Applicability of Article 20(3) of the Constitution and Section 25 of the Indian Evidence Act, 1872

At the outset, Additional Solicitor General (“ASG”) referred to Article 20(3) of the Constitution which prohibits an accused person to be compelled to be a witness against himself and submitted that unless a person is formally accused, either by FIR or complaint, he is not to be treated as “accused” for the purposes of Article 20(3). That is, the protection against self-incrimination shall only apply when a person has been formally “accused”.

Applicability of Sections 2(l), 155(2) and 155(3) CrPC to Customs Officer

ASG pointed to the definition of “non-cognizable” offense under Section 2(l) CrPC to avert that the provision only applies to police officers and not to customs officers. In this context, his argument was that when the Customs Act, 1962 (“Customs Act”) made an offense non-cognizable, it prevented only police officers from arresting.

It was further submitted that Section 155(2) CrPC which provides that a police officer shall not investigate a non-cognizable case without the order of magistrate, does not apply to customs officer. As a result, the prohibition to investigate a non-cognizable case without orders of a magistrate does not apply to customs officer and that they can investigate a non-cognizable case despite the embargo under Section 155(2) CrPC. Moreover, under Customs Act, the permission is required from the Commissioner, not Magistrate.

Adverting to Section 155(3) CrPC which says that a police officer cannot arrest without warrant in a non-cognizable case, ASG contended that the provision only applies to police officers, not to customs officers.

Consequences of making Chapter XII CrPC applicable to Customs cases

AGS contended that if chapter XII CrPC is made applicable and customs officers are held to be “police officers”, a long line of reasoning by constitutional benches would be rendered redundant. Further, cases would no longer be open to investigation until FIR is registered. If FIR is registered and person is made “accused”, Article 20(3) and Section 25 would be invoked.

GST Officers Not ‘Police Officers’: ASG

Further, the AGS contended that GST Officers are not “police officers”. He referred to the dominant purpose test to submit that keeping in view the dominant purpose of GST Act, power to initiate prosecution and make arrest is “incidental”. As such, GST Officers cannot be said to come under the gambit of  “police officers”.

It was further argued that GST Act is a special law, conferring special powers, and therefore it excludes the application of Chapter XII CrPC.

No private complaint can be made under GST Act

During the hearing, the bench questioned the possibility of a private complainant under the GST Act. The response indicated a need for verification. However, the bench asserted that GST does not accommodate a concept of “private complainant”. This observation likely reflects the legal framework, which might prioritize governmental or institutional oversight in matters pertaining to GST compliance and enforcement. Such delineation between public and private entities in the context of complaints could be fundamental to maintaining the integrity and effectiveness of the GST regime.