2024 (6) TMI 661 - HC - GST

Violation of Right to Privacy and Human Rights - guidelines for issuance of summons - precautions to be observed while issuing summons - HELD THAT - The present proceeding is closed with this direction that the GST officers should follow the guidelines and instructions issued by the Commissioner (GST-Investigation) and the CBIC while summoning a person by exercising the powers under section 70 of the GST.

Summary

Issues Involved:
1. Violation of Right to Privacy and Human Rights.
2. Self-Incrimination and Duty to Speak Truth u/s 70 of GST.
3. Interpretation of Section 50 of PMLA and its Applicability to GST.
4. Guidelines and Procedures for Issuance of Summons under GST.

Summary:

The petitioner was interrogated till past midnight and allowed to go home only after his statement was recorded to the satisfaction of the GST Officer. The Constitution of India recognizes basic human rights, including the right to privacy under Article 21, as held in "Kharak Singh v. State of U.P." and "K.S. Puttaswamy (Privacy-9J.) v. Union of India."

Clause 3 of Article 20 of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. However, u/s 70 of the GST, a person called for giving evidence or producing a document is under a duty to speak the truth. Sub-section (2) to section 70 deems every inquiry to be a judicial proceeding within the meaning of sections 193 and 228 of the IPC, making any untrue statement liable for prosecution.

The learned counsel for the petitioner referred to "Vijay Madanlal Choudhary v. Union of India," where the Supreme Court held that officers under the PMLA are not police officers and do not exercise powers under the CrPC. Similarly, in "P.V. Ramana Reddy v. Union of India," the Telangana High Court held that the proper officer under the GST is not a police officer. The Bombay High Court in "Ram Kotumal Issrani v. Directorate of Enforcement" also held that a person summoned u/s 50 of the PMLA is not an accused and is not detained unlawfully if produced within 24 hours of arrest.

The court opined that the proper officer under the GST should not coerce a person to give a statement after office hours. The GST Intelligence and Investigation Manual, 2023, and FAQs on GST by CBIC provide guidelines for issuing summons, emphasizing that statements should be recorded during office hours unless exceptional circumstances exist.

Instruction No. 03/2022-23 (GST-Investigation) outlines guidelines for issuing summons, including obtaining prior written permission, recording reasons for issuance, and avoiding summoning senior management officials in the first instance unless their involvement is indicated.

The court directed that GST officers should follow the guidelines and instructions issued by the Commissioner (GST-Investigation) and CBIC while summoning a person u/s 70 of the GST. The commendable assistance of the learned counsels was appreciated.