AI OCR 
TaxTMI 
TaxTMI 
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2022 (7) TMI 915
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....rs at the residence of one person namely Mr. Bharat Patel situated at Bhaktinagar Society, near IDBI Bank, Gurukul Road, Ahmedabad on 17.03.2022. During the said raid, a laptop was found which had certain material which nececiated calling of the respondent no. 6 on 18.03.2022. The respondent no.6 was called between 2:00 to 3:00 pm at the residence of Mr. Bharat Patel by GST Officers through phone call made by the son of Mr. Bharat Patel. 2.1. The respondent no. 6 when visited Mr. Bharat Patel's residence, the respondent no.2 along with the GST officers started interrogating him. At 3:48 pm, the respondent no.6 along with several GST officers including respondent no.2 visited the residence of the petitioner and informed the family members that they were having the search warrant and also an authority to raid the residence. The GST officers along with respondent no.2 left at around 9:23 pm and by then, they had seized computer, cheque books and other documents from the residence. 2.2. The petitioner reached the GST office, Ashram Road at around 10:23 pm along with his friends, but, he was not allowed to enter the GST building premise by the guards. He was not permitted as except wi....
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....ndent no.6 even once since 18.03.2022. His computer, mobile phone and other documents had been already taken into custody from 18.03.2022 when the visit was made at his residence. The CCTV footage of the respondent no.6 arriving and leaving along with the GST officers from the respondent no.6's residence is also forming a part of the annexures. 2.6. The grievance is made by the petitioner that respondent no.6 - the brother of the petitioner has been illegally confined and although the petitioner approached the authorities time and again and made all his efforts to trace the brother of his, who is neither permitted to contact him nor was his brother allowed to meet anyone. The respondent no.2 and other GST officers as per the phone conversations revealed that the corpus was confined to GST office, Ashram Road, Ahmedabad. The petitioner therefore approached this Court by way of writ petition of habeas corpus seeking to see his brother being produced. 2.7. The petitioner in the first sitting when sought the permission to move the petition, a phone call was received at 4:00 pm from the mobile number being 9722388992 informing that the respondent no.6 has been arrested at 3:00 pm duri....
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.... be a clear violation also of the rights conferred under Article 22 which guarantees protection against the arrest and detention and it provides that no person shall be arrested and detained in custody without being informed the grounds of such arrest and shall not be denied the right to consult himself by a legal practitioner of his own choice. 2.10. The respondent no.6 - corpus is arrested under an authorization issued by the Joint Commissioner, In-Charge of the Additional Commissioner of State Tax and not by the Commissioner of the Sales Tax, therefore also, the arrest is challenged on the ground of violation of Section 69 of the GST Act, 2017. 2.11. From 18.03.2022, he was not allowed to visit his residence and continued to be in the custody of the officers beyond the period of 24 hours which, according to the petitioner, is an arrest without any warrant by the police and is a serious breach of constitutional right under Article 22(2) as also Section 57 of the Code of Criminal Procedure. It is a must for any person who is to be kept beyond 24 hours to be produced before the Magistrate without any unnecessary delay excluding the time necessary for the journey. 2.12. During th....
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....ls of which shall be incorporated during the course of reasonings. 5. The additional affidavit-in-reply also has been filed to the draft amendment by Mr. B.D.Trivedi, where also he has emphatically urged that none of legal rights of the accused much less fundamental rights has been violated. It is emphasized all along that corpus's relatives have been called at 4:04 pm on 23.03.2022 and the arrest has been made following the procedure envisaged under Section 69(1) of the CGST and GGST Act, 2017. The two applications of differing the hearing of remand application on the ground of the challenge of illegal detention of both the accused has already been taken before the Metropolitan Court urging that the Court below cannot authorize the arrest or remand because of noncompliance of the procedure. Their own facts stated in the application before the Metropolitan Court that this Court had taken the view of illegal detention of the accused are misleading when this Court had only issued notice regarding the production of the corpus and therefore, no advantage can be taken of such fact. It is further urged that the corpus was explained his right to appoint a lawyer and was handed over a cop....
