PETITION (CRIMINAL) NO.119 OF 2019

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6834 OF 2019 )

WRIT PETITION (CRIMINAL) NO.212 OF 2019

WRIT PETITION (CRIMINAL) NO.239 OF 2019

WRIT PETITION (CRIMINAL) NO.253 OF 2019

W.P.(Crl.) No.336 of 2018 & Connected matters Page 3 of 63

WRIT PETITION (CRIMINAL) NO.261 OF 2019

WRIT PETITION (CRIMINAL) NO.263 OF 2019

WRIT PETITION (CRIMINAL) NO.266 OF 2019

WRIT PETITION (CRIMINAL) NO.267 OF 2019

WRIT PETITION (CRIMINAL) NO.273 OF 2019

WRIT PETITION (CRIMINAL) NO.286 OF 2019

WRIT PETITION (CRIMINAL) NO.287 OF 2019

WRIT PETITION (CRIMINAL) NO.285 OF 2019

WRIT PETITION (CRIMINAL) NO.288 OF 2019

WRIT PETITION (CRIMINAL) NO.298 OF 2019

WRIT PETITION (CRIMINAL) NO.299 OF 2019

WRIT PETITION (CRIMINAL) NO.306 OF 2019

WRIT PETITION (CRIMINAL) NO.346 OF 2019

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.647 OF 2020 )

WRIT PETITION (CRIMINAL) NO.387 OF 2020

WRIT PETITION (CRIMINAL) NO.9 OF 2020

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.1732 OF 2020 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.618 OF 2020 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.2023 OF 2020 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6456 OF 2020 )

WRIT PETITION (CRIMINAL) NO.36 OF 2020

WRIT PETITION (CRIMINAL) NO.35 OF 2020

WRIT PETITION (CRIMINAL) NO.49 OF 2020

WRIT PETITION (CRIMINAL) NO.73 OF 2020

WRIT PETITION (CRIMINAL) NO.93 OF 2020

W.P.(Crl.) No.336 of 2018 & Connected matters Page 4 of 63

WRIT PETITION (CRIMINAL) NO.124 OF 2020

WRIT PETITION (CRIMINAL) NO.140 OF 2020

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.2814 OF 2020 )

WRIT PETITION (CRIMINAL) NO.142 OF 2020

WRIT PETITION (CRIMINAL) NO.145 OF 2020

WRIT PETITION (CRIMINAL) NO.184 OF 2020

WRIT PETITION (CRIMINAL) NO.221 OF 2020

WRIT PETITION (CRIMINAL) NO.223 OF 2020

WRIT PETITION (CRIMINAL) NO.228 OF 2020

WRIT PETITION (CRIMINAL) NO.286 OF 2020

WRIT PETITION (CRIMINAL) NO.329 OF 2020

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.5536 OF 2020 )

WRIT PETITION (CRIMINAL) NO.380 OF 2020

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6172 OF 2020 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6303 OF 2020 )

WRIT PETITION (CIVIL) NO.1401 OF 2020

WRIT PETITION (CRIMINAL) NO.411 OF 2020

WRIT PETITION (CRIMINAL) NO.410 OF 2020

WRIT PETITION (CRIMINAL) NO.4 OF 2021

WRIT PETITION (CIVIL) NO.56 OF 2021

WRIT PETITION (CRIMINAL) NO.33 OF 2021

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.1073 OF 2021 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.1072 OF 2021 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NOS.2050 -2054 OF 2021)

W.P.(Crl.) No.336 of 2018 & Connected matters Page 5 of 63

WRIT PETITION (CRIMINAL) NO.301 OF 2021

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6338 OF 2021 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6847 OF 2021 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. OF 2025)

(ARISING OUT OF DIARY NO.31616 OF 2021)

WRIT PETITION (CRIMINAL) NO.175 OF 2022

WRIT PETITION (CRIMINAL) NO.222 OF 2022

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.6395 OF 2022 )

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.10421 OF 2022 )

WRIT PETITION (CRIMINAL) NO.402 OF 2022

WRIT PETITION (CRIMINAL) NO.385 OF 2022

WRIT PETITION (CRIMINAL) NO.426 OF 2022

WRIT PETITION (CRIMINAL) NO.434 OF 2022

WRIT PETITION (CRIMINAL) NO.453 OF 2022

WRIT PETITION (CRIMINAL) NO.456 OF 2022

WRIT PETITION (CRIMINAL) NO.466 OF 2022

WRIT PETITION (CRIMINAL) NO.500 OF 2022

WRIT PETITION (CRIMINAL) NO.506 OF 2022

WRIT PETITION (CRIMINAL) NO.516 OF 2022

WRIT PETITION (CRIMINAL) NO.502 OF 2022

WRIT PETITION (CRIMINAL) NO.7 OF 2023

WRIT PETITION (CRIMINAL) NO.9 OF 2023

WRIT PETITION (CRIMINAL) NO.24 OF 2023

WRIT PETITION (CRIMINAL) NO.54 OF 2023

WRIT PETITION (CRIMINAL) NO.209 OF 2023

WRIT PETITION (CRIMINAL) NO.120 OF 2023

W.P.(Crl.) No.336 of 2018 & Connected matters Page 6 of 63

WRIT PETITION (CRIMINAL) NO.118 OF 2023

WRIT PETITION (CRIMINAL) NO.126 OF 2023

WRIT PETITION (CRIMINAL) NO.150 OF 2023

WRIT PETITION (CRIMINAL) NO.164 OF 2023

WRIT PETITION (CRIMINAL) NO.165 OF 2023

WRIT PETITION (CRIMINAL) NO.203 OF 2023

WRIT PETITION (CRIMINAL) NO.174 OF 2023

WRIT PETITION (CRIMINAL) NO.190 OF 2023

WRIT PETITION (CRIMINAL) NO.268 OF 2023

WRIT PETITION (CRIMINAL) NO.296 OF 2023

WRIT PETITION (CRIMINAL) NO.333 OF 2023

WRIT PETITION (CRIMINAL) NO.315 OF 2023

WRIT PETITION (CRIMINAL) NO.339 OF 2023

WRIT PETITION (CRIMINAL) NO.303 OF 2019

WRIT PETITION (CRIMINAL) NO.305 OF 2019

WRIT PETITION (CRIMINAL) NO.313 OF 2019

WRIT PETITION (CRIMINAL) NO.309 OF 2019

WRIT PETITION (CRIMINAL) NO.28 OF 2020

WRIT PETITION (CRIMINAL) NO.61 OF 2020

WRIT PETITION (CRIMINAL) NO.90 OF 2020

WRIT PETITION (CRIMINAL) NO.89 OF 2020

WRIT PETITION (CRIMINAL) NO.285 OF 2020

WRIT PETITION (CRIMINAL) NO.69 OF 2021

WRIT PETITION (CRIMINAL) NO.359 OF 2021

WRIT PETITION (CRIMINAL) NO.520 OF 2021

WRIT PETITION (CRIMINAL) NO.334 OF 2023

WRIT PETITION (CRIMINAL) NO.332 OF 2023

WRIT PETITION (CRIMINAL) NO.338 OF 2023

WRIT PETITION (CRIMINAL) NO.337 OF 2023

W.P.(Crl.) No.336 of 2018 & Connected matters Page 7 of 63

WRIT PETITION (CRIMINAL) NO.357 OF 2023

WRIT PETITION (CRIMINAL) NO.384 OF 2023

WRIT PETITION (CRIMINAL) NO.403 OF 2023

WRIT PETITION (CRIMINAL) NO.431 OF 2023

WRIT PETITION (CRIMINAL) NO.408 OF 2023

WRIT PETITION (CRIMINAL) NO.428 OF 2023

WRIT PETITION (CRIMINAL) NO.452 OF 2023

WRIT PETITION (CRIMINAL) NO.454 OF 2023

WRIT PETITION (CRIMINAL) NO.453 OF 2023

WRIT PETITION (CRIMINAL) NO.449 OF 2023

WRIT PETITION (CRIMINAL) NO.461 OF 2023

WRIT PETITION (CRIMINAL) NO.493 OF 2023

WRIT PETITION (CRIMINAL) NO.464 OF 2023

WRIT PETITION (CRIMINAL) NO.473 OF 2023

WRIT PETITION (CRIMINAL) NO.475 OF 2023

WRIT PETITION (CRIMINAL) NO.484 OF 2023

WRIT PETITION (CRIMINAL) NO.497 OF 2023

WRIT PETITION (CRIMINAL) NO.538 OF 2023

WRIT PETITION (CRIMINAL) NO.526 OF 2023

WRIT PETITION (CRIMINAL) NO.529 OF 2023

WRIT PETITION (CRIMINAL) NO.521 OF 2023

WRIT PETITION (CRIMINAL) NO.516 OF 2023

WRIT PETITION (CRIMINAL) NO.518 OF 2023

WRIT PETITION (CRIMINAL) NO.562 OF 2023

WRIT PETITION (CRIMINAL) NO.539 OF 2023

WRIT PETITION (CRIMINAL) NO.549 OF 2023

WRIT PETITION (CRIMINAL) NO.610 OF 2023

WRIT PETITION (CRIMINAL) NO.548 OF 2023

WRIT PETITION (CRIMINAL) NO.550 OF 2023

W.P.(Crl.) No.336 of 2018 & Connected matters Page 8 of 63

WRIT PETITION (CRIMINAL) NO.551 OF 2023

WRIT PETITION (CRIMINAL) NO.542 OF 2023

WRIT PETITION (CRIMINAL) NO.569 OF 2023

WRIT PETITION (CRIMINAL) NO.537 OF 2023

WRIT PETITION (CRIMINAL) NO.573 OF 2023

WRIT PETITION (CRIMINAL) NO.570 OF 2023

WRIT PETITION (CRIMINAL) NO.564 OF 2023

WRIT PETITION (CRIMINAL) NO.560 OF 2023

WRIT PETITION (CRIMINAL) NO.544 OF 2023

WRIT PETITION (CRIMINAL) NO.545 OF 2023

WRIT PETITION (CRIMINAL) NO.563 OF 2023

WRIT PETITION (CRIMINAL) NO.578 OF 2023

WRIT PETITION (CRIMINAL) NO.575 OF 2023

WRIT PETITION (CRIMINAL) NO.572 OF 2023

WRIT PETITION (CRIMINAL) NO.592 OF 2023

WRIT PETITION (CRIMINAL) NO.571 OF 2023

WRIT PETITION (CRIMINAL) NO.604 OF 2023

WRIT PETITION (CRIMINAL) NO.597 OF 2023

WRIT PETITION (CRIMINAL) NO.600 OF 2023

WRIT PETITION (CRIMINAL) NO.611 OF 2023

WRIT PETITION (CRIMINAL) NO.617 OF 2023

WRIT PETITION (CRIMINAL) NO.626 OF 2023

WRIT PETITION (CRIMINAL) NO.623 OF 2023

WRIT PETITION (CRIMINAL) NO.635 OF 2023

WRIT PETITION (CRIMINAL) NO.640 OF 2023

WRIT PETITION (CRIMINAL) NO.622 OF 2023

WRIT PETITION (CRIMINAL) NO.637 OF 2023

WRIT PETITION (CRIMINAL) NO.632 OF 2023

WRIT PETITION (CRIMINAL) NO.625 OF 2023

W.P.(Crl.) No.336 of 2018 & Connected matters Page 9 of 63

WRIT PETITION (CRIMINAL) NO.628 OF 2023

WRIT PETITION (CRIMINAL) NO.639 OF 2023

WRIT PETITION (CRIMINAL) NO.638 OF 2023

WRIT PETITION (CRIMINAL) NO.645 OF 2023

WRIT PETITION (CRIMINAL) NO.649 OF 2023

WRIT PETITION (CRIMINAL) NO.650 OF 2023

WRIT PETITION (CRIMINAL) NO.664 OF 2023

WRIT PETITION (CRIMINAL) NO.641 OF 2023

WRIT PETITION (CRIMINAL) NO.658 OF 2023

WRIT PETITION (CRIMINAL) NO.653 OF 2023

WRIT PETITION (CRIMINAL) NO.652 OF 2023

WRIT PETITION (CRIMINAL) NO.644 OF 2023

WRIT PETITION (CRIMINAL) NO.647 OF 2023

WRIT PETITION (CRIMINAL) NO.663 OF 2023

WRIT PETITION (CRIMINAL) NO.648 OF 2023

WRIT PETITION (CRIMINAL) NO.660 OF 2023

WRIT PETITION (CRIMINAL) NO.655 OF 2023

TRANSFER PETITION (CRIMINAL) NO.1016 OF 2023

WRIT PETITION (CRIMINAL) NO.5 OF 2024

WRIT PETITION (CRIMINAL) NO.3 OF 2024

WRIT PETITION (CRIMINAL) NO.29 OF 2024

WRIT PETITION (CRIMINAL) NO.6 OF 2024

WRIT PETITION (CRIMINAL) NO.13 OF 2024

WRIT PETITION (CRIMINAL) NO.20 OF 2024

WRIT PETITION (CRIMINAL) NO.18 OF 2024

WRIT PETITION (CRIMINAL) NO.35 OF 2024

CRIMINAL APPEAL NO. OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO.853 OF 2024 )

