2020 (11) TMI 269 - HC - GST

Court prohibits physical violence by GST officials during interrogations; emphasizes protection of rights under CGST Act.

M/s. Agarwal Foundries Private Limited Rama Towers and 3 others Versus Union of India and 9 others

M/s. Agarwal Foundries Private Limited Rama Towers and 3 others Versus Union of India and 9 others - 2021 (44) G. S. T. L. 240 (Telangana), [2021] 90 G ... Issues Involved:1. Use of Physical Violence by GST Officials2. Legality of Search and Summons Procedures3. Transfer of Investigation4. Presence of Legal Counsel During Interrogation5. Location of InterrogationDetailed Analysis:1. Use of Physical Violence by GST OfficialsThe primary issue in the writ petition was whether officials from the GST Intelligence Department could resort to physical violence during interrogations. The petitioners alleged that during the search operations on 11.12.2019, the officials physically assaulted the petitioners and their employees. The court noted conflicting versions from both parties but highlighted significant evidence like the Out-Patient Discharge advice from Sunshine Hospital, indicating that the 3rd petitioner was injured and unable to walk. The court also considered the police acknowledgment of a complaint made by the petitioners' employees. The court emphasized that there is no legal provision allowing officials to use physical violence and referred to the Supreme Court's judgment in D.K. Basu v. State of W.B., which recognized protection against torture as part of the right to life and liberty under Article 21 of the Constitution of India.2. Legality of Search and Summons ProceduresThe petitioners challenged the legality of the search and the manner in which summons were issued. The court scrutinized the summons issued to the 2nd petitioner at 00:30 hrs on 12.12.2019, questioning the necessity of such an unusual hour for interrogation. The court found this practice to be prima facie indicative of deprivation of personal liberty. The respondents' justification that there is no bar on night inquiries under Section 70 of the CGST Act, 2017, was not accepted by the court.3. Transfer of InvestigationThe petitioners sought the transfer of the investigation due to alleged high-handedness by the officials. The court, considering the absence of a counter-affidavit from the 5th respondent denying the allegations of physical violence, found it appropriate to exclude the 5th respondent from participating in the proceedings. The Additional Solicitor General agreed that the 5th respondent would not participate in any further proceedings against the petitioners.4. Presence of Legal Counsel During InterrogationThe petitioners requested that their interrogations be conducted in the presence of their advocates. The court referred to various precedents, including the Supreme Court's decision in Jugal Kishore Samra, which allowed interrogation within the sight of an advocate but beyond hearing range. The court held that in the special circumstances of this case, the petitioners and their employees should be interrogated in the visible range of their counsel, though not within hearing range.5. Location of InterrogationThe respondents' request to conduct the interrogation at their New Delhi office was contested by the petitioners due to the COVID-19 pandemic and the associated risks and costs. The court agreed that summoning 50 or more persons to New Delhi was unreasonable and directed that the interrogation of petitioner nos.2 to 4 could occur in New Delhi once for two to three days, while the rest of the interrogations should be conducted at Hyderabad.Conclusion:The court issued several directions to ensure the protection of the petitioners' rights:- No use of violence or torture by the respondents.- Exclusion of the 5th respondent from the investigation.- Interrogations to be conducted between 10:30 a.m. and 05:00 p.m. in the presence of an advocate within visible range.- Limited summoning of petitioners to New Delhi for interrogation.- Adherence to the provisions of the CGST Act, 2017.The interim applications filed by the petitioners were disposed of accordingly, and the court did not express any opinion on other contentions raised.