Holding

The Court held that the amendments to the Customs Act and the arrest provisions in the GST Act are constitutionally valid, fall within Parliament’s legislative competence under Article 246‑A, and provide sufficient safeguards, thereby rejecting the petitioners’ challenge.

Summary

The petitioners challenged the constitutional validity of the amendments to the Customs Act, 1962 and the arrest provisions in the Central Goods and Services Tax Act, 2017, arguing that offences under these statutes remain non‑cognizable and that authorized officers must obtain a magistrate's warrant, relying on the Om Prakash decision. The Court examined whether the 2012, 2013 and 2019 amendments that designate certain customs offences as cognizable and non‑bailable, and the GST provisions that empower commissioners to arrest, are within Parliament’s power under Article 246‑A and whether they provide adequate safeguards such as material, reasons to believe, and informing the arrestee. It held that the amendments are substantive, bring the statutes in line with contemporary law, and that the power to arrest is ancillary to the levy and collection of GST, thus constitutionally valid. The Court also clarified that customs officers are not police officers, that judicial review of arrests under special Acts is limited to cases of manifest arbitrariness or non‑compliance with safeguards, and that the safeguards prescribed are sufficient to protect personal liberty. Consequently, the challenge to the amendments and the arrest powers was dismissed and the matter was listed for final hearing.

Issues considered

The constitutional validity of the 2012, 2013 and 2019 amendments to the Customs Act that make specified offences cognizable and non‑bailable.
Whether authorized officers under the Customs Act and GST Act can arrest without prior magistrate approval.
Whether Parliament has legislative competence under Article 246‑A to enact criminal provisions ancillary to GST.
Whether customs officers qualify as police officers for purposes of the Code of Criminal Procedure.
The adequacy of statutory safeguards (material, reasons to believe, informing the arrestee) under the special Acts.
The validity of Sections 69 and 70 of the GST Act granting power to summon and arrest.
The scope of judicial review over arrests made under special statutes such as the Customs Act, GST Act and PMLA.

Legislation cited

Central Excise Act, 1944
Central Goods and Services Tax Act, 2017s. 132(1), s. 132(5), s. 162(1), s. 67, s. 69, s. 70, s. 73, s. 74(5), s. 79
Code of Criminal Procedure, 1973s. 167, s. 173, s. 173(6), s. 4, s. 41, s. 41B, s. 41D, s. 5, s. 50, s. 50A, s. 55A
Customs Act, 1962s. 104(1), s. 104(4), s. 104(5), s. 104(6), s. 104(7)
Drugs and Cosmetics Act, 1940
Finance Act, 2012
Finance Act, 2013
Finance Act, 2019
Prevention of Money Laundering Act, 2002s. 19(1)

Headnote

Issue for Consideration Challenge to the constitutional validity and the right of the authorized officers to arrest under the Customs Act, 1962 and the Central Goods and Services Tax Act, 2017 (GST Act). Headnotes† Customs Act, 1962 – Finance Act, 2012 – Finance Act, 2019 – ss.104(4), 104(6) – Central Goods and Services Tax Act, 2017 – ss.69, 70, 132 – Code of Criminal Procedure, 1973 – ss.4, 5, 50; Chapter XII – Constitution of India – Articles 246-A, 21 22(1), 32, 226 – Om Prakash case held that the

Subjects

Customs ActGST ActArrest powerConstitutional validityArticle 246-ACognizable offenceNon‑cognizable offenceJudicial reviewSpecial ActsMaterialReasons to believeFundamental rightsArticle 21Article 22Anticipatory bailPith and substanceLegislative competence

Judgment

[2025] 2 S.C.R. 1331 : 2025 INSC 272

Radhika Agarwal
v.
Union of India and Others
(Writ Petition (Criminal) No. 336 of 2018)
27 February 2025
[Sanjiv Khanna,* CJI, M.M. Sundresh and
Bela M. Trivedi,* JJ.]

Issue for Consideration
Challenge to the constitutional validity and the right of the authorized
officers to arrest under the Customs Act, 1962 and the Central
Goods and Services Tax Act, 2017 (GST Act).

Headnotes†
Customs Act, 1962 – Finance Act, 2012 – Finance Act, 2013 –
Finance Act, 2019 – ss.104(4), 104(6) – Central Goods and
Services Tax Act, 2017 – ss.69, 70, 132 – Code of Criminal
Procedure, 1973 – ss.4, 5, 50; Chapter XII – Constitution of
India – Articles 246-A, 21 22(1), 32, 226 – Om Prakash case
held that the offences under the Customs Act were non-
cognizable and, therefore, the customs officers were required
to obtain prior approval from a Magistrate before making an
arrest – Subsequently, amendments made – Challenge to the
constitutional validity and the right of the authorised officers
under the Customs Act as well as the GST Acts to arrest:
Held: [Per Sanjiv Khanna, CJI (for himself and M.M.
Sundresh, J.)] Challenge to the amendments as well as provisions
of the Customs Act, rejected – The amendments made to the
Customs Act in 2012, 2013 and 2019 are substantive and were
introduced to modify the application of Om Prakash case, 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 preconditions and stipulations for making arrest –
Petitioners’ reliance on Om Prakash case is misconceived as
the statutory provisions have undergone amendments to bring
them in consonance with the law of the land – Moreover, the

* Author
1332 [2025] 2 S.C.R.

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provisions themselves provide enough safeguards against arbitrary
and wrongful arrests – Further, challenge to the vires of ss.69
and 70 of the GST Acts is also rejected – Under Article 246-A
of the Constitution, the Parliament has the power to make laws
regarding GST and, as a necessary corollary, enact provisions
against tax evasion – The impugned provisions lay down the
power to summon and arrest, powers necessary for the effective
levy and collection of GST – 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 – Therefore, challenge to the constitutional validity as also the
right of the authorised officers under the Customs Act and the GST
Acts to arrest are dismissed – The pre-conditions and when and
how the power of arrest is to be exercised, elucidated and clarified.
[Paras 22, 48, 60, 75, 77] – [Per Bela M. Trivedi, J. (Concurring)]
When the legality of an arrest made under the Special Acts like
Customs Act, GST Acts etc. is challenged, the Court should be
extremely loath in exercising its power of judicial review – 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 – 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 – There has to be due compliance of the
Constitutional and Statutory mandates, whenever an arrest is made
of a person under the Special Acts – 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 – The
powers of judicial review may not be exercised unless there is
manifest arbitrariness or gross violation or non-compliance of the
statutory safeguards provided under the special Acts, required to
be followed by the authorized officers when an arrest is made of
[2025] 2 S.C.R. 1333

