1. The petition is preferred seeking the directions of issuance of writ of habeas corpus for the respondent no.6 – brother of the present petitioner, allegedly illegally confined by the GST Officer – respondent no.2 since 18.03.2022. The respondent no.6 is the real brother of the petitioner and is engaged professionally as tax consultant. He also works in relation to the license. The petitioner and his brother both reside together.
2. It is averred by the petitioner 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 premise by the guards. He was not permitted as except with the permission of the concerned officer, such entry was not allowed. In order to know the whereabouts of the respondent no.6, the GST officers were called by the petitioner and from the raiding team’s mobile number being 9979651283, such inquiry was made. The petitioner learnt that the respondent no.6 has been called under the pretext of recording his statement pursuant to the raid conducted at Mr. Bharat Patel’s residence. He was to be allowed to go home in a couple of hours. He was also ensured that the respondent no.2 would make petitioner speak to the respondent no.6. He therefore waited till 3:00 am in the morning and had no option but to return to the residence.
2.3. The next day i.e. on 19.03.2022, the petitioner again went to the GST office and was not allowed the entry. He again failed to get any information about the whereabouts of respondent no.6 and therefore, he tried to contact the respondent no.2 on his mobile number being 9638841415. He was conveyed by the respondent no.2 that the statement of respondent no.6 was being recorded and he would be released shortly. On 02.03.2022, the two pairs of the cloths had been given to one GST officer at the main gate of the GST office building, however, he was not allowed to meet the respondent no.6 and the interrogation continued. The respondent no.6 was detained at the GST office. Petitioner was in touch with the respondent no.2 and was informed every time that they are on the verge of concluding the statement of respondent no.6 and would release him in some time. Therefore, it is alleged that the respondent no.6 is in illegal custody of the respondent authorities. The screen shot showing the phone calls made to the respondent no.1 and one GST officer having mobile also is forming part of the annexures.
2.4. It is further averred that neither the petitioner nor anyone is given the copy of FIR, arrest memo or any such document nor a copy of panchnama is shared and therefore, it is emphatically alleged that the respondent no.6 is illegally detained without any cogent reason. The document and details regarding custody of the respondent no.6 was denied to be parted by the GST officials and the respondent no.2.
2.5. It is further averred that the respondent no.5 was contacted on his mobile number being 9898390452, however, the same had been switched 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 informing that the respondent no.6 has been arrested at 3:00 pm during the pendency of the present application and will be produced before the learned Chief Judicial Magistrate at around 5:30 pm.
2.8. Pursuant to the respondent no.6’s arrest, he was produced before the learned Chief Judicial Magistrate, Ahmedabad in the evening and a remand application was filed by the GST officer including the respondent no.2 for 14 days. Therefore, the application was moved by the advocate before the concerned Court for the respondent no.6 differing the remand application along with the objections raised against the same. The attention was also drawn of the Court on the order passed by this Court dated 23.03.2022 directing the respondent no.2 to present the respondent no.6 before this Court on 24.03.2022 at 11:00 am. The Court was also conveyed with regard to the illegal detention of the respondent no.6 from 18.03.2022, however, what the Court did was to direct the sending of the respondent no.6 to Sabarmati Jail along with yadi and to make him present before this Court as per the order dated 23.03.2022.
2.9. Again, the grievance on the part of the petitioner is that the respondent no.2 never provided a copy of the arrest memo, grounds of arrest etc. to the advocate of the respondent no.6 and the same had been provided at around 6:00 pm on 23.03.2022 right before presenting him before the learned Chief Judicial Magistrate, Ahmedabad and the signature of the respondent no.6 had been taken and yet, the arrest memo, ground of arrest etc. had not been provided till the end of the hearing of the remand application. The grievance is of not following the guidelines as per the case of D.K.Basu vs. State of West Bengal, reported in AIR 1997 SC 610 and as per the case of Vimal Yashwantgiri Goswami vs. State of Gujarat, reported in (2020) 121 3 (Gujarat) which has caused the infringement of fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. According to the petitioner, Article 21 since provides that no person shall be deprived of his life and personal liberty except according to the procedure established by law, this expression would also include the right to live with human dignity and this is a guarantee against any torture, assault or breach of any procedure established by law. The respondent no.6 since was not allowed to meet any family members or 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 delay excluding the time necessary for the journey.
