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2025 (2) TMI 843 - HC - GSTLegality of arrest of the petitioner under the CGST Act 2017 - arrest of the petitioner is in violation of section 36 of the BNSS as well as the instruction dated 17th August 2022 as amended on 13th January 2025 or not - HELD THAT - In the present case the opposite party has submitted a copy of the office order dated 1st February 2025 authorizing arrest of the petitioner the arrest memo grounds of arrest arrestee s profile thumb impression of the arrestee information of arrest to the nearest relative handing over of personal belongings documents showing medical checkup of the petitioner and the inspection memo. It is crystal clear from the arrest memo that such memo is attested by a driver who is neither a member of the petitioner s family nor a person of the locality from where the arrest is made. Therefore the arrest is in violation of the instruction issued by the authority as well as the mandate laid down by the Hon ble Supreme Court in the authority in D.K. Basu 1996 (12) TMI 350 - SUPREME COURT . Conclusion - Since the arrest of the petitioner is in violation of the instruction issued by the authority as well as the mandate of the Hon ble Supreme Court in D.K. Basu such lapse on the part of the opposite party cannot be termed as a mere irregularity and in fact vitiates the arrest moreso since no explanation has been given by the arresting officer for not complying with the said direction. This Court of the view that since the arrest itself is bad in law the petitioner deserves an order in his favour - the prayer for bail is allowed.
The issues presented and considered in the judgment are as follows:1. Whether the arrest of the petitioner under the CGST Act, 2017 was in violation of the procedural requirements laid down by the BNSS and the instructions dated 17th August, 2022, as amended on 13th January, 2025.2. Whether the arrest memo attested by a driver, who is not a member of the petitioner's family or a respectable person of the locality, complies with the legal standards set by the Hon'ble Supreme Court in D.K. Basu v/s. State of West Bengal.The detailed analysis of the identified issues is as follows:Issue 1: Violation of procedural requirements in the petitioner's arrest- Relevant legal framework and precedents: The petitioner argued that the arrest violated section 36 of the BNSS and the instructions dated 17th August, 2022, as amended on 13th January, 2025. The petitioner relied on the authority in D.K. Basu v/s. State of West Bengal for support.- Court's interpretation and reasoning: The Court examined the arrest memo and found that it did not comply with the requirements set out in the instructions and the D.K. Basu case. The Court emphasized the importance of the arrest memo being attested by a member of the petitioner's family or a respectable person from the locality.- Key evidence and findings: The Court reviewed the arrest memo, grounds of arrest, and other related documents provided by the opposite party.- Application of law to facts: The Court applied the legal standards set by the BNSS and the D.K. Basu case to assess the validity of the arrest.- Conclusions: The Court concluded that the arrest of the petitioner was in violation of the procedural requirements, which rendered the arrest unlawful.Issue 2: Compliance with the legal standards in the arrest memo- Relevant legal framework and precedents: The opposite party argued that the arrest was made under section 69(1) of the CGST Act, 2017, and cited relevant case law to support their position.- Court's interpretation and reasoning: The Court examined the authorities cited by the opposite party and found that they were not applicable to the present case.- Key evidence and findings: The Court considered the contents of the arrest memo and the identity of the person attesting to the arrest.- Application of law to facts: The Court applied the legal standards set by the D.K. Basu case to assess the validity of the arrest memo.- Conclusions: The Court held that the arrest memo, attested by a driver who was not a family member or a respectable person from the locality, did not comply with the legal standards, rendering the arrest unlawful.Significant Holdings:- The Court highlighted that the arrest of the petitioner was in violation of the instructions issued by the authority and the mandate of the Hon'ble Supreme Court in the D.K. Basu case.- The Court concluded that the unlawful arrest warranted the grant of bail to the petitioner.In conclusion, the Court found that the arrest of the petitioner was unlawful due to non-compliance with the procedural requirements and legal standards set by the BNSS and the D.K. Basu case. As a result, the Court granted bail to the petitioner and disposed of the case.
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