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TMI Blog2022 (7) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by this Court. It is also admitted that although in case of Vimal Yashwantgiri Goswami [ 2020 (11) TMI 40 - GUJARAT HIGH COURT ] the Court had emphasized the need for the guidelines to be prepared in case of GST matters and the GST department is directed to prepare and prescribe the standardized guidelines and format for inquiry and arrest etc., nothing has been done so far. The family of the respondent no.6 also had not been intimated except as detailed in the affidavit-in-reply. The fact remains that neither the family member nor the lawyer has been permitted to meet him or to see him even after a period of 24 hours which is in a clear violation of the mandate provided under Article 22 of the Constitution of India. Article 21 of the Constitution of India mandates that no person shall be deprived of his life and liberty without the authority of law and Article 22 ensures that the procedure prescribed under the law shall need to be followed while the substantive law takes its course. It is noticed from the arrest memorandum that during the search proceedings conducted under Section 67(2) of the Gujarat Goods and Service Tax Act, 2017 and Central Goods and Service Tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evade adopting to the required procedure prescribed under the law. It is a time-tested law where emphatically every Court has mandated the need for the same to be scrupulously followed, particularly when arrest is effected without warrant and period of interrogation exceed 24 hours - What is provided by way of the Constitutional mandate shall need to guide one and all. Rule of law prevails when emanating from those protective mandates, vital pronouncements made like in case of D.K.Basu [ 1996 (12) TMI 350 - SUPREME COURT ] and other such are followed by the State and all State instrumentalities and the GST officials are no exceptions. Acknowledging the zeal to unearth the scam as pressingly urged before us, we cannot be persuaded to overlook the basics to shake the edifice. The petition is not entertained permitting the corpus to approach the appropriate and competent authority/Court for the purpose of agitating all his grievances. - R/Special Criminal Application No. 3089 of 2022 - - - Dated:- 13-7-2022 - Honourable Ms. Justice Sonia Gokani And Honourable Mrs. Justice Mauna M. Bhatt For the Applicant(s) : Mr Bhadrish Raju With Mr Ruchit J Vyas For the Respondent(s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Patel s residence. He was to be allowed to go home in a couple of hours. He was also ensured that the respondent no.2 would make petitioner speak to the respondent no.6. He therefore waited till 3:00 am in the morning and had no option but to return to the residence. 2.3. The next day i.e. on 19.03.2022, the petitioner again went to the GST office and was not allowed the entry. He again failed to get any information about the whereabouts of respondent no.6 and therefore, he tried to contact the respondent no.2 on his mobile number being 9638841415. He was conveyed by the respondent no.2 that the statement of respondent no.6 was being recorded and he would be released shortly. On 02.03.2022, the two pairs of the cloths had been given to one GST officer at the main gate of the GST office building, however, he was not allowed to meet the respondent no.6 and the interrogation continued. The respondent no.6 was detained at the GST office. Petitioner was in touch with the respondent no.2 and was informed every time that they are on the verge of concluding the statement of respondent no.6 and would release him in some time. Therefore, it is alleged that the respondent no.6 is in ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the advocate before the concerned Court for the respondent no.6 differing the remand application along with the objections raised against the same. The attention was also drawn of the Court on the order passed by this Court dated 23.03.2022 directing the respondent no.2 to present the respondent no.6 before this Court on 24.03.2022 at 11:00 am. The Court was also conveyed with regard to the illegal detention of the respondent no.6 from 18.03.2022, however, what the Court did was to direct the sending of the respondent no.6 to Sabarmati Jail along with yadi and to make him present before this Court as per the order dated 23.03.2022. 2.9. Again, the grievance on the part of the petitioner is that the respondent no.2 never provided a copy of the arrest memo, grounds of arrest etc. to the advocate of the respondent no.6 and the same had been provided at around 6:00 pm on 23.03.2022 right before presenting him before the learned Chief Judicial Magistrate, Ahmedabad and the signature of the respondent no.6 had been taken and yet, the arrest memo, ground of arrest etc. had not been provided till the end of the hearing of the remand application. The grievance is of not following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers. The reasons and conclusion of the arrest also need to be furnished to the learned Magistrate and he has to satisfy that the condition precedent for the arrest as per the provision under Section 41 of the Code of Criminal Procedure and thereafter only, it can authorize the detention of the accused. The safeguards given under the Code of Criminal Procedure also applies for the offences under the GST Act and this matter shows a clear violation as no person as per the constitution shall be deprived of his life and liberty under Articles 21 and 22 of the Constitution unless restricted by the procedure established by law. 2.13. The petitioner therefore is before this Court seeking the issuance of writ of habeas corpus or any other appropriate writ with the following prayers:- (A) To issue a writ of habeas corpus or any other writ, order or direction directing the respondent no.2 to produce the corpus of respondent no.6 brother of present petitioner before this Hon ble Court from the illegal custody of respondent no.2; (B) During the pendency of admission, hearing and final disposal of this petition, be pleased to direct the respondent no.2 to 5 to produce respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d GGST Act, there is hardly any illegal detention. The allegation is reiterated of his having a prominent role in perpetrating the scam which has caused huge loss of revenue to the Government. The quantum of such tax evasion necessiated the arrest of the corpus as provided under Section 132 of the GST Act and hence, the proposal for authorization to arrest the corpus Hitesh Patel and Bharat Patel also had been made by the competent authority. Accordingly, the arrest has been made under Section 69(1) of the Act. 6. Marathon arguments on both the sides continued and periodically the adjournments also were sought on both the sides. Eventually, on 06.05.2022 (before the summer vacation started from 07.05.2022) it was not feasible to complete the oral submissions and therefore, this Court on that day passed a detailed order after hearing both the sides allowing the restricted liberty to the corpus. The same had been thereafter scheduled on 06.06.2022, however, on that day with a joint request, it was scheduled on 10.06.2022 and the arguments got concluded by both the sides. 7. The emphasis on the part of learned advocate Mr. Bhadrish Raju is of a clear violation of mandate given b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made before the Apex Court to the correctness of the common interim order passed by the High Court of Delhi in exercise of powers conferred by Section 212(1)(c) of the Companies Act, 2003 and Section 3(c)(i) of the Limited Liability Partnership Act, 2008. The central Government directed the investigation into the affairs of Adarsh Group of Companies and LLPs by officers of Serious Fraud Investigation Office (SFIO) as nominated by Director, SFIO. On the very date i.e. on 20.06.2018, the order was passed by the Director, SFIO. The period mentioned in Clause-6 of the order dated 20.06.2018 came to an end on 19.09.2018. Based on the material gathered during investigation, the approval was sought under the Rule 2 of the Companies (Arrests in connection with investigation by SFIO) Rules, 2017 from the Director, SFIO to arrest three accused persons, one of them was Rahul Modi. The arrest was made on 10.12.2018 and he was produced before the Duty Magistrate, District Court, Gurugram, Haryana on 11.12.2018. After hearing the counsels for the appellant as well as for the accused, the Judicial Magistrate, First Class, Gurugram by order dated 11.12.2018 granted remand till 14.12.2018 and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to which the legality of detention can be challenged in a Habeas Corpus proceeding is the date on which the return is filed in such proceedings and not with reference to the initiation of the proceedings. He relied upon the decision of the Federal Court in Basanta Chandra Ghose vs. King Emperor, which had concluded: If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention . 18. Similar questions arose for consideration in Naranjan Singh Nathawan vs. State of Punjab, Ram Narayan Singh vs. State of Delhi, A.K. Gopalan vs. Govt. of India, Pranab Chatterjee vs. State of Bihar and Another., Talib Hussain vs. State of Jammu and Kashmir, Col. Dr. B. Ramachandra Rao vs. State of Orissa and Others. 7. These decisions were considered in Kanu Sanyal vs. District Magistrate, Darjeeling and Others, as under: Re: Grounds A and B. 4. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rao v. State of Orissa, concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus . Now the writ petition in the present case was filed on January 6, 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Vizakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Vizakhapatnam. See para 7 of the judgment of this Court in B.R. Rao v. State of Orissa. The legality of the detention of the petitioner in the Central Jail, Vizakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits. The Court allowed appeal by setting aside the High Court s order and the accused were directed to remain present before the Special Court which was to decide on merits whether they were required to be remanded the custody. 9.2. In case of Agrawal Foundries Pvt. Ltd. vs. Union of India, reported in 2021 (44) G.S.T.L. 240 (Telangana), considering the challenge to the arrest under Section 69 of the Central Goods and Services Tax Act,2017, the Telangana High Court held that since no first information report gets registered before power of arrest under Section 69(1) is invoked, petitioners cannot invoke Section 438 of the Code of Criminal Procedure for anticipatory bail. The only way it can seek protection against the pre-trial arrest is to invoke writ jurisdiction of High Court. An applicability of Section 438 specifically excluded, the High Court needs to be extremely cautious in exercising the same power indirectly by resorting to Article 226 of the Constitution of India. 75. Merely because the authorities under the CGST Act, 2017 are not to be treated as police officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Human Rights in 1948, which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Despite the pious declaration the MSR,J TA,J ::26:: wp_28268_2019 crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication.... ... 17. Fundamental Rights occupy a place of pride in the Indian Constitution. Article 21 provides no person shall be deprived of his life or personal liberty except according to procedure established by law . Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression life or personal liberty has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78. We would also point out 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. 92. No doubt in P.V.Ramana Reddy (2 supra) a Division Bench of this court held that enquiry by officers of the GST Commissionerate is not a criminal proceeding, but it is a judicial proceeding; and under Sub- Section (1) of Section 70 of the CGST Act, 2017, the proper officer under the CGST Act has the power to summon a person eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Madhu Limaye and other arrested persons for releasing them on the ground that there was noncompliance with the provisions of Art. 22(1) of the Constitution. In Ram Narayan Singh's case it was laid down that the court must have regard to the legality or otherwise of the detention at the time of the return. In the present case the return, dated November 20, 1968, was filed before the date of the first hearing after the rule nisi had been issued. The return, as already observed, does not contain any information as to when and by whom Madhu Limaye and other arrested person were informed of the grounds for their arrest. It has not been contended on behalf of the State that the circumstances were such that the arrested persons must have known the general nature of the alleged offences for which they had been arrested; vide proposition No. 3 in Christie Another v. Leachinsky. ((1947) 1 All ELR 567) Nor has it been suggested that the show cause notices which were issued on November 11, 1968, satisfied the constitutional requirement. Madhu Limaye and others are, therefore, entitled to be released on this ground alone. 12. Once it is shown that the arrests made by the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received a call from the mobile number 9722388992 and the person informed the petitioner that the corpus respondent no.6 has been arrested at 3:00 pm during the pendency of the present application and he would be produced before the learned Chief Judicial Magistrate, Ahmedabad at around 5:30 pm. The respondent no. 6 was accordingly produced before the Court of learned Chief Judicial Magistrate, Ahmedabad where the remand application was also filed by the GST authorities for 14 days. An application was filed by the learned advocate for the respondent no.6 seeking to defer the remand application by drawing the attention of the Court that this Court had passed an order on 23.03.2022 directing the respondent no.2 to present the respondent no.6 before this Court on 24.03.2022 at 11:00 am. The respondent no.6 alleged illegal detention from 18.03.2022 also was made known to the Court concerned and therefore, the Court had directed the corpus to be sent to the Sabarmati Jail along with yadi that he should be necessarily produced before this Court as per the direction. 10.1. The grievance on the part of the petitioner and the respondent no.6 is that the respondent no.2 had not provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public. Creating awareness about the rights of the arrestee would in out opinion be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability. It is hoped that these requirements would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial commission of crimes. PUNITIVE MEASURES UBI JUS IBI REMEDIUM There is no wrong without a remedy. The law will that in every case where man is wronged and undamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done. Some punitive provisions are contained in the Indian Penal Code which seek to punish violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with a corrupt or malicious motive. Section 330 and 331 provide for punishment of those who inflict injury of grievous hurt on a person to extort confession or informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)(b), Cr.PC which is relevant for the purpose reads as follows: 41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person (a)x x x x x x (b)against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted extent the Magistrate will make judicial scrutiny. Another provision i.e. Section 41A Cr.PC aimed to avoid unnecessary arrest or threat of arrest looming large on accused requires to be vitalised. Section 41A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant in the context reads as follows: 41A. Notice of appearance before police officer.- (1) The police officer shall, in all cases where thearrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, itshall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues tocomply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided under Section 69 read with Section 132 of the CGST Act held and observed thus:- 77. In view of foregoing reasons and conspectus of law and the analysis of provisions of the section 69 read with section 132 of the CGST Act and provisions of the Code, we may sum up our Final conclusion to answer the questions arising in these petitions as under: (1) Q. whether the power to arrest as provided under section 69 read with section 132 of the CGST Act can be invoked by the Commissioner only upon completion of the adjudication process of finalising the assessment and determination of the liability as per the provisions of the CGST Act? A. we are of the opinion that the power to arrest as provided under section 69 of the CGST Act can be invoked if the Commissioner has reason to believe that the person has committed offences as provided under the clauses (a), (b), (c) or (d) of sub-section(1) of section 132 of the CGST Act, which are punishable under the clause (i) or clause (ii) of sub-section (1) or sub-section (2) of the section 132 of the CGST Act without there being any