SUPREME COURT UPHOLDS THE VALIDITY OF ARREST PROVISIONS UNDER CUSTOM AND GST ACT: RADHIKA AGARWAL VS UNION OF INDIA
REPORTABLE
RADHIKA AGARWAL
Vs
UNION OF INDIA AND OTHERS
(WRIT PETITION (CRIMINAL) NO. 336 OF 2018
DATE OF JUDGMENT-27 FEBRUARY 2025
HEADNOTE-
Custom Act, 1962–Finance Act, 2013–Finance Act, 2019–Section 104(4) and 104(6)–CGST Act, 2017–Section 69, 70, and 132–HELD– 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.
ISSUE FOR CONSIDERATION-
The Writ Petition challenges the constitutional validity and the right of the authorized officers to arrest under CGST Act, 2017 and the Customs Act, 1962.
IMPORTANT PARAGRAPHS-
The fountainhead of legal controversy regarding the power to arrest under the Customs Act, 19621 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 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, 19444 were non-cognizable and, therefore, even if the officers had the power to arrest, they could do so only after obtaining a warrant from the Magistrate in terms of Section 416 of the Code of Criminal Procedure, 1973.7 It was also held that offences under the Customs Act and the Excise Act were both bailable, bearing a punishment of less than 3 years.
PARA No. 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).
PARA 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 nonbailable, 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.
PARA 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.
