The Supreme Court Thursday upheld the constitutional validity of arrest provisions under the GST and Customs laws but also extended safeguards against arbitrary arrests to these Acts. A bench of CJI Sanjiv Khanna and Justices M M Sundresh and Bela M Trivedi — which was hearing a batch 279 petitions challenging the validity of the arrest provisions under the Customs Act, 1962 and the Central Goods and Services Tax Act, 2017 — said: “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… Thus penalty or prosecution mechanism for the levy and collection of GST, and for checking its evasion, is a permissible exercise of legislative power.” The CJI wrote for himself and Justice Sundresh, while Justice Trivedi delivered a separate judgment. Agreeing with the CJI about power to make arrests as well as the safeguards to be followed under these statutes, Justice Trivedi said: “.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. 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.” The bench agreed with the view laid down in earlier rulings that customs officers are not police officers, but added that provisions of Section 41B of the CrPC, which describes procedure for arrest and the duties of an arresting police officer, would apply to Customs officers too. It added that the arrestee under Customs Act as well as GST Act must be informed about their grounds of arrest. The court also said that the fact of the arrest must be communicated to the person nominated or authorised by the arrested person and that it shall be the duty of the Magistrate when an arrested person is produced, to satisfy himself that the requirements have been complied with. The CJI pointed out that in Arvind Kejriwal v. Directorate of Enforcement, it had laid down certain safeguards to protect the life and liberty of individuals arrested under the PMLA. It held that the safeguards against arbitrary arrest contained in Section 19 of the PMLA would “equally apply” to arrests under the Customs and GST Acts too. The judgment also referred to the charge that parties are sometimes “compelled and coerced to admit and make payment of tax in 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.” The bench said: “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. submission that the assessees are compelled to pay tax as a condition for not being arrested.” The court said that the Act 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,” it said.
