TaxTMI 
TaxTMI 
2026 (10) TMI 95
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....d of twenty-four hours prescribed under Article 22(2) of the Constitution of India, 1950, for production of the Petitioner before the nearest Magistrate, commenced on 6:15 A.M. of 20.08.2026 being the time when the Petitioner was actually deprived of his personal liberty and taken into custody, consequently stood exhausted at 6:14 A.M. on 21.08.2026; 1.2. Further, issue an appropriate writ, order or direction declaring that, since the Petitioner was produced before the Magistrate only at about 11:00 A.M. on 21.08.2026, i.e. after the constitutionally prescribed period of twenty-four hours had elapsed, the further and continued detention and custody of the Petitioner pursuant to the orders dated 21.08.2026 and 03.09.2026 (Annexures P-11 and P-12), respectively, as also pursuant to all subsequent orders extending such custody, are illegal, unconstitutional and violative of the fundamental rights guaranteed to the Petitioner under Articles 21 and 22(2) of the Constitution of India. 2. Briefly stated, the Petitioner, engaged in lawful business and duly registered under the GST Act, apprehending arrest, approached the Sessions Court, where the Respondents assured that seven workin....
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....wer of arrest. It has been asserted that the petitioner was not arrested or subjected to any restraint prior to 23:30 hours and that the proceedings undertaken prior thereto were confined to search, inquiry and issuance of summons in accordance with law. The respondents have accordingly maintained that the period of twenty-four hours contemplated under the applicable constitutional and statutory safeguards could commence only from the time at which the petitioner was actually arrested in accordance with Section 69 of the CGST Act. It has also been contended that the earlier statement furnished before the Court regarding notice did not operate in the manner suggested by the petitioner and stood duly complied with. On these premises, the respondents have prayed for dismissal of the petition. 4. Learned counsel for the Petitioner argued that, for the purposes of Article 22(2) of the Constitution of India, the commencement of arrest is required to be reckoned from the point of actual deprivation of personal liberty and effective custodial restraint, and not from the subsequent formal recording of arrest. In the present case, although the search commenced at about 5:54 A.M. on 20.08.....
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....hallenged. Relying upon Gautam Navlakha vs. NIA, (2022) 13 SCC 542, V. Senthil Balaji vs. State, (2024) 3 SCC 51 and SFIO vs. Rahul Modi, (2019) 5 SCC 266, it was contended that once judicial custody is authorised by a competent Court through orders which are not ex facie without jurisdiction or wholly mechanical, a petition for habeas corpus is not maintainable merely to assail the antecedent manner or timing of arrest. The legality of the present custody, therefore, has to be examined with reference to the subsisting remand orders and not merely the time of formal arrest. 5.1. Learned counsel further argued that custody and arrest are distinct legal concepts and that the Petitioner's presence during search and enquiry proceedings under Section 70 of the GST Act could not, by itself, be equated with arrest. Reliance was placed upon Roshan Beevi vs. Joint Secretary to Government of Tamil Nadu, 1984 Cri LJ 134 and Directorate of Enforcement vs. Deepak Mahajan, (1994) 3 SCC 440, to contend that every arrest necessarily involves custody, but every custody does not amount to arrest. It was submitted that the Petitioner's reliance upon the observations concerning restraint and loss o....
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.....2026 had occurred. It was argued that the statement regarding seven working days' prior notice was made in the context of the Petitioner's undertaking to cooperate with the enquiry and did not constitute a judicial order restraining arrest or curtailing the statutory power of the competent authority under Section 69(1) of the GST Act. The Petitioner, having failed to cooperate with the enquiry and having thereafter filed a fresh anticipatory bail application, could not claim any continuing legitimate expectation on the basis of the said statement. Reliance was also placed upon the subsequent departmental communication dated 22.04.2026 and the fact that the Petitioner was afforded further opportunity before arrest. 5.5. It was lastly contended that the grounds of arrest were duly furnished to the Petitioner in writing and were preceded by separate Reasons to Believe, setting out the material relied upon by the competent authority and the necessity for arrest. The alleged irregularities concerning the panch witnesses, search of adjoining premises and stock-taking proceedings, according to learned counsel, relate at best to the evidentiary value of the material collected during in....
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....amined in the context of the actual commencement of custody or detention, and not merely by reference to the subsequent formalisation or documentation of arrest. The issue consequently is not confined to determining the time mentioned in the arrest memo, but requires an assessment of when the petitioner's liberty was, in substance and effect, first subjected to restraint. 6.4. At this stage, the statutory safeguards governing the exercise of the power of arrest under Section 69 of the CGST Act also require consideration in conjunction with the undertaking stated to have been furnished by the Department before the learned Additional Sessions Judge during adjudication of the anticipatory bail application, particularly with regard to whether the notice issued/served upon the petitioner was in due compliance with the terms of such undertaking. 6.5. Thus, the legality of the petitioner's arrest and the consequential compliance with Article 22(2) of the Constitution of India and Section 57 Cr.P.C. (Section 58 BNS) would require a cumulative consideration of the actual point of restraint, the nature and extent of custody, the time of formal arrest, the circumstances preceding such a....