2.12. During the course of the investigation, according to the petitioner, an accused can be kept in detention beyond a period of 24 hours when it is authorized by the Magistrate in exercise of powers under Section 167 of the Code of Criminal Procedure, which has not been done by the respondent no.2 authority. He was presented before the learned Magistrate much beyond 24 hours of his detention by the officers. The reasons and conclusion of the arrest also need to be furnished to the learned Magistrate and he has to satisfy that the condition precedent for the arrest as per the provision under Section 41 of the Code of Criminal Procedure and thereafter only, it can authorize the detention of the accused. The safeguards given under the Code of Criminal Procedure also applies for the offences under the GST Act and this matter shows a clear violation as no person as per the constitution shall be deprived of his life and liberty under Articles 21 and 22 of the Constitution unless restricted by the procedure established by law.
2.13. The petitioner therefore is before this Court seeking the issuance of writ of habeas corpus or any other appropriate writ with the following prayers:-
“(A) To issue a writ of habeas corpus or any other writ, order or direction directing the respondent no.2 to produce the corpus of respondent no.6 – brother of present petitioner before this Hon’ble Court from the illegal custody of respondent no.2;
(B) During the pendency of admission, hearing and final disposal of this petition, be pleased to direct the respondent no.2 to 5 to produce respondent no.6, brother of the petitioner, before this Hon’ble Court, who is kept under illegal and wrongful confinement of the respondent no.2;
(C) To pass any other and further orders as may be deemed fit and proper.”
3. This Court issued notice on 23.03.2022 making it returnable on 24.03.2022. As mentioned herein above, before 24.03.2022 his arrest had been shown on 23.03.2022 at 4:00 pm however, learned advocate Mr. Bhadrish Raju appearing for the respondent had urged that the draft amendment should be permitted with the joint request which eventually was allowed. However, there appears to be no challenge to the subsequently passed order.
4. The affidavit-in-reply filed on behalf of respondent no.2 – Mr. B.D.Trivedi, 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 further urged that the corpus was explained his right to appoint a lawyer and was handed over a copy of arrest memo and grounds of arrest moreover, it is reiterated that the real brother of the corpus and his advocate have visited the head office and taken mobile number of the Investigating Officer. His brother was in constant touch of the Investigating Officer and he being aware of his presence at the head office and his interrogation under Section 70 of the CGST and GGST Act, there is hardly any illegal detention. The allegation is reiterated of his having a prominent role in perpetrating the scam which has caused huge loss of revenue to the Government. The quantum of such tax evasion necessiated the arrest of the corpus as provided under Section 132 of the GST Act and hence, the proposal for authorization to arrest the corpus Hitesh Patel and Bharat Patel also had been made by the competent authority. Accordingly, the arrest has been made under Section 69(1) of the Act.
6. Marathon arguments on both the sides continued and periodically the adjournments also were sought on both the sides. Eventually, on 06.05.2022 (before the summer vacation started from 07.05.2022) it was not feasible to complete the oral submissions and therefore, this Court on that day passed a detailed order after hearing both the sides allowing the restricted liberty to the corpus. The same had been thereafter scheduled on 06.06.2022, however, on that day with a joint request, it was scheduled on 10.06.2022 and the arguments got concluded by both the sides.
7. The emphasis on the part of learned advocate Mr. Bhadrish Raju is of a clear violation of mandate given by the Constitution under Articles 21 and 22 and various authorities laid down in production of the corpus and the accused. Along the line of memo of petition, the arguments have been made where his emphasis all along is of detaining the person in custody beyond a period of 24 hours. Reliance is placed on the following authorities for substantiating his version.
(i) Agrawal Foundries Pvt. Ltd. vs. Union of India, reported in 2021 (44) G.S.T.L. 240 (Telangana)
(ii) Madhu Limeya and Others, reported in 1969 (1) SCC 292.
(iii) Vimal Yashwantgiri Goswami vs. State of Gujarat, reported in (2020) 121 3 (Gujarat).
8. On the part of learned Public Prosecutor Mr. Mitesh Amin assisted by learned Additional 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 Jebalia vs. State, reported in (2003) 3 GLR 2096;
(ii) Serious Fraud Investigation Office vs. Rahul Modi and Another, reported in (2019) 5 SCC 266;
9. On thus having heard both the sides extensively and having perused the material on the record so also the authorities, firstly, the law on the subject shall need to be discussed.
