2020 (1) TMI 973 - HC - GST

Fundamental rights of citizens by authoritarianism - mute spectator or not - Powers of officers conducting search and seizure to remain stayed in the premises for unlimited period - Key person was not found at home during search - Gujarat GST Act - HELD THAT - It is apparent that the officer who is armed with a search warrant is authorised to search the premises referred to in the warrant of authorisation and to seize goods, documents, articles or things, which are useful for or relevant to any proceedings under the GST Acts. The provisions nowhere arm the officer, in whose favour the authorisation is issued, to search for any person or to remain in the premises after the search is over, or to monitor what the persons residing in the premises are doing and to reside in the premises. In fact, no provision under the Code permits even the Investigating Officer to continuously stay inside the residential premises to apprehend an accused as and when he returns home. The powers vested in the officer armed with a search warrant are limited to searching the entire premises. Once the premises are searched, the search party would have to leave the premises and cannot wait there indefinitely for days on end under the expectation that the person whom they are searching for may return home or may contact his family members. In the facts of the present case, the authorised officer was authorised to search only the premises. The nature of the search conducted by him is discernible from the panchnama of the search proceedings drawn by the authorised officer in the presence of panchas, a copy whereof has been produced for the perusal of this court. In terms of the panchnama, on 11.10.2019, in the afternoon, the officers searched the residential premises of the petitioner; and the books of accounts and other documents which they found were brought to the main room, which included the bank pass-books and cheque books, etc. of the family members. On a perusal of the contents of the panchnama, it is evident that during the time the officers were present in the premises, the movements of the family members were restricted and they were required to take permission of the officers concerned if they had to go out of the house. The family members, including female members, have been interrogated even during night hours, and there is nothing in the panchnamas, to show the presence of any female officer during the night time. Moreover, on each day, in the morning shift and night shift, there were two different panchas from different localities residing in the premises and it also appears that an SRP constable was also present throughout. Thus, the family members of the petitioner were constrained to put up with different sets of strangers in their residential premises throughout the day and night for eight days - While it is an admitted position that the officers along with the panchas and the SRP constable were inside the residential premises during the course of the entire search, in the entire panchnama, there is no mention as to what the officers and panchas and SRP constable did inside the residential premises of the petitioner throughout the day, except for having recorded the statements of the family members of the petitioner at different times of the day. Nothing is stated as regards where the members of the search party stayed during the course of the day and where they slept at night. An action taken may be said to be in good faith if the officer is otherwise so empowered and he exceeds the scope of his authority. However, in a case like the present one where the authorisation was for search and seizure of goods liable to confiscation, documents, books or things and the concerned officer converted it into a search for a person and an investigation, which is not otherwise backed by any statutory provision, it may be difficult to accept that such action was in good faith. Protection of such action under section 157 of the GST Acts may unleash a regime of terror insofar as the taxable persons are concerned - It is clarified that this court does not condone any alleged illegal acts on the part of the petitioner and in case he has indulged in any illegalities, the law should take its own course. However, the court found it necessary to pass the present order to curb any further abuse of powers in this manner by the authorities under the GST Acts. Let the matter be listed for hearing on merits on 23.01.2020.

Summary

Issues Involved:
1. Legality and validity of the search conducted under Section 67(2) of the GST Acts.
2. Violation of fundamental rights and legal provisions during the search.
3. Prolonged stay of the search party at the petitioner’s residential premises.
4. Recording of statements and monitoring of phone calls of family members.
5. Actions taken by the authorities and the justification provided.
6. Inquiry and report submission by the Chief Commissioner of State Tax.

Detailed Analysis:

1. Legality and Validity of the Search Conducted under Section 67(2) of the GST Acts:
The search was conducted at the residential premises of the petitioner from 11.10.2019 to 18.10.2019 under an authorization issued pursuant to Section 67(2) of the GST Acts. The court found that the search was converted into a search for the taxable person rather than for goods, documents, or books. The search party camped in the petitioner’s residence for eight days, which was beyond the scope of their authority under Section 67(2) of the GST Acts.

2. Violation of Fundamental Rights and Legal Provisions During the Search:
The court noted that the family members were confined to the premises, kept under surveillance, and not permitted to leave without the authorized officer’s permission. This action violated the legal and fundamental rights of the citizens, including their right to privacy as protected under Article 21 of the Constitution of India. The court emphasized that such actions by the authorities were in flagrant disregard of the provisions of the GST Acts and amounted to an abuse of power.

3. Prolonged Stay of the Search Party at the Petitioner’s Residential Premises:
The court observed that the search was effectively concluded on the first day, yet the officers stayed at the premises for an additional seven days. The prolonged stay was not justified by any statutory provision and was deemed illegal and unauthorized. The court highlighted that the officers’ actions of staying day and night at the premises were without any authority of law and needed to be deprecated in the strictest terms.

4. Recording of Statements and Monitoring of Phone Calls of Family Members:
The court found that the officers recorded statements of the family members and monitored their phone calls without any legal backing. Section 67(2) of the GST Acts does not empower officers to use coercive measures against family members or to record their conversations. The court noted that such actions were not permissible under the GST Acts and constituted a serious intrusion into the privacy of the family members.

5. Actions Taken by the Authorities and the Justification Provided:
The respondents justified their actions by referring to past precedents under the Gujarat Value Added Tax Act, 2003, and claimed that their actions were bona fide. However, the court rejected this justification, stating that the officers were required to act within the scope of their statutory powers under the GST Acts. The court emphasized that ignorance of law by the officers could not be used to justify their illegal actions.

6. Inquiry and Report Submission by the Chief Commissioner of State Tax:
The court directed the first respondent Commissioner of State Tax, Ahmedabad, to carry out a proper inquiry into the matter and submit a report. The report submitted by the Chief Commissioner was found to be inadequate and lenient. The court noted that the Chief Commissioner failed to examine the actions of the officers in the context of the relevant provisions of the GST Acts and instead tried to justify their actions. The court reiterated that the prolonged stay at the petitioner’s premises was not backed by any statutory provision and was unauthorized.

Conclusion:
The court concluded that the actions of the search officers were unauthorized, illegal, and in violation of the fundamental rights of the petitioner’s family members. The prolonged stay at the premises and the recording of statements and phone calls were beyond the scope of the officers’ authority under the GST Acts. The court ordered a proper inquiry into the matter and emphasized the need for the authorities to act within the scope of their statutory powers to prevent such incidents in the future. The court also expressed its appreciation for the assistance provided by the amicus curiae.