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....the habeas corpus would not lie. If at all there are other legal remedies, the petitioner shall be entitled to move. It is further urged that on the returnable date when the petitioner had already been arrested and he has been produced before the learned Magistrate, he had his course open to be agitated in a legal manner. Again, no challenge is made to subsequent event. With appreciable fairness on the part of learned Public Prosecutor, it is admitted in an answer to pertinent query raised by the Bench that there are clear breaches made when the officials have made a continuous interrogation, however, according to him, that itself would not either lend jurisdiction to this Court nor would nullify the actions of the respondent which are in the larger public interest. According to him, the shell companies created by this person as a tax consultant with Mr. Bharat Patel involves the evasion of GST to the tune of crores of rupees and therefore also, the Court should not interfere. He seeks to rely on the following authorities. (i) Surendra Kathadbhai Jebalia vs. State, reported in (2003) 3 GLR 2096; (ii) Serious Fraud Investigation Office vs. Rahul Modi and Another, reported in (20....
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....on upto 30.06.2019. A writ petitions came to be filed under Articles 226 and 227 of the Constitution of India read with Article 482 of the Code of Criminal Procedure in the High Court of Delhi. It was submitted that with the expiry of time period, the investigation had to be completed in terms of order dated 20.06.2018 and resultantly, all other proceedings including the arrest were illegal and without the authority of law. The writ petition prayed for declaration that the investigation carried out in post 19.09.2018 was illegal and without jurisdiction. The prayer also was made for writ of habeas corpus directing the release from illegal arrest made on 10.12.2018. The focal point of examination in a habeas corpus petition was the date of return and not the initiation of proceedings. According to the Apex Court, on 18.12.2018 when the petitions were taken up for consideration, not only there was an order of extension dated 14.12.2018 passed by the Central Government, but, there were valid orders of remand passed by the Judicial Magistrate on 11.12.2018 and by the Special Court, Gurugram on 14.12.2018 and 18.12.2018. In this backdrop of facts, the Apex Court held thus:- "17. For c....
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....t in B.R. Rao v. State of Orissa where it was said (at p. 259, para 7): "in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". and yet in another decision of this Court in Talib Hussain v. State of Jammu & Kashmir Mr Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that (at p. 121, para 6): "in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing." Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, ....
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....in the point including cases referred to above. It also dealt with an issue whether Habeas Corpus petition could be entertained against an order of remand passed by a Judicial Magistrate. The observations of this Court in paragraphs 20 to 24 and para 31 were as under: 20. After so stating, the Bench in Kanu Sanyal caseopined that for adjudication in the said case, it was immaterial which of the three views was accepted as correct but eventually referred to para 7 in B. Ramachandra Rao wherein the Court had expressed the view in the following manner: "7. ... in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings." Eventually, the Bench ruled thus: "5. ... The production of the petitioner before the Special Judge, Visakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnam, pursuant to the orders made by the Special Judge, Visakhapatnam, pending trial must be held to be valid. This Court pointed out in Col. B. Ramachandra Rao v. State of Orissa (SCC p. 258, para 5) that a wri....
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....here is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself." -- Adriana P. Bartow 11. No violation of any one of the human rights hasbeen the subject of so many Conventions and Declarations as "torture" -- all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact remains that torture is more widespread now than ever before. "Custodial torture" is a naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward -- flag of humanity must on each such occasion fly half-mast. 12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond....
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....re required to be followed by the police to protect the interest of the arrested person. Section 41 CrPC confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent MSR,J & TA,J ::27:: wp_28268_2019 the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes clause (2) of Article 22 of the Constitution of India. There ....