9.1. Taking firstly the law on the subject in case of Serious Fraud Investigation Office vs. Rahul Modi and Another, reported in (2019) 5 SCC 266, Challenge was made before the Apex Court to the correctness of the common interim order passed by the High Court of Delhi in exercise of powers conferred by Section 212(1)(c) of the Companies Act, 2003 and Section 3(c)(i) of the Limited Liability Partnership Act, 2008. The central Government directed the investigation into the affairs of Adarsh Group of Companies and LLPs by officers of Serious Fraud Investigation Office (SFIO) as nominated by Director, SFIO. On the very date i.e. on 20.06.2018, the order was passed by the Director, SFIO. The period mentioned in Clause-6 of the order dated 20.06.2018 came to an end on 19.09.2018. Based on the material gathered during investigation, the approval was sought under the Rule 2 of the Companies (Arrests in connection with investigation by SFIO) Rules, 2017 from the Director, SFIO to arrest three accused persons, one of them was Rahul Modi. The arrest was made on 10.12.2018 and he was produced before the Duty Magistrate, District Court, Gurugram, Haryana on 11.12.2018. After hearing the counsels for the appellant as well as for the accused, the Judicial Magistrate, First Class, Gurugram by order dated 11.12.2018 granted remand till 14.12.2018 and directed that they be produced before the Special Court (Companies Act), Gurugram on 14.12.2018. An application seeking remand sought had made out a case for custody of the accused. The documents had reflected serious allegations and the accused since was produced under Section 167 of the Code of Criminal Procedure seeking remand, the Court exercised the powers in terms of Section 436(1)(B) and the Court held that the case prima facie attracts Section 447 of the Companies Act which makes the offence cognizable and non-bailable. Considering the gravity, the Court granted custody of these accused to SFIO for three days.
On 13.12.2018, a proposal was made by SFIO seeking approval of Central Government 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 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 considering whether the writ petitioners were entitled to any interim relief, two questions were framed by the High Court in paragraph 15 of its Order. Before considering the matter from the perspective of said two questions, an issue which was stressed by the learned Solicitor General may be addressed first. It was submitted by him that the date with reference to which the legality of detention can be challenged in a Habeas Corpus proceeding is the date on which the return is filed in such proceedings and not with reference to the initiation of the proceedings. He relied upon the decision of the Federal Court in Basanta Chandra Ghose vs. King Emperor, which had concluded:
“… …If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention…. …”
18. Similar questions arose for consideration in Naranjan Singh Nathawan vs. State of Punjab, Ram Narayan Singh vs. State of Delhi, A.K. Gopalan vs. Govt. of India, Pranab Chatterjee vs. State of Bihar and Another., Talib Hussain vs. State of Jammu and Kashmir, Col.
Dr. B. Ramachandra Rao vs. State of Orissa and Others.
7. These decisions were considered in Kanu Sanyal vs. District Magistrate, Darjeeling and Others, as under:
Re: Grounds A and B.
4. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India:
“It is well settled that in dealing with the 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 the hearing.” In two early 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 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, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr Justice Dua in B.R. Rao v. State of Orissa, “concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus”. Now the writ petition in the present case was filed on January 6, 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Vizakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Vizakhapatnam. See para 7 of the judgment of this Court in B.R. Rao v. State of Orissa. The legality of the detention of the petitioner in the Central Jail, Vizakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them.” The law is thus clear that “in Habeas Corpus proceedings a 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”.
In Kanu Sanyal the validity of the detention of the petitioner in District Jail, Darjeeling was therefore not considered by this Court and it was observed that the infirmity in the detention of the petitioner therein in the District Jail, Darjeeling could not invalidate subsequent detention of the petitioner in the Central Jail, Vishakhapatnam.
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 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 writ of habeas corpus cannot be granted ‘where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal’.”
21. The principle laid down in Kanu Sanyal8, thus, is that any infirmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits.”
The Court allowed appeal by setting aside the High Court’s order and the accused were directed to remain present before the Special Court which was to decide on merits whether they were required to be remanded the custody.
9.2. In case of Agrawal Foundries Pvt. Ltd. vs. Union of India, reported in 2021 (44) G.S.T.L. 240 (Telangana), considering the challenge to the arrest under Section 69 of the Central Goods and Services Tax Act,2017, the Telangana High Court held that since no first information report gets registered before power of arrest under Section 69(1) is invoked, petitioners cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way it can seek protection against the pre-trial arrest is to invoke writ jurisdiction of High Court. An applicability of Section 438 specifically excluded, the High Court needs to be extremely cautious in exercising the same power indirectly by resorting to Article 226 of the Constitution of India.
“75. Merely because the authorities under the CGST Act, 2017 are not to be treated as police officials, they cannot claim any immunity if they indulge in acts of physical violence against persons they suspect of being guilty of tax evasion.
76. After India adopted the Constitution of India, protection against torture by State actors has been recognized as part of right to life and liberty guaranteed by Art.21 of the Constitution of India.
77. The Supreme court in D.K. Basu v. State of W.B. considered this aspect in considerable detail and held:
“10. “Torture” has not been defined in the Constitution or in other penal laws. “Torture” of a human being by another human being is 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 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 the purview of law.