WRIT PETITION (CRIMINAL) NO.33 OF 2024

WRIT PETITION (CRIMINAL) NO.34 OF 2024

W.P.(Crl.) No.336 of 2018 & Connected matters Page 10 of 63

WRIT PETITION (CRIMINAL) NO.31 OF 2024

WRIT PETITION (CRIMINAL) NO.30 OF 2024

WRIT PETITION (CRIMINAL) NO.32 OF 2024

WRIT PETITION (CRIMINAL) NO.46 OF 2024

WRIT PETITION (CRIMINAL) NO.44 OF 2024

WRIT PETITION (CRIMINAL) NO.56 OF 2024

WRIT PETITION (CRIMINAL) NO.59 OF 2024

WRIT PETITION (CRIMINAL) NO.55 OF 2024

WRIT PETITION (CRIMINAL) NO.51 OF 2024

WRIT PETITION (CRIMINAL) NO.68 OF 2024

WRIT PETITION (CRIMINAL) NO.73 OF 2024

WRIT PETITION (CRIMINAL) NO.71 OF 2024

WRIT PETITION (CRIMINAL) NO.78 OF 2024

WRIT PETITION (CRIMINAL) NO.107 OF 2024

WRIT PETITION (CRIMINAL) NO.81 OF 2024

WRIT PETITION (CRIMINAL) NO.82 OF 2024

WRIT PETITION (CRIMINAL) NO.92 OF 2024

WRIT PETITION (CRIMINAL) NO.98 OF 2024

WRIT PETITION (CRIMINAL) NO.88 OF 2024

WRIT PETITION (CRIMINAL) NO.87 OF 2024

WRIT PETITION (CRIMINAL) NO.93 OF 2024

WRIT PETITION (CRIMINAL) NO.103 OF 2024

WRIT PETITION (CRIMINAL) NO.89 OF 2024

WRIT PETITION (CRIMINAL) NO.101 OF 2024

WRIT PETITION (CRIMINAL) NO.99 OF 2024

WRIT PETITION (CRIMINAL) NO.100 OF 2024

WRIT PETITION (CRIMINAL) NO.102 OF 2024

WRIT PETITION (CRIMINAL) NO.118 OF 2024

WRIT PETITION (CRIMINAL) NO.113 OF 2024

W.P.(Crl.) No.336 of 2018 & Connected matters Page 11 of 63

WRIT PETITION (CRIMINAL) NO.111 OF 2024

WRIT PETITION (CRIMINAL) NO.131 OF 2024

WRIT PETITION (CRIMINAL) NO.133 OF 2024

WRIT PETITION (CRIMINAL) NO.130 OF 2024

WRIT PETITION (CRIMINAL) NO.117 OF 2024

WRIT PETITION (CRIMINAL) NO.135 OF 2024

WRIT PETITION (CRIMINAL) NO.134 OF 2024

WRIT PETITION (CRIMINAL) NO.132 OF 2024

WRIT PETITION (CRIMINAL) NO.162 OF 2024

WRIT PETITION (CRIMINAL) NO.163 OF 2024

WRIT PETITION (CRIMINAL) NO.136 OF 2024

WRIT PETITION (CRIMINAL) NO.161 OF 2024

WRIT PETITION (CRIMINAL) NO.139 OF 2024

WRIT PETITION (CRIMINAL) NO.143 OF 2024

WRIT PETITION (CRIMINAL) NO.152 OF 2024

WRIT PETITION (CRIMINAL) NO.172 OF 2024

WRIT PETITION (CRIMINAL) NO.167 OF 2024

WRIT PETITION (CRIMINAL) NO.171 OF 2024

WRIT PETITION (CRIMINAL) NO.181 OF 2024

WRIT PETITION (CRIMINAL) NO.179 OF 2024

WRIT PETITION (CRIMINAL) NO.177 OF 2024

WRIT PETITION (CRIMINAL) NO.173 OF 2024

WRIT PETITION (CRIMINAL) NO.185 OF 2024

WRIT PETITION (CRIMINAL) NO.176 OF 2024

WRIT PETITION (CRIMINAL) NO.192 OF 2024

WRIT PETITION (CRIMINAL) NO.194 OF 2024

WRIT PETITION (CRIMINAL) NO.204 OF 2024

WRIT PETITION (CRIMINAL) NO.207 OF 2024

WRIT PETITION (CRIMINAL) NO.214 OF 2024

W.P.(Crl.) No.336 of 2018 & Connected matters Page 12 of 63

WRIT PETITION (CRIMINAL) NO.210 OF 2024

AND

WRIT PETITION (CRIMINAL) NO.198 OF 2024

J U D G M E N T

SANJIV KHANNA, CJI.

Leave granted.

2. The fountainhead of legal controversy regarding the power to arrest under the

Customs Act, 1962

1

and the Central Goods and Services Tax Act, 2017,

2

stems

from the decision of a three Judge Bench of this Court in Om Prakash and

Another v. Union of India and Another.

3

Before this decision, offences under

the Customs Act were treated as non-bailable and once arrested, the accused

would be detained for a few months before being released on bail. Om Prakash

(supra) observed that the offences under the Customs Act and the Central

Excise Act, 1944

4

were non-cognizable and, therefore, even if the officers had

the power to arrest,

5

they could do so only after obtaining a warrant from the

Magistrate in terms of Section 41

6

of the Code of Criminal Procedure, 1973.

7

It

1

For short, “Customs Act”.

2

For short, “GST Act”.

3

(2011) 14 SCC 1.

4

For short, “Excise Act”.

5

Pursuant to Sections 132, 133, 135, 135A and 136 of the Customs Act and Section 13 of the Central

Excise Act, 1944.

6

Section 41 of the Code delineates circumstances when the police may arrest without a warrant.

7

For short, “Code”.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 13 of 63

was also held that offences under the Customs Act and the Excise Act were

both bailable, bearing a punishment of less than 3 years.

8

3. The reasoning in Om Prakash (supra) proceeds on the interpretation of

Sections 4

9

and 5

10

of the Code and holds that Section 155 and other provisions

of Chapter XII of the Code are applicable. The principle being that the customs

officers and excise officers, though conferred the power of arrest under the

respective enactments, the offences being non-cognizable, were not vested

with powers beyond that of a police officer in charge of the police station.

4. Before us, the ratio in Om Prakash (supra) has been questioned on various

grounds. For the following reasons, we are not inclined to go into all the issues:

• First, the decision in Om Prakash (supra) was pronounced on

30.09.2011 and held the field for more than 12 years.

• Secondly, and more significantly, it is apparent that the legislature has

accepted the ratio of the said decision and made specific amendments

to the Customs Act. The ratio is equally given effect to and incorporated

in the GST Act.

8

Part II of the First Schedule to the Code provides that offences which bear an imprisonment term of

less than 3 years are both non-cognizable and bailable.

9

“4. Trial of offences under the Indian Penal Code and other laws.— (1) All offences under the

Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with

according to the provisions hereinafter contained. (2) All offences under any other law shall be

investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject

to any enactment for the time being in force regulating the manner or place of investigating, inquiring

into, trying or otherwise dealing with such offences.”

10

“5. Saving.— Nothing contained in this Code shall, in the absence of a specific provision to the

contrary, affect any special or local law for the time being in force, or any special jurisdiction or power

conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

W.P.(Crl.) No.336 of 2018 & Connected matters Page 14 of 63

• Thirdly, the ratio in Om Prakash (supra) promotes and protects the life

and liberty of citizens and, corrects earlier prevalent wrongdoings which

diminished the constitutional and statutory rights of citizens.

However, we would refer to certain portions of Om Prakash (supra) in the

context of the present litigation to interpret relevant provisions of the Customs

Act and the GST Act.

5. ‘Cognizable offence’, defined in Section 2(c) of the Code, means an offence for

which the police officer may, in accordance with the First Schedule of the Code

or any other law for the time being in force, arrest without a warrant. ‘Non-

cognizable offence’, defined in Section 2(l) of the Code, means an offence for

which a police officer has no authority to arrest without a warrant.

6. Section 155 of the Code enjoins a duty on the officer in charge of a police station

to enter, or cause to be entered, the substance of any information received

regarding the commission of a non-cognizable offence in a book, maintained in

the prescribed format. The officer must then refer such informant to the

Magistrate. Police officers do not possess the authority to investigate non-

cognizable cases without an order from the Magistrate having the power to try

such a case or committing it for trial.

11

Upon receiving such an order from the

Magistrate, the police officer gains the same investigative powers as those

available for cognizable offences, with the exception of the power to arrest

11

Section 155(2) of the Code.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 15 of 63

without a warrant.

12

Therefore, without an order from the Magistrate and a

warrant, a police officer cannot arrest an accused for a non-cognizable offence.

7. Section 104(4) of the Customs Act, post amendments in 2012,

13

and 2019,

14

reads:

“(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.”

Sub-section (5) to Section 104 reads:

“Save as otherwise provided in sub-section (4), all other

offences under the Act shall be non-cognizable.”

8. After the 2012 Amendment, notwithstanding anything contained in the Code,

offences provided in clauses (a) and (b) above are to be treated as cognizable

offences. The 2019 Amendment added clauses (c) and (d) to Section 104(4),

and these are again cognizable offences. Section 104(5) states that all offences

other than those provided under Section 104(4) are non-cognizable. Therefore,

12

Section 155(3) of the Code.

13

Finance Act, 2012 (23 of 2012), with effect from 28.05.2012; for short, “2012 Amendment”.

14

Finance Act, 2019 (Act 2 of 2019), with effect from 01.08.2019; for short, “2019 Amendment”.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 16 of 63

the net effect of these amendments is that the offences enumerated in Clauses

(a) to (d) of Section 104(4) are cognizable and residual/unspecified offences

are non-cognizable.

9. Section 104(6) of the Customs Act, post amendments in 2013

15

and 2019

16

reads:

“(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

(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, shall be

non-bailable.”

Sub-section (7) to Section 104 reads:

“(7) Save as otherwise provided in sub-section (6), all other

offences under this Act shall be bailable.”

10. The net effect is that offences in Clauses (a) to (d) to Section 104(6) above,

inserted vide the 2013 Amendment, and Clause (e), inserted vide the 2019

Amendment, are treated as non-bailable offences. All other offences under the

15

Finance Act, 2013, (Act No. 17 of 2013), with effect from 17.05.2013; for short “2013 Amendment”.

16

See 2019 Amendment (supra).

W.P.(Crl.) No.336 of 2018 & Connected matters Page 17 of 63

Customs Act, barring aforementioned Clauses (a) to (e) in Section 104(6) of the

Customs Act, are bailable.

17

11. Therefore, given the amendments enacted after Om Prakash (supra) — the

2012 Amendment, the 2013 Amendment, and the 2019 Amendment — certain

categories of offences have been carved out and explicitly made cognizable in

terms of Section 104(4). Some of the cognizable offences have been made

non-bailable in terms of Section 104(6). All other offences under the Customs

Act are non-cognizable, unless carved out in Section 104(4), and bailable, as

they are excluded in Section 104(6).

12. In the aforesaid background, we would now refer to Sections 4 and 5 of the

Code, which read:

“4. Trial of offences under the Indian Penal Code and other

laws.—(1) All offences under the Indian Penal Code (45 of

1860) shall be investigated, inquired into, tried, and

otherwise dealt with according to the provisions hereinafter

contained.

(2) All offences under any other law shall be investigated,

inquired into, tried, and otherwise dealt with according to

the same provisions, but subject to any enactment for the

time being in force regulating the manner or place of

investigating, inquiring into, trying or otherwise dealing with

such offences.

5. Saving.—Nothing contained in this Code shall, in the

absence of a specific provision to the contrary, affect

any special or local law for the time being in force, or

any special jurisdiction or power conferred, or any

special form of procedure prescribed, by any other law

for the time being in force.

(emphasis supplied)”

17

See Section 104(7) of the Customs Act.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 18 of 63

13. Section 4(1) stipulates that offences under the Indian Penal Code, 1860, shall

be investigated, inquired into, tried, and otherwise dealt with in accordance with

the Code. For offences under any other local law, Section 4(2) stipulates that

they shall be investigated, inquired, tried, or otherwise dealt with in accordance

with the Code, subject to any other enactment governing the manner or place

of investigation, inquiry, trying or otherwise dealing. Section 5, the savings

clause, clarifies that the Code shall not affect any special or local law, or any

special jurisdiction or power conferred, or any special procedure prescribed,

unless there is a specific provision to the contrary. Thus, the provisions of the

Code would be applicable to the extent that there is no contrary provision in the

special act or any special provision excluding the jurisdiction and applicability

of the Code.

18

In A.R. Antulay v. Ramdas Sriniwas Nayak and Another,

19

a

Constitution Bench of this Court has clarified this position while discussing the

applicability of the Code to offences under the Prevention of Corruption Act,

1988. The relevant portion reads:

“16…In the absence of a specific provision made in the

statute indicating that offences will have to be investigated,

inquired into, tried and otherwise dealt with according to

that statute, the same will have to be investigated, inquired

into, tried and otherwise dealt with according to the Code

of Criminal Procedure. In other words, Code of Criminal is

the parent statute which provides for investigation,

inquiring into and trial of cases by criminal courts of various

designations.”

14. Before discussing the provisions of Chapter XII of the Code and determining

which of its provisions apply to offences under the Customs Act, it is relevant

18

See paragraph 128 of Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440.

19

(1984) 2 SCC 500.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 19 of 63

to address the writ petitioners’ submission that customs officers are police

officers. In our opinion, this submission is both unfounded and flawed.

15. In a line of decisions of this Court — State of Punjab v. Barkat Ram,

20

Ramesh

Chandra Mehta v. State of West Bengal,

21

and Illias v. Collector of

Customs

22

— it has been decisively held that customs officers are not police

officers. Ramesh Chandra Mehta (supra) and Illias (supra) are both

Constitution Bench judgments of this Court. Recently, this distinction was

affirmed by the majority judgment of this Court in Tofan Singh v. State of Tamil

Nadu,

23

which observed:

427. The law which emerges from the Constitution Bench

judgments of the Supreme Court in Badaku Joti

Svant, Ramesh Chandra Mehta and Illias is that, an officer

can be deemed to be a police officer within the meaning of

Section 25 of the Evidence Act:

(i) if the officer has all the powers of a police officer qua

investigation, which includes the power to file a police

report under Section 173 CrPC,

(ii) the power to file a police report under Section 173 CrPC

is an essential ingredient of the power of a police officer,

and

(iii) the power to file a police report under Section 173 CrPC

has to be conferred by statute.

xxx xxx xxx

429. As per the well-established norms of judicial discipline

and propriety, a Bench of lesser strength cannot revisit the

proposition laid down by at least three Constitution

Benches, that an officer can be deemed to be a police

officer within the meaning of Section 25 of the Evidence

Act only if the officer is empowered to exercise all the

powers of a police officer including the power to file a report

under Section 173 CrPC.”