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.... obtained by persons arrested in connection with non-cognizable and bailable offences; and Section 41 and Section 41A of CrPC would apply in the event the Commissioner intends to arrest any person; and that normally relief of protection against arrest ought not to be granted. It is also contended that the Commissioner exercising power under Section 69(1) is not a police officer. 93. The above decision in P.V. Ramana Reddy (1 supra) is binding on us. Following the principle laid down therein that the High Court can entertain an application for pre-arrest protection under Article 226 of the Constitution of India, but such power should be exercised by the High Court sparingly, we hold that having regard to the facts and circumstances set out above, this case falls under the exceptional category and this Writ Petition is undoubtedly maintainable." 9.3. In the matter of Madhu Limeya and Others, reported in 1969 (1) SCC 292, the Apex Court held thus:- "As stated in Ram Narayan Singh v. State of Delhi & Ors. this court has often reiterated that those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scr....
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....as would cure the constitutional infirmities. This disposes of the third contention of Madhu Limaye. 13. We have been pressed to decide the question of mala fides which is the fourth contention of Madhu Limaye. Normally such matters are not gone into by this court in these proceedings and can be more appropriately agitated in such other legal action as he may be advised to institute or take. 14. We would like to make it clear that we have ordered the release of Madhu Limaye and the other arrested persons with regard to whom rule nisi was issued on the sole ground of violation of the provisions of Art. 22(1) of the Constitution. We desire to express no opinion on the legality or illegality of the arrests made on November 6, 1968, of these persons with reference to the first point, namely, that the police officers purported to have effected the arrests for the offences under Section 188, Indian Penal Code and under Section 151 as also in respect of proceedings under Section 107 of the Cr. P.C., as these matters are sub judice. We may also proceed to add that any expression of opinion or observation in these proceedings shall not affect the course of the enquiry or trial of the ar....
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....irections issued by the Apex Court in case of D.K.Basu vs. State of West Bengal (supra) at this stage. "We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures : (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by at least one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relativ....
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.... hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. The requirements mentioned above shall be forwarded to the Director General of Police and the Home Secretary of every Stare/Union Territory and it shall be their obligation to circulate the same to every police station under their charge and get the same notified at every police station at conspicuous place. It would also be useful and serve larger interest to broadcast the requirements on the....
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....h of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience. " 10.3. In case of Arnesh Kumar vs. State of Bihar, reported in 2014 (8) SCC 273 also, following are the directions which are necessary to be followed:- "Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is nonbailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made aga....
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....ection, record the reasons in writing for not making the arrest. X x x x x x From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the facts and record the reasons in writing whic....
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....ondition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons ....
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....n that if the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be discouraged and discontinued." 10.4. In case of Vimal Yashwantgiri Goswami vs. State of Gujarat, reported in (2020) 121 3 (Gujarat), this Court at length had examined various issues in relation to the authorized officer where these is a proper officer for the purpose of CGST Act to hold that the authorized officers are not police officers and statements made before them in course of inquiry is not admissible under Section 25 of the Act. The power of arrest by authorized person is statutory in character and should not be interfered with. The Court also held that the provision of Section 69(2) and (3) of the CGST Act provide in built mech....
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....or Assistant Commissioner subject to the provisions of the Code for releasing the arrested person on bail if he is alleged to have committed non cognizable and bailable offences by exercising the power as an officer in charge of the police station. Therefore, it is not necessary for the Commissioner to provide a copy of the reasons recorded by him for his belief if he has reason to believe that any person has committed offences which are cognizable and non bailable. Sub-section (2) of section 69 of the CGST Act provides statutory duty upon the office`er authorised to arrest to inform such person about grounds of his arrest and in case if the person is ordered to be arrested for offences which are non- cognizable and bailable , he would be released on bail as per provision of sub-section (3) of section 69 of the CGST Act. (ii) The Commissioner while recording his reasons to believe that a person has committed any offence has only to form a prima facie opinion based on cogent materials and credible information. The words "reason to believe" contemplate an objective determination based on intelligence, care and deliberation involving judicial review as distinguished from a purely su....
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....lliberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Commissioner must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and selfesteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for the authority in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. A person is not liable to be arrested merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the authority effecting the arrest....