adjudication for the assessment as provided under the provisions of the Chapter VIII of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The expression 'any person' in Section 69 of the CGST Act includes a person who is suspected or believed to be concerned in the evasion of tax or availing illegal input tax credit. However, a person arrested by an authorised Officer because he is found to be evading tax or availing input tax credit as specified in the clauses (a) to (d) of the sub-section (1) of the section 132 of the CGST Act is not, when called upon by the authorised Officer to make a statement or to produce a document or thing, accused of an offence within the meaning of Article 20(3) of the Constitution of India. Where an authorised Officer arrests a person and informs that person of the grounds of his arrest, for the purposes of holding an inquiry into the infringement of the provisions of the CGST Act which he has reason to believe has taken place, there is no formal accusation of an offence. The accusation could be said to have been made when a complaint is lodged by an officer competent in that behalf before the Magistrate. The arrest and detention are only for the purpose of holding effective inquiry under the provisions of the CGST Act with a view to adjudging the evasion of GST and availing ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2), 155(3), 157, 172 of the Code of Criminal Procedure, 1973 are applicable or should be made applicable for the purpose of invoking the power to arrest under section 69 of the CGST Act? In other words, whether the authorised officer can arrest a person alleged to have committed non cognizable and bailable offences without a warrant of arrest issued by the Magistrate under the provisions of the Code of Criminal Procedure, 1973? (ii)For the purpose of section 69(3) of the CGST Act, whether the officers of the GST department could be said to be a police officer in charge of a police station as defined under section 2(o) of the Code of Criminal Procedure, 1973? A. (i) Any person can be arrested for any offence under the section 69 of the CGST Act, 1962, by the authorised officer to whom authority to arrest is given by the Commissioner if the Commissioner has reasons to believe that such person has committed an offence punishable under the clauses (a) to (d) of the subsection (1) which is punishable under the clause(i) or Clause (ii) of the sub- section (1) or sub-section(2) of the Section 132 of CGST Act and in such circumstances, the authorised Officer is not obliged to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is statutory in character and should not be interfered with. Section 69 of the CGST Act does not contemplate any Magisterial intervention. (vii) The main thrust of the decision in the case of Om Prakash (supra) to ascertain whether the offence was bailable or non-bailable, was on the point that the offence being non- cognizable, it had to be bailable. In other words, Om Prakash (supra) deals with the question, whether the offences under the Customs Act, 1962, and the Central Excise Act, 1944, are bailable or not? However, provisions of the subsections (2) and (3) of the Section 69 of the CGST Act, provides in built mechanism and procedure in case of arrest for non-bailable offences and bailable offences. (4) Q. Whether the constitutional safeguards laid out by the Supreme Court in D.K. Basu's case [1997 (1) SCC 416] in the context of the powers of the police officers under the Code of Criminal Procedure, 1973 and of officers of the Central Excise, Customs and Enforcement Directorate are applicable to the exercise of powers under the provisions of section 69 of the GST Act in equal measure? A. We may now address ourselves on the last question as regards the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viduals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populiest suprema lex (the safety of the people is the supreme law) and salus republicaeest suprema lex (safety of the state is the supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be right, just and fair . Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eliminated with a view to elicit information, extract confession or drive knowledge abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by perpetuating torture or by applying third degree methods. That, no doubt, will be in clear violation of the right guaranteed under Article 21 of the Constitution of India which is available to all the citizens including a person who will be interrogated under section 70 of the GST Act or section 108 of the Customs Act as held by the Supreme Court in case of D.K. Basu (supra). 78. The petitioners have expressed apprehension of harassment at the end of the respondent authority. Though, such apprehension is not substantiated by any credible material on record, the same would be taken care of by the above observations made in answer to the question no.4. We also clarify that in none of the petitions, any case is made out for grant of any relief having regard to the facts narrated by the petitioners in their respective petitions. What has been observed and discussed by us are general propositions of law keeping in mind the subject matter. 79. We also in this context emphasise the mode of exercise powers of arrest under the GST Law as the power of arrest specified in Section 69 of the CGST Act undoubtedly displeases the corresponding powers of arrest vested in a police of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be served by the appropriate authority under Ss. (2) would be the one which does not contain the reasons for the passing of the order or is not accompanied by the reasons recorded in writing. It may be permissible to record reasons separately but the order would be an incomplete order unless either the reasons are incorporated therein or are served separately along with the order on the affected party. We are, of the view, that reasons for the order must be communicated to the affected party. 