Supreme Court: In a matter concerning the power to arrest under the Customs Act, 1962 and the Central Goods and Services Tax Act, 2017 (‘CGST Act’), the three Judge Bench of Sanjiv Khanna*, CJI, MM. Sundresh and Bela M. Trivedi**, JJ. upheld the constitutional validity of “power to arrest” provisions under Customs and GST Acts while elucidating the pre-conditions and when and how the power of arrest is to be exercised. However, Justice Bela M. Trivedi wrote a separate but concurrent judgment. While completely agreeing with the opinion expressed by the Chief Justice, on when and how the power of arrest should be exercised by the authorized officers, she elaborated 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.
She emphasised that 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.
Justice Trivedi reiterated that 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.
She remarked “the self-restraints or limitations are imposed as a matter of prudence, propriety, policy and practice”.
Justice Trivedi noted that the Fundamental Rights under Part-III of the Constitution are part of the integrated scheme of the Constitution. They are not exclusive to 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 individual cases.
After reading Articles 21 and 22 of the Constitution together, Justice Trivedi noted 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.
She highlighted that whenever the jurisdiction of the High Court or the Supreme Court is invoked under Article 226 or Article 32 as the case may be, 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. 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.
Justice Trivedi highlighted that when the legality of 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 based on which the belief is formed by the officer, or the correctness of the facts based on which such belief is formed to arrest the person, could not be a matter of judicial review.
Justice Bela Trivedi clarified that 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. The very use of the phrase “reasons to believe” implies that the officer should have formed a prima facie opinion or belief based on the material in his possession that the person is guilty or has committed the offence under the relevant special Act.
She said that 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 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.
She cautioned that 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.
Justice Trivedi remarked that with the advancement of technology, the nature of crimes has become increasingly intricate and complicated. Consequently, minor procedural lapses by authorized officers should not be scrutinized too harshly by courts exercising judicial review powers. Overemphasizing such lapses may inadvertently grant undue advantage or benefit to individuals accused of serious offences under special Acts.
Thus, she held that 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.
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