Radhika Agarwal v. Union of India and Others

a person prima facie guilty of or having committed offence under
the special Act – Judicial Review. [Paras 6, 9, 12, 13]

Constitution of India – Article 246-A – Lists I and II of the
Seventh Schedule – Entry 93, List I – Doctrine of pith and
substance – Central Goods and Services Tax Act, 2017 –
ss.69, 70 – Power to summon and arrest; powers necessary
for effective levy and collection of GST – Relying on Entry 93
of List I, Seventh Schedule, the petitioners argued that the
Parliament can enact criminal provisions only for the matters
in List I – It was also argued that the power to summon, arrest
and prosecute are not ancillary and incidental to the power of
levying GST and therefore, beyond the legislative competence
of the Parliament u/Article 246-A:
Held: Argument rejected – Article 246-A is a comprehensive
provision – The Parliament, u/Article 246-A has the power to make
laws regarding GST and, as a necessary corollary, enact provisions
against tax evasion – 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 – The ambit
of an 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 – This settled dictum regarding
the interpretation of legislative entries equally applies to the special
provision of Article 246-A. [Para 75]
Customs Act, 1962 – Code of Criminal Procedure, 1973 – ss.50,
50A, 41-D, 41-B, 55A – Pre-conditions and safeguards against
arbitrary and wrongful arrests to protect the life and liberty of
arrestees, enumerated – Constitution of India – Article 22(1) –
Discussed. [Paras 23-28, 47]

Central Goods and Services Tax Act, 2017 – ss.132(1)
Clauses (a) to (d); 132(1)(i), 132(5) – Arrest when illegal,
stated – ‘‘material’’; “reasons to believe”:
Held: 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 s.132(5) are satisfied – Failure to do so would
result in an illegal arrest – With regard to the submission made
1334 [2025] 2 S.C.R.

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on behalf of the Revenue that arrests are not made in case of
bailable offences, 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 s.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 – The aforesaid exercise
should be undertaken in right earnest and objectively, and not on
mere ipse dixit without foundational reasoning and material – The
arrest must proceed on the belief supported by reasons relying
on material that the conditions specified in s.132(5) 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 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 s.132(5) of the GST
Act are met – The findings and the ratio recorded in paragraphs 30
to 47 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 – Circular dtd. 17.08.2022
of Central Board of Indirect Taxes and Customs (GST-Investigation
Wing); Instruction No. 01/2025-GST dated 13.01.2025 (GST/
INV/Instructions/21-22) by Central Board of Indirect Taxes and
Customs (GST Investigation Wing), discussed – Customs Act, 1962.
[Paras 56, 57, 60-62]

Constitution of India – Arts. 32, 226 – Judicial Review – Arrest –
Challenge to – Exercise of power of judicial review – Scope –
Discussed. [Per Bela M. Trivedi, J.]

Central Goods and Services Tax Act, 2017 – ss.73, 132(1)
clauses (a) to (d), 132(1)(i), 132(5) – Petitioners contended
that the power u/s.132(5) cannot be exercised unless the
procedure u/s.73 is completed and an assessment order is
passed quantifying the tax evaded or erroneously refunded
or input tax credit wrongly availed:
Held: Contention cannot be accepted as a general or broad
proposition – Normally the assessment proceedings would quantify
[2025] 2 S.C.R. 1335

Radhika Agarwal v. Union of India and Others

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
s.132 and that clause (i) to sub-section (1) is attracted – But there
could be cases where even without a formal order of assessment,
the Revenue is certain that it is a case of offence u/clauses (a) to (d)
to sub-section (1) of s.132 and the amount of tax evaded, etc. falls
within clause (i) of sub-section (1) to s.132 with sufficient degree of
certainty – In such cases, the Commissioner may authorise arrest
when he is able to ascertain and record reasons to believe – 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 – The findings and the ratio recorded in
paragraphs 30 to 47 of the present judgment 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 to be made – Customs Act, 1962. [Paras 59, 60]

Customs Act, 1962 – Customs officers, if are police officers:
Held: No – An officer can be deemed to be a police officer within
the meaning of s.25, Evidence Act only if the officer is empowered
to exercise all the powers of a police officer including the power
to file a report u/s.173, CrPC – Customs officers are not police
officers – Evidence Act, 1872 – s.25 – Code of Criminal Procedure,
1973 – s.173. [Paras 15, 16]

Circular/Notices – 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 – Taxpayers
depositing partial or full GST liability during the course of
search, inspection or investigation – Central Goods and
Services Tax Act, 2017 – ss.79, 74(5), 73(5) – Petitioners
submitted that the assessees are compelled to pay tax as a
condition for not being arrested – Data as regards the number
of people arrested, tax demanded and collected, analysed:
Held: The data reflects that the number of arrests is inversely
proportional to the percentage of amount recovered against the
1336 [2025] 2 S.C.R.

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amount detected. i.e., when payments are made, the power of
arrest is not being exercised – The authorities must exercise due
care and caution as coercion and threat to arrest amount to a
violation of fundamental rights and the law of the land – s.74(5)
gives an option to the assessee and does not confer any right on
the tax authorities to compel or extract tax by threatening arrest –
Assessees being compelled to pay tax as a condition for not being
arrested is unacceptable and violative of the rule of law – Central
Board of Indirect Taxes and Customs to formulate guidelines to
ensure that no taxpayer is threatened with the power of arrest for
recovery of tax in the garb of self-payment – If there is a breach
of law and the assessees are put under threat, force or coercion,
they 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. [Paras 65, 67-69]

Code of Criminal Procedure, 1973 – ss.4(1), (2), 5 – Customs
Act, 1962:
Held: 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. [Para 13]