13. “Custodial violence” and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948, which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Despite the pious declaration the MSR,J & TA,J ::26:: wp_28268_2019 crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication…. …
17. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 provides “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression “life or personal liberty” has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguards provided to a person with a view to protect 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 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 are some other provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold an enquiry into the cause of death.”
78. We would also point out that our country has enacted the Protection of Human Rights Act, 1993 for protection of human rights in the country in fulfillment of its obligations as a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16.12.1966. Under this Act, there are provisions for constitution of a National Human Rights Commission and also State Human Rights Commissions and their powers are set out with clarity under the Act. Reference can also be made to Section 30 of the said Act which provides for specification of a Court of Session in each District to be a Human Rights’ Court by the State Government so that offences arising out of violation of human rights are tried and disposed of speedily.
92. No doubt in P.V.Ramana Reddy (2 supra) a Division Bench of this court held that enquiry by officers of the GST Commissionerate is not a criminal proceeding, but it is a judicial proceeding; and under Sub- Section (1) of Section 70 of the CGST Act, 2017, the proper officer under the CGST Act has the power to summon a person either to give evidence or to produce a document; that if such person who is issued a summons gives false evidence or fabricates false evidence or intentionally offers any insult or causes any interruption to any public servant, under Sections 193 and 228 of the IPC, he would be liable for punishment; that though the High Court can entertain an application for pre-arrest protection under Article 226 of the Constitution of India, such power should be exercised by the High Court sparingly; that under Section 69 of the CGST Act there is power to order arrest in cases 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 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 scrupulously, observe the forms and rules of law. Whenever that is not done the petitioner would be entitled to a writ of Habeas Corpus directing his release.
11. It remains to be seen whether any proper cause has been shown in the return for declining the prayer of Madhu Limaye and other arrested persons for releasing them on the ground that there was noncompliance with the provisions of Art. 22(1) of the Constitution. In Ram Narayan Singh’s case it was laid down that the court must have regard to the legality or otherwise of the detention at the time of the return. In the present case the return, dated November 20, 1968, was filed before the date of the first hearing after the rule nisi had been issued. The return, as already observed, does not contain any information as to when and by whom Madhu Limaye and other arrested person were informed of the grounds for their arrest. It has not been contended on behalf of the State that the circumstances were such that the arrested persons must have known the general nature of the alleged offences for which they had been arrested; vide proposition No. 3 in Christie & Another v. Leachinsky. ((1947) 1 All ELR 567) Nor has it been suggested that the show cause notices which were issued on November 11, 1968, satisfied the constitutional requirement. Madhu Limaye and others are, therefore, entitled to be released on this ground alone.
12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been made mechanically. All that Mr. Chagla has said is that if the arrested persons wanted to challenge their legality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered that Madhu Limaye and 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, 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 arrested persons concerning the occurrences on November 5 and 6, 1968, which may be pending in the Courts in the State of Bihar and such proceedings shall be disposed of in accordance with law.”
10. What emerges from the record is that the petitioner received a call from the mobile number 9722388992 and the person informed the petitioner that the corpus – respondent no.6 has been arrested at 3:00 pm during the pendency of the present application and he would be produced before the learned Chief Judicial Magistrate, Ahmedabad at around 5:30 pm. The respondent no. 6 was accordingly produced before the Court of learned Chief Judicial Magistrate, Ahmedabad where the remand application was also filed by the GST authorities for 14 days. An application was filed by the learned advocate for the respondent no.6 seeking to defer the remand application by drawing the attention of the Court that this Court had passed an order on 23.03.2022 directing the respondent no.2 to present the respondent no.6 before this Court on 24.03.2022 at 11:00 am. The respondent no.6 alleged illegal detention from 18.03.2022 also was made known to the Court concerned and therefore, the Court had directed the corpus to be sent to the Sabarmati Jail along with yadi that he should be necessarily produced before this Court as per the direction.
10.1. The grievance on the part of the petitioner and the respondent no.6 is that the respondent no.2 had not provided the copy of arrest memo, grounds of arrest to the respondent no.6 or to the advocate at the time of arrest, however, it is also stated that respondent no.6 before being presented before the learned Chief Judicial Magistrate, Ahmedabad had been supplied the documents although what has been reiteratively emphasized is that only the signature was taken, a copy of arrest memo, grounds of arrest etc. was not provided to the learned advocate till the end of hearing of the remand application. What is essentially alleged is the clear breach of 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 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 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 town 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 he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record.
(10) The arrestee may be 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 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 All India Radio besides being shown on the National network of Doordarshan and by publishing and distributing pamphlets in the local language containing these requirements for information of the general public. Creating awareness about the rights of the arrestee would in out opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes.
PUNITIVE MEASURES UBI JUS IBI REMEDIUM There is no wrong without a remedy. The law will that in every case where man is wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.
Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 provide for punishment of those who inflict injury of grievous hurt on a person to extort confession or information in regard to commission of an offence. Illustration (a) and (b) to Section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These Statutory provisions are, 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 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 against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows:
“41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –
(a)x x x x x x
(b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary – to prevent such person from committing any further offence; or for proper investigation of the offence; or to prevent such person 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 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 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 which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.
An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be 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 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 are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.
Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows:
“41A. Notice of appearance before police officer.-
(1) The police officer shall, in all cases where thearrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, itshall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues tocomply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to complywith the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.” Aforesaid provision makes it clear that in all cases where the arrest of a person is not required 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 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 mechanism and procedure in case of arrest for nonbailable offences and bailable offences. The Court while concluding on the aspect of power to arrest as provided under Section 69 read with Section 132 of the CGST Act held and observed thus:-
“77. In view of foregoing reasons and conspectus of law and the analysis of provisions of the section 69 read with section 132 of the CGST Act and provisions of the Code, we may sum up our Final conclusion to answer the questions arising in these petitions as under:
(1) Q. whether the power to arrest as provided under section 69 read with section 132 of the CGST Act can be invoked by the Commissioner only upon completion of the adjudication process of finalising the assessment and determination of the liability as per the provisions of the CGST Act?
A. we are of the opinion that the power to arrest as provided under section 69 of the CGST Act can be invoked if the Commissioner has reason to believe that the person has committed offences as provided under the clauses (a), (b), (c) or (d) of sub-section(1) of section 132 of the CGST Act, which are punishable under the clause (i) or clause (ii) of sub-section (1) or sub-section (2) of the section 132 of the CGST Act without there being any adjudication for the assessment as provided under the provisions of the Chapter VIII of the CGST Act. The reference to section 132 in section 69 of the CGST Act is only for the purpose of indicating the nature of the offences on the basis of the same the reasonable belief is formed and recorded by the Commissioner for the purpose of passing an order of arrest.
(2) Q. whether the provisions of section 69 of the CGST Act envisages that the Commissioner is obliged to record his reasons 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 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 subjective consideration and hence he is not required to conclude that the person sought to be arrested is guilty of any offence. The expression ‘any person’ in Section 69 of the CGST Act includes a person who is suspected or believed to be concerned in the evasion of tax or availing illegal input tax credit. However, a person arrested by an authorised Officer because he is found to be evading tax or availing input tax credit as specified in the clauses (a) to (d) of the sub-section (1) of the section 132 of the CGST Act is not, when called upon by the authorised Officer to make a statement or to produce a document or thing, accused of an offence within the meaning of Article 20(3) of the Constitution of India. Where an authorised Officer arrests a person and informs that person of the grounds of his arrest, for the purposes of holding an inquiry into the infringement of the provisions of the CGST Act which he has reason to believe has taken place, there is no formal accusation of an offence. The accusation could be said to have been made when a complaint is lodged by an officer competent in that behalf before the Magistrate. The arrest and detention are only for the purpose of holding effective inquiry under the provisions of the CGST Act with a view to adjudging the evasion of GST and availing illegal input tax credit and imposing penalty.
(iii) The order authorising any officer to arrest maybe justified if the Commissioner or any other authority empowered in law has reasons to believe that the person concerned has committed the offence under section 132 of the Act. However, the subjective satisfaction should be based on some credible materials or information and also should 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 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 that such arrest is necessary and justified.
(3) Q. (i) Whether the provisions of sections 154, 155(1), 155(2), 155(3), 157, 172 of the Code of Criminal Procedure, 1973 are applicable or should be made applicable for the purpose of invoking the power to arrest under section 69 of the CGST Act? In other words, whether the authorised officer can arrest a person alleged to have committed non cognizable and bailable offences without a warrant of arrest issued by the Magistrate under the provisions of the Code of Criminal Procedure, 1973?
(ii)For the purpose of section 69(3) of the CGST Act, whether the officers of the GST department could be said to be a “police officer in charge of a police station” as defined under section 2(o) of the Code of Criminal Procedure, 1973?
A. (i) Any person can be arrested for any offence under the section 69 of the CGST Act, 1962, by the authorised officer to whom authority to arrest is given by the Commissioner if the Commissioner has reasons to believe that such person has committed an offence punishable under the clauses (a) to (d) of the subsection (1) which is punishable under the clause(i) or Clause (ii) of the sub- section (1) or sub-section(2) of the Section 132 of CGST Act and in such circumstances, the authorised Officer is not obliged to follow the dictum of the Supreme Court as laid in the case of Lalitha Kumari (supra).
