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TMI Blog2025 (1) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... specified under the various Clauses under Section 132. >From the statements recorded before the investigating authority it is seen that there are other partners in the partnership besides the petitioner and at this stage of investigation there are no materials to suggest that the petitioner will tamper with the evidence or have evaded the summons or did not respond to summons when served. The question of whether the directions of the Apex Court in ARNESH KUMAR VERSUS STATE OF BIHAR & ANR [2014 (7) TMI 1143 - SUPREME COURT] were followed by the respondent is also an issue which would required determination by this court. >While there is no quarrel with the proposition that Section 69 does confer power on the Commissioner to order arrest in case any of the specified offences under Section 132 of the CGST Act, the question remains is whether arrest or detention is called for merely because is power is available on the authority to do so. >The petitioner has cooperated with the investigating authority and his statement has been recorded there is no material to suggest that he will abscond or not respond to summons issued. There is also no material which prima facie suggests th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to pass an order releasing the petitioner from detention on the conditions mentioned in the order. The learned counsel has also referred to the order of the Apex Court which was rendered in an appeal which was preferred against the said Judgment of the Bombay High Court. The Apex Court by the order dated 01.03.2023 had confirmed the release order passed by the Division Bench of the Bombay High Court while interfering with the conditions imposed by the Bombay High Court for release on bail. It is submitted that following this order, another such order was passed by the Division Bench of the Bombay High Court in Sunil Kumar Jha Vs. Union of India & Ors. [W.P.(ST) No. 5484/2021] & ors interfering with the detention of the assessee concerned who was detained in judicial custody. It is submitted that though there is a power of the detention under Section 69 of the GST Act, considering the investigations undertaken and in view of the fact that the actual quantum of demand has not been determined till date, the assessments not having been finalized, the detention of the petitioner was uncalled for and therefore, the impugned order of the detention is required to be set aside and qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition also the Bomaby High Court following the earlier order had interfered with the detention orders passed by the respondent authorities. >8. The judgment of the Apex Court referred by the respondents on the question whether for grant of the pre arrest bail, the powers under Article 226 can be invoked. The Apex Court held that while the power is available but the same has to be sparingly used and in the facts of that case held that the power ought not to have been invoked. >9. In so far as the Delhi High Court judgment placed by the respondent it is seen that the Delhi High Court rejected the claim of the writ petitioners therein for the grant of Pre-arrest bail leaving them to avail the statutory remedies. >10. Section 69 of the CGST Act, 2017 confers the power to arrest, where the Commissioner has reasons to believe that the persons had committed any offence specified in Clause (A) or Clause (B) or Clause (C) or Clause (D) of Subsection 1 of Section 132 which is punishable under Clause (I) (II) of Sub-section (1) for (2) of the said Section, he, the Commissioner may by order authorize any officer of central excise to arrest such a person. >11. Having notice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with the proceeding where pursuant to summons issued by the Goods and Services Authority, the assessee, apprehending arrest had approached the Gujarat High Court praying for grant of Pre-arrest bail. The Gujarat High court disposed of the writ petition directing the petitioner to appear before the authority and if any apprehension is necessary, the authority will give further opportunity of two weeks. Being aggrieved, Revenue preferred an appeal before the Apex Court. The Apex Court upon examination of several earlier judgments of the Apex Court as well as that of the High Courts held that referring to Kartar Singh Vs. State of Punjab reported in (1994) 3 SCC 569 held that although there is no bar for the High Court to entertain an application of Pre-arrest protection under Article 226 of the Constitution of India yet such powers should be exercised sparingly. The writ of mandamus would lie only to compel the performance of the statutory and other duties and no writ of mandamus would lie to prevent and officer from performing statutory function. In Daulat Samirmal Mehta (supra) a Division Bench in Bombay High Court while entertaining a writ petition challenging the constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in another matter decided in Sunil Kumar Jha Vs. Union of India & Ors. [W.P.(ST) No. 5484/2021] & ors along with other connected matter again held with the question of the exercise of the power under Section 69 will arise only upon determination of the liability and consequently enlarging the petitioner therein on bail. >20. Having noticed the above judgments cited at the bar what is clear is that while the power to arrest is conferred under Section 69 of the CGST Act the same shall only be imposed only upon reasons to believe to be arrived at by the Commissioner that the person has committed any of the offences specified under Section 132 and punishable under Clause I, II of Sub-section 1 or Subsection 2. >21. Perusal of the records reveals that the authorization required under the statue has been given by the Commissioner on the ground that he has reasons to believe on the materials placed before the authority. However, what is not seen from the materials placed before the court at this stage is the determination of the liability as is required for recovery of taxes from any assessee. No material has been shown that such determination of the liability had been arrived at by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apprehension of the accused tampering with the witnesses or being a threat to the complaint or the witnesses; >(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice; >(iv) The antecedents of and circumstances which are peculiar to the accused; >(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and >(vi) The significant interests of the public or the State and other similar considerations." >25. The Apex Court held that the above principles have involved over a period of time and had emanated from the series of decisions and such principles are equally applicable while exercising jurisdiction under 226 of the Constitution of India when the court is call upon to secure the liberty of the accuse/petitioner. >26. Again in Criminal Appeal No. 838 of 2021 ( Siddharth Vs. The State of Uttar Pradesh & Anr.) the Apex Court while examining the question of taking into custody any person by the police at the time of submission of the chargesheet held that Section 170 of the CrPC does not impose an obligation on the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d however, extra copies be furnished within the period of 2 (two) weeks from today. >30. Accordingly, the petitioner is directed to be released on interim bail subject to furnishing personal bond of Rs. 1 Lakh as well as execute a bail bond of Rs. 1 Lakh with two local sureties of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Kamrup (M) and the subject to following conditions : >(1) That the accused-petitioner shall appear before the Investigating Officer as and when required and co-operate with the investigation, till investigation is complete. >(2) He shall not change or move out of his known address without written permission of the I.O. >(3) That the accused-petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police office or tamper with the evidence. He shall not, in any manner, try to influence or intimidate the prosecution witnesses. >(4) That the accused-petitioner shall not obstruct the progress of the investigation/trial. And >(5) That the accused-petitioner shall not misuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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