20

(1962) 3 SCR 338.

21

(1969) 2 SCR 461.

22

(1969) 2 SCR 613.

23

(2021) 4 SCC 1.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 20 of 63

16. We respectfully agree with the view expressed that the customs officers are not

police officers.

17. Learned counsel for the writ petitioners have also relied upon Directorate of

Enforcement v. Deepak Mahajan and Another.

24

The submission was that

since a customs officer is not a police officer, anyone arrested under the

Customs Act should be sent to judicial custody. Deepak Mahajan (supra)

answers this conundrum, albeit an entirely different issue – whether persons

arrested under the Customs Act, on being produced before a Magistrate, can

be committed to the custody of a customs officer.

18. Deepak Mahajan (supra) addresses the interplay of Section 167 of the Code

25

and Section 104 of the Customs Act. Section 167(2) of the Code allows a police

officer to request police remand/custody of a person arrested for a period not

exceeding 15 days when an investigation cannot be completed within 24 hours

of the arrest. Deepak Mahajan (supra) clarifies that Section 167(2) of the Code

applies equally to Section 104 of the Customs Act. Thus, a Magistrate has the

24

(1994) 3 SCC 440.

25

“167. Procedure when investigation cannot be completed in twenty-four hours.— (1) Whenever any

person is arrested and detained in custody, and it appears that the investigation cannot be completed

within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the

accusation or information is well-founded, the officer in charge of the police station or the police officer

making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the

nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case,

and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or

has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such

custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has

no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may

order the accused to be forwarded to a Magistrate having such jurisdiction.”

W.P.(Crl.) No.336 of 2018 & Connected matters Page 21 of 63

authority under Section 167(2) of the Code to authorise detention of such

person to the custody of a customs officer.

19. On the issue of anticipatory bail, Deepak Mahajan (supra), referring to the

dictum in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab,

26

observes that the registration of a case and entries of a case diary are not

compulsory when entertaining an application for grant of anticipatory bail under

Sections 438 and 439 of the Code. Anticipatory bail can be invoked on the

likelihood of arrest based on reasonable belief of the person having committed

a non-bailable offence. At the same time, Deepak Mahajan (supra) holds that

customs officer must mandatorily maintain case diaries:

“112. The expression ‘diary’ referred to in Section 167(1)

of the Code is the special diary mentioned in Section

167(2) which should contain full and unabridged

statements of persons examined by the police so as to give

the Magistrates on a perusal of the said diary, a

satisfactory and complete source of information which

would enable him to decide whether or not the accused

person should be detained in custody but it is different from

the general diary maintained under Section 44 of the Police

Act.

113. Though an authorised officer of Enforcement or

Customs is not undertaking an investigation as

contemplated under Chapter XII of the Code, yet those

officers are enjoying some analogous powers such as

arrest, seizures, interrogation etc. Besides, a statutory duty

is enjoined on them to inform the arrestee of the grounds

for such arrest as contemplated under Article 22(1) of the

Constitution and Section 50 of the Code. Therefore, they

have necessarily to make records of their statutory

functions showing the name of the informant, as well as the

name of the person who violated any other provision of the

Code and who has been guilty of an offence punishable

under the Act, nature of information received by them, time

of the arrest, seizure of the contraband if any and the

26

(1980) 2 SCC 565.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 22 of 63

statements recorded during the course of the detection of

the offence/offences.”

20. We now turn to a recent decision of this Court in Union of India v. Ashok

Kumar Sharma and Others.

27

This decision examines and harmoniously

construes provisions of the Code and the Drugs and Cosmetics Act, 1940,

28

addressing whether the police could register and investigate the offences under

the Drugs and Cosmetics Act in accordance with the Code. Referring to Section

32 of the Drugs and Cosmetics Act, the Court held that there is an implied bar

on police investigation and prosecution, as Section 32 provides for taking

cognisance of the court only at the instance of four categories: (i) inspector

under the Drugs and Cosmetics Act, (ii) gazetted officer empowered by the

State or Central Government, (iii) aggrieved person, or (iv) voluntary

association. Ashok Kumar Sharma (supra) refers to Om Prakash (supra) and

Deepak Mahajan (supra) to observe:

“148. On a perusal of the statement of law contained in

para 41 of Om Prakash case, we find that this Court has

found that as the provisions under the enactments in

question declared the offences to be non-cognizable, the

officer exercising the power of arrest, could not arrest,

except after obtaining a warrant for the said purpose. That

they may not arrest without obtaining a warrant in respect

of the non-cognizable offences, being the view taken by

this Court, cannot be squared with the view taken by the

Punjab and Haryana High Court and the Gujarat High

Court, respectively, in Sunil Gupta and also Bhavin Impex

(P) Ltd., which took the view in effecting arrest under the

Central Excise Act, no warrant was required. It is

apparently consequent upon the same that the legislature

stepped in with amendments.

xxx xxx xxx

27

(2021) 12 SCC 674.

28

For short, “Drugs & Cosmetics Act”.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 23 of 63

150. The result would appear to be that acknowledging the

effect of making the offences being non-cognizable to be

to limit the power of the authorities under the Act for

effecting arrest under the Act, to require a warrant, certain

offences were declared to be cognizable as noticed in

Section 9-A, as amended after the judgment in Om

Prakash. The resultant position after the amendment is, it

became open to the officers to effect the arrest in regard to

a cognizable offence without obtaining a warrant.

151. In regard to the Customs Act, 1962 in Section 104,

under the present avatar, two changes have been brought

about. Firstly, the power to arrest is available in respect of

offences under Sections 132, 133, 135, 135-A and 136.

The offences are divided into two categories. Under

Section 104(4), the offences which fall within its ambit, are

treated as cognizable. The other offences are treated as

non-cognizable under Section 104(5). For instance, if a

person is involved in an offence relating to evasion or

attempted evasion of duty exceeding 50 lakh rupees (w.e.f.

1-8-2019), while the offence is cognizable, the power of

arrest is conferred on the officers under Section 104(1).

The power to arrest is conferred and the only condition to

be fulfilled is that the officer has reason to believe that the

person has committed the offence concerned. The position

is the same in respect of offence relating to prohibited

goods.

152. We have embarked upon referring to the provisions

relating to arrest under the Excise Act and the Customs Act

and the decision of this Court in Om Prakash in taking the

view as it did in para 41, in order to appreciate the

contention that, after the amendment to Section 36-AC, the

offences have been declared cognizable. If we proceed on

the basis that the power of arrest can be traced from

Section 22(1)(d) of the Act, then, after the amendment in

Section 36-AC, by which, the offences falling under

Chapter IV of the Act, which are declared as cognizable

and non-bailable, the decks are cleared for effecting arrest

without a warrant by the Inspector.”

21. Paragraphs 151 and 152, quoted above, specifically addresses the legal

position following the amendments made to the Customs Act. In 2008, the

W.P.(Crl.) No.336 of 2018 & Connected matters Page 24 of 63

Drugs and Cosmetics was amended to insert Section 36-AC,

29

which specifies

that the offences enumerated in sub-clause (a) of sub-section (1) shall be

cognizable. Clause (b) of the same sub-section outlines the conditions for

granting bail to a person arrested. Sub-section (2) further clarifies that these

limitations on granting bail were in addition to the limitations under the Code or

any other law for the time being in force. Despite the State's contrary arguments

relying on Section 32(3) – which states that nothing in the Chapter shall be

deemed to prevent any person from being prosecuted under any other law for

any act or commission, which constitutes an offence under the Chapter of the

Drugs and Cosmetics Act and the provisions of the Code – this Court rejected

the contention that the police could investigate and file a charge-sheet under

the provisions of the Code. There is also a detailed discussion on the power of

arrest and its exercise, including power of search and seizure. While affirming

that the power of arrest under the Drugs and Cosmetics Act does not vest with

the officers in charge of the police station, this Court issued several directions

emphasising the necessity of compliance with the provisions of the Code by the

arresting officer. Additionally, the arresting officer shall follow the guidelines laid

down in D.K. Basu v. State of West Bengal.

30

Finally, this Court issued a

saving order in exercise of power under Article 142 of the Constitution to fend

earlier cases where FIR had been registered, and cognisance had already been

taken.

29

Drugs and Cosmetics (Amendment) Act, 2008, Act No. 26 of 2008.

30

(1997) 1 SCC 416.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 25 of 63

22. The amendments made to the Customs Act in 2012, 2013 and 2019 are

substantive and were introduced to effectively modify the application of Om

Prakash (supra), which required a customs officer to obtain prior approval from

a Magistrate before making an arrest. These amendments designated specified

offences as cognizable and non-bailable, while also imposing certain pre-

conditions and stipulations for making arrest. Consequently, the petitioners’

reliance on Om Prakash (supra) is no longer valid and must be rejected.

However, it remains important to examine the pre-conditions and safeguards

established by the legislature to protect the life and liberty of arrestees.

23. In paragraph 19 (supra), we referenced the dictum in Deepak Mahajan (supra)

regarding the term “diary” as mentioned in Section 167(1) of the Code. Section

172 of the Code, which relates to the diary of proceedings to be maintained

during the investigation, has been amended in 2009.

31

Section 172(1B) now

stipulates that the diary should be a duly paginated volume. In order to maintain

the authenticity and accuracy of the diary, this mandate is required to be

implemented.

24. In terms of Deepak Mahajan (supra), a statutory duty is enjoined on customs

officers to inform the arrestee about their grounds of arrest. This duty flows from

the rigours imposed by Article 22(1) of the Constitution of India and Section 50

of the Code. While customs officers do not undertake an investigation akin to

Chapter XII of the Code, they enjoy analogous powers such as the power to

investigate, arrest, seize, interrogate, etc under the Customs Act. Thus, the

31

Act 5 of 2009.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 26 of 63

obligation to provide grounds of arrest is incumbent upon them. Customs

officers must also maintain records of their statutory functions including details

like the name of the informant, name of the person who has violated the law,

nature of information received by the officers, time of arrest, seizure details, and

statements recorded during the course of detection of the offence(s).

25. In 2009, the Parliament amended the Code

32

to incorporate Section 41-B which

outlines the procedures of arrest and the duties of the officer making the

arrest.

33

Although this section refers to the police officer, we believe, it equally

imposes a duty on the customs officers. Officers making an arrest are required

to bear an accurate, legible, and clear indication of their names to facilitate ease

of identification by the arrestee. These provisions are in furtherance of the

dictum of this Court in D.K. Basu (supra). The Central Board of Excise and

Customs, in a Circular dated 20.02.1998 (File No. 591/01/98-CUS(AS)),

referenced the decision in D.K. Basu (supra).

34

They have reproduced the

relevant portions of the judgment with the intent that these would be complied

with by the customs officers. We trust that customs officers shall duly comply

with this mandate.

26. We also hold that Section 41-D of the Code is applicable for offences under the

Customs Act. Accordingly, a person arrested by a customs officer has the right

32

Act 5 of 2009.

33

41-B. Procedure of arrest and duties of officer making arrest.—Every police officer while making an

arrest shall— (a) bear an accurate, visible and clear identification of his name which will facilitate easy

identification; (b) prepare a memorandum of arrest which shall be— (i) attested by at least one witness,

who is a member of the family of the person arrested or a respectable member of the locality where the

arrest is made; (ii) countersigned by the person arrested; and (c) inform the person arrested, unless the

memorandum is attested by a member of his family, that he has a right to have a relative or a friend

named by him to be informed of his arrest.

34

See also Circular dated 17.09.2013 [File No. 394/68/2013-CUS(AS)].

W.P.(Crl.) No.336 of 2018 & Connected matters Page 27 of 63

to meet an advocate of his choice during interrogation, but not throughout

interrogation.

35

In Senior Intelligence Officer, Directorate of Revenue

Intelligence v. Jugal Kishore Samra,

36

this Court held that an

advocate/authorised person may be present within visual distance during

interrogation, but he cannot be within hearing distance of the proceedings nor

can there be any consultations with such advocate/authorised person during

the course of the interrogation. The relevant portion reads:

“29. Taking a cue, therefore, from the direction made

in D.K. Basu and having regard to the special facts and

circumstances of the case, we deem it appropriate to direct

that the interrogation of the respondent may be held within

the sight of his advocate or any other person duly

authorised by him. The advocate or the person authorised

by the respondent may watch the proceedings from a

distance or from beyond a glass partition but he will not be

within the hearing distance and it will not be open to the

respondent to have consultations with him in the course of

the interrogation.”

27. Reference can also be made to Section 50A of the Code,

37

which states that

every police officer or other person making an arrest under the Code shall

35

In 2009, Section 41D was inserted in the Code vide Act 4 of 2009, in furtherance of the principles laid

down in D.K. Basu (supra). It reads: “41-D. Right of arrested person to meet an advocate of his choice

during interrogation.— When any person is arrested and interrogated by the police, he shall be entitled

to meet an advocate of his choice during interrogation, though not throughout interrogation.”

36

(2011) 12 SCC 362.

