New Delhi, Feb 27 (PTI) The Supreme Court on Thursday upheld the constitutional validity of the power of arrest under the amended laws of customs and the central goods and services tax (GST).

A bench of Chief Justice Sanjiv Khanna and Justices M M Sundresh and Bela M Trivedi said in appropriate cases, application for pre-arrest bail could be allowed and it was not essential for such pleas to be moved only after an FIR when facts were clear and a reasonable basis present to apprehend arrest.

About 280 pleas, including one of lead petitioner Radhika Agarwal in 2018, challenged the provisions of the Customs Act and the GST Act being "non compatible" with the CrPC and the Constitution.

Writing a 63-page judgement for himself and Justice Sundresh, the CJI held, "The challenge to the constitutional validity as also the right of the authorised officers under the Customs Act and the GST Act 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." Justice Bela Trivedi concurred with the CJI and wrote a 13-page verdict.

On the issue of power to grant anticipatory bail, the CJI said it arose when there was an 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. In appropriate cases, application for anticipatory bail can be allowed, which may also be conditional," the verdict said.

As a result, the challenge to Sections 69 and 70 of the GST Act and Section 104 of the Customs Act were rejected by the court, which ruled in favour of the legislature's competence to enact the provisions that criminalised tax violations and make arrests.

The bench referred to certain judgments and said though customs officers were not police officers, they had the statutory authority to investigate and arrest offenders under the relevant laws.

The bench was dealing with the validity of the amended provisions of the Customs Act and the GST Act post its 2011 judgement in the case of Om Prakash v. Union of India.

The 2011 verdict held that offences under the Customs Act and the Central Excise Act, 1944 were non-cognisable and, therefore, even if the officers, who had the power to arrest, could do so only after obtaining a warrant from the magistrate under CrPC.

The amendments were later brought in Section 104 of the Customs Act which specified certain offences as cognisable offences and empowered the officers to effect arrest in certain cases.

"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, which required a customs officer to obtain prior approval from a magistrate before making an arrest," the top court said.

The CJI said the amendments designated specified offences as cognisable and non-bailable, while imposing certain preconditions and stipulations for making arrest.

The petitioners' reliance on Om Prakash was no longer valid and must be rejected, the CJI added.

The verdict, however, said it was important to examine the pre-conditions and safeguards established by the legislature to protect the life and liberty of arrestees.

"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 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," it said.

A person arrested by a customs officer, held the court, had the right to meet an advocate of their choice during the interrogation, but not throughout.

"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 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," it said.

In the GST Act of 2017, the government provided the power of arrest in certain cases.

On the challenge to the GST Act provisions over power to arrest and summon, the bench did not agree to the submissions that the Centre lacked "legislative competence".

It was argued that Article 246A of the Constitution while conferring legislative powers on Parliament and state legislatures to levy and collect GST, did not explicitly authorise the violations to be made criminal offences.

The bench disagreed and said, "Article 246A of the Constitution is a special provision defining the source of power and the field of legislation for Parliament and the state legislature with respect to GST." The verdict added, "Parliament, under Article 246A of the Constitution, has the power to make laws regarding GST and, as a necessary corollary, enact provisions against tax evasion. Article 246A of the Constitution is a comprehensive provision and the doctrine of pith and substance applies." A penalty or prosecution mechanism for the levy and collection of GST, and for checking its evasion, was a permissible exercise of legislative power, it added.

The bench said the powers to summon, arrest and prosecute were ancillary and incidental to the power to levy and collect goods and services tax. PTI SJK AMK

Power of arrest affirmed for tax enforcement, subject to statutory safeguards and conditional anticipatory bail protections. The constitutional validity of the statutory power of arrest under the amended Customs Act and the GST Act is affirmed, subject to prescribed pre-conditions and safeguards; authorised customs officers may investigate and arrest for specified cognisable offences, arrestees must be informed of grounds and have limited access to counsel, and courts may grant conditional anticipatory bail before formal complaint where facts warrant protection of life and liberty.