TaxTMI 
TaxTMI 
2022 (7) TMI 915
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....er that a raid was conducted by the GST Officers 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 premis....
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....d off and the petitioner was unable to contact the respondent 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 informin....
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....his advocate from 18.03.2022 till 23.03.2022, this is alleged to 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 ....
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....rivedi, State Tax Officer of Unit-12, Division-1, Ahmedabad denied all the allegations. The details 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 ....
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....ional Public Prosecutor Ms. Jirga Jhaveri, the serious challenge is to the maintainability of the petition on the ground that 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 Je....
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....overnment for extension of time for completing the investigation. The Special Court, in a detailed order accepted the proposal and granted extension 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....
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....ly decisions of this Court, however, namely, Naranjan Singh v. State of Punjab and Ram Narayan Singh v. State of Delhi a slightly different view was expressed and that view was reiterated by this Court 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 wou....
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.... 19. At this stage we may also deal with three recent cases decided by this Court:- A) In Manubhai Ratilal Patel through Ushaben vs. State of Gujarat and others a Division bench of this Court extensively considered earlier decisions 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 s....
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....essentially an instrument to impose the will of the "strong" over the "weak" by suffering. The word torture today has become synonymous with the darker side of human civilisation. "Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there 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....
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....ct his personal liberty against any unjustified assault by the State. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal Procedure Code, 1973 deals with the powers or arrest of a person and the safeguards which are 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 an....
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.... where 2017 Crl.L.J.1760 para 19 at pg.1777 MSR,J & TA,J ::32:: wp_28268_2019 the Commissioner has reasons to believe that a person has committed any offence specified in Clauses (a) to (d) of Sub-Section (1) of Section 132 of the said Act; that such power is confined to cognizable and non- bailable offences; under Sub-Section (3) of Section 69 bail can also be 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....
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....nd others have, by moving this court under Article 32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Art. 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such 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....
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....f the guidelines mandated by the Apex Court in case of D.K.Basu vs. State of West Bengal as also in case of Arnesh Kumar vs. State of Bihar and those enlisted by this Court in case of Vimal Yashwantgiri Goswami vs. State of Gujarat, whereby the respondents have caused the infringement of fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. 10.2. Apt would be to refer to the directions 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 b....
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....e permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements 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 th....
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....However, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach 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 cur....
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....ing with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, 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 ....
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....first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition 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 induce....
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....red under Section 41(1), Cr.PC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.PC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid. We are of the opinion 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 discou....
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....sons of belief and furnish the same to the person who is sought to be arrested? A. (i) The Commissioner is required to record reasons of belief to arrest a person as per sub-section (1) of Section 69 of the CGST Act. However sub-section (2) and sub-section (3) of section 69 with reference to the provisions of sub-section(4) and sub-section (5)of section 132 of the CGST Act, differentiates between the cognizable and non cognizable offences. The sub-section (2) of section 69 provides for informing such a person about grounds of arrest if he is alleged to have committed a cognizable and non bailable offence and sub-section (3) authorises the Deputy Commissioner 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 provide....
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....uld be supported by supervening factor. It is not any and every material, howsoever vague and indefinite or distant remote or far-fetching, which would warrant the formation of the belief. (iv) The power conferred upon the authority under Section 69 of the Act for arrest could be termed as a very drastic and far-reaching power. Such power should be used sparingly and only on substantive weighty grounds and reasons. (v) The power under Section 69 of the Act should neither be used as a tool to harass the assessee nor should it be used in a manner which may have an irreversible detrimental effect on the business of the assessee. (vi) The above are merely the incidents of personalliberty 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 ....
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....re, 1973. The authorised officer, after arresting such person, has to inform that person of the grounds for such arrest, and the person arrested will have to be taken to a Magistrate without unnecessary delay, if the offences are cognizable and non bailable. However, the provisions of Sections 154 to 157 of the Code will have no application at that point of time. Otherwise, sub-section (3) of section 69 provides for granting bail as the provision does not confer upon the GST officers, the powers of the officer in charge of a police station in respect of the investigation and report. Instead of defining the power to grant bail in detail, saying as to what they should do or what they should not do, the short and expedient way of referring 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 mea....
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....e officers of the Enforcement Directorate including the Directorate of Revenue Intelligence ('DRI'). This also included officers exercising powers under the Customs Act, 1962 the Central Excise Act, 1944 and the Foreign Exchange Regulation Act, 1973 (FERA') now replaced by the Foreign Exchange Management Act, 1999 ('FEMA') as well. It observed: "30. Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Costal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R.A.W, Central Bureau of Investigation (CBI) , CID, Tariff Police, 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 w....