Customs Act, 1962 – s.104(1) – Prevention of Money Laundering
Act, 2002 – s.19(1) – Directorate of Enforcement’s power of
arrest vis-à-vis customs officer’s power of arrest, discussed –
“person guilty of an offence”; “person committing an offence”;
“reasons to believe”; “material in their possession” – If there
is any inconsistency between s.19(1), PML Act and s.104(1),
Customs Act:
Held: No – Principles and ratio developed in the Arvind Kejriwal
case and the principles specifically discussed and delineated in
paragraphs 30 to 45 of the present judgment, are equally applicable
to the power of arrest u/s.104, Customs Act – Respondent
authorities to comply with the mandate of this judgment and
that of Arvind Kejriwal – However, s.104(1) does not explicitly
stipulate the requirement of a customs officer having “material in
their possession” – s.104(1) also does not explicitly state that the
customs officer must reasonably believe that the arrestee is “guilty
of an offence” – Instead, s.104(1) states that the customs officer
must have “reasons to believe” that the arrestee has “committed
[2025] 2 S.C.R. 1337

Radhika Agarwal v. Union of India and Others

an offence” – There is no difference between a person being guilty
of an offence and a person committing an offence – A person
being “guilty” of an offence and a person “committing” an offence
is self-same and identical insofar as s.19(1) vis-à-vis s.104(1) is
concerned – The fact that s.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 suspicion – The threshold
for arrest u/s.104(1), Customs Act is higher than that u/s.41
of the Code – 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 also state how the monetary thresholds outlined
in the Act are met – 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 level of detail is crucial as it facilitates judicial review of the
exercise of the power to arrest – The department’s authority to
arrest u/s.104 hinges on satisfying these statutory thresholds –
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 – Code
of Criminal Procedure, 1973 – s.41 – Interpretation of Statutes.
[Paras 40, 41, 43-46, 48]
Words and Phrases – “guilty”; person guilty of an offence;
person committing an offence; “reasons to believe”; “material
in their possession” – Customs Act, 1962 – ss.104(1), (4),
(5), (6) – Prevention of Money Laundering Act, 2002 – s.19(1) –
Code of Criminal Procedure, 1973 – s.41. [Paras 41-44]

Central Goods and Services Tax Act, 2017 – ss.67, 69 – Code
of Criminal Procedure, 1973 – ss.4, 5:
Held: The GST Acts are not a complete code when it comes to
the provisions of search and seizure, and arrest – The provisions
of the Code would equally apply when they are not expressly or
impliedly excluded by provisions of the GST Acts. [Para 50]

Central Goods and Services Tax Act, 2017 – ss.67, 69, 74,
132(1) clauses (a) to (d), 132(1)(i), 162(1) – Code of Criminal
Procedure, 1973 – Petitioners submitted that s.162(1) permits
1338 [2025] 2 S.C.R.

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compounding of offences and therefore, the ratio in Makemytrip
be applied to the GST Acts:
Held: The decision in Makemytrip case 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 – 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 –
The contention of the petitioners that till an assessment order was
passed u/s.74 of the GST Acts, the liability cannot be quantified and
hence an assessee cannot move an application for compounding
of offences is also rejected – There is a difference between the
compounding of offences and the arrest of a person – Sufficient
safeguards have been stipulated 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 s.132 are satisfied and
therefore the offences are non-bailable – Anticipatory bail. [Para 71]

Case Law Cited
Om Prakash and Another v. Union of India and Another [2011] 14
SCR 240 : (2011) 14 SCC 1 – held inapplicable.
State of Gujarat v. Choodamani Parmeshwaran Iyer and Another
[2023] 8 SCR 1139 : 2023 SCC OnLine SC 1043; Bharat
Bhushan v. Director General of GST Intelligence, SLP (Crl.) No.
8525/2024 – held not binding.
R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Limited
and Another [1978] 1 SCR 338 : (1977) 4 SCC 98 – followed.
Arvind Kejriwal v. Directorate of Enforcement [2024] 6 SCR 346 :
(2025) 2 SCC 248; A.R. Antulay v. Ramdas Sriniwas Nayak and
Another [1984] 2 SCR 914 : (1984) 2 SCC 500; State of Punjab v.
Barkat Ram [1962] 3 SCR 338; Ramesh Chandra Mehta v. State
of West Bengal [1969] 2 SCR 461; Illias v. Collector of Customs
[1969] 2 SCR 613; Tofan Singh v. State of Tamil Nadu [2020] 12
SCR 583 : (2021) 4 SCC 1; D.K. Basu v. State of West Bengal
[2025] 2 S.C.R. 1339

Radhika Agarwal v. Union of India and Others

(1997) 1 SCC 416; Senior Intelligence Officer, Directorate of
Revenue Intelligence v. Jugal Kishore Samra [2011] 7 SCR 889 :
(2011) 12 SCC 362; Ashok Munilal Jain and Another v. Assistant
Director, Directorate of Enforcement (2018) 16 SCC 158; Nandini
Satpati v. P.L. Dani and Another [1978] 3 SCR 608 : (1978) 2
SCC 424 – relied on.
Directorate of Enforcement v. Deepak Mahajan and Another [1994]
1 SCR 445 : (1994) 3 SCC 440; Shri Gurbaksh Singh Sibbia and
Others v. State of Punjab [1980] 3 SCR 383 : (1980) 2 SCC 565;
Union of India v. Ashok Kumar Sharma and Others [2020] 10
SCR 923 : (2021) 12 SCC 674; Pankaj Bansal v. Union of India
and Others [2023] 12 SCR 714 : 2023 SCC OnLine SC 1244;
Prabir Purkayastha v. State of NCT of Delhi [2024] 6 SCR 666 :
(2024) 7 SCC 576; Vijay Madanlal Choudhary and Others v. Union
of India and Others [2022] 6 SCR 382 : 2022 SCC OnLine SC
929; Makemytrip (India) Private Limited and Another v. Union of
India and Others, 2016 SCC OnLine Del 4951; Poolpandi and
Others v. Superintendent, Central Excise and Others [1992] 3
SCR 247 : (1992) 3 SCC 259; Dukhishyam Benupani, Asst.
Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria
[1997] Supp. 5 SCR 566 : (1998) 1 SCC 52; Sushila Aggarwal
and others v. State (NCT of Delhi) and Another [2020] 2 SCR 1:
(2020) 5 SCC 1; Union of India and Others v. VKC Footsteps (India)
Private Ltd. [2021] 15 SCR 169 : (2022) 2 SCC 603; Mineral Area
Development Authority and Another v. Steel Authority of India and
Another [2024] 7 SCR 1549 : (2024) 10 SCC 1; Hans Muller of
Nurenburg v. Superintendent, Presidency Jail, Calcutta and Others
[1955] 1 SCR 1284 : (1955) 1 SCR 1284; Elel Hotels & Investments
Ltd. and Others v. Union of India [1989] 2 SCR 880 : (1989) 3
SCC 698; State of Rajasthan v. G. Chawla and Another [1959]
Supp. 1 SCR 904 : 1958 SCC OnLine SC 33; Express Hotels (P)
Ltd. v. State of Gujarat and Another [1989] 2 SCR 893 : (1989) 3
SCC 677; Sardar Baldev Singh v. Commissioner of Income Tax
Delhi and Ajmer [1961] 1 SCR 482 : 1960 SCC OnLine SC 147.
The United Provinces v. Mst. Atiqa Begum and Others, AIR 1941
FC 16 : 1940 SCC OnLine FC 11 – referred to.

