2019 (12) TMI 1365 - HC - GST

Validity of arrest of petitioner's father made by the State Tax Officer-3, Enforcement, DIV-2, Ahmedabad vide Arrest Memorandum Dated 06.12.2019 - foundation of this petition is that the father of the applicant has been deprived of his personal liberty, without following the procedure established by law, which is violative of Article 21 of the Constitution of India. HELD THAT - The case of the respondent Authorities is accepted by this Court to this extent. But at the same time, it is also held by this Court that, not only any officer authorised by the Commissioner, but even the Commissioner himself also could not have ordered arrest of any person under the Act, if he (the Commissioner) has not arrived at the conclusion or is satisfied that he (the Commissioner) has reasons to believe that a person has committed any offence under the Act. The satisfaction to be arrived at by the competent authority in this regard is the condition precedent for ordering arrest of that person. The obligation to be satisfied with regard to the reasons to believe that a person has committed any offence under the Act is cast upon the Commissioner. Whether the said duty could have been delegated by the Commissioner to any officer or not is not gone into by this Court leaving it open to be gone into in an appropriate case, since this Court finds that as a matter of fact, no delegation is made by the Commissioner in that regard vide order dated 23.06.2017 Entry No.49. If any citizen is deprived of his personal liberty, without following the procedure established by law, it would be violative of Article 21 of the Constitution of India, the High Court does have power under Article 226 of the Constitution of India to examine the issue and pass appropriate order. Even if a person is in judicial custody and even if the bail is asked for by him and is rejected, either by the Magistrate or even by the Sessions Court, that itself may not be the deciding factor to form an opinion, whether the judicial custody is otherwise legal or not. Thus, this petition can not be said to be not maintainable. It is attempted on behalf of the respondent Authorities to demonstrate before this Court how the corpus can be said to have committed offence under the Act. Learned Public Prosecutor has referred to the details in this regard as contained in the affidavit in reply filed on behalf of the State Authorities. Since we are not examining whether the corpus has committed any offence under the Act or not, dealing with those submissions, would be beyond the scope of the petition. We do not intend to expand the scope of this petition. The details with regard to the illegalities committed by the corpus, as perceived by the State Authorities, is therefore not recorded in this order. The satisfaction recorded by the Joint Commissioner, with regard to he (the Joint Commissioner) having reasons to believe that the corpus - Sureshbhai Ugarchand Gadhecha has committed offence under the Act, is without any authority of law and is of no consequence and can not be taken cognizance of. Consequently, the first requirement of Section 69(1) of the Act, which is condition precedent to order arrest of any person under the Act, is not satisfied in the present case. The arrest of Sureshbhai Ugarchand Gadhecha - the corpus is thus without any authority of law. Thus, the corpus has been deprived of his personal liberty, without following the procedure established by law and is therefore violative of Article 21 of the Constitution of India and his continuance in judicial custody is no less than illegal confinement. The arrest of the corpus Sureshbhai, son of Ugarchand Gadhecha, by the State Tax Officer-3, Enforcement, DIV-2, Ahmedabad, vide Arrest Memorandum No.DCST/ENF-2/ STO-3/ARREST MEMORANDUM/2019-20/B, Dated 06.12.2019, is held to be without authority of law and thus, illegal - petition allowed

Summary

Issues Involved:
1. Legality of the arrest under Section 69 of the Gujarat Goods and Services Tax Act, 2017 and Central Goods and Services Tax Act, 2017.
2. Authority and delegation of power by the Commissioner under Section 69(1) of the Act.
3. Compliance with Article 21 of the Constitution of India.
4. Maintainability of the habeas corpus petition.

Detailed Analysis:

1. Legality of the Arrest:
The petitioner argued that the arrest of his father by the State Tax Officer was without authority of law as per Section 69(1) of the Act. The court noted that Section 69(1) stipulates two functions: the Commissioner must have reasons to believe that an offence has been committed, and then he may authorize an officer to arrest the person. The court found that the satisfaction required by the Commissioner was not recorded, making the arrest illegal.

2. Authority and Delegation of Power:
The petitioner contended that the Joint Commissioner, who authorized the arrest, was not the competent authority to do so without the Commissioner’s satisfaction. The court examined the delegation order dated 23.06.2017 and the corrigendum dated 17.12.2018. It concluded that the Commissioner had only delegated the power to authorize arrests, not the authority to arrive at the satisfaction required under Section 69(1). Thus, the Joint Commissioner’s satisfaction was without authority of law.

3. Compliance with Article 21:
The court emphasized that any deprivation of personal liberty without following the procedure established by law violates Article 21 of the Constitution of India. Since the arrest did not comply with the statutory requirements, it was deemed a violation of Article 21, rendering the judicial custody of the corpus illegal.

4. Maintainability of the Habeas Corpus Petition:
The State argued that the petition was not maintainable because the corpus was in judicial custody. The court rejected this argument, citing that even if a person is in judicial custody, the legality of the custody can be challenged if it violates statutory provisions. The court referred to previous judgments to support the maintainability of the habeas corpus petition in cases of illegal confinement.

Conclusion:
The court concluded that the arrest was illegal due to non-compliance with Section 69(1) of the Act and violation of Article 21. It ordered the immediate release of the corpus unless he was required in any other offence, while reserving liberty to the State Authorities to take appropriate legal action in accordance with the law.