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.... emphasised in the context of the powers of police officers under the Code of Criminal Procedure and of officers of central excise, customs and enforcement directorates, are applicable to the exercise of powers under the GST Act in equal measure. An officer whether of the Central Excise department or another agency like the DGCEI, authorised to exercise powers under the Central Excise Act and/or the FA will have to be conscious of the constitutional limitations on the exercise of such power. However, in context of D.K.Basu(supra),we would like to clarify that the law laid down by the Supreme Court in case of Poolpandi and others v. Superintendent, Central Excise and others reported in (1992) 3 SCC 259 has either been set aside or has been deviated from. It appears in paragraph no. 38 of the said judgment 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....
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....f arrest. Although, Section 69 uses the word "inform" in the context in which it appears, yet a mere communication of the grounds would not be sufficient. Merely reading out the grounds of arrest to the detenu would defeat the very object of requiring the reasons to believe to be recorded in writing and communicated to the detenu. 80. In the aforesaid context, we may refer to and rely upon the Constitution Bench decision of the Supreme Court in the case of C.B.Gautam v. Union of India & ors. reported in 1993 (1) SCC 78. The said decision is in the context of the Income Tax Act. The judgment explains the importance and the obligation to record reasons and convey the same to the party concerned. The judgment explains that such a course would operate as a deterrent against the possible arbitrary action by the quasi- judicial or 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 befor....
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....est." While producing the person arrested under Section 69 of the CGST Act, the importance of valid, proper and exhaustive arrest memo should not be undermined. Every authorized officer under the Act, 2017 carrying out arrest must be clear that the preparation of an arrest memo is mandatory. At this stage, we may state the guidelines issued by the Supreme Court in D.K. Basu (supra): "(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags 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 and 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 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 c....
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....sing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board." The safeguards mandated through the above-referred guidelines, particularly the requirement to prepare an arrest memo, are directed towards "transparency and accountability" in the powers to arrest and detain. These safeguards flow from the fundamental rights guaranteed in Articles 21 and 22 respectively of the Constitution of India. The life and liberty of a person is secured under Article 21 and supplemented by Article 22 that provides key protection against the arbitrary arrest or detention to every arrested person. 82. Unlike the powers of the police to lodge and register F.I.R. at the police station, the authorized officer under the GST can only lodge a complaint in writing before the Court concerned. Again the cognizance of such complaint has to be taken by the Court concerned only in accordance with 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 th....
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.... Criminal Procedure (hereinafter referred to as "CrPC" for short) and the Drugs and Cosmetics Act, 1940 (hereinafter referred to as "the Act" for short)? Whether in respect of offences falling under chapter IV of the Act, a FIR can be registered under Section 154 of the CrPC and the case investigated or whether Section 32 of the Act supplants the procedure for investigation of offences under CrPC and the taking of cognizance of an offence under Section 190 of the CrPC? Still further, can the Inspector under the Act, arrest a person in connection with an offence under Chapter IV of the Act." What is important to note are the observations made by the Supreme Court in para-92 which reads thus: "92. The person arrested is not to be subjected to more restraint than is necessary to prevent his escape, declares Section 49 of the CrPC. Every Police Officer or other person, arresting a person without a warrant, is bound forthwith to communicate to him all particulars of the offence 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 com....
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.... statement recorded under Section 67 and the same had been assailed on the ground of having been obtained under duress. To substantiate that arguments, it was emphasized that the series of statements were recorded from many of the accused persons. The Court held that that is no ground for further statement given under duress and the persons involved in such organized criminal activity since would not readily volunteer to give inculpatory statement. A tactful and specialized method of interrogation will be required to be resorted to bring out the truth. The Court further held when alleged of prolonged illegal detention and therefore, the statement not being free or voluntarily referring to para 11 of the judgment in case of Poolpandi and others vs. Superintendent of Central Excise, reported in 1992 (3) SCC 259, that the purpose of inquiry under the Act and other similar statute would be completely frustrated if the whims of the persons in possession of useful information for the department is allowed 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 Co....
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.... the appellant therein was entitled to the presence of a counsel at the time of recording of his statement under Section 108 of the Act. In that context, this Court considered the ratio of Romesh Chandra Mehta's case and Illias case (supra) and held that "just, fair and reasonable test" could not be extended to a person whose statement was required to be recorded under Section 108 of the Act and the failure to give counsel's assistance is not violative of either Article 21 or Article 20 (2) or Article 20 (3) of the constitution. In that context, it was further held at page 247 that the purpose of inquiry under the Act and other similar statutes "will be completely frustrated if the whim of the persons in possession of useful information for the department are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them n adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company". The contention of Shri Thakur t....
