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2020 (11) TMI 269 - HC - GSTSearch and Seizure - Violence and coercion against the petitioners and their employees - Whether officials belonging to the G.S.T. Intelligence Department of the Union of India such as respondent nos.5 to 9 in the Writ Petition can resort to physical violence while conducting interrogation of the petitioners and their employees in connection with proceedings initiated against the petitioners by the respondents under the C.G.S.T. Act, 2017 and I.G.S.T. Act, 2017? HELD 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 - In view of this statutory regime already in place, it would be futile for the respondents to claim any liberty to torture or use physical violence during the course of search, investigation or interrogation under the CGST Act, 2017 against persons suspected of tax evasion like the petitioners or their employees. The possibility of the use of violence by respondent nos.5 to 9 against petitioner nos.2 to 4 and the other employees of petitioner no.1 cannot be entirely ruled out having regard to Ex.P.4, in particular. The respondents cannot contend that they will interrogate the persons suspected of committing any tax evasion as per their sweet will forceably keeping them in their custody for indefinite period. If it is done, it has to be construed as informal custody and the law relating to an accused in custody has to be expressly or impliedly applied. If accused can get all the benefits under Art.22 of the Constitution, a person in such informal custody can say that he is also entitled to get relief under Art.21 of the Constitution of India - In view of the admitted fact that the search operations were continued well past midnight and summons were issued to 2nd petitioner to appear at 00 30 hrs on 12.12.2019, we do not accept the plea of the respondents that they did not act contrary to established procedure, that the search proceedings were carried out under proper and applicable law and procedure, and no harm or damage were made to any human/person or property and no sentiments were hurt. Coming to the plea of the petitioners for transfer of investigation is concerned, though normally such transfer is not to be done, in view of the facts and circumstances of this case and the absence of counter affidavit by the 5th respondent denying the allegations of physical violence by him in the course of the search operations against the 3rd petitioner, we feel that it would not be appropriate for the 5th respondent to be a participant in the proceedings initiated by the respondents against the petitioners. Whether presence of a lawyer can be allowed at the time of examination of petitioner nos.2 to 4 and their employees? - HELD THAT - Under no circumstances can there be examination of a person by officers under GST Act in the presence of a lawyer - in the special facts and circumstances of the case, the petitioner nos.2 to 4 or their employees shall be examined in the visible range of their counsel, though not in hearing range. Investigation at New Delhi where the Headquarters of DGGI is located - HELD THAT - We are in the midst of the COVID-19 Pandemic and there are serious risks involved in people traveling to and from New Delhi and their family members because there is no dispute that New Delhi has several cases of Corona virus infections for the last several months. In the coming winter months, the prediction of the health experts is that there could be more infections and even fatalities caused by the said virus. Also it would entail considerable expense for that many people to travel to Delhi and back apart from high boarding and lodging costs. The respondents shall not use any acts of violence or torture against petitioner nos.2 to 4 or their employees in furtherance of enquiry proceedings - the enquiry in the above proceedings against the 1st petitioner shall not be handled by the 5th respondent, and he shall not participate in such enquiry, and it shall be transferred to another official to be designated by the 2nd respondent - Petition dismissed.
Issues Involved:
1. Use of Physical Violence by GST Officials 2. Legality of Search and Summons Procedures 3. Transfer of Investigation 4. Presence of Legal Counsel During Interrogation 5. Location of Interrogation Detailed Analysis: 1. Use of Physical Violence by GST Officials The primary issue in the writ petition was whether officials from the GST Intelligence Department could resort to physical violence during interrogations. The petitioners alleged that during the search operations on 11.12.2019, the officials physically assaulted the petitioners and their employees. The court noted conflicting versions from both parties but highlighted significant evidence like the Out-Patient Discharge advice from Sunshine Hospital, indicating that the 3rd petitioner was injured and unable to walk. The court also considered the police acknowledgment of a complaint made by the petitioners' employees. The court emphasized that there is no legal provision allowing officials to use physical violence and referred to the Supreme Court's judgment in D.K. Basu v. State of W.B., which recognized protection against torture as part of the right to life and liberty under Article 21 of the Constitution of India. 2. Legality of Search and Summons Procedures The petitioners challenged the legality of the search and the manner in which summons were issued. The court scrutinized the summons issued to the 2nd petitioner at 00:30 hrs on 12.12.2019, questioning the necessity of such an unusual hour for interrogation. The court found this practice to be prima facie indicative of deprivation of personal liberty. The respondents' justification that there is no bar on night inquiries under Section 70 of the CGST Act, 2017, was not accepted by the court. 3. Transfer of Investigation The petitioners sought the transfer of the investigation due to alleged high-handedness by the officials. The court, considering the absence of a counter-affidavit from the 5th respondent denying the allegations of physical violence, found it appropriate to exclude the 5th respondent from participating in the proceedings. The Additional Solicitor General agreed that the 5th respondent would not participate in any further proceedings against the petitioners. 4. Presence of Legal Counsel During Interrogation The petitioners requested that their interrogations be conducted in the presence of their advocates. The court referred to various precedents, including the Supreme Court's decision in Jugal Kishore Samra, which allowed interrogation within the sight of an advocate but beyond hearing range. The court held that in the special circumstances of this case, the petitioners and their employees should be interrogated in the visible range of their counsel, though not within hearing range. 5. Location of Interrogation The respondents' request to conduct the interrogation at their New Delhi office was contested by the petitioners due to the COVID-19 pandemic and the associated risks and costs. The court agreed that summoning 50 or more persons to New Delhi was unreasonable and directed that the interrogation of petitioner nos.2 to 4 could occur in New Delhi once for two to three days, while the rest of the interrogations should be conducted at Hyderabad. Conclusion: The court issued several directions to ensure the protection of the petitioners' rights: - No use of violence or torture by the respondents. - Exclusion of the 5th respondent from the investigation. - Interrogations to be conducted between 10:30 a.m. and 05:00 p.m. in the presence of an advocate within visible range. - Limited summoning of petitioners to New Delhi for interrogation. - Adherence to the provisions of the CGST Act, 2017. The interim applications filed by the petitioners were disposed of accordingly, and the court did not express any opinion on other contentions raised.
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