37

50-A. Obligation of person making arrest to inform about the arrest, etc., to a nominated person.—

(1) Every police officer or other person making any arrest under this Code shall forthwith give the

information regarding such arrest and place where the arrested person is being held to any of his

friends, relatives or such other persons as may be disclosed or nominated by the arrested person for

the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he

is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a

book to be kept in the police station in such form as may be prescribed in this behalf by the State

Government.

(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy

himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect

of such arrested person.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 28 of 63

forthwith give information regarding such arrest and place where the arrested

person is being held to any of his friends, relatives, or other person as may be

disclosed or nominated by the arrested person for the purpose of giving such

information. The arrested person must be informed of this right. In our opinion,

the details of compliance with this mandate must be entered into the diary

maintained by customs officer. It is the duty of the Magistrate, when an arrested

person is produced, to satisfy himself that the requirements of Section 50A(2)

and (3) have been complied with. Thus, we hold that these stipulations will

apply in cases of arrests made by the customs officers.

28. Section 55A, inserted in 2009,

38

states that it shall be the duty of the person

having custody of the accused to take reasonable care of their health and

safety. This provision shall be equally applicable to arrests under the Customs

Act.

29. The findings recorded in paragraphs 23 to 28 above, which refer to the

provisions of the Code, do not in any way fall foul of or repudiate the provisions

of the Customs Act. They complement the provisions of the Customs Act and

in a way ensure better regulation, ensuring due compliance with the statutory

conditions of making an arrest.

30. Arvind Kejriwal v. Directorate of Enforcement,

39

a recent judgment authored

by one of us (Sanjiv Khanna, J.), is a dictum relating to the Prevention of Money

38

Act 5 of 2009.

39

(2025) 2 SCC 248.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 29 of 63

Laundering Act, 2002.

40

This Court held that the power of arrest granted to the

Directorate of Enforcement

41

under Section 19 of the PML Act is fenced with

certain pre-conditions. These pre-conditions act as stringent safeguards to

protect the life and liberty of individuals. The relevant portion reads:

“9. A bare reading of the section reflects, that while the

legislature has given power to the Director, Deputy

Director, Assistant Director, or an authorised officer to

arrest a person, it is fenced with preconditions and

requirements, which must be satisfied prior to the arrest of

a person. The conditions are -

⇒ The officer must have material in his possession.

⇒ On the basis of such material, the authorised officer

should form and record in writing, “reasons to believe” that

the person to be arrested, is guilty of an offence punishable

under the PML Act.

⇒ The person arrested, as soon as may be, must be

informed of the grounds of arrest.

These preconditions act as stringent safeguards to protect

life and liberty of individuals. We shall subsequently

interpret the words “material”, “reason to believe”, and

“guilty of the offence”. Before that, we will refer to some

judgments of this Court on the importance of Section 19(1)

and the effect on the legality of the arrest upon failure to

comply with the statutory requirements.”

31. In Arvind Kejriwal (supra), a combined reading of Pankaj Bansal v. Union of

India and Others,

42

Prabir Purkayastha v. State of NCT of Delhi,

43

and Vijay

Madanlal Choudhary and Others v. Union of India and Others

44

was

adopted by this Court. It was held that the power to arrest a person without a

warrant and without instituting a criminal case is a drastic and extreme power.

40

For short, “PML Act”.

41

For short, “DoE”.

42

2023 SCC OnLine SC 1244.

43

(2024) 7 SCC 576.

44

2022 SCC OnLine SC 929.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 30 of 63

Therefore, the legislature had prescribed safeguards in the language of Section

19 itself which act as exacting conditions as to how and when the power is

exercisable. These safeguards include the requirement to have “material” in the

possession of DoE, and on the basis of such “material”, the authorised officer

must form an opinion and record in writing their “reasons to believe” that the

person arrested was “guilty” of an offence punishable under the PML Act. The

“grounds of arrest” are also required to be informed forthwith to the person

arrested.

32. The contention of the DoE that while “grounds of arrest” were mandatorily

required to be supplied to the arrestee, “reasons to believe”, being an internal

and confidential document, need not be disclosed, was decisively rejected in

Arvind Kejriwal (supra). It was held that “reasons to believe” are to be

furnished to the arrestee such that they can challenge the legality of their arrest.

Exceptions are available in one-off cases where appropriate redactions of

“reasons to believe” are permissible. The relevant portion reads:

“41. Once we hold that the accused is entitled to challenge

his arrest under Section 19(1) of the PML Act, the court to

examine the validity of arrest must catechise both the

existence and soundness of the “reasons to believe”,

based upon the material available with the authorized

officer. It is difficult to accept that the “reasons to believe”,

as recorded in writing, are not to be furnished. As observed

above, the requirements in Section 19(1) are the

jurisdictional conditions to be satisfied for arrest, the

validity of which can be challenged by the accused and

examined by the court. Consequently, it would be

incongruous, if not wrong, to hold that the accused can be

denied and not furnished a copy of the “reasons to believe”.

In reality, this would effectively prevent the accused from

challenging their arrest, questioning the “reasons to

believe”. We are concerned with violation of personal

W.P.(Crl.) No.336 of 2018 & Connected matters Page 31 of 63

liberty, and the exercise of the power to arrest in

accordance with law. Scrutiny of the action to arrest,

whether in accordance with law, is amenable to judicial

review. It follows that the “reasons to believe” should be

furnished to the arrestee to enable him to exercise his right

to challenge the validity of arrest.

42. We would accept that in a one-off case, it may not be

feasible to reveal all material, including names of witnesses

and details of documents, when the investigation is in

progress. This will not be the position in most cases. DoE

may claim redaction and exclusion of specific particulars

and details. However, the onus to justify redaction would

be on the DoE. The officers of the DoE are the authors of

the “reasons to believe” and can use appropriate wordings,

with details of the material, as are necessary in a particular

case. As there may only be a small number of cases where

redaction is justified for good cause, this reason is not a

good ground to deny the accused's access to a copy of the

“reasons to believe” in most cases. Where the non-

disclosure of the “reasons to believe” with redaction is

justified and claimed, the court must be informed. The file,

including the documents, must be produced before the

court. Thereupon, the court should examine the request

and if they find justification, a portion of the “reasons to

believe” and the document may be withheld. This requires

consideration and decision by the court. DoE is not the sole

judge.

43. Section 173(6) of the Code, permits the police officer

not to furnish statements or make disclosures to the

accused when it is inexpedient in public interest. In such

an event, the police officer is to indicate the specific part of

the statement and append a note requesting the

Magistrate to exclude that part from the copy given to the

accused. He has to state the reasons for making such

request. The same principle will apply.”

33. Arvind Kejriwal (supra) also holds that the courts can judicially review the

legality of arrest. This power of judicial review is inherent in Section 19 as the

legislature has prescribed safeguards to prevent misuse. After all, arrests

cannot be made arbitrarily on the whims and fancies of the authorities. This

W.P.(Crl.) No.336 of 2018 & Connected matters Page 32 of 63

judicial review is permissible both before and after criminal proceedings or

prosecution complaints are filed.

34. On the nature of “material” examined by the DoE, Arvind Kejriwal (supra)

states that such “material” must be admissible before a court of law. This is

because the designated officer is required to arrive at a conclusion of guilt

based on the “material” examined and such guilt can only be based on

admissible evidence. The relevant portion reads:

“47. DoE has drawn our attention to the use of the

expression ‘material in possession’ in Section 19(1) of the

PML Act instead of ‘evidence in possession’. Though

etymologically correct, this argument overlooks the

requirement that the designated officer should and must,

based on the material, reach and form an opinion that the

arrestee is guilty of the offence under the PML Act. Guilt

can only be established on admissible evidence to be led

before the court, and cannot be based on inadmissible

evidence. While there is an element of hypothesis, as oral

evidence has not been led and the documents are to be

proven, the decision to arrest should be rational, fair and

as per law. Power to arrest under Section 19(1) is not for

the purpose of investigation. Arrest can and should wait,

and the power in terms of Section 19(1) of the PML Act can

be exercised only when the material with the designated

officer enables them to form an opinion, by recording

reasons in writing that the arrestee is guilty.”

35. The investigating officer is also required to look at the whole material and

cannot ignore material that exonerates the arrestee. A wrong application of law

or arbitrary exercise of duty by the designated officer can lead to illegality in the

process. The court can exercise judicial review to strike down such a decision.

Referring to errors in the decision-making process, Arvind Kejriwal (supra)

records how such errors can vitiate the judgment or decision of the statutory

authority. The relevant portion reads:

W.P.(Crl.) No.336 of 2018 & Connected matters Page 33 of 63

“67. Error in decision making process can vitiate a

judgment/decision of a statutory authority. In terms of

Section 19(1) of the PML Act, a decision-making error can

lead to the arrest and deprivation of liberty of the arrestee.

Though not akin to preventive detention cases, but given

the nature of the order entailing arrest - it requires careful

scrutiny and consideration. Yet, at the same time, the

courts should not go into the correctness of the opinion

formed or sufficiency of the

material on which it is based, albeit if a vital ground or fact

is not considered or the ground or reason is found to be

non-existent, the order of detention may fail.

68. In Centre for PIL v. Union of India, this Court observed

that in judicial review, it is permissible to examine the

question of illegality in the decision-making process. A

decision which is vitiated by extraneous considerations can

be set aside. Similarly, in Uttamrao Shivdas Jankhar v.

Ranjitsinh Vijaysinh Mohite Patil, elaborating on the

expression “decision making process”, this Court held that

judicial interference is warranted when there is no proper

application of mind on the requirements of law. An error in

the decision-making process crops up where the authority

fails to consider a relevant factor and considers irrelevant

factors to decide the issue.”

36. On the extent of judicial review available with the court viz. “reasons to believe”,

it was held that judicial review cannot amount to a merits review. The exercise

is confined to ascertain if, based upon “material” in possession of the DoE, the

DoE had “reasons to believe” that the arrestee is guilty of an offence under the

PML Act. The relevant portion reads:

“44. We now turn to the scope and ambit of judicial review

to be exercised by the court. Judicial review does not

amount to a mini-trial or a merit review. The exercise is

confined to ascertain whether the “reasons to believe” are

based upon material which ‘establish’ that the arrestee is

guilty of an offence under the PML Act. The exercise is to

ensure that the DoE has acted in accordance with the law.

The courts scrutinize the validity of the arrest in exercise of

power of judicial review. If adequate and due care is taken

by the DoE to ensure that the “reasons to believe” justify

the arrest in terms of Section 19(1) of the PML Act, the

W.P.(Crl.) No.336 of 2018 & Connected matters Page 34 of 63

exercise of power of judicial review would not be a cause

of concern. Doubts will only arise when the reasons

recorded by the authority are not clear and lucid, and

therefore a deeper and in-depth scrutiny is required. Arrest,

after all, cannot be made arbitrarily and on the whims and

fancies of the authorities. It is to be made on the basis of

the valid “reasons to believe”, meeting the parameters

prescribed by the law. In fact, not to undertake judicial

scrutiny when justified and necessary, would be an

abdication and failure of constitutional and statutory duty

placed on the court to ensure that the fundamental right to

life and liberty is not violated.”

37. On the different facets of judicial review available with the Court while

examining the legality of arrests, Arvind Kejriwal (supra) states:

“65. …We have already referred to the contours of judicial

review expounded in Padam Narain Aggarwal (supra), and

Dr. Pratap Singh (supra). We have also referred to the

principles of Wednesbury reasonableness.

66. In Amarendra Kumar Pandey v. Union of India, this

Court elaborated on the different facets of judicial review

regarding subjective opinion or satisfaction. It was held that

the courts should not inquire into correctness or otherwise

of the facts found except where the facts found existing are

not supported by any evidence at all or the finding is so

perverse that no reasonable man would say that the facts

and circumstances exist. Secondly, it is permissible to

inquire whether the facts and circumstances so found to

exist have a reasonable nexus with the purpose for which

the power is to be exercised. In simple words, the

conclusion has to logically flow from the facts. If it does not,

then the courts can interfere, treating the lack of

reasonable nexus as an error of law. Thirdly, jurisdictional

review permits review of errors of law when constitutional

or statutory terms, essential for the exercise of power, are

misapplied or misconstrued. Fourthly, judicial review is

permissible to check improper exercise of power. For

instance, it is an improper exercise of power when the

power is not exercised genuinely, but rather to avoid

embarrassment or for wreaking personal vengeance.

Lastly, judicial review can be exercised when the

authorities have not considered grounds which are

relevant or has accounted for grounds which are not

relevant.”

W.P.(Crl.) No.336 of 2018 & Connected matters Page 35 of 63

38. Arvind Kejriwal (supra) also refers to the doctrine of proportionality, which has

come to permeate constitutional law when questions of life and liberty are

involved.

45

Courts may employ this four-part doctrinal test in their examination

of the legality of arrest as arrest often involves contestation between the

fundamental right to life and liberty of individuals against the public purpose of

punishing the guilty.

39. In the present context, the power of arrest is provided in Section 104(1) of the

Customs Act. For ease of reference, we have provided a tabular comparison

between Section 19(1) of the PML Act, envisaging the DoE’s power of arrest,

and Section 104(1) of the Customs Act, envisaging the customs officer’s power

of arrest:

Section 19(1) of the PML Act Section 104(1) of the Customs Act

19. Power to arrest.—(1) If the

Director, Deputy Director, Assistant

Director or any other officer

authorised in this behalf by the

Central Government by general or

special order, has on the basis of

material in his possession, reason to

believe (the reason for such belief to

104. Power to arrest.—429[(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

45

The doctrine of proportionality has been expounded by this Court in a line of decisions, including the

recent judgment of Association of Democratic Reforms and Another v. Union of India and Others, 2024

INSC 113. It comprises four prongs - (i) legitimate aim/purpose - The first step is to examine whether

the act/measure restricting the fundamental right has a legitimate aim and/or purpose; (ii) rational

connection -The second step is to examine whether the restriction has rational connection with the aim;

(iii) minimal impairment/necessity test - The third step is to examine whether there should have been a

less restrictive alternate measure that is equally effective; and (iv) balancing stage - The last stage is

to strike an appropriate balance between the fundamental right and the pursued public purpose.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 36 of 63

be recorded in writing) that any

person has been guilty of an offence

punishable under this Act, he may

arrest such person and shall, as soon

as may be, inform him of the grounds

for such arrest.