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....er:- 40. The modality of arrest as contemplated under Section 46 is that while making an arrest, a police officer or other person making the same (arrester)- "(1) Should actually touch the body of the person to be arrested or (2) Should actually confine the body of the person to be arrested." 41. These kinds of modality of arrest are not necessary in case the person intended to be arrested submits, either by word or by action, to the authority of the arrester. In other words, if the person to be arrested submits to the authority or control of the arrester, the latter need not actually touch or confine the body of the person to be arrested. Conversely, if he does not so submit himself to the authority of the arrester, any of the two conditions mentioned above, viz., the touching or confinement of the body of the person to be arrested should be satisfied. 8.2. Learned counsel for the petitioner further placed reliance upon paragraph No.46 of the aforesaid judgment, which, according to him, elucidates the circumstances in which the factum of arrest is required to be determined with reference to the substance of the restraint exercised over the in....
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....ced hereunder:- 46. The word 'arrest' is derived from the French word 'Arreter' meaning to stop or stay" and signifies a restraint of the person. Lexicologically, the meaning of the word 'arrest' is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. d Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N.17 had an occasion to go into the gamut of the meaning of the word 'arrest' with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury's Laws of England, A Dictionary of Law by L.B. Curzon, Black's Law Dictionary and Words and Phrases. On the basis of the meaning given in those textbooks and lexicons, it has been held that: "[T]he word 'arrest' when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go w....
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....tutory arrest/preliminary inquiry and de facto custody. xxxxx 11.3 It is a settled principle of jurisprudence that while interpreting provisions that intend to safeguard fundamental human rights, the Court must adopt a Pro Homine approach. A narrow and pedantic interpretation of "arrest" would not merely be a legal error; it would be a constitutional apostasy. It would defeat the very purpose of the provision, which is to prevent clandestine/illegal detentions. It would tantamount to condoning an illegality that perpetuates under the colour of authority and granting the concerned authorities a temporal immunity to operate in a vacuum where the individual detained is neither free nor yet under the protective aegis of statutory safeguards. Such a vacuum is abhorred by the law as the same is antithetical for a system governed by the Rule of Law. Ergo, for the twenty-four-hour mandate, as provided under Section 57 CrPC/58 BNSS/Article 22(2) of the Constitution, it must be reckoned from the exact moment of physical deprivation of personal liberty, for any delay beyond this window, however, seemingly minute, constitutes a constitutional trespass that the law ca....
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....on behalf of the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5^ (th) March, 2022. Thereafter, at 1.15 hours on 6^ (th) March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6^ (th) March, 2024. The perusal of the arrest order(Annexure p-1) shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5^ (th) March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. Thus, the continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custod....
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....ssary for the journey to the Magistrate. The relevant constitutional and statutory provisions are reproduced hereunder:- Article 22 of the Constitution of India 22. Protection against arrest and detention in certain cases (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2). Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. & Section 58 of Bharatiya Nagarik Suraksha Sanhita 58. Person arrested not to be detained more than twenty-four hours. - No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall n....
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.... as would amount to arrest. His continued presence, in the absence of material demonstrating actual or coercive curtailment of his liberty, is distinguishable from a situation where an individual is deprived of his freedom of movement and placed under the control of the arresting agency. This conclusion is further fortified by the petitioner's own contemporaneous stand taken before the Magistrate. In the regular bail application filed by him, the petitioner specifically stated in paragraph 5 that he had been arrested on 20.08.2026 at about 11:30 P.M. vide Arrest Memo dated 20.08.2026. The relevant portion of paragraph No. 5 of the said bail application is reproduced hereunder:- 5. That notwithstanding the above, and without honouring the undertaking dated 18.03.2026 or affording the notice period assured therein, the Applicant came to be arrested on 20.08.2026 at about 11:30 P.M., vide Arrest Memo dated 20.08.2026, and is presently in the custody of the Respondent Department. The Applicant is being produced before this Hon'ble Court today, i.e., on 21.08.2026, within twenty-four hours of arrest, in terms of Section 69(2) of the CGST Act, 2017 read with Article 22(2) of....
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..... The first such summons was served on 18.03.2026, whereafter the petitioner approached the Sessions Court by filing anticipatory bail application No.573/2026 on 20.03.2026, which came to be dismissed on 09.04.2026. Learned counsel contended that the said application was dismissed on merits, inter alia, in view of the petitioner's alleged non-cooperation with the inquiry proceedings. It was further submitted that another notice was served upon the petitioner on 22.04.2026, notwithstanding which he neither appeared before the Department nor produced the requisite documents. Attention was drawn to paragraph No.5 of the said notice, wherein the petitioner was specifically cautioned that non-appearance would be construed as non-cooperation and an attempt to delay the proceedings. Learned counsel, therefore, contended that the petitioner had been afforded repeated opportunities and sufficient notice before his eventual arrest, which took place nearly four months after the said communication, and that the undertaking stood duly complied with in substance. 10.3. In order to appreciate the rival submissions in their proper perspective, it would be necessary to first examine the precise ....