In the judgment of Bela M. Trivedi, J.
Additional Secretary to the Government of India and Others vs.
Smt. Alka Subhash Gadia and Another [1990] Supp. 3 SCR
1340 [2025] 2 S.C.R.

Supreme Court Reports

583 : (1992) Supp. 1 SCC 496; Union of India v. Padam Narain
Aggarwal and Others [2008] 14 SCR 179 : (2008) 13 SCC 305;
Vijay Madanlal Choudhary and Others v. Union of India and Others
[2022] 6 SCR 382 : 2022 SCC OnLine SC 929; Adri Dharan Das v.
State of W.B. [2005] 2 SCR 188 : (2005) 4 SCC 303 – relied on.

List of Acts
Customs Act, 1962; Central Goods and Services Tax Act, 2017;
Code of Criminal Procedure, 1973; Finance Act, 2012; Finance
Act, 2019; Finance Act, 2013; Central Excise Act, 1944; Drugs and
Cosmetics Act, 1940; Prevention of Money Laundering Act, 2002.

List of Keywords
Section 104(4), 104(6) of Customs Act, 1962; Finance Act, 2012;
Finance Act, 2019; Finance Act, 2013; Section 132 of Central Goods
and Services Tax Act, 2017; Article 246-A of the Constitution of
India; Special Acts; GST Acts; Customs Act; Right of the authorized
officers to arrest; Pre-conditions and safeguards to protect life
and liberty of arrestees; Cognizable and non-cognizable offence;
Bailable and non-bailable offence; Power to arrest; Customs
officers; Custom officers are not police officers; “reasons to believe”,
“reasons to believe” to be furnished to the arrestee; Inform arrestee
about grounds of arrest; Judicially review; Legality of arrest; Doctrine
of proportionality; Fundamental life and liberty; ipse dixit; Directorate
of Enforcement’s power of arrest; Customs officer’s; “person guilty
of an offence”; “person committing an offence”; “material in their
possession”; Safeguards against arbitrary and wrongful arrests;
Conditions precedent to arrest; Procedure of arrest; Central Board
of Indirect Taxes and Customs.

Case Arising From
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal)
No. 336 of 2018
(Under Article 32 of The Constitution of India)
With
SLP (Crl) Nos. 1534, 2971, 4078, 7408 and 11049 of 2018, SLP
(Crl) Nos. 244, 3647, 5153, 4322-4324, 4546 and 9541 of 2019,
SLP (Crl) No. 3366 of 2020, SLP (C) No. 20310 of 2021, SLP (Crl)
No. 6660 of 2020 , W.P.(Crl.) Nos. 6, 40 and 47 of 2021, SLP (Crl)
[2025] 2 S.C.R. 1341

Radhika Agarwal v. Union of India and Others

Nos. 1031 and 1107 of 2021, W.P. (Crl.) No. 144 of 2021, W.P.
(Crl.) Nos. 445 and 585 of 2023 , SLP (Crl) No. 11839 of 2019,
T.C. (Crl.) No. 5 of 2018 , W.P. (Crl.) Nos. 118 and 119 of 2019,
SLP (Crl) No. 6834 of 2019 , W.P. (Crl.) Nos. 212, 239, 253, 261,
263, 266, 267, 273, 286, 287, 285, 288, 298, 299, 306 and 346
of 2019, SLP (Crl) No. 647 of 2020 , W.P. (Crl.) No. 387 and 9 of
2020, SLP (Crl) Nos. 1732, 618, 2023 and 6456 of 2020, W.P. (Crl.)
No. 36, 35, 49, 73, 93, 124 and 140 of 2020, SLP (Crl) No. 2814
of 2020 , W.P. (Crl.) No. 142, 145, 184, 221, 223, 228, 286 and
329 of 2020, SLP (Crl.) No. 5536 of 2020, W.P. (Crl.) No. 380 of
2020, SLP (Crl.) Nos. 6172 and 6303 of 2020, Writ Petition (Civil)
No. 1401 of 2020, W.P. (Crl) No. 411 and 410 of 2020, W.P. (Crl)
No. 4 of 2021, W.P. (Civil) No. 56 of 2021, W.P. (Crl) No. 33 of
2021, SLP (Crl.) Nos. 1073, 1072 and 2050-2054 of 2021, W.P.
(Crl) No. 301 of 2021, SLP (Crl.) No. 6338 and 6847 of 2021, Diary
No. 31616 of 2021, W.P. (Crl) No. 175 and 222 of 2022, SLP (Crl.)
No. 6395 and 10421 of 2022, W.P. (Crl) No. 402, 385, 426, 434,
453, 456, 466, 500, 506, 516 and 502 of 2022, W.P. (Crl) No. 7,
9, 24, 54, 209, 120, 118, 126, 150, 164, 165, 203, 174, 190, 268,
296, 333, 315 and 339 of 2023, W.P. (Crl) No. 303, 305, 313 and
309 of 2019, W.P. (Crl) No. 28, 61, 90, 89 And 285 of 2020, W.P.
(Crl) No. 69, 359 and 520 of 2021, W.P. (Crl) No. 334, 332, 338,
337, 357, 384, 403, 431, 408, 428, 452, 454, 453, 449, 461, 493,
464, 473, 475, 484, 497, 538, 526, 529, 521, 516, 518, 562, 539,
549, 610, 548, 550, 551 542, 569, 537, 573, 570, 564, 560, 544,
545, 563, 578, 575, 572, 592, 571, 604, 597, 600, 611, 617, 626,
623, 635, 640, 622, 637, 632, 625, 628, 639, 638, 645, 649, 650,
664, 641, 658, 653, 652, 644, 647, 663, 648, 660 And 655 of
2023, T.P. (Crl.) No. 1016 of 2023, W.P. (Crl.) No. 5, 3, 29, 6, 13,
20, 18 and 35 of 2024, SLP (Crl.) No. 853 of 2024, W.P. (Crl.) No.
33, 34, 31, 30, 32, 46, 44, 56, 59, 55, 51, 68, 73, 71, 78, 107, 81,
82, 92, 98, 88, 87, 93, 103, 89, 101, 99, 100, 102, 118, 113, 111,
131, 133, 130, 117, 135, 134, 132, 162, 163, 136, 161, 139, 143,
152, 172, 167, 171, 181, 179, 177, 173, 185, 176, 192, 194, 204,
207, 214, 210 and 198 of 2024

