2024 (12) TMI 1001 - HC - GST

Legality of the arrest and remand of the petitioner - violative of Article 22 of the Constitution of India or not - reasons to believe - Non-supply of grounds of arrest in writing - offences alleged to have been committed by the petitioner under Section 132 (1) (c), CGST Act are punishable under Section 132(2)(i) or (ii), CGST Act - HELD THAT - A perusal of the remand order would also show that an argument was taken before the Remand Court relating to non-supply of the written grounds of arrest; however, this was not appreciated and addressed in any amount of detail. The Magistrate effectively noted that grounds of arrest explained to the accused persons and that IO has completed codal requirements and shown justifiable grounds of arrest . This was clearly not sufficient and amounted to a mechanical order without application of mind to the issue which was raised. strongly asserted by the senior counsel for petitioner is the issue of illegal detention beyond 24 hours. Aside from the respective contentions regarding detention for the two days, what is very significant, and disturbing is the charade that seems to have been carried out in issuance of summons to petitioner. The first summons issued under Section 70 of the CGST Act, which this Court has perused, is signed by the Superintendent/Appraiser/Senior Intelligence Officer on 27th November, 2024. It demands the appearance of the petitioner on 28th October 2024 at 1730 hours at DGGI, DZU, Dwarka Office. However, the DIN generation time, as per the online system, shows the generation at 21 55 20 hours on 28th November 2024, i.e. about 5 hours after the petitioner was expected to have appeared before the agency. CBIC circular dated 05th November 2019 directed that no search authorization, summons or Arrest Memo shall be communicated/issued to a taxpayer or any other person without a computer-generated DIN, which would be quoted prominently in the body of communication, hosted on an online portal cbicddm.gov.in - Having used the DIN on the first summons to elicit the generation time, petitioner contends that the summons never existed at the time they were served or at the time which was scheduled for petitioner's appearance. The discrepancy in these summons does point to the respondent s mismanagement of the arrest process. It also throws a serious doubt on the aspect of detention of the petitioner through 28th November 2024 and 29th November 2024, that too, without proper paperwork. It does indicate that the respondent agency was amiss in not punctiliously following the arrest procedure, as mandated by law, meant to safeguard the rights of the arrestee. stated that these pre-conditions act as stringent safeguards to protect the life and liberty of individuals. It was stated that the conditions are salutary and serve as a check against the exercise of an otherwise harsh and pernicious power. The arrest of the petitioner on 30th November 2024 is held illegal and the remand order dated 30th November 2024 is set aside - The petitioner is directed to be released from judicial custody forthwith, if not required in any other matter - this petition is allowed.

Summary

Issues Involved:

1. Legality of the arrest and remand of the petitioner.
2. Compliance with procedural requirements, including the issuance of summons and arrest memo.
3. Non-supply of grounds of arrest in writing.
4. Alleged detention beyond 24 hours.
5. Need and necessity for the arrest under the CGST Act.

Issue-wise Detailed Analysis:

1. Legality of the Arrest and Remand:

The petitioner challenged the legality of his arrest on grounds of non-compliance with Article 22 of the Constitution and the procedural mandates under the CGST Act. The arrest was claimed to be arbitrary and illegal due to the absence of written grounds of arrest at the time of the arrest. The court emphasized the importance of furnishing written grounds of arrest, citing Supreme Court precedents which mandate that the grounds must be communicated in writing as a fundamental right under Article 22(1) of the Constitution. The absence of written grounds rendered the arrest illegal, leading to the setting aside of the remand order.

2. Compliance with Procedural Requirements:

The petitioner alleged discrepancies in the issuance of summons and the arrest memo, arguing that they were backdated and not served properly. The court noted that the summons were generated after the petitioner was already expected to appear, raising doubts about the legality of the process. The court found that the respondent agency failed to adhere to the procedural requirements, particularly the issuance of summons with a valid DIN, as mandated by the CBIC circular. The discrepancies in the summons and the arrest process pointed to a mismanagement by the respondent agency.

3. Non-supply of Grounds of Arrest in Writing:

The petitioner contended that he was not provided with the grounds of arrest in writing, which is a statutory requirement under Section 69(2) of the CGST Act. The court reiterated the Supreme Court's stance that grounds of arrest must be furnished in writing to the arrestee as a matter of course and without exception. The failure to provide written grounds was a significant procedural lapse that vitiated the arrest process. The court emphasized that meaningful communication of grounds is essential for the arrestee to seek legal counsel and challenge the remand effectively.

4. Alleged Detention Beyond 24 Hours:

The petitioner claimed illegal detention beyond 24 hours, arguing that he was held without proper documentation from 28th to 30th November 2024. The court scrutinized the timeline and found that the petitioner was not produced before a Magistrate within 24 hours as required by law. The respondent's argument that the petitioner was free to leave and voluntarily returned was not substantiated with evidence. The court found the detention to be in violation of constitutional and statutory provisions, further invalidating the arrest.

5. Need and Necessity for Arrest:

The petitioner argued that there was no need for custodial interrogation as the allegations pertained to digital transactions, and he had cooperated with the investigation. The court noted that the arrest should not be made routinely and must be justified by the necessity for custodial investigation or risk of tampering with evidence. The court found no compelling reason for the arrest, given the nature of the allegations and the petitioner's cooperation, thus questioning the necessity of the arrest under the CGST Act.

Conclusion:

The court allowed the petition, declaring the arrest of the petitioner on 30th November 2024 as illegal and setting aside the remand order. The petitioner was ordered to be released from judicial custody, underscoring the importance of adherence to constitutional and procedural safeguards in arrest processes. The judgment emphasized that the review was limited to the legality of the arrest and did not comment on the merits of the case against the petitioner.