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....he CGST Act, requiring a person to appear before the proper officer and furnish evidence or documents in connection with an inquiry, can be regarded as the seven working days' prior notice of arrest contemplated by the statement recorded in the aforesaid judicial order. Section 70 of the CGST Act reads as under:- Section 70. Power to summon persons to give evidence and produce documents.- (1) The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908 (5 of 1908). (1A) All persons summoned under sub-section (1) shall be bound to attend, either in person or by an authorised representative, as such officer may direct, and the person so appearing shall state the truth during examination or make statements or produce such documents and other things as may be required.] (2) Every such inquiry referred to in sub-section (1) shall be deemed to be a "judicial proceedings" within the meaning of section 193....
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.... in law, be regarded as compliance with the specific assurance recorded by the Court that, if the petitioner's arrest became necessary, he would be afforded seven working days' prior notice. In my considered view, the two communications operate in distinct statutory fields. A summons under Section 70 calls upon the person concerned to appear for the purposes of giving evidence or producing documents or other material in an inquiry; it does not, merely by its issuance, communicate that the competent authority has decided to exercise the statutory power of arrest under Section 69 or that arrest has become necessary. Indeed, the statutory scheme itself recognises Section 70 as the power to summon and Section 69 as the distinct statutory source of the power to arrest. 10.9. Consequently, the mere fact that the petitioner received summons under Section 70 and that a period of more than seven days elapsed thereafter cannot, without more, be treated as fulfilment of the undertaking recorded before the Court. What was assured was seven working days' prior notice in the event arrest was considered necessary, whereas the communications relied upon by the respondents were summonses requiri....
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....e principles of fairness and natural justice, particularly having regard to the person's right to avail the remedy of pre-arrest bail and to challenge the reasons forming the basis of the arrest order. The Hon'ble Supreme Court has expressly held that, without such communication, "the question of arrest would not arise." The relevant observations contained in paragraphs 17 to 22 of the judgment are reproduced hereunder:- We are inclined to accept the contention of Mr. Agarwal. The order under Section 69 of the CGST Act, as held, being a sine qua non to seek anticipatory bail, it would be an anomaly to hold that the order need not be communicated at all, much less, be communicated after the arrest of such person. In any case, communication of the order would not, in any manner, obstruct the investigation ensued by the department. On the contrary, it reinforces the right of the accused to seek anticipatory bail as stipulated in Sushila Aggarwal v. State (NCT of Delhi). 19. A 5-Judge Bench of this Court in Gurbaksh Singh Sibbia v. State of Punjab, which has also been relied upon by the Bench in Radhika Agarwal (supra), intertwined personal liberty as an important fac....
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....e Tax Rules, 201718 mandates that a person seeking registration under the CGST Act must provide an email address and mobile number. Thus, the order may be communicated through electronic means in addition to the mode, as permitted under the BNSS, as well as all other permissible modes of communication. This would enable an accused to seek remedy that the law provides to him, if so advised. 22. In view of the aforesaid, we require the Commissioner to communicate the order under Section 69 of the GST Act to the respondent in the manner indicated in the preceding paragraph, whereafter he may pursue such remedy Maneka Gandhi v. Union of India, (1978) 1 SCC 248 CGST Rules as he may be advised. We reiterate, without such communication, question of arrest would not arise. 11.2. Learned counsel appearing for the respondent contended that the requirement laid down by the Hon'ble Supreme Court in Sunil Biyani's case (supra), stands duly complied with, as the relevant order/authorisation under Section 69 of the CGST Act had been duly communicated to the petitioner. In support of the said submission, reliance has been placed upon Annexure P-5. It was submitted that Annexure P-5 ....
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....er, the position emerging from the record is materially different. Though reliance has been placed by learned counsel for the respondents upon Annexure P-5, describing the same as the relevant arrest memo, the said document merely records that the Principal Commissioner/Commissioner had reasons to believe that the petitioner had committed an offence falling within the ambit of Section 132(1)(a) to (d) of the CGST Act and that an officer had been authorised to arrest him. Significantly, neither the actual order passed by the Principal Commissioner/Commissioner under Section 69(1) of the CGST Act, nor the reasons to believe recorded therein, nor the material and evidence forming the basis of such satisfaction, has been placed on record by either side. 11.5. Thus, what assumes significance is not merely whether the petitioner was furnished with an arrest memo, but whether the statutory order contemplated under Section 69(1), embodying the Commissioner's independent satisfaction and the reasons constituting the foundation for authorising the arrest, was in existence and was communicated to the petitioner prior to the arrest. On the material presently available on record, there is no....