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....ferring to the powers of another officer when placed in somewhat similar circumstances, has been adopted. By its language, the sub-section (3) does not equate the officers of the GST with an officer in charge of a police station, nor does it make him one by implication. It only, therefore, means that he has got the powers as defined in the Code of Criminal Procedure for the purpose of releasing such person on bail or otherwise. This does not necessarily mean that a person alleged to have committed a non cognizable and bailable offence cannot be arrested without a warrant issued by the Magistrate. (iii)The authorised officer exercising power to arrest under section 69 of the CGST Act, is not a Police Officer and, therefore, is not obliged in law to register FIR against the person arrested in respect of an offence under Sections 132 of the CGST Act. (iv) The decision of the Supreme Court in the case of Om Prakash (supra) has no bearing in the case on hand. (v) An authorised Officer is a 'proper officer' for thepurposes of the CGST Act. As the authorised Officers are not Police Officers, the statements made before them in the course of inquiry are not inadmissible under ....
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...., Mounted Police and ITBP which have the power to detain a person and to interrogated him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act. Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well, In re Death of Sawinder Singh Grover [1995 Supp (4) SCC 450], (to which Kuldip Singh, J. was a party) this Court took suo moto notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the additional District Judge, which disclosed a prima facie case for investigation and prosecution, this Court directed the CBI to lodge a FIR and initiate criminal proceeding against all persons named in the report of the Additional District Judge and proceed against them. The Union of India/Directorate of Enforcement was also directed to pay sum of Rs. 2 lacs to the widow of the deceased by was of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need. ......... 33. There can be no gainsaying that freedom of an individual must yi....
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....t itself, it has been stated that the requirements referred to above (i.e. in paragraph no. respectively of the Constitution of India and not to be strictly followed. We may give a simple illustration. Take a case in which writ application is filed seeking direction for giving an opportunity to the person who is sought to be interrogated by the police officer for any offence punishable under the Indian Penal Code to consult his lawyer. Such a direction may perhaps be issued in case of an accused because of his right under Article 22 of the Constitution of India but the same cannot be made applicable to a person who is interrogated under section 70 of the GST Act or section 108 of the Customs Act where no right under Article 22 of the Constitution is affected as held by the Supreme Court in case of Poolpandi(supra). This Court, however, is quite conscious of the fact that pronouncement of Supreme Court in case of Poolpandi(supra) as also in another case, pointing out that the right of investigating authority should not be interfered with, as given to them under the provisions of the Act, does not give them an uncharted liberty to proceed in whatsoever manner they like in the matter ....
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....r the executive authority invested with judicial powers. We quote the relevant observations as under: "31. The recording of reasons which lead to the passing of the order is basically intended to serve a two-fold purpose: (1) that the "party aggrieved" in the proceeding before acquires knowledge of the reasons and, in a proceeding before the High court or the Supreme court (since there is no right of appeal or revision), it has an opportunity to demonstrate that the reasons which persuaded the authority to pass an order adverse to his interest were erroneous, irrational or irrelevant, and (2) that the obligation to record reasons and convey the same to the party concerned operates as a deterrent against possible arbitrary action by the quasi-judicial or the executive authority invested with judicial powers. 32. Section 269UD(1), in express terminology, provides that the appropriate authority may make an order for the purchase of the property "for reasons to be recorded in writing". Section 269UD(2) casts an obligation on the authority that it "shall cause a copy of its order under Ss. (1) in respect of any immovable property to be served on the transferor". It is, therefore, ....
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....who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or and through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.....