Section 133 or Section 135 or Section

135-A or Section 136, he may arrest

such person and shall, as soon as

may be, inform him of the grounds for

such arrest.

40. Section 104(1) stipulates that arrests may be made if a customs officer,

empowered by general or special order of the Principal Commissioner of

Customs or Commissioner of Customs, has “reasons to believe” that an offence

has been “committed” in terms of Section 132 or Section 133 or Section 135 or

Section 135-A or Section 136 of the Customs Act. Thus, Section 104(1),

effectively incorporates safeguards similar to those outlined in Section 19(1) of

the PML Act. The semantical distinction, however, between Section 19(1) and

Section 104(1), is twofold: first, Section 104(1) does not explicitly stipulate the

requirement of a customs officer having “material in their possession”; and

second, Section 104(1) does not explicitly state that the customs officer must

reasonably believe that the arrestee is “guilty of an offence”. Instead, Section

104(1) states that the customs officer must have “reasons to believe” that the

arrestee has “committed an offence”.

41. We are of the opinion that there is substantively no difference between a person

being guilty of an offence and a person committing an offence. In a catena of

judgments of this Court, it has been held that words of a statute must be

understood in their natural, ordinary or popular sense and construed according

to their grammatical meaning, unless such construction leads to some absurdity

W.P.(Crl.) No.336 of 2018 & Connected matters Page 37 of 63

or unless there is something in the context or in the object of the statute to

suggest to the contrary.

46

Applying these principles to the present case, the

Cambridge Dictionary defines “guilty party” as “someone who has done

something wrong or who has ‘committed’ a crime”. According to the Oxford

Dictionary, the etymology of “guilty” also traces back to the Old English Period

(pre-1150), referring in the context of law to someone who “has ‘committed’

some specified offence”. Thus, when we apply a plain language interpretation,

a person being “guilty” of an offence and a person “committing” an offence is

self-same and identical insofar as Section 19(1) vis-à-vis Section 104(1) is

concerned.

42. The Code also uses the terms interchangeably. For instance, Section 173 of

the Code, relating to filing of a chargesheet, stipulates in subsection (2)(i)(d)

that the police officer must state in the chargesheet, “whether any offence

appears to have been ‘committed’ and, if so, by whom”. Would this then mean

that chargesheet, a prosecution document based on which a court takes

cognisance of a matter, does not relate to the guilt of a person? Naturally, such

an interpretation would lead to anomalous circumstances and hence cannot be

sustained.

43. Secondly, 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

46

See Gurudevdatta VKSSS Maryadit v. State of Maharashtra, AIR 2001 SC 1980; S. Mehta v. State

of Maharashtra, 2001 (8) SCC 257; Patangrao Kaddam v. Prithviraj Sajirao Yadav Deshmugh, AIR

2001 SC 1121; and Ku. Sonia Bhatia v. State of Uttar Pradesh & Ors., (1981) 2 SCC 585.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 38 of 63

suspicion. The threshold for arrest under Section 104(1) of the Customs Act is

higher than that under Section 41 of the Code. Section 41 allows the police to

arrest a person without a warrant, if a “reasonable complaint has been made”,

or “credible information has been received”, or “a reasonable suspicion exists”

that the person has committed a cognizable offence. In contrast, Section 104(1)

sets a higher threshold, stipulating that a customs officers may only arrest a

person if they have “reasons 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.

47

This represents a more

stringent standard than the “mere suspicion” threshold provided under Section

41.

44. 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 be drawn. This

47

See Section 26 of the Indian Penal Code, 1860.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 39 of 63

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.

45. Moreover, the framework of the Customs Act clearly reflects the legislative

intent to establish a distinct and unique procedure for the exercise of arrest

powers by a customs officer. For example, Section 104(4), specifies only 4

categories of offences as cognizable, outlined under sub-sections (a) to (d).

Section 104(5) clarifies that all other offences under the Customs Act are non-

cognizable in nature, meaning that arrests for these offences cannot be made

without a warrant. We have cautioned in Arvind Kejriwal (supra) how the

unbridled exercise of the power to arrest without a warrant can result in

arbitrariness and errors in decision making process. A similar error made by a

customs officer can lead to a frustration of the constitutional and statutory rights

of the arrestee.

46. For the aforesaid reasons, we do not find any inconsistency between Section

19(1) of the PML Act and Section 104(1) of the Customs Act. We are of the

opinion that principles and ratio developed in the case of Arvind Kejriwal

(supra), and the principles specifically discussed and delineated in paragraphs

30 to 45 of this judgment, are equally applicable to the power of arrest under

Section 104 of the Customs Act. The respondent authorities are, therefore,

directed to comply with the mandate of this judgment and that of Arvind

Kejriwal (supra).

W.P.(Crl.) No.336 of 2018 & Connected matters Page 40 of 63

47. Lastly, Section 104(1) requires that a person arrested as soon as may be is

required to be informed of the grounds of such arrest. The grounds of arrest

must be given in writing to the arrestee before he is produced before the

Magistrate in terms of Section 104(2). This is necessary as it enables the

accused to contest and challenge his arrest and seek bail from the court. To

deny and not give the grounds in writing would be to deprive the accused of his

right in terms of Section 104(1) and also to seek right of bail under the

provisions of the Code. This interpretation would be in consonance with Article

22(1) of the Constitution which states that no person who is arrested shall be

detained in custody without being informed as soon as may be of the grounds

of such arrest, nor shall such arrest be denied the right to consult and to be

defended by a legal practitioner of his choice.

48. In view of the aforesaid discussion, we reject the challenge to the amendments

as well as provisions of the Customs Act. Reliance placed by the petitioners on

the decision of this Court in Om Prakash (supra) is misconceived as the

statutory provisions have undergone amendments to bring them in consonance

with the law of the land. Moreover, the provisions themselves provide enough

safeguards against arbitrary and wrongful arrests.

49. We shall now draw our attention to the provisions of the GST Acts.

48

50. To a large extent, our reasoning and the ratio on the applicability of the Code

to the Customs Act would equally apply to the GST Acts in view of Sections 4

48

We have collectively referred to the Central as well as the State GST Acts as “GST Acts”.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 41 of 63

and 5 of the Code. Sub-section (10) to Section 67 of the GST Acts postulates

that the provisions of the Code relating to search and seizure shall, as far as

may be, apply to search and seizure under the GST Acts, subject to the

modification that for the purpose of sub-section (5) to Section 165 of the Code,

the word ‘Magistrate’ shall be substituted with the word ‘Commissioner’. Section

69, which deals with the power of arrest, a provision which we will refer to

subsequently, also deals with the provisions of the Code when the person

arrested for any offence under the GST Acts is produced before a Magistrate.

It also deals with the power of the authorised officers to release an arrested

person on bail in case of non-cognizable and bailable offence, having the same

power and subject to the same provisions as applicable to an officer in charge

of a police station. We would, therefore, agree with the contention that the GST

Acts are not a complete code when it comes to the provisions of search and

seizure, and arrest, for the provisions of the Code would equally apply when

they are not expressly or impliedly excluded by provisions of the GST Acts.

51. There is no specific stipulation or provision in the GST Acts in respect of facets

of investigation, inquiry or trial. This Court in Ashok Munilal Jain and Another

v. Assistant Director, Directorate of Enforcement

49

has held that in view of

Section 4(2) of the Code, the procedure prescribed under the Code also applies

to the special statutes unless the applicability is expressly barred or prohibited.

The provisions of the GST Acts in this regard can be contrasted with the

49

(2018) 16 SCC 158.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 42 of 63

Railway Property (Unlawful Possession) Act, 1966. However, in our opinion,

this does not help and assist the petitioners’ contention.

52. Section 69 of the GST Acts states that where a Commissioner has reasons to

believe that a person has committed any offence specified in clauses (a) to (d)

of sub-section (1) to Section 132, which is punishable under clauses (i) or (ii) of

sub-section (1), or sub-section (2) of the said section, he may authorise any

officer of central or state tax to arrest such person. Sub-section (2) requires that

when a person is arrested for an offence specified in sub-section (5) to Section

132, the officer authorised to arrest, must inform the person of the grounds of

arrest and produce him before the Magistrate within 24 hours.

53. Section 132 of the GST Acts deals with punishment of offences and reads as

under:

“132. Punishment for certain offences.—(1) Whoever commits, or

causes to commit and retain the benefits arising out of, any of the

following offences, namely:—

(a) supplies any goods or services or both without issue of any

invoice, in violation of the provisions of this Act or the rules made

thereunder, with the intention to evade tax;

(b) issues any invoice or bill without supply of goods or services

or both in violation of the provisions of this Act, or the rules made

thereunder leading to wrongful availment or utilisation of input tax

credit or refund of tax;

(c) avails input tax credit using the invoice or bill referred to in

clause (b) or fraudulently avails input tax credit without any

invoice or bill;

(d) collects any amount as tax but fails to pay the same to the

Government beyond a period of three months from the date on

which such payment becomes due;

W.P.(Crl.) No.336 of 2018 & Connected matters Page 43 of 63

(e) evades tax or fraudulently obtains refund and where such

offence is not covered under clauses (a) to (d);

(f) falsifies or substitutes financial records or produces fake

accounts or documents or furnishes any false information with an

intention to evade payment of tax due under this Act;

(h) acquires possession of, or in any way concerns himself in

transporting, removing, depositing, keeping, concealing,

supplying, or purchasing or in any other manner deals with, any

goods which he knows or has reasons to believe are liable to

confiscation under this Act or the rules made thereunder;

(i) receives or is in any way concerned with the supply of, or in

any other manner deals with any supply of services which he

knows or has reasons to believe are in contravention of any

provisions of this Act or the rules made thereunder;

(l) attempts to commit, or abets the commission of any of the

offences mentioned in clauses (a) to (f) and clauses (h) and (i) of

this section,

shall be punishable—

(i) in cases where the amount of tax evaded or the amount of input

tax credit wrongly availed or utilised or the amount of refund

wrongly taken exceeds five hundred lakh rupees, with

imprisonment for a term which may extend to five years and with

fine;

(ii) in cases where the amount of tax evaded or the amount of

input tax credit wrongly availed or utilised or the amount of refund

wrongly taken exceeds two hundred lakh rupees but does not

exceed five hundred lakh rupees, with imprisonment for a term

which may extend to three years and with fine;

(iii) in the case of an offence specified in clause (b), where the

amount of tax evaded or the amount of input tax credit wrongly

availed or utilised or the amount of refund wrongly taken exceeds

one hundred lakh rupees but does not exceed two hundred lakh

rupees, with imprisonment for a term which may extend to one

year and with fine;

(iv) in cases where he commits or abets the commission of an

offence specified in clause (f), he shall be punishable with

imprisonment for a term which may extend to six months or with

fine or with both.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 44 of 63

(2) Where any person convicted of an offence under this section

is again convicted of an offence under this section, then, he shall

be punishable for the second and for every subsequent offence

with imprisonment for a term which may extend to five years and

with fine.

(3) The imprisonment referred to in clauses (i), (ii) and (iii) of sub-

section (1) and sub-section (2) shall, in the absence of special

and adequate reasons to the contrary to be recorded in the

judgment of the Court, be for a term not less than six months.

(4) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974), all offences under this Act, except

the offences referred to in sub-section (5) shall be non-cognizable

and bailable.

(5) The offences specified in clause (a) or clause (b) or clause (c)

or clause (d) of sub-section (1) and punishable under clause (i) of

that sub-section shall be cognizable and non-bailable.

(6) A person shall not be prosecuted for any offence under this

section except with the previous sanction of the Commissioner.

Explanation.—For the purposes of this section, the term “tax”

shall include the amount of tax evaded or the amount of input tax

credit wrongly availed or utilised or refund wrongly taken under

the provisions of this Act, the State Goods and Services Tax Act,

the Integrated Goods and Services Tax Act or the Union Territory

Goods and Services Tax Act and cess levied under the Goods

and Services Tax (Compensation to States) Act.”

54. Sub-section (1) to Section 132 consists of as many as 9 clauses in the form of

clauses (a) to (l). Offences under the said clauses are then graded in clauses

(i) to (iii) depending upon the amount of tax evaded, the amount of input tax

wrongly availed or utilised, or the amount of refund wrongly taken. In case of

clause (i) where the amount exceeds Rs.500 lakhs, the punishment may extend

to imprisonment for five years and with fine; where the amount is less than

Rs.500 lakhs but exceeds Rs. 200 lakhs, the punishment may extend to

W.P.(Crl.) No.336 of 2018 & Connected matters Page 45 of 63

imprisonment for three years and with fine. Where the amount of tax is less

than Rs. 200 lakhs but exceeds Rs. 100 lakh, the punishment may extend to

imprisonment for one year and with fine. Clause (iv) to Section 132(1) deals

with cases where the accused commits or abets the commission of an offence

specified in clause (f) and provides a punishment which may extend to

imprisonment for six months, with or without fine. Sub-section (2) to Section

132 deals with repeat offenders. Sub-section (3) to Section 132 requires that

the minimum term of imprisonment for the offences under clauses (i) to (iii) of

sub-section (1) and sub-section (2), in the absence of special and adequate

reasons to the contrary to be recorded by the court, shall not be for less than

six months.

