The Hon’ble Supreme Court of India in Devendra Dwivedi vs Union of India & ors. [Writ Petition(s) (Criminal) No(s). 272/2020, dated January 7, 2021] dismissed writ petition under Article 32 of the Constitution of India, challenging the constitutional validity of certain provisions of Central Goods and Services Tax Act, 2017 (“CGST Act”) pertaining to powers of inspection, search, seizure, arrest and penalties & prosecution. Held that, it would be appropriate to approach the High Court for remedy by way of a petition under Article 226 of the Constitution of India, so that the Hon’ble Supreme Court has the benefit of the considered view of the jurisdictional High Court.
The Writ Petition had been filed by Devendra Dwivedi (“Petitioner”) invoking the jurisdiction of the Hon’ble Supreme Court under Article 32 of the Constitution of India wherein, the following reliefs have been sought:
(i) A challenge to the constitutional validity of following provisions of the CGST Act:
a. Section 67(1) of the CGST Act (i.e., power of inspection, search and seizure) and Section 69 (i.e., power to arrest) for being violative of principles of natural justice as they do not provide for recording of reasons to believe in writing;
b. Section 69 and Section 132 (i.e., punishment for certain offences) for being ultra vires to Articles 21 of the Constitution of India;
c. Section 70(1) (i.e., power to summon persons to give evidence and produce documents) for being ultra vires to Articles 20(3) of the Constitution of India;
d. Section 135 (i.e., presumption of culpable mental state) as it requires accused to disprove the reverse burden of proof beyond reasonable doubt;
e. Section 137 (i.e., offences by companies) for being contrary to the settled principles of law, which provide that there can be no fastening of vicarious liability for a criminal offence requiring mens rea, without there being an active role being proved by the prosecution.
(ii) A direction for compliance with the procedure for investigation enunciated in Chapter XII of the Code of Criminal Procedure, 1973 (“CrPC”) for valid commencement of investigation into any offence.
(iii) Declaring the investigations which have been instituted against the petitioner as illegal
Whether recourse to the jurisdiction under Article 32 of the Constitution of India should be entertained, challenging the constitutional validity of above-mentioned sections of the CGST Act?
The Hon’ble Supreme Court of India in Writ Petition(s) (Criminal) No(s). 272/2020, dated January 7, 2021 held as under:
· Noted that, a Bench of three-Judges declined to entertain Writ Petition (Crl) Nos 107 and 108 of 2019 dated April 10, 2019 and several other petitions which were instituted under Article 32 of the Constitution have eventually been withdrawn, and some were dismissed.
· Observed that, though the Petitioner has invoked Article 21 of the Constitution of India, the case essentially involves a challenge to revenue legislation. The jurisdiction under Article 32 of the Constitution of India is a salutary constitutional safeguard to protect the fundamental rights of citizens, the recourse to the jurisdiction under Article 32 of the Constitution should be entertained in a particular case is a matter for the 'calibrated exercise of judicial discretion’.
· Stated that, besides the fact that the constitutional challenge can be addressed before the High Court, the grievance in regard to the conduct of the investigation can appropriately be addressed before the competent forum, either in exercise of the jurisdiction under Article 226 of the Constitution or Section 482 or analogous provisions of the CrPC. The Petitioners have an efficacious remedy in the form of proceedings under Article 226 of the Constitution to challenge the constitutional validity of the provisions of the CGST Act as mentioned in the facts above.
· Held that, there is regime of well-established remedies and procedures under the laws of CrPC and revenue legislation also provides its own internal discipline. Hence, it would be appropriate to relegate the Petitioner to the remedy of a petition under Article 226 of the Constitution so that the Hon’ble Supreme Court has the benefit of the considered view of the jurisdictional High Court.