(ii)When any person is arrested by the authorised officer, in exercise of his powers under Section 69 of the CGST Act, the authorised officer effecting the arrest is not obliged in law to comply with the provisions of Sections 154 to 157 of the Code of Criminal Procedure, 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 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 Section 25 of the Evidence Act.
(vi)The power to arrest a person by an authorised Officer is statutory in character and should not be interfered with. Section 69 of the CGST Act does not contemplate any Magisterial intervention.
(vii) The main thrust of the decision in the case of Om Prakash (supra) to ascertain whether the offence was bailable or non-bailable, was on the point that the offence being non- cognizable, it had to be bailable. In other words, Om Prakash (supra) deals with the question, “whether the offences under the Customs Act, 1962, and the Central Excise Act, 1944, are bailable or not?” However, provisions of the subsections (2) and (3) of the Section 69 of the CGST Act, provides in built mechanism and procedure in case of arrest for non-bailable offences and bailable offences.
(4) Q. Whether the constitutional safeguards laid out by the Supreme Court in D.K. Basu’s case [1997 (1) SCC 416] in the context of the powers of the police officers under the Code of Criminal Procedure, 1973 and of officers of the Central Excise, Customs and Enforcement Directorate are applicable to the exercise of powers under the provisions of section 69 of the GST Act in equal measure?
A. We may now address ourselves on the last question as regards the applicability of the safeguards pertaining to arrest as explained by the Supreme Court in case of D.K. Basu (supra), referred to above. It is significant to note that in D.K. Basu (supra), the Supreme Court did not confine itself to the actions of police officers taken in terms of powers vested in them under the Code but also of the 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 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 yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. The latin maxim salus populiest suprema lex (the safety of the people is the supreme law) and salus republicaeest suprema lex (safety of the state is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be “right, just and fair”. Using any form of torture for extracting any kind of information would neither be ‘right nor just nor fair’ and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated
– indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the methods of interrogation of such a person as compared to an ordinary criminal….”
These constitutional safeguards 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 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 of such inquiry or to extract statements from the person concerned by perpetuating torture or by applying third degree methods. That, no doubt, will be in clear violation of the right guaranteed under Article 21 of the Constitution of India which is available to all the citizens including a person who will be interrogated under section 70 of the GST Act or section 108 of the Customs Act as held by the Supreme Court in case of D.K. Basu (supra).
78. The petitioners have expressed apprehension of harassment at the end of the respondent authority. Though, such apprehension is not substantiated by any credible material on record, the same would be taken care of by the above observations made in answer to the question no.4. We also clarify that in none of the petitions, any case is made out for grant of any relief having regard to the facts narrated by the petitioners in their respective petitions. What has been observed and discussed by us are general propositions of law keeping in mind the subject matter.
79. We also in this context emphasise the mode of exercise powers of arrest under the GST Law as the power of arrest specified in Section 69 of the CGST Act undoubtedly displeases the corresponding powers of arrest vested in a police officer under the Code of Criminal Procedure. Section 69 of the CGST Act requires certain preconditions to be fulfilled prior to the arrest. In particular, the reasons to believe have to be recorded in writing in the file. The second aspect of Section 69 of the GST Act is the communication of the grounds of 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 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, inconceivable that the order which is required to be served by the appropriate authority under Ss. (2) would be the one which does not contain the reasons for the passing of the order or is not accompanied by the reasons recorded in writing. It may be permissible to record reasons separately but the order would be an incomplete order unless either the reasons are incorporated therein or are served separately along with the order on the affected party. We are, of the view, that reasons for the order must be communicated to the affected party.”
81. We have already indicated in our judgment that the guidelines as laid by the Supreme Court in D.K. Basu (supra) shall apply even to the officers of the GST department. Before being codified in the Code, the specific requirement to draft an arrest memo at the time of arrest was first laid down as a guideline by the Supreme Court in D.K. Basu (supra). In D.K. Basu (supra), the Supreme Court laid down 11 guidelines to be followed in all cases of arrest and detention. As one of these guidelines, the requirement to draw up an arrest memo was first articulated as:
“36 (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.”
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 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.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be 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.”
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 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 details or information on the basis of which the Magistrate can arrive at a subjective satisfaction that the person has been arrested on lawful grounds. It is necessary, therefore, to incorporate some prima-facie material against the accused showing his complicity in the alleged offence.
