BNSS/CrPC Provisions On Rights Of Arrested Persons Applicable To GST & Customs Acts : Supreme Court

The Supreme Court on Thursday(February 27) delivered a significant ruling on the powers of arrest under the Goods and Services Tax Act and the Customs Act.The Court held that the provisions of the Code of Criminal Procedure (now Bharatiya Nagarik Suraksha Sanhita) on the rights of accused persons are equally applicable to the arrests made both under the Customs Act and the GST Act.The dictum in the Arvind Kejriwal case that the arrest under the Prevention of Money Laundering Act must be made only if there are "reasons to believe" has been applied in the context of GST and Customs arrests as well. Section 19(1) of the PMLA and Section 104 of the Customs Act are virtually the same, the Court noted. Both provisions deal with the power of arrest. The Court held the same for the arrest provision under the GST Act as well.The Court also held that the circulars issued by the GST department regarding arrest must be strictly adhered to. The Court also rejected the argument that customs officers are police officers.Anticipatory bail applicable to GST and Customs Acts.The Court further held that the provisions relating to anticipatory bail are applicable to the GST Act and the Customs Act, and the parties can approach the Court for relief if there is an apprehension of arrest, without the FIR being registered.The Court also observed that there was some merit in the allegations of coercion and harassment by the tax officials."We have commented on the basis of data with regard to allegations that there was force and coercion in the payment of taxes. We have some said that there may be some merit in it. Wherever a person is disposed to pay, he can go to the writ court and get an order. And the officers will have to be dealt with departmentally also. We have said that this cannot be permitted. This is contrary to the law. We have referred to Nandini Satpathy case in that regard," Chief Justice of India Sanjiv Khanna stated while pronouncing the verdict.On application of CrPC provisions to the Customs Act and the GST ActThe judgment stated :"In 2009, the Parliament amended the Code of Criminal Procedure to incorporate Section 41-B which outlines the procedures of arrest and the duties of the officer making the arrest. 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). 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."The Court further held that Section 41D CrPC is also applicable to Customs Act."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."Reference was made to Section 50A CrPC 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, relatives, or other person as may be disclosed or nominated by the arrested person for the purpose of giving such information. The Court held that this has to be followed by Customs officials as well.Section 55A, inserted in 2009, 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.The Court further observed that "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.""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."Arvind Kejriwal judgment applies to Customs Act arrestsSince the provisions of the PMLA and the Customs Act dealing with the arrests are similar in nature, the Court held that its judgment in the Arvind Kejriwal case, which held that the arresst under PMLA must be carried out only if there are "reasons to believe" that the accused was guilty and that such reasons must be furnished to the arrestee, are applicable to the Customs Act as well."For the aforesaid reasons, we do not find any inconsistency between Section 19(1) of...

BNSS/CrPC Provisions On Rights Of Arrested Persons Applicable To GST & Customs Acts : Supreme Court

Debby Jain

The Court also held that anticipatory bail provisions are applicable to GST and Customs Acts.

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