Arrest timing in GST fraud probe u/s35(3) BNSS notice-accused detained before appearance time; bail granted.

The dominant issue was whether the arrest in a GST fraud investigation was legally infirm for non-compliance with s. 35(3) BNSS. The HC found the notice required appearance at 4:15 PM on the relevant date (the date being a conceded clerical error), but the arrest memo showed arrest at 11:45 AM the same day, meaning the accused was arrested before the time fixed for compliance. Treating this as absence of effective compliance with the statutory notice requirement, the HC held the arrest defective under settled law; consequently, the second bail application was allowed and the accused was granted bail.

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1. ISSUES PRESENTED AND CONSIDERED

(i) Whether the arrest by the revenue authorities was vitiated due to lack of effective compliance with the statutory notice requirement under Section 35(3) BNSS, as reflected by contradictions between the notice for appearance and the arrest memo.

(ii) Whether such defective procedural compliance in effect rendered the arrest infirm/defective, thereby entitling the accused to bail on technical grounds, notwithstanding the allegation that the offences are cognizable and non-bailable under the CGST framework.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (i): Effective compliance with Section 35(3) BNSS notice requirement vis-à-vis timing and validity of notice

Legal framework (as discussed by the Court): The Court proceeded on the basis that procedural safeguards governing arrest (including the requirement of notice for appearance under Section 35(3) BNSS, corresponding to Sections 41/41A Cr.P.C.) apply even where arrest is effected by GST/revenue authorities, and that such procedural compliance must be scrutinised by courts while considering remand and bail.

Interpretation and reasoning: The Court examined the notice issued under Section 35(3) BNSS and the arrest memo. The notice required the accused to appear at 4:15 P.M. on the stated date, while the arrest memo recorded that the accused had already been arrested at 11:45 A.M. on the same day. The Investigating Officer conceded that the date in the notice was a typographical error; however, no explanation was provided for the arrest occurring before the time for appearance stipulated in the notice. The Court treated this inconsistency as showing that, by the time the accused was "directed to appear" under Section 35(3) BNSS, he had already been taken into custody, rendering the notice an empty or mechanical formality rather than an effective procedural safeguard.

Conclusion: The Court conclusively held that there was "no effective compliance" with the notice under Section 35(3) BNSS due to the arrest preceding the stipulated appearance time, thereby establishing procedural noncompliance.

Issue (ii): Effect of defective compliance on legality of arrest and entitlement to bail

Legal framework (as applied by the Court): The Court applied the settled position that procedural requirements surrounding arrest under criminal procedure must be complied with even by revenue authorities exercising arrest powers under GST law; failure to comply may render the arrest infirm/defective and can justify grant of bail. The Court treated these procedural requirements as mandatory in substance, not merely directory, when assessing the validity of arrest for purposes of bail.

Interpretation and reasoning: Having found absence of effective compliance with Section 35(3) BNSS, the Court characterised the arrest as "infirm/defective." The Court accepted the bail application on these "technical grounds," holding that the procedural defect in arrest, as demonstrated from the record and case diary, warranted release on bail despite the prosecution's position that the alleged offences are cognizable and non-bailable under the CGST provisions invoked. The Court thus treated the procedural illegality/defect as determinative for bail in the circumstances.

Conclusion: The Court granted bail on the ground that the defective/ineffective compliance with Section 35(3) BNSS made the arrest infirm, and imposed conditions to secure presence, cooperation with investigation, and non-tampering/non-influence, with an express stipulation that breach would invite cancellation of bail.

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