Appearances for Parties
Advs. for the Petitioner:
S. Nagamuthu, Vikram Chaudhri, Sujit Ghosh, Tarun Gulati,
S. Nagamuthu, Suryanarayana Singh, B. H. Marlapalle, Iqbal Syed,
V.K. Khanna, K N Basha, Vishwajeet Singh, Siddharth Bhatnagar,
Sanjay Jhanwar, Kapil Sibal, Siddharth Luthra, Vikram Chaudhari,
1342 [2025] 2 S.C.R.

Supreme Court Reports

S. Nagamuthu, Sanjay Jhanwar, Sr. Advs., Ms. Priyanka Goel, R P
Singh, Pankaj Chaudhary, Anurag Mishra, Aman Sinha, Raj Shekhar
Sharma, Ms. Alpana Sharma, Keshavam Chaudhri, Gautam
Awasthi, Rishi Sehgal, Dr. G.K. Sarkar, Ms. Arveen Sekon, Ayush
Choudhary, Ms. Malbika Sarkar, Ms. Hargun Sandhu, Prashant
Srivastav, Ms. Nikita Gill, Ms. Aneesha Sinha, Ms. Muskan Khurana,
Rishab Tewari, Devanshu Yadav, Digvijay Singh, Deepak Singh,
Nikilesh Ramachandran, Kunwar Gangesh Singh, Mohit Kumar
Soni, Jatin Harjai, Rohan Agarwal, Upendra Pratap Singh, Prasouk
Jain, Ms. Rabiya Thakur, Karan Sinha, Anurag Sharma, Saurabh
Sharma, Anshuman Srivastava, Keshavam Chaudhri, Ms. Anzu.
K. Varkey, Rishi Sehgal, Ms. Arveen Sekhon, Hargun Sandhu,
Ms. Nikita Gill, Digvijay Singh, Rishab Tewari, Muskan Khurana,
Ms. Bharti Tyagi, Amit K. Nain, Anand Varma, Ajay Jain, Jinendra
Jain, Krishna Sharma, Ms. Shreya Jain, Ms. Bijay Lakshmi,
M. N. Mishra, Ravi Shankar Garg, Ms. Mamta Garg, Nikhil Jain,
Abhishek Garg, Amar Gahlot, Varun Chopra, Prakash Shah, Rajat
Mittal, Apurva M Gokhale, Ms. Anshi Bhatia, Ujjawal Kansal, Yash
Gaiha, Prashant Singh, Suprateek Neogi, Ranesh Singh Mankotia,
Rohit Anil Rathi, Yashas Rk, Sunil Kumar Jain, Mayank Jain,
Parmatma Singh, Madhur Jain, Sandeep Gupta, Pawanshree
Agrawal, Ms. Rajni Gupta, Ms. Aakriti, Atul Krishna, Tarun Dua,
Sri Harsha Peechara, Ashish Kumar Tiwari, D Surahmanya Bhanu,
Anurag Tiwari, Sahib Patel, Ms. Oshin Maggu, Deepak Gupta,
K. Nagan Pillai, M/S. V. Maheshwari & Co., Vijay Kasana, Yadav
Narender Singh, Rahul Krishna, Ms. Priyanka Goel, Ms. Pragati
Neekhra, Aditya Bhanu Neekhra, Aniket Patel, Ajay Choudhary,
M. K. Subramanian, Vinodh Kanna B., Avinish Kr Saurabh, Ajit
Pravin Wagh, Purushothaman Reddy, Ms. Karunya, Ms. Shagufa
Khan, Swarnendu Chatterjee, Ms. Sharda Garg, Deepkaran
Dalal, Abhishek Rai, Mukesh Kumar Maroria, Nishant Bishnoi,
Mohammad Aslam, Aniq Kadri, Vishrut Bhandari, Amaan Syed,
Ms. Ruchit Vyas, D. Kumanan, Ujjawal Anand Sharma, Prashant
Sivarajan, Tushar Saigal, Amjad Hussain, Manish Singh, Ritesh
Singh, Seraj Khan, Deepak Gupta, Rishabh Yadav, Neeraj Kumar
Verma, Ms. Natasha Dalmia, Praver Sharma, Prakhar Sharma,
Deepak Kumar Pandey, Swapnil Choudhary, Ms. Anu Gupta,
S. K. Verma, S.K. Rajora, Mahipal Singh, Akhileshwar Jha,
Ms. Manisha Chawla, Virendra Mohan, Ms. Kajal Kumari, Ajay
Mishra, Gaurav, Ms. Christi Jain, Puneet Jain, Mann Arora,
Ms. Akriti Sharma, Harsh Jain, Ms. Lisha Bhati, Jalaj Prakash,
[2025] 2 S.C.R. 1343