55. Sub-section (4) to Section 132, an important provision for our consideration,

states that notwithstanding anything in the Code, all offences under the GST

Act, except the offences referred to in sub-section (5), are non-cognizable and

bailable. Thus, non-cognizable offences have been made bailable. Sub-section

(4) to Section 132 has to be read in light of the dictum of Om Prakash (supra)

which decision the legislature was fully aware and conscious of when they

enacted the GST Acts. This is also clear from sub-section (5) to Section 132

which states that the offences specified under clauses (a) to (d) of sub-section

(1) to Section 132 and punishable under clause (i) of that sub-section are

cognizable and non-bailable. Thus, only when the offence falls under the limited

categories specified in clauses (a) to (d) of sub-section (1) to Section 132, and,

when the amount of tax evaded, amount of input tax credit wrongly availed or

W.P.(Crl.) No.336 of 2018 & Connected matters Page 46 of 63

utilised, or the amount of refund wrongly taken exceeds Rs.500 lakhs, that the

offence is non-bailable and cognizable. At this stage, we must note the

submission made on behalf of the Revenue that in cases of bailable and non-

cognizable offences, the central/state officers do not make arrests. Arrests are

made only when the offence is non-bailable and cognizable, satisfying the

conditions of sub-section (5) to Section 132, as specified in clauses (a) to (d) of

sub-section (1) to Section 132 of the GST Acts.

56. It is clear from the aforesaid provisions that, to pass an order of arrest in case

of cognizable and non-cognizable offences, the Commissioner must

satisfactorily show, vide the reasons to believe recorded by him, that the person

to be arrested has committed a non-bailable offence and that the pre-conditions

of sub-section (5) to Section 132 of the Act are satisfied. Failure to do so would

result in an illegal arrest. With regard to the submission made on behalf of the

Revenue that arrests are not made in case of bailable offences, in our

considered view, the Commissioner, while recording the reasons to believe

should state his satisfaction and refer to the ‘material’ forming the basis of his

finding regarding the commission of a non-bailable offence specified in clauses

(a) to (d) of sub-section (1) to Section 132. The computation of the tax involved

in terms of the monetary limits under clause (i) of sub-section (1), which make

the offence cognizable and non-bailable, should be supported by referring to

relevant and sufficient material.

57. The aforesaid exercise should be undertaken in right earnest and objectively,

and not on mere ipse dixit without foundational reasoning and material. The

W.P.(Crl.) No.336 of 2018 & Connected matters Page 47 of 63

arrest must proceed on the belief supported by reasons relying on material that

the conditions specified in sub-section (5) of Section 132 are satisfied, and not

on suspicion alone. An arrest cannot be made to merely investigate whether

the conditions are being met. The arrest is to be made on the formulation of the

opinion by the Commissioner, which is to be duly recorded in the reasons to

believe. The reasons to believe must be based on the evidence establishing –

to the satisfaction of the Commissioner – that the requirements of sub-section

(5) to Section 132 of the GST Act are met.

58. Our attention was drawn to the judgment of the High Court of Delhi in

Makemytrip (India) Private Limited and Another v. Union of India and

Others,

50

which is a decision interpreting the power of arrest under the Finance

Act, 1994. These provisions are related to service tax. Excise duty, service tax,

and other taxes are subsumed under the GST regime. Accordingly, we are in

agreement with the findings recorded in this decision to the extent that the

power of arrest should be used with great circumspection and not casually.

Further, as in the case of service tax, the power of arrest is not to be used on

mere suspicion or doubt, or for even investigation, when the conditions of sub-

section (5) to Section 132 of the GST Acts are not satisfied.

59. However, relying upon the judgment in the case of Makemytrip (supra), it has

been submitted on behalf of the petitioners, that the power under sub-section

(5) to Section 132 cannot be exercised unless the procedure under Section 73

of the GST Act is completed and an assessment order is passed quantifying

50

2016 SCC OnLine Del 4951.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 48 of 63

the tax evaded or erroneously refunded or input tax credit wrongly availed.

According to us, this contention should not be accepted as a general or broad

proposition. We would accept that normally the assessment proceedings would

quantify the amount of tax evaded, etc. and go on to show whether there is any

violation in terms of clauses (a) to (d) to sub-section (1) of Section 132 of the

GST Acts and that clause (i) to sub-section (1) is attracted. But there could be

cases where even without a formal order of assessment, the

department/Revenue is certain that it is a case of offence under clauses (a) to

(d) to sub-section (1) of Section 132 and the amount of tax evaded, etc. falls

within clause (i) of sub-section (1) to Section 132 of the GST Acts with sufficient

degree of certainty. In such cases, the Commissioner may authorise arrest

when he is able to ascertain and record reasons to believe. As indicated above,

the reasons to believe must be explicit and refer to the material and evidence

underlying such opinion. There has to be a degree of certainty to establish that

the offence is committed and that such offence is non-bailable. The principle of

benefit of doubt would equally be applicable and should not be ignored either

by the Commissioner or by the Magistrate when the accused is produced before

the Magistrate.

60. The findings and the ratio recorded in paragraphs 30 to 47 above with reference

to the Customs Act would equally apply insofar as maintenance of records as

well as obligations of the arresting officer and rights of the accused/person

arrested are concerned. Compliance in this regard must be made.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 49 of 63

61. The Central Board of Indirect Taxes and Customs (GST-Investigation Wing),

has accepted the said position vide circular dated 17.08.2022, the relevant

portion of which reads as under:

“ F.No. GST/INV/Instructions/2021-22

GST-Investigation Unit

17

th

August 2022

Instruction No. 02/2022-23 [GST – Investigation]

Subject: Guidelines for arrest and bail in relation to offence

punishable under the CGST Act, 2017 – reg.

Hon’ble Supreme Court of India in its judgment dated 16

th

August, 2021 in Criminal Appeal No. 838 of 2021, arising out of

SLP (Crl.) No. 5442/2021, has observed as follows:

“We may note that personal liberty is an important aspect of

our constitutional mandate. The occasion to arrest an

accused during investigation arises when custodial

investigation becomes necessary or it is a heinous crime or

where there is a possibility of influencing the witnesses or

accused may abscond. Merely because an arrest can be

made because it is lawful does not mandate that arrest must

be made. A distinction must be made between the existence

the existence of the power to arrest and the justification for

exercise of it. If arrest is made routine, it can cause

incalculable harm to the reputation and self-esteem of a

person. If the Investigating Officer has no reason to believe

that the accused will abscond or disobey summons and has,

in fact, throughout cooperated with the investigation we fail

to appreciate why there should be a compulsion on the

officer to arrest the accused.”

xx xx xx

3. Conditions precedent to arrest:

3.1 Sub-section (1) of Section 132 of CGST Act, 2017 deals

with the punishment for offences specified therein. Sub-section (1)

of Section 69 gives the power to the Commissioner to arrest a

person where he has reason to believe that the alleged offender

has committed any offence specified in clause (a) or clause (b) or

clause (c) or clause (d) of sub-section (1) of Section 132 which is

W.P.(Crl.) No.336 of 2018 & Connected matters Page 50 of 63

punishable under clause (i) or clause (ii) of subsection (1), or sub-

section (2) of the Section 132 of CGST Act, 2017. Therefore,

before placing a person under arrest, the legal requirements must

be fulfilled. The reasons to believe to arrive at a decision to place

an alleged offender under arrest must be unambiguous and amply

clear. The reasons to believe must be based on credible material.

3.2 Since arrest impinges on the personal liberty of an individual,

the power to arrest must be exercised carefully. The arrest should

not be made in routine and mechanical manner. Even if all the legal

conditions precedent to arrest mentioned in Section 132 of the

CGST Act, 2017 are fulfilled, that will not, ipso facto, mean that an

arrest must be made. Once the legal ingredients of the offence are

made out, the Commissioner or the competent authority must then

determine if the answer to any or some of the following questions

is in the affirmative:

3.2.1 Whether the person was concerned in the non-

bailable offence or credible information has been received,

or a reasonable suspicion exists, of his having been so

concerned?

3.2.2 Whether arrest is necessary to ensure proper

investigation of the offence?

3.2.3 Whether the person, if not restricted, is likely to tamper

the course of further investigation or is likely to tamper with

evidence or intimidate or influence witnesses?

3.2.4 Whether person is mastermind or key operator

effecting proxy/ benami transaction in the name of dummy

GSTIN or non-existent persons, etc. for passing fraudulent

input tax credit etc.?

3.2.5 As unless such person is arrested, his presence

before investigating officer cannot be ensured.

3.3 Approval to arrest should be granted only where the intent to

evade tax or commit acts leading to availment or utilization of

wrongful Input Tax Credit or fraudulent refund of tax or failure to

pay amount collected as tax as specified in sub-section (1) of

Section 132 of the CGST Act 2017, is evident and element of mens

rea / guilty mind is palpable.

3.4 Thus, the relevant factors before deciding to arrest a person,

apart from fulfillment of the legal requirements, must be that the

need to ensure proper investigation and prevent the possibility of

W.P.(Crl.) No.336 of 2018 & Connected matters Page 51 of 63

tampering with evidence or intimidating or influencing witnesses

exists.

3.5 Arrest should, however, not be resorted to in cases of technical

nature i.e. where the demand of tax is based on a difference of

opinion regarding interpretation of Law. The prevalent practice of

assessment could also be one of the determining factors while

ascribing intention to evade tax to the alleged offender. Other

factors influencing the decision to arrest could be if the alleged

offender is co-operating in the investigation, viz. compliance to

summons, furnishing of documents called for, not giving evasive

replies, voluntary payment of tax etc.

xx xx xx”

62. The circular also refers to the procedure of arrest and that the Principal

Commissioner/Commissioner has to record on the file, after considering the

nature of the offence, the role of the person involved, the evidence available

and that he has reason to believe that the person has committed an offence as

mentioned in Section 132 of the GST Act. The provisions of the Code, read with

Section 69(3) of the GST Acts, relating to arrest and procedure thereof, must

be adhered to. Compliance must also be made with the directions in D.K. Basu

(supra). The format of arrest, as prescribed by the Central Board of Indirect

Taxes and Customs in Circular No. 128/47/2019-GST dated 23.12.2019, has

also been referred to in this Instruction. Therefore, the arrest memo should

indicate the relevant section(s) of the GST Act and other laws. In addition, the

grounds of arrest must be explained to the arrested person and noted in the

arrest memo. This instruction regarding the grounds of arrest came to be

amended by the Central Board of Indirect Taxes and Customs (GST-

Investigation Wing) vide Instruction No. 01/2025-GST dated 13.01.2025

(GST/INV/Instructions/21-22). The circular dated 13.01.2025 now mandates

W.P.(Crl.) No.336 of 2018 & Connected matters Page 52 of 63

that the grounds of arrest must be explained to the arrested person and also be

furnished to him in writing as an Annexure to the arrest memo. The

acknowledgement of the same should be taken from the arrested person at the

time of service of the arrest memo. Instruction 02/2022-23 GST (Investigation)

dated 17.08.2022 further lays down that a person nominated or authorised by

the arrested person should be informed immediately, and this fact must be

recorded in the arrest memo. The date and time of the arrest should also be

mentioned in the arrest memo. Lastly, a copy of the arrest memo should be

given to the person arrested under proper acknowledgement. The circular also

makes other directions concerning medical examination, the duty to take

reasonable care of the health and safety of the arrested person, and the

procedure of arresting a woman, etc. It also lays down the post-arrest

formalities which have to be complied with. It further states that efforts should

be made to file a prosecution complaint under Section 132 of the GST Acts at

the earliest and preferably within 60 days of arrest, where no bail is granted.

Even otherwise, the complaint should be filed within a definite time frame. A

report of arrests made must be maintained and submitted as provided in

paragraph 6.1 of the Instruction. The aforesaid directions in the

Circular/instruction should be read along with the specific directions outlined in

the earlier judgments of this Court and the present judgment.

63. One of the assertions and allegations made on behalf of the petitioners is that

the parties are compelled and coerced to admit and make payment of tax in

W.P.(Crl.) No.336 of 2018 & Connected matters Page 53 of 63

view of the threat of arrest. This is in spite of the fact that there is no assessment

or adjudication as to the alleged demand.

64. In this regard, we may refer to the circular F.No.GST/INV/Instructions/2022-

2023 (Instruction No. 01/2022-23) dated 25.05.2022 issued by the Central

Board of Indirect Taxes and Customs referring to the taxpayers depositing

partial or full GST liability during the course of search, inspection or

investigation. The relevant extracts of the circular reads:

“ F.No. GST/INV/Instructions/2022-23

GST-Investigation Unit

25

th

May 2022

Instruction No. 01/2022-23 [GST – Investigation]

Subject: Deposit of tax during the course of search, inspection or

investigation – reg.

xx xx xx

3. It is further observed that recovery of taxes not paid or short paid,

can be made under the provisions of Section 79 of CGST Act, 2017

only after following due legal process of issuance of notice and

subsequent confirmation of demand by issuance of adjudication

order. No recovery can be made unless the amount becomes

payable in pursuance of an order passed by the adjudicating

authority or otherwise becomes payable under the provisions of

CGST Act and rules made therein. Therefore, there may not arise

any situation where “recovery” of the tax dues has to be made by

the tax officer from the taxpayer during the course of search,

inspection or investigation, on account of any issue detected during

such proceedings. However, the law does not bar the taxpayer

from voluntarily making payment of any tax liability ascertained by

him or the tax officer in respect of such issues, either during the

course of such proceedings or subsequently.