83. There is no doubt that the arrest memo is a key safeguard against illegal arrest and a crucial component of the legal procedure of arrest. Full and consistent compliance is a responsibility of both, the officers of the GST as well as the Magistrate. It is high time that the GST department prescribes a standardized format for the arrest memo. The format must contain all the mandatory requirements and necessary additions. The gist of the offence alleged to have been committed must be incorporated in the arrest memo. It would be the duty of the concerned Magistrate to check that an arrest memo has been prepared and duly filled. In a given case, if the Magistrate finds that the arrest memo is absent or improperly filled or bereft of necessary particulars, then the Magistrate should decline the production of the arrested person. At this stage, we may refer to a very recent pronouncement of the Supreme Court in the case of Union of India v. Ashok Kumar Sharma & Ors. reported in 2020 SCC OnLine SC 683. The issue in the said judgment was as under:
“What is the interplay between the provisions of the Code of 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 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 mandated through these guidelines necessiate the preparation of arrest memo which essentially is directed towards transparency and accountability in powers to arrest and detain and these safeguards flow from fundamental rights guaranteed in Articles 21 and 22 respectively of the Constitution of India and the life and liberty of a persons is secured under Article 21 and supplemented by Article 22 which provides key protection under the arbitrary arrest or detention to every arrested person. The Court also emphasized at para 83 that a standardized format for the arrest memo is necessarily required to be prescribed by the GST department which must contain all the mandatory requirements and necessary additions where the gist of offence alleged to have been committed must be incorporated and it would be the duty of the concerned Magistrate to check that the arrest memo has been prepared and dully filled. The Court also went to an extent of saying that if the magistrate finds that the arrest memo is absent and improperly filled in or bereft of necessary particulars, the Magistrate should decline the production of the arrested persons.
10.5. At this stage we need to also bear in mind the decision of this Court in case of Surendra Kathadbhai Jebalia vs State of Gujarat, reported in (2003) 3 GLR 2096. It was a case under the NDPS Act where the serious challenge was made to the 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 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 substance in this contention. In this regard, it would be appropriate to refer Paragraph 11 of the judgment in the case of Poolpandi Superintendent, Central Excise, 1992 (3) SCC 259, where the Apex Court observed “the purpose of inquiry under the Act and other similar statutes will be completely frustrated if the whims 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 in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company”, The said observations were again, considered and reiterated by the Apex Court in Paragraph 15 in the case of K.I. Pavunny (supra). Therefore, we do not find any substance in the allegation regarding prolonged detention of appellants before recording statements under Section 67 affecting its free nature.”
10.6. Apt would be to also refer to the decision of K.I.Pavunny vs. Assistant Collector, Central Excise Collectorate, reported in (1997) 3 SCC 721:-
“15. In Poolpandi etc. etc. V/s. Superintendent, Central Excise and Ors. etc. etc. (1992) 3 SCR 247] a three-Judge Bench was to consider whether 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 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 encourage non-cooperative attitude to the machinery of law. More particularly, when the allegations are serious in nature, in the case on hands, it is alleged that the person has indulged in the evasion of the provisions of the GST Act in clear violation of the law on the subject by also creating shell companies which do not exist at all. This Court is also conscious of the decision in case of Serious Fraud Investigation Office vs. Rahul Modi (supra), where the Court has held that any infirmity in the detention at any initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merit not in habeas corpus petition where in other proceedings orders are already passed. This Court is also conscious of the well accepted principle emphasized by the Apex Court that a writ of habeas corpus is not to be entertained when a person is committed to judicial or police custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. Referring to the decision of B.Ramachandra Rao and Kanu Snayal, the aspects of lack of jurisdiction or absolute illegality are again the criterias held without which the writ of habeas corpus is not to be granted. Challenge to the subsequent orders and proceedings is missing here as well 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 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 under the Cr.P.C. as they would also apply to the offences under the GST Act, such detention can be permitted.
12.2. Article 21 of the Constitution of India mandates that no person shall be deprived of his life and liberty without the authority of law and Article 22 ensures that the procedure prescribed under the law shall need to be followed while the substantive law takes its course.