Radhika Agarwal v. Union of India and Others

Dr. Vinod Kumar Tewari, Saurabh Ajay Gupta, Nishant Bishnoi,
Ms. Srishti Prabhakar, Rajiv Shankar Dvivedi, S K Sarkar, Rishabh
Jain, Mrs. Arti Dvivedi, Bhushan, D. Abhinav Rao, Rahul Jajoo,
Devadipta das, Ms. Prerna Robin, Rajendra Sorankar, Satbir Singh
Pillania, Sandiv Kalia, Ketan Dabke, Nand Ram, Vineet Sinha, V G
R Achary, Dhanajaya K Tyagi, Dr. Sushil Balwada, Malak Manish
Bhatt, Apurva Mehta, Ms. Neeha Nagpal, Shreyansh Chopra,
B Karunakaran, Ajith Williyam S, P Shankar, Mrs. K Balambihai,
V M Eashwar, V Janarthanan, S. Gowthaman, Amit Arora, Yusuf,
Amarjeet Singh Girsa, Ms. Ritu Solanki, Jatin Sharma, Shrey
Lodha, Bhupesh Narula, Saket Sikri, Vineet Bhaita, Akshat Vachher,
Ms. Abhiti Vachher, Parvesh Bansal, Rahul Bansal, Jasvinder
Choudhary, Ashwain Sawlani, M/S. Vachher And Agrud, Dr. G. K.
Sarkar, Ms. Malbika Sarkar, Prashant Srivastav, Deepak Singh,
Kapil Dahiya, Ms. Aneesha Singh, Avadh Bihari Kaushik, Ashutosh
Kumar, Manish Kumar Choudhary, Ms. Namita Choudhary,
Ms. Srishti Choudhary, Ajay Kumar Thakur, Ashish Batra, Fuzail
Ahmad Ayyubi, Javed R Sheikh, Raj Kishor Choudhary, Shakeel
Ahmed, Ms. Pratibha Singh, Rizwan Ahmad, Nakul Chaudhary,
Vikramjeet Singh Ranga, Vijay Aggarwal, Ms. Astha Sharma,
Nagesh Bhel, Mukul Malik, Chetan Manchanda, Udayan Khurrana,
Ms. Barkha Rastogi, Puneet Dhawan, Bhanu Mishra, Ms. Sharmila
Upadhyay, Pawan Upadhyay, S. S. Sastry, Vipul Srivastav, M/s.
UNUC Legal LLP, Krishna Vani Sharma, Hitesh Kumar Sharma,
Amit Kumar Chawla, Ms. Niharika Dwivedi, Ms. Ritika Raj, Saurabh
Kumar Solanki, Ranjit Kumar Sharma, Ankur Saigal, Mahesh
Agarwal, Ms. Komal Joshi, Rishi Agrawala, Pushkraj Despande,
Anshuman Srivastava, Arshit Anand, Piyush Pandhare, Nishant
Rao, Abhinabh Garg, Rohan Marathe, Himanshu Saraswat,
Ms. Sayaree Basu Malik, Ms. Manavi Agarwal, E. C. Agrawala,
Kunal Verma, Varun Bansal, Rahul Lakhwani, Wilson Joy, Yash
Tandon, Ms. Shreya Jhanwar, Tarun Gupta, Bhuwan Vats, Raj
Kishor Choudhary, Harsh Sethi, Shakeel Ahmed, Anant Nigam,
Ms. Pratibha Singh, Raghav Luthra, Amir Kaleem, Rizwan Ahmad,
Anupam Bhati, Nakul Chaudhary, Vikramjeet Singh Ranga, Ms.
Ranjana Roy Gawai, Ms. Vasudha Sen, Ujjwal Jain, Vineet Wadhwa,
Ms. Shambhavi Kashyap, Kartikeye Dang, Rudraditya Khare, Sahir
Seth, Harsh Vardhan, Ms. Divya Roy, Mrs. Priya Puri, Sharad Kumar
Puri, Ms. Smriti Sinha, Ms. Parul Sharma, Aljo K. Joseph, Vinay
Kumar Puvvala, Ranjan Kumar, Abhinav P Dhanodkar, Santosh
Kumar Kolkonda, Ms. Shelna K, Dr. G. K. Sarkar, Harshit Sethi,
1344 [2025] 2 S.C.R.

Supreme Court Reports

Gautam Awasthi, Mrs. Malbika Sarkar, Keshavam Chaudhari,
Keshvam Chaudhari, Ayush Choudhary, Prashant Srivastav,
Ms. Arveen Sekon, Rishi Shegal, Ms. Nikita Gill, Ms. Malvika
Sarkar, Digvijay Singh, Ms. Muskan Khurana, Ms. Chandni Sharma,
Deepak Singh, Sameer Pandey, Ms. Aneesha Singh, Devanshu
Yadav, Ayush Chaudhary, Sahil Sharma, Gaurav Malhotra, Kapil
Dahiya, V. N. Raghupathy, Manendra Pal Gupta, R. Gopinath,
Hari Krishnan, Amrish Kumar, Raj Kamal, Aseem Atwal, Kartavya
Batra, Anurag Chandra, Ms. Nupur Kaushik, Ms. Aprajita Tyagi,
Ms. Muskan Sidana, Ms. Priyadarshi Manish, Ms. Divya Rastogi,
Mrs. Anjali Jha Manish, Sandeep Goyal, Pawanshree Agrawal,
Ms. Rajni Gupta, Ms. Aakriti, Atul Krishna, Varun Bansal, Rahul
Lakhwani, Wilson Joy, Yash Tandon, Ms. Shreya Jhanwar, Tarun
Gupta, Bhuwan Vats, Ajay Jain, Jinendra Jain, Krishna Sharma,
Ms. Shreya Jain, Ms. Bijay Lakshmi, M. N. Mishra, Ravi Shankar
Garg, Ms. Mamta Garg, Pranay Jain, I.C. Jain, Raj Kishor
Choudhary, Ajay Pal, Mayank Dahiya, Prativa Prakash Janapriya
Nayak.
Advs. for the Respondents:
Tushar Mehta, Solicitor General, S. V. Raju, K. M. Nataraj,
Mrs. Aishwarya Bhati, A.S.Gs., Nalin Kohli, Sr. A.A.G., Apoorva
Aggarwal, Deepak Thukral, A.A.Gs., Vishal Mahajan, D.A.G.,
Tarun Gulati, Ajay Kumar Misra, B. H. Marlapalle, Mrs. Swarupama
Chaturvedi, Rajive Bhalla, Rajiv Malhotra, Vikram Chaudhary,
Sr. Advs., M/s. Khaitan & Co., Nikhil Jain, Ms. Kanu Agrawal,
Rajat Nair, Sairica Raju, Zoheb Hossain, Sharath Nambiar,
Ms. Shradha Deshmukh, Padmesh Mishra, Arkaj Kumar, Vivek
Gurnani, Samrat Goswami, Hitharth Raja, Ms. Agrimaa Singh,
Sahil Rana, Kartik Sharma, Ms. Abhipriya, Ms. A. Kaushal, Ms.
Ritumbhara Garg, Shamik Shirishbhai Sanjanwala, Shantanu
Parmar, Ms. Deepanwita Priyanka, Kanu Agrawal, Madhav Sinhal,
Dr. Sujay Kantawala, Azmat Hayat Amanullah, Arpit Yadav, Ms.
Mansi Yadav, Ms. Madhuri Aggarwal, Vikrant Diwakar, Ajay
Aggarwal, Adarsh Aggarwal, Naveen Bindal, Rajan Narain, Tarun
Dua, Rajat Singh, Mukhtar Alam, Abhishek Singh, Sarthak Chandra,
Ms. Diksha Rai, Arijit Dey, Ms. Atiga Singh, Ms. Apurva Sachdev,
Ms. Rashi Bansal, Ms. Kriti Dang, Ms. Tesu Gupta, B. Krishna
Prasad, Vineet George, Dhananjay Yadav, Ms. Devina Sehgal,
M. K. Subramanian, Vinodh Kanna B., Avinish Kr Saurabh, Ajit
Pravin Wagh, Purushothaman Reddy, Ms. Shagufa Khan, Gautam
Sharma, Dr. Monika Gusain, Shrirang B. Varma, Siddharth
[2025] 2 S.C.R. 1345