4. Therefore, it is clarified that there may not be any circumstance

necessitating ‘recovery’ of tax dues during the course of search or

inspection or investigation proceedings. However, there is also no

bar on the taxpayers for voluntarily making the payments on the

W.P.(Crl.) No.336 of 2018 & Connected matters Page 54 of 63

basis of ascertainment of their liability on non-payment/short

payment of taxes before or at any stage of such proceedings. The

tax officer should however inform the taxpayers regarding the

provisions of voluntary tax payments through DRC-03.

xx xx xx”

65. The circular notes that instances have been noticed where allegations of force

and coercion were made by the officers for making recovery during the course

of search, inspection and investigation. Some of the taxpayers had accordingly

approached the High Courts. Reference is made to Section 79 of the GST Acts

to state that recovery can be made only after following the due process of

issuance of notice and subsequent confirmation of demand by issuance of an

adjudicating order. On the last aspect, reference is made to Sections 73(5) and

74(5) of the GST Acts, which help the taxpayers in discharging their admitted

liability, self-ascertained or as ascertained by the tax officer, without having to

bear the burden of interest under Section 50 of the GST Acts. The statement in

the circular that an assessee may voluntarily deposit tax as noticed was a cause

of discussion before us. In this regard, our attention was drawn to Section 74(5)

of the GST Acts, which states that a person chargeable with tax may, before

service of notice under sub-section (1), pay the amount of tax along with interest

payable under Section 50 and a penalty equivalent to 15% of such tax on the

basis of his own ascertainment of such tax or the tax as ascertained by the

proper officer, and inform the proper officer in writing of such payment. Sub-

section (5) to Section 74 relates to voluntary payment, and does not postulate

payment under force, coercion or threat of arrest. The aforesaid circulars are

binding and should be adhered to in letter and spirit. The authorities must

W.P.(Crl.) No.336 of 2018 & Connected matters Page 55 of 63

exercise due care and caution as coercion and threat to arrest would amount

to a violation of fundamental rights and the law of the land. It is desirable that

the Central Board of Indirect Taxes and Customs promptly formulate clear

guidelines to ensure that no taxpayer is threatened with the power of arrest for

recovery of tax in the garb of self-payment. Way back in the year 1978, a three

Judges Bench of this Court in Nandini Satpati v. P.L. Dani and Another

51

had

observed as under:

“57. (…) We are disposed to read “compelled testimony” as

evidence procured not merely by physical threats or violence but

by psychic torture, atmospheric pressure, environmental

coercion, tiring interrogative prolixity, overbearing and

intimidatory methods and the like — not legal penalty for violation.

(…)”

66. We called upon the Revenue to submit data in this regard. A chart has been

filed before us and the same is reproduced below:

Total Number of GST Offence Cases

Period: July 2017 to March 2024

Period Formation No. of Cases Detection Recovery No. of Arrest

(In Rs. Cr.) (In Rs. Cr.)

2017-18 w.e.f

July 2017

CGST Zones 273 384 224 3

DGGI 151 832 171 0

Total 424 1216 394 3

2018-19

CGST Zones 5894 18658 10338 115

DGGI 1474 19288 8878 76

Total 7368 37946 19216 191

2019-20

CGST Zones 8367 19482 6956 123

DGGI 2290 21371 11508 108

Total 10657 40853 18464 231

2020-21 CGST Zones 8756 18247 3380 224

51

(1978) 2 SCC 424.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 56 of 63

DGGI 3840 31137 8855 236

Total 12596 49384 12235 460

2021-22

CGST Zones 8770 24757 5393 191

DGGI 3804 48481 19764 151

Total 12574 73238 25157 342

2022-23

CGST Zones 10500 31053 12509 93

DGGI 5062 100560 20717 97

Total 15562 131613 33226 190

2023-24 (upto

March 2024)

CGST Zones 14492 35377 7742 84

DGGI 6090 194955 24016 139

Total 20582 230332 31758 223

Total Number of ITC Fraud Cases

Period: July 2017 to March 2024

Period Formation No. of Cases Detection Recovery No. of Arrest

(In Rs. Cr.) (In Rs. Cr.)

2017-18 w.e.f

July 2017

CGST Zones 5 13 12 2

DGGI 0 0 0 0

Total 5 13 12 2

2018-19

CGST Zones 1221 7993 676 97

DGGI 399 3258 510 57

Total 1620 11251 1186 154

2019-20

CGST Zones 3231 12003 1086 100

DGGI 1027 7929 1331 95

Total 4258 19932 2417 195

2020-21

CGST Zones 5292 13502 743 202

DGGI 1976 17731 1489 227

Total 7268 31233 2232 429

2021-22

CGST Zones 4636 14895 825 178

DGGI 1330 13127 1202 114

Total 5966 28022 2027 292

2022-23

CGST Zones 5291 10965 887 85

DGGI 1940 13175 1597 68

Total 7231 24140 2484 153

2023-24 (upto

March 2024)

CGST Zones 6993 15374 836 69

DGGI 2197 21000 2577 113

Total 9190 36374 3413 182

W.P.(Crl.) No.336 of 2018 & Connected matters Page 57 of 63

67. Analysing the aforesaid data indicates that the number of people arrested is

normally in hundreds or more.

52

However, it is to be noted that the figures with

regard to the tax demand and the tax collected would, in fact, indicate some

force in the petitioners’ submission that the assessees are compelled to pay tax

as a condition for not being arrested. Sub-section (5) to Section 74 of the GST

Acts gives an option to the assessee and does not confer any right on the tax

authorities to compel or extract tax by threatening arrest. This would be

unacceptable and violative of the rule of law.

68. We would observe that in case there is a breach of law, and the assessees are

put under threat, force or coercion, the assessees would be entitled to move

the courts and seek a refund of tax deposited by them. The department would

also take appropriate action against the officers in such cases.

69. However, we may clarify that a person summoned under Section 70 of the GST

Acts is not per se an accused protected under Article 20(3) of the Constitution,

as has been held in the case of Deepak Mahajan (supra). This is because the

prohibitive sweep of Article 20(3) of the Constitution does not go back to the

stage of interrogation. Reference in this regard has been placed on Poolpandi

and Others v. Superintendent, Central Excise and Others

53

and

Dukhishyam Benupani, Asst. Director, Enforcement Directorate (FERA) v.

52

The data reflects that the number of arrests is inversely proportional to the percentage of amount

recovered against the amount detected. i.e., when payments are made, the power of arrest is not being

exercised. Further, the amount classified as the ‘detection’ amount is not the amount ascertained

through assessment/adjudication, but an amount quantified by the department/authority conducting

search and seizure.

53

(1992) 3 SCC 259.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 58 of 63

Arun Kumar Bajoria.

54

It is obvious that the investigation must be allowed to

proceed in accordance with law and there should not be any attempt to dictate

the investigator and at the same time, there should not be any misuse of power

and authority.

70. We also wish to clarify that the power to grant anticipatory bail arises when

there is apprehension of arrest. This power, vested in the courts under the

Code, affirms the right to life and liberty under Article 21 of the Constitution to

protect persons from being arrested. Thus, in Gurbaksh Singh Sibbia (supra),

this Court had held that when a person complains of apprehension of arrest

and approaches for an order of protection, such application when based upon

facts which are not vague or general allegations, should be considered by the

court to evaluate the threat of apprehension and its gravity or seriousness. In

appropriate cases, application for anticipatory bail can be allowed, which may

also be conditional. It is not essential that the application for anticipatory bail

should be moved only after an FIR is filed, as long as facts are clear and there

is a reasonable basis for apprehending arrest. This principle was confirmed

recently by a Constitution Bench of Five Judges of this Court in Sushila

Aggarwal and others v. State (NCT of Delhi) and Another.

55

Some

decisions

56

of this Court in the context of GST Acts which are contrary to the

aforesaid ratio should not be treated as binding.

54

(1998) 1 SCC 52.

55

(2020) 5 SCC 1.

56

State of Gujarat v. Choodamani Parmeshwaran Iyer and Another, 2023 SCC OnLine SC 1043; Bharat

Bhushan v. Director General of GST Intelligence, Nagpur Zonal Unit Through Its Investigating officer,

SLP (Crl.) No. 8525/2024.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 59 of 63

71. The petitioners contend that Section 162(1) of the GST Acts permits

compounding of offences and therefore, the ratio in Makemytrip (supra) should

be applied to the GST Acts. The decision in Makemytrip (supra), we would

observe, itself carves out an exception when an assessment order under the

Finance Act may not be required, namely cases where a person who is shown

to be a habitual evader as one who has not filed service tax returns for a

continuous period of time, who has a history of repeated defaults for which there

have been fines, penalties imposed, and prosecutions launched, etc. It is

possible to ascertain these facts from past records. Thereafter, it is observed

that it might be possible for the department to justify resorting to coercive

provisions but the notes on the file must offer convincing justification for

resorting to such an extreme measure. It is this latter aspect which according

to us is of relevance. The petitioners further submitted that till an assessment

order was passed under Section 74 of the GST Acts, the liability cannot be

quantified and hence an assessee cannot move an application for

compounding of offences. We would reject the said submission because there

is a difference between the compounding of offences and the arrest of a person.

We have already stipulated sufficient safeguards to ensure that no arrests are

made till the Commissioner is able to show and establish, on the basis of

material and evidence, that the conditions of clauses (a) to (d) as well as clause

(i) of sub-section 1 to Section 132 of the GST Acts are satisfied and therefore

the offences are non-bailable.

72. The last issue for our determination concerns the constitutional validity of

W.P.(Crl.) No.336 of 2018 & Connected matters Page 60 of 63

Sections 69 and 70 of the GST Acts which provide for the power to arrest and

the power to summon. The petitioners assail the vires of these provisions on

the grounds of legislative competence. It is submitted that Article 246-A of the

Constitution while conferring legislative powers on Parliament and State

Legislatures to levy and collect GST, does not explicitly authorize the violations

thereof to be made criminal offences. Our attention was drawn to Lists I and II

of the Seventh Schedule to the Constitution which demarcate the legislative

fields for the Union and the States to enact laws and make violations of the

enactments as offences. Referring to Entry 93 of List I to the Seventh Schedule,

it is submitted that the Parliament can enact criminal provisions only for the

matters in List I. It is further submitted that the power to summon, arrest and

prosecute are not ancillary and incidental to the power of levying GST and

therefore, are beyond the legislative competence of the Parliament under

Article 246-A of the Constitution.

73. This argument, in our opinion, must be rejected. Article 246-A of the

Constitution is a special provision defining the source of power and the field of

legislation for the Parliament and the State Legislature with respect to GST:

“246-A. Special provisions with respect to goods and

services tax.—(1) Notwithstanding anything contained in

Articles 246 and 254, Parliament, and, subject to clause (2),

the legislature of every State, have power to make laws with

respect to goods and services tax imposed by the Union or by

such State.

(2) Parliament has exclusive power to make laws with respect

to goods and services tax where the supply of goods, or of

services, or both takes place in the course of inter-State trade

or commerce.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 61 of 63

Explanation.—The provisions of this article, shall, in respect of

goods and services tax referred to in clause (5) of Article 279-

A, take effect from the date recommended by the Goods and

Services Tax Council.”

74. This Court in Union of India and Others v. VKC Footsteps (India) Private

Ltd.,

57

took note of the change brought about by Article 246-A of the

Constitution and observed:

“52.1. Firstly, Article 246-A defines the source of power as well

as the field of legislation (with respect to goods and services

tax) obviating the need to travel to the Seventh Schedule.

52.2. Secondly, the provisions of Article 246-A are available

both to Parliament and the State Legislatures, save and

except for the exclusive power of Parliament to enact GST

legislation where the supply of goods or services takes place

in the course of inter-State trade or commerce. (…)”

75. The Parliament, under Article 246-A of the Constitution, has the power to make

laws regarding GST and, as a necessary corollary, enact provisions against tax

evasion. Article 246-A of the Constitution is a comprehensive provision and the

doctrine of pith and substance applies. The impugned provisions lay down the

power to summon and arrest, powers necessary for the effective levy and

collection of GST. Time and again this Court has held that while deciding the

issue of legislative competence, entries should not be read in a narrow or

pedantic sense but given their broadest meaning and the widest amplitude

because they are intrinsic to a machinery of government.

58

The ambit of an

57

(2022) 2 SCC 603.

58

Mineral Area Development Authority and Another v. Steel Authority of India and Another, (2024) 10

SCC 1; Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta and Others, (1955) 1

SCR 1284; Elel Hotels & Investments Ltd. and Others v. Union of India, (1989) 3 SCC 698; State of

Rajasthan v. G. Chawla and Another, 1958 SCC OnLine SC 33.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 62 of 63

entry or article laying down the legislative field extends to all ancillary and

subsidiary matters which fairly and reasonably can be said to be comprehended

in it.

59

This settled dictum regarding the interpretation of legislative entries

equally applies to the special provision of Article 246-A of the Constitution. In

the context of the legislative power to levy and collect tax, a Constitution Bench

of Seven Judges in R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit

Mills Limited and Another,

60

held:

“47. The principle in construing words conferring legislative power

is that the most liberal construction should be put on the words so

that they may have effect in their widest amplitude. None of the

items in the List is to be read in a narrow restricted sense. Each

general word should be held to extend to all ancillary or subsidiary

matters which can fairly and reasonably be said to be

comprehended in it. All powers necessary for the levy and

collection of the tax concerned and for seeing that the tax is not

evaded are comprised within the legislative ambit of the Entry as

ancillary or incidental. It is also permissible to levy penalties for

attempted evasion of taxes or default in the payment of taxes

properly levied.”

Thus, a penalty or prosecution mechanism for the levy and collection of GST,

and for checking its evasion, is a permissible exercise of legislative power. The

GST Acts, in pith and substance, pertain to Article 246-A of the Constitution

and the powers to summon, arrest and prosecute are ancillary and incidental

to the power to levy and collect goods and services tax. In view of the aforesaid,

the vires challenge to Sections 69 and 70 of the GST Acts must fail and is

accordingly rejected.

