# Radhika Agarwal v. Union of India and Others

- **Citation:** 2025 INSC 272
- **Court:** Supreme Court of India
- **Decided:** 2025-02-27
- **Bench:** Sanjiv Khanna, M.M. Sundresh, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/radhika-agarwal-v-union-of-india-and-others-38276
- **Pages:** 65

## Headnote

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 noncognizable 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.
Supreme Court Reports
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 p

## Text

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[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 noncognizable 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.
Supreme Court Reports
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
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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.
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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
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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.
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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
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[2025] 2 S.C.R.
Supreme Court Reports
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.