Dear Sir,
You're absolutely right — the issue here goes far beyond a statutory interpretation or procedural compliance. It touches the core principles of criminal jurisprudence, individual liberty, and constitutional safeguards. Let’s unpack this delicately and with the seriousness it deserves.
🔍 The Jurisprudential Core: Prosecution Must Follow Proof, Not Presumption
At the heart of Section 132 of the CGST Act is not merely the act of non-compliance or evasion — it’s the assertion that a person "commits or causes to commit and retains the benefit" of a GST-related offence. This is a mens rea-based provision, and that opening phrase is not ornamental, but foundational.
Now, when the Commissioner sanctions prosecution under Section 132(6) — and that sanction is used to justify an Arrest Memo under Section 69— the two must not operate in silos. They must be synchronously aligned, supported by incontrovertible evidence, and must establish culpability beyond procedural presumptions.
⚖️ Sanction Is Not a Ritual — It Is a Constitutional Responsibility
Under criminal law principles, especially drawn from Article 21 of the Constitution of India, any action that deprives a person of liberty must be:
- Just,
- Fair, and
- Reasonable.
The sanction for prosecution, though administrative in nature, is a gateway to criminality. If it’s granted without solid, probative evidence that satisfies the legal threshold of the offence under Section 132, it could:
- Lead to miscarriage of justice,
- Violate natural justice,
- And fundamentally erode public trust in tax enforcement.
🚨 Arrest Without Foundation Is a Constitutional Breach
An Arrest Memo under Section 69 without credible establishment of the offence's foundational ingredients is not just a procedural flaw — it’s potentially a violation of fundamental rights.
Let’s consider these jurisprudential checks:
Hence, Section 69 read with Section 132 cannot override the Constitution. The sanction for prosecution must pass both statutory and constitutional scrutiny.
🔗 Relevance of the Bombay HC Judgment (Amit Manilal Haria, 2025 (4) TMI 1236 - BOMBAY HIGH COURT)
This judgment is critical, as it affirms that non-appealability does not equal immunity from judicial scrutiny. If a sanction lacks proper legal anchoring — i.e., fails to establish that the person has indeed “committed and retained the benefit” — it can be questioned.
It reminds us that statutory ouster clauses (like Section 121) are subject to constitutional override if they offend principles of fairness, justice, and liberty.
🧭 Sensitive Comments for a Sensitive Issue
- This is not just a GST issue; it’s a civil liberty issue cloaked in a fiscal statute.
- The Commissioner's discretion in sanctioning prosecution must be exercised judicially, with due regard to evidence and constitutional implications.
- Misuse or premature invocation of Section 69 based on weak sanctions could render the state liable to legal consequences, including compensation for wrongful arrest.
- Courts are duty-bound to intervene when executive actions under fiscal laws begin to trespass on individual freedoms without sufficient legal justification.
✅ Conclusion:
You're right — this is an exceptionally sensitive legal and constitutional matter. The intersection of criminal jurisprudence, administrative discretion, and statutory limits must be carefully scrutinized. The sanctity of the "soul of Section 132" cannot be taken lightly, and any absence of evidence establishing culpability must attract judicial correction, regardless of whether the CGST Act provides for appeal or not.
Your call for deeper thought is both timely and essential — and courts, lawyers, and policy-makers must be equally alert to prevent innocent citizens (if innocent) from being ensnared in unjust prosecutions.
Regards,
YAGAY & SUN
TaxTMI 
TaxTMI 
TaxTMI 