13. We could notice from the arrest memorandum that during the search proceedings conducted under Section 67(2) of the Gujarat Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 at the business place of M/s. J.K. Traders engaged in the business of trading of forest waste and scrap, remelting scrap, ingot of iron or steel. There were serious lapses noticed in relation to the input tax credit. The huge amount of incriminating documents, material, electronic device etc. had been seized. The statement recorded of Mr. Bharat Gordhan bhai Patel had revealed the name of Mr. Hitesh Mukeshbhai Patel. Therefore the search proceedings came to be also conducted at his residence from where the mobile phones, electronic devises etc. had been seized. This had revealed the goods and service tax evasion scam by the alleged syndicate firm by Mr. Hitesh Mukeshbhai Patel, Mr. Bharat Gordhanbhai Patel along with other co-conspirators and it 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 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 for the Court to be convinced prima facie of a need to know the truth and therefore, this prompt action on the part of the authority, soon after the Court issued the notice, to ensure that no scrutiny of its action is undertaken by the Court also will need to be viewed seriously. We are conscious of the fact that the persons who are allegedly involved in such serious crimes need to be dealt with with all seriousness. The applicant is the real brother of the corpus and the accused had been summed under Section 70 of GST Act. There are number of summons which are listed at the documents produced before this Court. They are dated 18.03.2022 to 22.03.2022. He had remained under the interrogation of the State Tax Officer, Gazetted Officer and during this period his statement had been recorded. There are more than 600 questions which run into around 80-100 pages. Data extraction of digital devise seized was also simultaneously going on and on conclusion of this initial interrogation, he has been arrested by a State Tax Officer, Gazetted Officer on 23.03.2022. Undoubtedly, the corpus accused was submitted to the competent and jurisdictional Court however, the timings cannot be missed by this Court. Being conscious that the dummy firms are around 131 presently, the figure has gone to 274 and involving in the scam of GST running into 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 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 overreach the Court process by putting forward the decision that the habeas corpus petition is not the recourse for questioning and challenging direction, as this Court is bound by the decision of Rahul Modi (supra) with no further challenge also on the part of the petitioner at the time of seeking amendment to the petition where the Apex Court has not approved approaching this Court by way of a habeas corpus petition, particularly when the other competent court has already exercised its jurisdiction, (of course, not at the time of initiating the process before this Court, but, while the corpus was produced before this Court the next day), we choose not to entertain this petition with the following directions, under the peculiar set of circumstances:
(i) The petition is not entertained permitting the corpus to approach the appropriate and competent authority/Court for the purpose of agitating all his grievances.
(ii) He is also permitted to point out anomalies, defects and other aspects noticed in the procedure in the matters which are to be pursued.
(iii) Let there be an inquiry conducted by the highest officer of the State under the GST regime, to pinpoint as to whether such defect of continuous interrogation is deliberate in any manner or is in complete ignorance of law and whether in that circumstance, 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. 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 issued notice returnable on 24.03.2022.
19. I note that the petition as filed on 23.03.2022 was filed praying for issuance of a writ of habeas corpus directing Respondent No. 2 to produce the Corpus- Respondent No. 6 before the Court. The Petitioner had tendered a Draft Amendment which came to be granted vide order dated 24.03.2022, basis which certain additional grounds were raised in the petition. However, the prayer clause remained unaltered. Further, the Petitioner preferred another Draft Amendment which came to be allowed under order dated 12.04.2022, under which the Petitioner amongst other grounds, added the prayer to the effect of enlarge Corpus Respondent No. 6 pending hearing and disposal of the petition. Therefore, resultantly, even though the Petitioner has preferred two Draft Amendments after 23.03.2022, the same do not challenge any subsequent action undertaken by the Respondent authorities including but not limited to arrest which was effected on 23.03.2022 or the order passed by the Ld. Chief Judicial Magistrate, Ahmedabad allowing judicial custody of the Corpus- Respondent No. 6.
20. While bearing in mind that the arrest, remand and the order passed by the Ld. Chief Judicial Magistrate, Ahmedabad has not been challenged, the only question to be answered 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 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 that:
“184. One and all should be mindful of the fact that the country has altogether a new tax regime. It has been just two years since the new tax regime, in the form of GST, has been implemented. Although, this path-breaking reform meets the longstanding demand of trade and industry to simplify and streamline the tax regime in the country, yet, there are many issues which need to be addressed. The assessees need to be educated so far as the new tax regime is concerned. It has been brought to our notice that the government has prepared the Model GST Law in English. Further, all the acts, rules, regulations and FAQ regarding GST are available in English language. Entrepreneurs of many establishments in India may not have proficiency in English language to understand the Model GST Law and the rules associated with it. The government must translate the existing GST rules and regulations in vernacular languages so that it can be better understood by all the assesses, especially in the MSME sector.”
Applying the same yardstick, a word of caution needs to be sent to the Respondent Officers. Bereft of the facts of the present case, and more so considering that GST Act has only been five years old, it is expected that the Respondent Officers exercise restraint while dealing with search, inquiry or issuance of summons and subsequent interrogation. Merely because the section empowers the Officers to carry out an investigation or inquiry, does not give them unbridled power to infringe upon a citizen’s fundamental right guaranteed under Article 21 of the Constitution of India. I hope and trust that the respective State government will formulate certain guidelines enlisting the procedure to be followed by the Officers while ensuring liberty of citizens is maintained at all points of time. This is over an above the direction issued by my esteemed senior sister Justice Gokani in the operative order of the decision.
24. In view of the aforesaid, I hold that the petition filed under Article 226 of the Constitution of India seeking a writ of habeas corpus need not be entertained in the facts and circumstances of the case.