81. We have already indicated in our judgment that the guidelines as laid by the Supreme Court in D.K. Basu (supra) shall apply even to the officers of the GST department. Before being codified in the Code, the specific requirement to draft an arrest memo at the time of arrest was first laid down as a guideline by the Supreme Court in D.K. Basu (supra). In D.K. Basu (supra), the Supreme Court laid down 11 guidelines to be followed in all cases of arrest and detention. As one of these guidelines, the requirement to draw up an arrest memo was first articulated as: 36 (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not througho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails or information on the basis of which the Magistrate can arrive at a subjective satisfaction that the person has been arrested on lawful grounds. It is necessary, therefore, to incorporate some prima-facie material against the accused showing his complicity in the alleged offence. 83. There is no doubt that the arrest memo is a key safeguard against illegal arrest and a crucial component of the legal procedure of arrest. Full and consistent compliance is a responsibility of both, the officers of the GST as well as the Magistrate. It is high time that the GST department prescribes a standardized format for the arrest memo. The format must contain all the mandatory requirements and necessary additions. The gist of the offence alleged to have been committed must be incorporated in the arrest memo. It would be the duty of the concerned Magistrate to check that an arrest memo has been prepared and duly filled. In a given case, if the Magistrate finds that the arrest memo is absent or improperly filled or bereft of necessary particulars, then the Magistrate should decline the production of the arrested person. At this stage, we may refer to a very recent pronouncement of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he safeguards mandated through these guidelines necessiate the preparation of arrest memo which essentially is directed towards transparency and accountability in powers to arrest and detain and these safeguards flow from fundamental rights guaranteed in Articles 21 and 22 respectively of the Constitution of India and the life and liberty of a persons is secured under Article 21 and supplemented by Article 22 which provides key protection under the arbitrary arrest or detention to every arrested person. The Court also emphasized at para 83 that a standardized format for the arrest memo is necessarily required to be prescribed by the GST department which must contain all the mandatory requirements and necessary additions where the gist of offence alleged to have been committed must be incorporated and it would be the duty of the concerned Magistrate to check that the arrest memo has been prepared and dully filled. The Court also went to an extent of saying that if the magistrate finds that the arrest memo is absent and improperly filled in or bereft of necessary particulars, the Magistrate should decline the production of the arrested persons. 10.5. At this stage we need to also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n alleged. We find no substance in this contention. In this regard, it would be appropriate to refer Paragraph 11 of the judgment in the case of Poolpandi Superintendent, Central Excise, 1992 (3) SCC 259, where the Apex Court observed the purpose of inquiry under the Act and other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the department are allowed to prevail. For achieving the object of such an enquiry if the appropriate authorities be of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-cooperative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company , The said observations were again, considered and reiterated by the Apex Court in Paragraph 15 in the case of K.I. Pavunny (supra). Therefore, we do not find any substance in the allegation regarding prolonged detention of appellants before recording statements under Section 67 affecting its free nature. 10.6. Apt would be to also refer to the decision of K.I.Pavunny vs. Assistant Collector, Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from company of persons who would encourage non-cooperative attitude to the machinery of law. More particularly, when the allegations are serious in nature, in the case on hands, it is alleged that the person has indulged in the evasion of the provisions of the GST Act in clear violation of the law on the subject by also creating shell companies which do not exist at all. This Court is also conscious of the decision in case of Serious Fraud Investigation Office vs. Rahul Modi (supra), where the Court has held that any infirmity in the detention at any initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merit not in habeas corpus petition where in other proceedings orders are already passed. This Court is also conscious of the well accepted principle emphasized by the Apex Court that a writ of habeas corpus is not to be entertained when a person is committed to judicial or police custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. Referring to the decision of B.Ramachandra Rao and Kanu Snayal, the aspects of lack of jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused following the safeguards given under the Cr.P.C. as they would also apply to the offences under the GST Act, such detention can be permitted. 12.2. Article 21 of the Constitution of India mandates that no person shall be deprived of his life and liberty without the authority of law and Article 22 ensures that the procedure prescribed under the law shall need to be followed while the substantive law takes its course. 