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....h Section 134 of the Act 2017. We are laying emphasis on this mandatory procedure to be adopted because many times the complaint is not lodged immediately. In most of the cases when arrest is affected under Section 69 of the Act, a person arrested would be produced before the Magistrate and the Magistrate may thereafter remand the arrested person to judicial custody after looking into the arrest memo. At the time of production of the accused and also at the time when the person arrested is remanded to the judicial custody, the Magistrate may not have any idea as to on what basis and what type of allegations, the person has been arrested by the authorized officers of the GST and has been produced before him. The production of a person accused should not be accepted by the Magistrate without being convinced that the arrest is on lawful grounds and on prima-facie materials indicating the complicity of the accused in the alleged offence. It is at that stage that the arrest memo assumes importance. It is not just sufficient to state in the arrest memo that the person arrested and produced has committed offences under Section 132 of the Act, 2017. The arrest memo should contain some deta....
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.... for which he is arrested or other grounds for such arrest. This is provided for in Section 50 of the CrPC. A Police Officer, when he arrests a person without warrant and he is not accused of committing a non-bailable offence, is dutybound to inform him of his entitlement to be released on Bail. The Police Officer is also under an obligation to inform, under Section 50A of the CrPC, a nominated person about the factum of arrest. This came into force on 23.06.2006. Section 51 deals with search of the arrested person." 84. We have quoted the decision of the Supreme Court referred to above to highlight the importance of the communication of the grounds of arrest to the accused and the mode and manner of the preparation of arrest memo." The Court, thus, laid down emphatically that while producing the person arrested under Section 69 of the CGST Act, the importance of valid and exhaustive arrest memo should not be undermined. Every authorized officer under the Act of 2017 carrying out the arrest must be clear that the preparation of an arrest memo is mandatory and the Court also reiterated the guidelines issued by the Apex Court in case of D.K.Basu to hold that the safeguards mandat....
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....to prevail. The Court permitted disassociation of such person who is an object of such inquiry by appropriate authorities for the purpose of eliciting the details as according to the Court their disassociation from those encouraging them in adopting a non-cooperative attitude to the machinery of law would be necessary. "10.6.7. As regards the contention that the accused persons were kept under illegal detention for prolonged time, putting them under psychological pressure, and therefore, the statements not being free or voluntary, it has to be observed that, in this regard also, excepting bald statement, no material in support of the allegation is produced. Against this, there is contemporaneous material in the form of summons issued by the D.R.I. authorities to the accused persons on various occasions as and when they were required to be interrogated till their arrest. Undisputedly, the summons carry signature of the accused to show proper service. In absence of evidence or material to the contrary, there is no reason to doubt the authenticity and genuineness of such contemporaneous record maintained by the office of D.R.I. No ill-will or animosity is even alleged. We find no su....
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....operative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company". The contention of Shri Thakur that fairness of judicial process requires that such statements given by the accused should be strictly, meticulously and minutely scrutinised as they emanate at the threat of person in authority and are inadmissible in evidence under Section 24, does not merit acceptance for the reason that the primary object of enquiry under the Act is to initiate proceedings for confiscation of the contraband and collection of excise duty and the persons acquainted with the facts are duty bound to speak truth or to give statement truthfully upon the subject respecting with the person is examined or made statement at the pain of prosecution for perjury or produce such document or other things. In the light of the legislative policy the question of unfairness or untrustworthy of process does not arise and such a plea cannot be given countenance or acceptance." 11. Undoubtedly, the decision in case of Poolpandi and others vs. Superintendent of Central Excise (supra) provides for disassociation of the person from company of persons who would enc....
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....r inquiry and arrest etc., nothing has been done so far. The family of the respondent no.6 also had not been intimated except as detailed in the affidavit-in-reply. The fact remains that neither the family member nor the lawyer has been permitted to meet him or to see him even after a period of 24 hours which is in a clear violation of the mandate provided under Article 22 of the Constitution of India. Even while accepting without delving into merit that this was a serious inquiry which was being conducted, as per Section 57 of the Cr.P.C., the accused is required to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. The accused can be kept in detention beyond a period of 24 hours only once authorized by the Magistrate in exercise of powers under Section 167 of the Cr.P.C. The police officers effecting the arrest is required to furnish to the Magistrate the reasons and the grounds of arrest who needs to satisfy itself that condition precedent for arrest has been satisfied. It is only after once the learned Magistrate authorizes the detention of the accused following the safeguards given u....
