Page 61 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] G. BHASKAR RAO v. DIR. GENERAL OF GST INTELLIGENCE, NEW DELHI 275
5. In view of the above rival contentions, the point that arises for de-
termination in this Criminal Petition is :
“Whether the petitioner can be granted relief under Section 438 of
Cr.P.C.?”
6. As per the submissions made by the Learned Special Public Prosecu-
tor representing the respondents, till date, no single document or any other oral
evidence is collected against the petitioner to substantiate that the petitioner is
managing the day-to-day affairs of the company. The petitioner is apprehending
arrest pursuant to the statements made by the Chief Financial Officer of M/s.
Adarsh Global Trades and Services Private Limited given in the course of en-
quiry made by the respondents. The Learned Special Public Prosecutor would
also submit that Section 70 of the GST Act mandates issuance of summons to a
person and after issuance of such summons only, he/she can be arrested. It is
relevant to state that as per Section 69 of the GST Act, an investigating officer, in
the course of investigation, if he has a reason to believe that a person has com-
mitted any offence specified in clause (a) or clause (b) or clause (c) or clause (d)
of sub-section (1) of Section 132 which is punishable under clause (i) or (ii) of
sub-section (1), or sub-section (2) of the said section, he may, by order, authorise
any officer of central tax to arrest such person, without resorting to Section 70 of
the GST Act and, therefore, it is not mandatory on the part of the investigating
officer to first issue summons under Section 70 of the GST Act and then arrest
that person.
7. In Padam Narain Aggarwal’s case (supra) which was relied upon by
the Learned Special Public Prosecutor representing the respondents, the Apex
Court held as follows :
63. In the case on hand, the respondents were only summoned under Sec-
tion 108 of the Act for recording of their statements. The High Court was
conscious and mindful of that fact. It, therefore, held that applications for
anticipatory bail, in the circumstances, were pre-mature. They were, ac-
cordingly, disposed of by directing the respondents to appear before the
Custom Authorities. The Court, however, did not stop there. It stated that
even if the Custom Authorities find any non-bailable offence against the
applicants (respondents herein), they shall not be arrested “without ten
days prior notice to them.
64. In our judgment, on the facts and in the circumstances of the present
case, neither of the above directions can be said to be legal, valid or in con-
sonance with law. Firstly, the order passed by the High Court is a blanket
one as held by the Constitution Bench of this Court in Gurbaksh Singh and
seeks to grant protection to respondents in respect of any non-bailable of-
fence. Secondly, it illegally obstructs, interferes and curtails the authority of
Custom Officers from exercising statutory power of arrest a person said to
have committed a non-bailable offence by imposing a condition of giving
ten days prior notice, a condition not warranted by law. The order passed
by the High Court to the extent of directions issued to the Custom Authori-
ties is, therefore, liable to be set aside and is hereby set aside.
8. In the above decision, the Hon’ble High Court imposed condition
which was not in consonance with Section 438 of Cr.P.C and the said condition
was curtailing the powers of the investigating authority i.e., custom officers from
exercising the statutory power of arrest. Therefore, the Hon’ble Apex Court was
pleased to set aside the order of bail granted in favour of the accused therein.
9. In the instant case, as per the submissions made by Learned Special
Public Prosecutor, there is no prima facie case against this petitioner yet, directly
GST LAW TIMES  18th June 2020  61