13. We could notice from the arrest memorandum that during the search proceedings conducted under Section 67(2) of the Gujarat Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 at the business place of M/s. J.K. Traders engaged in the business of trading of forest waste and scrap, remelting scrap, ingot of iron or steel. There were serious lapses noticed in relation to the input tax credit. The huge amount of incriminating documents, material, electronic device etc. had been seized. The statement recorded of Mr. Bharat Gordhan bhai Patel had revealed the name of Mr. Hitesh Mukeshbhai Patel. Therefore the search proceedings came to be also conducted at his residence from where the mobile phones, electronic devises etc. had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issuance of notice itself is the reason for the Court to be convinced prima facie of a need to know the truth and therefore, this prompt action on the part of the authority, soon after the Court issued the notice, to ensure that no scrutiny of its action is undertaken by the Court also will need to be viewed seriously. We are conscious of the fact that the persons who are allegedly involved in such serious crimes need to be dealt with with all seriousness. The applicant is the real brother of the corpus and the accused had been summed under Section 70 of GST Act. There are number of summons which are listed at the documents produced before this Court. They are dated 18.03.2022 to 22.03.2022. He had remained under the interrogation of the State Tax Officer, Gazetted Officer and during this period his statement had been recorded. There are more than 600 questions which run into around 80-100 pages. Data extraction of digital devise seized was also simultaneously going on and on conclusion of this initial interrogation, he has been arrested by a State Tax Officer, Gazetted Officer on 23.03.2022. Undoubtedly, the corpus accused was submitted to the competent and jurisdictional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the State instrumentality appears to overreach the Court process by putting forward the decision that the habeas corpus petition is not the recourse for questioning and challenging direction, as this Court is bound by the decision of Rahul Modi (supra) with no further challenge also on the part of the petitioner at the time of seeking amendment to the petition where the Apex Court has not approved approaching this Court by way of a habeas corpus petition, particularly when the other competent court has already exercised its jurisdiction, (of course, not at the time of initiating the process before this Court, but, while the corpus was produced before this Court the next day), we choose not to entertain this petition with the following directions, under the peculiar set of circumstances: (i) The petition is not entertained permitting the corpus to approach the appropriate and competent authority/Court for the purpose of agitating all his grievances. (ii) He is also permitted to point out anomalies, defects and other aspects noticed in the procedure in the matters which are to be pursued. (iii) Let there be an inquiry conducted by the highest officer of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e day of his arrest i.e. on 23.03.2022, wherein this Court under order dated 23.03.2022 issued notice returnable on 24.03.2022. 19. I note that the petition as filed on 23.03.2022 was filed praying for issuance of a writ of habeas corpus directing Respondent No. 2 to produce the Corpus- Respondent No. 6 before the Court. The Petitioner had tendered a Draft Amendment which came to be granted vide order dated 24.03.2022, basis which certain additional grounds were raised in the petition. However, the prayer clause remained unaltered. Further, the Petitioner preferred another Draft Amendment which came to be allowed under order dated 12.04.2022, under which the Petitioner amongst other grounds, added the prayer to the effect of enlarge Corpus Respondent No. 6 pending hearing and disposal of the petition. Therefore, resultantly, even though the Petitioner has preferred two Draft Amendments after 23.03.2022, the same do not challenge any subsequent action undertaken by the Respondent authorities including but not limited to arrest which was effected on 23.03.2022 or the order passed by the Ld. Chief Judicial Magistrate, Ahmedabad allowing judicial custody of the Corpus- Respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Synergy Fertichem Pvt. Ltd. v. State of Gujarat reported in (2020) 76 GSTR 81 wherein it is held that: 184. One and all should be mindful of the fact that the country has altogether a new tax regime. It has been just two years since the new tax regime, in the form of GST, has been implemented. Although, this path-breaking reform meets the longstanding demand of trade and industry to simplify and streamline the tax regime in the country, yet, there are many issues which need to be addressed. The assessees need to be educated so far as the new tax regime is concerned. It has been brought to our notice that the government has prepared the Model GST Law in English. Further, all the acts, rules, regulations and FAQ regarding GST are available in English language. Entrepreneurs of many establishments in India may not have proficiency in English language to understand the Model GST Law and the rules associated with it. The government must translate the existing GST rules and regulations in vernacular languages so that it can be better understood by all the assesses, especially in the MSME sector. Applying the same yardstick, a word of caution needs to be sent to the Respon ..... 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