Radhika Agarwal v. Union of India and Others

Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Sourav
Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey,
Mahfooz Ahsan Nazki, Polanki Gowtham, Kv Girish Chowdary,
Ms. Rajeswari Mukherjee, Meeran Maqbool, Ms. Archita Nigam,
Mukesh Kumar Maroria, Mrs. Archana Pathak Dave, Ms. Sairica
Raju, Annam Venkatesh, Sughosh Subramanyam, Kanu Agarwal,
B K Satija, Zoheb Hussain, Ashutosh Gadhe, Bhuvan Mishra,
Ms. Sairica S Raju, Arkaj Kumar, Sharath Nambiar, Vivek Gurnani,
Ms. Shraddha Deshmukh, Padmesh Mishra, Rajat Nair, Arvind
Kumar Sharma, Chirag M. Shroff, Dhananjay Kataria, Gurmeet
Singh Makker, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Milind
Kumar, Vishal Meghwal, Harsha Vinoy, Ms. Saba A. K. Patel,
Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Vidhan Vyas,
Syed Haider Shah, Shahbaaz Jameel, Kausar Raza Faridi, Bhakti
Vardhan Singh, Rajesh Kumar Singh, Ankit Khatri, Abhimanyu
Tewari, Ms. Eliza Bar, Anshul Malik, Shruti Agrawal, Ayuushman
Aroraa, Kartikey Sen, Shuvodeep Roy, Samar Vijay Singh, Vishal
Mahajan, Saurabh Sachdeva, Sandeep Saxena, Manish Verma,
Ms. Sabarni Som, Annam Venkatesh, Rajat Mittal, M/s. Khaitan
& Co., Kanu Agrawal, Malak Manish Bhatt, Ashish Batra, Nikilesh
Ramachandran, Shubham Bhalla, Yajur Bhalla, Ms. Anchita
Nayyar, Ms. Gauri Bedi, Ms. Ragini Sharma, Ms. Ruksana Khan,
Ms. Akansha Gulati, Alex Noel Dass, Rohit Pandey, Ashish Batra,
Gautam Awasthi, Deepak Singh, Karan Bharihoke.

Judgment / Order of the Supreme Court

Judgment

Sanjiv Khanna, CJI.

Leave granted.
2. 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

1 For short, “Customs Act”.
2 For short, “GST Act”.
1346 [2025] 2 S.C.R.

Supreme Court Reports

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, 19444 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 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.8
3. The reasoning in Om Prakash (supra) proceeds on the interpretation
of Sections 49 and 510 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.

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”.
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.”
[2025] 2 S.C.R. 1347

Radhika Agarwal v. Union of India and Others

• 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.
• 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 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:

11 Section 155(2) of the Code.
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”.
1348 [2025] 2 S.C.R.

Supreme Court Reports

“(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, 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 201315 and
201916 reads:
“(6) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), an offence
punishable under Section 135 relating to—

15 Finance Act, 2013, (Act No. 17 of 2013), with effect from 17.05.2013; for short “2013 Amendment”.
16 See 2019 Amendment (supra).
[2025] 2 S.C.R. 1349

Radhika Agarwal v. Union of India and Others

(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 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).

17 See Section 104(7) of the Customs Act.
1350 [2025] 2 S.C.R.

Supreme Court Reports

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)”

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

18 See paragraph 128 of Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440.
[2025] 2 S.C.R. 1351

Radhika Agarwal v. Union of India and Others

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 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 Customs22 — 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,

19 (1984) 2 SCC 500.
20 (1962) 3 SCR 338.
21 (1969) 2 SCR 461.
22 (1969) 2 SCR 613.
23 (2021) 4 SCC 1.
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(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.”
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 Code25 and Section 104 of the Customs Act. Section 167(2) of

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.”
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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 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

26 (1980) 2 SCC 565.
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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 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”.
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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.
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In 2008, the 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.
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)

29 Drugs and Cosmetics (Amendment) Act, 2008, Act No. 26 of 2008.
30 (1997) 1 SCC 416.
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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 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.

31 Act 5 of 2009.
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)].
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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 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 forthwith give information regarding such arrest and
place where the arrested person is being held to any of his friends,

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.
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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 Laundering Act, 2002.40 This Court held
that the power of arrest granted to the Directorate of Enforcement41
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.