59

The United Provinces v. Mst. Atiqa Begum and Others, AIR 1941 FC 16 : 1940 SCC OnLine FC 11;

Mineral Area Development Authority (supra); Express Hotels (P) Ltd. v. State of Gujarat and Another,

(1989) 3 SCC 677; Sardar Baldev Singh v. Commissioner of Income Tax Delhi and Ajmer, 1960 SCC

OnLine SC 147.

60

(1977) 4 SCC 98.

W.P.(Crl.) No.336 of 2018 & Connected matters Page 63 of 63

76. In some of the cases, Section 135 of the GST Acts which relates to culpable

mental intent has been challenged. We are not examining the said aspect as

prosecution has not been initiated in any of these cases. If any person is

aggrieved and is advised to challenge the said Section, he/she may do so

before the High Court.

77. In view of the aforesaid discussion the challenge to the constitutional validity as

also the right of the authorised officers under the Customs Act and the GST

Acts to arrest are rejected and dismissed with elucidation and clarification on

the pre-conditions and when and how the power of arrest is to be exercised.

78. We, accordingly, answer the question in the aforesaid terms. The matters are

directed to be listed before an appropriate Bench in the week commencing

17.03.2025 for final hearing and disposal.

......................................CJI.

(SANJIV KHANNA)

........................................J.

(M.M. SUNDRESH)

NEW DELHI,

FEBRUARY 27, 2025.

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 1 of 13

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 336 OF 2018

RADHIKA AGARWAL .... PETITIONER

Versus

UNION OF INDIA AND OTHERS .... RESPONDENTS

WITH

CONNECTED MATTERS

J U D G M E N T

BELA M. TRIVEDI, J.

1. While completely agreeing with the well-considered

opinion expressed by the Hon’ble Chief Justice, on

when and how the power of arrest should be exercised

by the authorized officers, I have thought it expedient

to pen down my views on the jurisdictionary powers of

judicial review under Article 32 and Article 226 of the

Constitution of India, when the arrest of a person is

challenged.

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 2 of 13

2. At the outset, it may be noted that as well settled,

though the powers of judicial review under Article 32

and 226 of the Constitution of India are very wide and

untrammeled and are vested in the superior courts to

protect the legal and fundamental rights of the citizens

and even non-citizens, the courts over the years have

evolved certain self-restraints for exercising these

powers. They have done so in the interest of the

administration of justice and for better and more

efficient and informed exercise of the said powers. The

self-restraints or limitations are imposed as a matter of

prudence, propriety, policy and practice. The extra-

ordinary jurisdiction under Article 32 and 226, by its

very nature is used sparingly and in the extraordinary

circumstances.

3. It may further be noted that again as well settled, the

Fundamental Rights under Part-III of the Constitution

are part of the integrated scheme of the Constitution.

They are not exclusive of each other but operate, and

are, subject to each other. The action complained of

must satisfy the tests of all the said rights so far as they

are applicable to the individual cases. Though Article

21 grants a person right to life and personal liberty, it

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 3 of 13

permits the State to deprive a person of his life and

personal liberty, provided it is done strictly according

to the procedure established by law. This permission

is expressly controlled by Article 22 in cases both of

arrest and detention. Therefore, reading the Articles 21

and 22 together, it is very clear that the Constitution

permits both punitive and preventive detention

provided it is according to the procedure established

by law made for the purpose, and if both the law and

the procedure laid down by the law, are valid.

4. Whenever the jurisdiction of the High Court or the

Supreme Court is invoked under Article 226 or Article

32 as the case may be, challenging the punitive or

preventive detention, the Court is expected to take into

consideration the nature of right infringed, the scope

and object of the legislation under which such arrest or

detention is made, the need to balance the rights and

interests of the individual as against those of the

society, the circumstances under which and the

persons by whom the jurisdiction is invoked etc. In

exercise of their discretionary jurisdiction, the High

Courts and the Supreme Court do not, as courts of

appeal or revision, correct errors of law or of facts. The

judicial intervention is warranted only in exceptional

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 4 of 13

circumstances when the arrest is prima facie found to

be malafide; or is prompted by extraneous

circumstances, or is made in contravention of or in

breach of provisions of the concerned statute; or when

the authority acting under the concerned statute does

not have the requisite authority etc.

5. In this regard, a beneficial reference of the very apt

observations made in Additional Secretary to the

Government of India and Others vs. Smt. Alka

Subhash Gadia and Another

1

, deserves to be made.

The three judge bench in the said case while

discussing the Law on Preventive Detention, observed

as under:-

“11. The provisions of Articles 21 and 22 read

together, therefore, make it clear that a person

can be deprived of his life or personal liberty

according to procedure established by law, and

if the law made for the purpose is valid, the

person who is deprived of his life or liberty has to

challenge his arrest or detention, as the case

may be, according to the provisions of the law

under which he is arrested or detained. This

proposition is valid both for punitive and

preventive detention. The difference between

them is made by the limitations placed by sub-

clauses (1) and (2) on the one hand and sub-

clauses (4) to (7) on the other of Article 22, to

which we have already referred above. What is

necessary to remember for our purpose is that

the Constitution permits both punitive and

preventive detention provided it is according to

procedure established by law made for the

1

(1992) Supp (1) SCC 496

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 5 of 13

purpose and if both the law and the procedure

laid down by it, are valid.

12. This is not to say that the jurisdiction of the

High Court and the Supreme Court under

Articles 226 and 32 respectively has no role to

play once the detention — punitive or preventive

— is shown to have been made under the law so

made for the purpose. This is to point out the

limitations which the High Court and the

Supreme Court have to observe while exercising

their respective jurisdiction in such cases. These

limitations are normal and well known, and are

self-imposed as a matter of prudence, propriety,

policy and practice and are observed while

dealing with cases under all laws. Though the

Constitution does not place any restriction on

these powers, the judicial decisions have

evolved them over a period of years taking into

consideration the nature of the right infringed or

threatened to be infringed, the scope and object

of the legislation or of the order or decision

complained of, the need to balance the rights

and interests of the individual as against those of

the society, the circumstances under which and

the persons by whom the jurisdiction is invoked,

the nature of relief sought etc.”

6. The safeguards provided in the Special Acts against

the arrest of a person, are provided keeping in view

the fundamental rights of life and personal Liberty of a

person enshrined in the Constitution of India. It cannot

be gainsaid that such safeguards provided against the

arrest of a person under the Special Acts or the Code

of Criminal Procedure, must be observed not only to

protect his fundamental right of personal liberty but

also to prevent a potential misuse of the power to

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 6 of 13

arrest a person at the instance of the authorized

officer. The safeguards are - the requirement to have

“material” in possession of the authorized officer, to

form an opinion and record in writing the “reasons to

believe” that the person arrested is guilty of an offence

or has committed an offence as the case may be,

under the provisions of the concerned Act, and the

requirement to inform the person arrested, as soon as

may be, of the grounds of arrest. As per Article 21 of

the Constitution, no person could be deprived of his

life or personal liberty except according to procedure

established by law. Since, the personal liberty of a

person is deprived, when he is arrested, the procedure

laid down in the Statute while depriving his personal

liberty, has to be followed. Similarly, as per Article

22(1) of the Constitution, no person who is arrested,

could be detained in custody without being informed,

as soon as may be, of the grounds for such arrest.

Thus, the grounds for such arrest have to be

communicated to him as soon as may be after the

arrest is made. Tersely put, there has to be due

compliance of the Constitutional and Statutory

mandates, whenever an arrest is made of a person

under the Special Acts.

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 7 of 13

7. So far as the arrest made under the Customs Act,

1962 is concerned, in Union of India Vs. Padam

Narain Aggarwal and Others

2

, it has been observed

that the power to arrest a person by a Custom officer

is statutory in character and cannot be interfered with.

Such power of arrest can be exercised only in those

cases where the Customs officer has a reason to

believe that the person is guilty of an offence

punishable under the said Act. Thus, the power must

be exercised on objective facts of commission of an

offence enumerated, and when the customs officer

has a reason to believe that the person sought to be

arrested has been guilty of commission of such

offences. It has been further observed that the law on

one hand allows a customs officer to exercise power

to arrest a person who has committed certain

offences, and on the other hand takes due care to

ensure individual freedom and liberty, by laying down

norms and providing safeguards so that the power of

arrest is not abused or misused by the authorities.

2

2008 (13) SCC 305

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 8 of 13

8. So far as the arrest is made under the Prevention of

Money Laundering Act, 2002 is concerned, in Vijay

Madanlal Choudhary and Others Vs. Union of India

and Others

3

, also the three Judge Bench of this Court

has held inter alia that the safeguards provided in the

PMLA and the pre-conditions to be fulfilled by the

authorized officer before effecting arrest as contained

in Section 19 of the said Act are stringent and of higher

standard. Those safeguards ensure that the

authorized officers do not act arbitrary, but make them

accountable for their judgment about the necessity to

arrest any person as being involved in the commission

of offence of money laundering even before filing of

the complaint before the Special Court under the Act.

9. However, when the legality of such an arrest made

under the Special Acts like PMLA, UAPA, Foreign

Exchange, Customs Act, GST Acts, etc. is challenged,

the Court should be extremely loath in exercising its

power of judicial review. In such cases, the exercise of

the power should be confined only to see whether the

statutory and constitutional safeguards are properly

complied with or not, namely to ascertain whether the

officer was an authorized officer under the Act,

3

2022 SCC OnLine SC 929

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 9 of 13

whether the reason to believe that the person was

guilty of the offence under the Act, was based on the

“material” in possession of the authorized officer or

not, and whether the arrestee was informed about the

grounds of arrest as soon as may be after the arrest

was made. Sufficiency or adequacy of material on the

basis of which the belief is formed by the officer, or the

correctness of the facts on the basis of which such

belief is formed to arrest the person, could not be a

matter of judicial review.

10. It hardly needs to be reiterated that the power of

judicial review over the subjective satisfaction or

opinion of the statutory authority would have different

facets depending on the facts and circumstances of

each case. The criteria or parameters of judicial review

over the subjective satisfaction applicable in Service

related cases, cannot be made applicable to the cases

of arrest made under the Special Acts. The scrutiny on

the subjective opinion or satisfaction of the authorized

officer to arrest the person could not be a matter of

judicial review, in as much as when the arrest is made

by the authorized officer on he having been satisfied

about the alleged commission of the offences under

the special Act, the matter would be at a very nascent

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 10 of 13

stage of the investigation or inquiry. The very use of

the phrase “reasons to believe” implies that the officer

should have formed a prima facie opinion or belief on

the basis of the material in his possession that the

person is guilty or has committed the offence under the

relevant special Act. Sufficiency or adequacy of the

material on the basis of which such belief is formed by

the authorized officer, would not be a matter of scrutiny

by the Courts at such a nascent stage of inquiry or

investigation.

11. As held in Adri Dharan Das vs. State of W.B.

4

,

ordinarily arrest is a part of the process of investigation

intended to secure several purposes. The accused

may have to be questioned in detail regarding various

facets of motive, preparation, commission and

aftermath of crime and the connection of other

persons, if any, in the crime. There may be

circumstances in which the accused may provide

information leading to discovery of material facts. It

may be necessary to curtail his freedom in order to

enable the investigation to proceed without hindrance

and to protect witnesses and persons connected with

the victim of the crime, to prevent his disappearance,

4

(2005) 4 SCC 303

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 11 of 13

to maintain law and order in the society etc. For these

or such other reasons, arrest may become an

inevitable part of the process of investigation.

12. It is pertinent to note that the Special Acts are enacted

to achieve specific purposes and objectives. The

power of judicial review in cases of arrest under such

Special Acts should be exercised very cautiously and

in rare circumstances to balance individual liberty with

the interest of justice and of the society at large. Any

liberal approach in construing the stringent provisions

of the Special Acts may frustrate the very purpose and

objective of the Acts. It hardly needs to be stated that

the offences under the PMLA or the Customs Act or

FERA are the offences of very serious nature affecting

the financial systems and in turn the sovereignty and

integrity of the nation. The provisions contained in the

said Acts therefore must be construed in the manner

which would enhance the objectives of the Acts, and

not frustrate the same. Frequent or casual interference

of the courts in the functioning of the authorized

officers who have been specially conferred with the

powers to combat the serious crimes, may embolden

the unscrupulous elements to commit such crimes and

may not do justice to the victims, who in such cases

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 12 of 13

would be the society at large and the nation itself. With

the advancement in Technology, the very nature of

crimes has become more and more intricate and

complicated. Hence, minor procedural lapse on the

part of authorized officers may not be seen with

magnifying glass by the courts in exercise of the

powers of judicial review, which may ultimately end up

granting undue advantage or benefit to the person

accused of very serious offences under the special

Acts. Such offences are against the society and

against the nation at large, and cannot be compared

with the ordinary offences committed against an

individual, nor the accused in such cases be compared

with the accused of ordinary crimes.

13. Though, the power of judicial review keeps a check

and balance on the functioning of the public authorities

and is exercised for better and more efficient and

informed exercise of their powers, such power has to

be exercised very cautiously keeping in mind that such

exercise of power of judicial review may not lead to

judicial overreach, undermining the powers of the

statutory authorities. To sum up, the powers of judicial

review may not be exercised unless there is manifest

arbitrariness or gross violation or non-compliance of

W.P.(Crl.) No.336 of 2018 & Connected Matters Page 13 of 13

the statutory safeguards provided under the special

Acts, required to be followed by the authorized officers

when an arrest is made of a person prima facie guilty

of or having committed offence under the special Act.

………………………………J.

[BELA M. TRIVEDI]

NEW DELHI;

27

th

FEBRUARY, 2025