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.... and even without technicality to gain supremacy over substantive justice, this Court cannot overlook the ratio decidendi in the judgment. 12. Reverting to the case on hands, it is evincible that the arrest has taken place after this Court issued the notice in a habeas corpus petition preferred by the brother of the respondent no.6. The respondent no.6 is not disputed to have been called for inquiry since 18.03.2022 and at no point of time he was allowed to go to his residence even after the period of 24 hours. 12.1. We also reiterate and appreciate the fairness on the part of learned Public Prosecutor and also the learned Assistant Public Prosecutor who have not attempted to shield the action of the officers when specifically a query was raised by this Court. It is also admitted that although in case of Vimal Yashwantgiri Goswami (supra) the Court had emphasized the need for the guidelines to be prepared in case of GST matters and the GST department is directed to prepare and prescribe the standardized guidelines and format for 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 affida....
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....t is alleged that more than 131 bogus firms were created or operated in which input tax credit to the tune of Rs. 291 crores was claimed and availed and Rs. 340 crores was passed on. Based on this search proceedings, verification of material, evidences and statements recorded under Section 70 of the GGST Act and CGST Act, the findings culled out have been incorporated in this arrest memorandum. It also reveals that Mr. Hitesh Mukeshbhai Patel along with other co-conspirators has in lieu of monetary greed created several companies and firms incorporating unknown persons as directors, partners, proprietors and obtained the GST registration of the said firms. Mr. Patel also availed input tax credit without having any inward supply and by resorting to the fake inward supply from various entities and thereby claimed and availed elicit input tax credit to the tune of Rs. 291 crores. He had been accordingly arrested where the date shown is 23.03.2022, 3:00 pm. The State Tax Officer in his affidavit-in-reply also has reiterated these details. Respondent 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 wr....
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.... 5,122 crores as alleged by the officers that number by itself will not permit any authority to evade adopting to the required procedure prescribed under the law. It is a time-tested law where emphatically every Court has mandated the need for the same to be scrupulously followed, particularly when arrest is effected without warrant and period of interrogation exceed 24 hours. Even while accepting that GST officials are not police officials, they are the State instrumentalities who are bound by the law laid down in connection with the arrest of a person. Therefore, by presenting such figures also, the authority cannot seek immunity for its action which is otherwise not sustainable under the law. The continuous action of inquiry and interrogation by issuance of summons even when permissible, the authority to so do it, shall be bound by a prescribed time period and still when there is a need found for further and continuous interrogation, the remand is permissible for which only course to be adopted is of approaching the Court which , of course, the GST did, but, after about four days. If any illegality in following procedurality by the police officers is also impermissible, how it c....
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....umstance, is there a need of continuous education to strengthen the system! (iv) The GST Authority is also directed to formulate the procedural guidelines to deal with all persons who are suspects and eventually made accused and arrested. Let the same be done within eight (08) weeks without fail. A copy of which shall be sent to this Court for perusal by way of due compliance of the directions. Till then, the procedure prescribed in case of D.K.Basu and other authorities shall be adhered to strictly. (v) The petitioner since is yet to challenge the arrest and other subsequent actions, before the competent forum, liberty of his granted on 06.05.2022 shall continue for one week further to strike a balance where nothing observed here shall prejudice the right of either side. (SONIA GOKANI, J) (MAUNA M. BHATT,J) Mrs. Mauna M. Bhatt, J. (supplementing) 16. I've had the benefit of reading the scholarly judgment authored by my esteemed sister Hon'ble Ms. Justice Sonia Gokani. 17. With respect, I find myself in complete agreement with the reasoning and the conclusion arrived at by Sister Gokani, J. Even though the judgment delivered by Sister Gokani, J. enc....
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....wered by this Court is whether the extraordinary powers of this Court under Article 226 of the Constitution of India need to be exercised in the facts and circumstances of the case and a writ of habeas corpus be issued. 21. Illegal detention is a precondition for issuance of a writ of habeas corpus. I am of the opinion that in the facts of this case, the custody of Corpus - Respondent No. 6 no longer remain illegal. Apart from the reasoning provided by Sister Gokani, J. in this respect, one additional factor that has driven me to hold the same is also because the Petitioner has not challenged the summons issued under Section 70 of the Act. Therefore, in a case where the very basis leading to arrest on 23.03.2022 has not been challenged by the Petitioner, the Court is precluded to hold that the Corpus- Respondent No. 6 has been illegally detained merely because repeated summons were issued. In this regard, I have the benefit of and place reliance on the decision rendered in the case of A.K. Gopalan v. Union of India reported in AIR 1966 SC 816, wherein the Hon'ble Supreme Court held that "it is well settled that in dealing with a petition for habeas corpus the Court is to see whe....