38 Act 5 of 2009.
39 (2025) 2 SCC 248.
40 For short, “PML Act”.
41 For short, “DoE”.
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⇒ 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 Others44 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. 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

42 2023 SCC OnLine SC 1244.
43 (2024) 7 SCC 576.
44 2022 SCC OnLine SC 929.
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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 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
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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 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
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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:
“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.”
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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 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
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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.”
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:

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.
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Section 19(1) of the PML Act Section 104(1) of the Customs
Act
19. Power to arrest.—(1) If 104. Power to arrest.—429[(1)
the Director, Deputy Director, If an officer of customs
Assistant Director or any other empowered in this behalf by
officer authorised in this behalf general or special order of
by the Central Government by the Principal Commissioner of
general or special order, has Customs or Commissioner of
on the basis of material in his Customs has reason to believe
possession, reason to believe that any person has committed
(the reason for such belief to an offence punishable under
be recorded in writing) that any Section 132 or Section 133 or
person has been guilty of an Section 135 or Section 135-A
offence punishable under this or Section 136, he may arrest
Act, he may arrest such person such person and shall, as soon
and shall, as soon as may be, as may be, inform him of the
inform him of the grounds for grounds for such arrest.
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
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popular sense and construed according to their grammatical meaning,
unless such construction leads to some absurdity 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 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

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.
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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 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

47 See Section 26 of the Indian Penal Code, 1860.
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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).
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 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

48 We have collectively referred to the Central as well as the State GST Acts as “GST Acts”.
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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
Enforcement49 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
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;

49 (2018) 16 SCC 158.
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(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;
(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;
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(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.
(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.
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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 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
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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 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 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.
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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 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.

50 2016 SCC OnLine Del 4951.
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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.
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
17th 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
16th 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
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appreciate why there should be a compulsion
on the officer to arrest the accused.”

xxx xxx xxx
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
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
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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 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.

xxx xxx xxx”

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
[2025] 2 S.C.R. 1379

Radhika Agarwal v. Union of India and Others

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
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 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.
1380 [2025] 2 S.C.R.

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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
25th May 2022
Instruction No. 01/2022-23 [GST – Investigation]
Subject: Deposit of tax during the course of search,
inspection or investigation – reg.

xxx xxx xxx
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 basis of ascertainment of their
liability on non-payment/short payment of taxes before or
[2025] 2 S.C.R. 1381

Radhika Agarwal v. Union of India and Others

at any stage of such proceedings. The tax officer should
however inform the taxpayers regarding the provisions of
voluntary tax payments through DRC-03.

xxx xxx xxx”

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 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 Another51
had observed as under:

51 (1978) 2 SCC 424.
1382 [2025] 2 S.C.R.

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“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 Detection Recovery No. of
Cases (In Rs. Cr.) (In Rs. Cr.) Arrest

2017-18 CGST
273 384 224 3
w.e.f Zones
July 2017 DGGI 151 832 171 0
Total 424 1216 394 3
CGST
5894 18658 10338 115
Zones
2018-19
DGGI 1474 19288 8878 76
Total 7368 37946 19216 191
CGST
8367 19482 6956 123
Zones
2019-20
DGGI 2290 21371 11508 108
Total 10657 40853 18464 231
CGST
8756 18247 3380 224
Zones
2020-21
DGGI 3840 31137 8855 236
Total 12596 49384 12235 460
CGST
8770 24757 5393 191
Zones
2021-22
DGGI 3804 48481 19764 151
Total 12574 73238 25157 342
CGST
10500 31053 12509 93
Zones
2022-23
DGGI 5062 100560 20717 97
Total 15562 131613 33226 190
[2025] 2 S.C.R. 1383

Radhika Agarwal v. Union of India and Others

2023-24 CGST
14492 35377 7742 84
(upto Zones
March DGGI 6090 194955 24016 139
2024)
Total 20582 230332 31758 223
Total Number of ITC Fraud Cases
Period: July 2017 to March 2024
Period Formation No. of Detection Recovery No. of
Cases (In Rs. Cr.) (In Rs. Cr.) Arrest

2017-18 CGST
5 13 12 2
w.e.f July Zones
2017 DGGI 0 0 0 0
Total 5 13 12 2
CGST
1221 7993 676 97
Zones
2018-19
DGGI 399 3258 510 57
Total 1620 11251 1186 154
CGST
3231 12003 1086 100
Zones
2019-20
DGGI 1027 7929 1331 95
Total 4258 19932 2417 195
CGST
5292 13502 743 202
Zones
2020-21
DGGI 1976 17731 1489 227
Total 7268 31233 2232 429
CGST
4636 14895 825 178
Zones
2021-22
DGGI 1330 13127 1202 114
Total 5966 28022 2027 292
CGST
5291 10965 887 85
Zones
2022-23
DGGI 1940 13175 1597 68
Total 7231 24140 2484 153
2023-24 CGST
6993 15374 836 69
(upto Zones
March DGGI 2197 21000 2577 113
2024)
Total 9190 36374 3413 182
1384 [2025] 2 S.C.R.

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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 Others53 and Dukhishyam
Benupani, Asst. Director, Enforcement Directorate (FERA) v.
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

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.
54 (1998) 1 SCC 52.
[2025] 2 S.C.R. 1385

Radhika Agarwal v. Union of India and Others

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 decisions56 of this Court in the context of GST Acts which
are contrary to the aforesaid ratio should not be treated as binding.
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

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.
1386 [2025] 2 S.C.R.

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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 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.
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.”
[2025] 2 S.C.R. 1387

Radhika Agarwal v. Union of India and Others

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 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,

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.
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.
1388 [2025] 2 S.C.R.

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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.
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.

60 (1977) 4 SCC 98.
[2025] 2 S.C.R. 1389

Radhika Agarwal v. Union of India and Others

Judgment

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.
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 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,
1390 [2025] 2 S.C.R.

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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
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 purpose and if both the law and the
procedure laid down by it, are valid.

1 (1992) Supp. 1 SCC 496
[2025] 2 S.C.R. 1391

Radhika Agarwal v. Union of India and Others

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 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)
1392 [2025] 2 S.C.R.

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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.
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.
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.

2 (2008) 13 SCC 305
3 2022 SCC OnLine SC 929
[2025] 2 S.C.R. 1393

Radhika Agarwal v. Union of India and Others

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, 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 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

4 (2005) 4 SCC 303
1394 [2025] 2 S.C.R.

Supreme Court Reports

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, 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 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.
[2025] 2 S.C.R. 1395

Radhika Agarwal v. Union of India and Others

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 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.

Result of the case: Matter to be listed for final hearing and
disposal.

†
Headnotes prepared by: Divya Pandey