The Aryavarth Express
Agency (New Delhi): During a hearing on May 9, the Supreme Court highlighted that GST officers must have verifiable material, not just suspicion, before making an arrest. This observation came as the Court considered petitions challenging the compatibility of penal provisions in the Customs Act, GST Act, and others with the CrPC and the Constitution.
The bench, comprising Justices Sanjiv Khanna, MM Sundresh, and Bela M Trivedi, scheduled the next hearing for May 15 after listening to the submissions from ASG SV Raju representing the respondent authorities.
ASG Raju started by referencing Article 20(3) of the Constitution, which protects individuals from self-incrimination unless formally accused through an FIR or complaint. He argued that this protection does not apply until formal accusation occurs. Furthermore, he pointed out that under Section 25 of the Evidence Act, confessions made to customs officers are not applicable as evidence because these officers are not considered police officers.
Raju discussed Section 2(l) CrPC, which defines non-cognizable offenses, stating it applies only to police officers, not customs officers. Thus, customs officers can arrest in non-cognizable cases under the Customs Act without needing a magistrate’s order, as required by Section 155(2) CrPC. Additionally, Section 155(3) CrPC, which restricts police officers from arresting without a warrant in non-cognizable cases, does not apply to customs officers, allowing them broader arrest powers under Section 104 of the Customs Act.
Raju argued that treating customs officers as police officers and applying Chapter XII CrPC would invalidate longstanding judicial interpretations. This would necessitate FIR registration before investigation and application of Article 20(3) and Section 25 of the Evidence Act, which protect against self-incrimination and inadmissibility of confessions to police, respectively.
Justice Khanna noted that the 2011 Om Prakash ruling’s implications were partially mitigated by amendments to the Customs Act, but the core ruling remains relevant. The amendments aimed to balance legislative intent and judicial interpretation without fully discarding the Om Prakash decision.
Regarding GST officers, Raju contended they are not “police officers” because their primary role under the GST Act is compliance, with prosecution and arrest being secondary. Thus, GST officers’ powers should not be curtailed by Chapter XII CrPC.
When asked about private complaints under the GST Act, Raju was uncertain. However, Justices Khanna and Sundresh observed that the act does not allow for private complainants, which would otherwise pose risks of misuse.
Justice Khanna, upon reviewing data on arrests, noted many cases lacked prosecution despite numerous arrests. He emphasized that arrests should be based on concrete conclusions drawn from investigations, not merely on suspicion. Raju concurred that arrests require solid grounds but clarified that the “reason to believe” under Section 69 of the GST Act doesn’t necessarily need adjudication.
Justice Khanna stressed that any material justifying an arrest must be verifiable by a magistrate and certified by the officer, ensuring accountability and adherence to legal standards.