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....spondent no.6 was already explained the grounds of arrest and the arrest memorandum was duly served upon him. He acknowledge the same by his own writing, signature, date and timing. He was also given the right to appoint a lawyer to defend him and to hand over a copy of arrest memo and grounds of arrest. His belongings were taken out duly sealed in presence of panchas and his relatives had been called at 4:04 pm who was informed of his arrest and that he would be produced at 6:00 pm before the Additional Chief Metropolitan Magistrate. 14. We noticed that soon after this Court issued the notice with a lightning speed, the authority has acted. It is only to cover-up their action of continuously keeping him under their custody without allowing any outsider to meet him and even without observing the timeline which is also prescribed by the Cr.P.C. for the criminals involved in the heinous crime. This requires also a serious consideration at the hands of the Court because although this Court had not taken any view of the detention being illegal, the day on which he was produced before the Metropolitan Magistrate, the fact still remains that the issuance of notice itself is the reason f....
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....rse, the GST did, but, after about four days. If any illegality in following procedurality by the police officers is also impermissible, how it could be justified at the hands of these GST officials! These are essentially economic offences which would surely have far reaching implications and serious punishment also are prescribed at the end of the prosecution, but, this Court cannot help reiterating that none can be permitted to take the law in the hands nor can any Authority to be allowed to truncate the vital procedure to target the goal. What is provided by way of the Constitutional mandate shall need to guide one and all. Rule of law prevails when emanating from those protective mandates, vital pronouncements made like in case of D.K.Basu and other such are followed by the State and all State instrumentalities and the GST officials are no exceptions. Acknowledging the zeal to unearth the scam as pressingly urged before us, we cannot be persuaded to overlook the basics to shake the edifice. 15. Even while being aware of the fact that the decision of Rahul Modi (supra) has come to the rescue of the officials and the attempt on the part of the State instrumentality appears to ov....
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....nclusion arrived at by Sister Gokani, J. Even though the judgment delivered by Sister Gokani, J. encapsulates everything of what is required to be said, I however, looking at the point involved and the very able arguments presented by the respective counsel for both the sides, wish to record my own reasons, in addition to what has already been laid down. 18. Reiteration of facts is unnecessary. However, suffice it to state that: 18.1. The premises of the corpus Mr. Hitesh Mukeshbhai Patel was searched on 18.03.2022 under Section 67 of the Central Goods and Services Tax Act, 2017 ("GST Act" for short). 18.2. Repeated summons under Section 70 of the Act were served upon the Corpus from 18.03.2022 to 22.03.2022, as a result of which the Corpus remained under interrogation by the Respondent Officers for the said period. 18.3. The Corpus was thereafter arrested on 23.03.2022 and on the same day, he was presented before the Competent Court being the Ld. Chief Judicial Magistrate, Ahmedabad for seeking remand. 18.4. The present petition came to be preferred by the brother of the Corpus on the same day of his arrest i.e. on 23.03.2022, wherein this Court under order dated 23.03.2022 i....
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....ll settled that in dealing with a petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing". In the present case, the date of petition of habeas corpus and the date of his production after his arrest being 23.03.2022, admittedly, if any prejudice could have been caused to the Corpus the substantive remedy was available and could have been resorted to. 22. Taking the Petitioner's best case possible, even if the Petitioner were to contend that the prior or subsequent actions are bad in law, even then this Court would not interfere in a petition filed seeking a writ of habeas corpus by virtue of the finding rendered by the Hon'ble Supreme Court in the case of Serious Fraud Investigation Office v. Rahul Modi & Anr. reported in (2019) 5 SCC 266, more particularly Paragraph 21. 23. Before parting with, I would like to quote an important paragraph from a decision rendered by a Coordinate Bench of this Court in the case of Synergy Fertichem Pvt. Ltd. v. State of Gujarat reported in (2020) 76 GSTR 81 wherein it is held t....