BNSS Procedures Mandatory For GST Arrests Despite Revenue Nature Of Investigation: Gauhati High Court
The Gauhati High Court held that even though GST investigations are revenue in nature, arrests made by GST officers must strictly comply with the mandatory procedural safeguards prescribed under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Justice Pranjal Das opined that even with regard to arrest by revenue authorities under GST, the procedural compliance...
The Gauhati High Court held that even though GST investigations are revenue in nature, arrests made by GST officers must strictly comply with the mandatory procedural safeguards prescribed under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Justice Pranjal Das opined that even with regard to arrest by revenue authorities under GST, the procedural compliance under Sections 35/47/48 B.N.S.S. are essential, failing which, the arrest may become bad in law.
In the case at hand, the prosecution alleged that the assessee/petitioner was indulging in obtaining GST registration of non-existing firms and acting as key persons for issuing fake invoices to pass fake Input Tax Credit (ITC) without any corresponding supply of goods and services.
The fraudulent transactions of the aforesaid nature were said to be more than Rs.8,00,000,00/-(Eight Crores) for the period from June, 2025 to October, 2025.
As per the prosecution, the alleged offences fall within the ambit of Section 132 sub-(1) and in terms of Section 132 (5), these offences are cognizable and non-bailable.
The counsel for the accused argued that a purported notice under Section 35(3) BNSS was given, which is dated 14.11.2025, with the date of appearance mentioned as 13.11.2025 - which is obviously contradictory.
Drawing attention to the arrest memo, it was argued that the time of arrest on 14.11.2025 is mentioned as 12.10 P.M., but in the notice dated 14.11.2025, the required time of appearance before the Revenue Authority is mentioned as 4.15 p.m.
Therefore, it was submitted that the notice for appearance indicated a time, which is after the accused has already been arrested, and hence, such a faulty/mechanical compliance with the statutory notice cannot be considered as compliance at all.
The bench noted that the notice under 35(3) B.N.S.S. given to the accused Sameer Malik, indicated his required appearance at 4.15 P.M on 13.11.2025, which is obviously a typing or writing error, and the same has also been admitted by the Investigating Officer in his petition filed before the court.
The bench agreed with the counsel for the accused that by the time the accused was directed to appear in compliance with under 35(3) B.N.S.S., he had already been arrested on the same day at 11.45 A.M. In such a situation, there is no option but to hold that there has been no effective compliance with the notice under 35(3) B.N.S.S., thereby making the arrest infirm/defective in terms of the settled law.
Although the Revenue Officials conducting such an investigation under revenue laws are not trained police officers, nevertheless, during such an investigation, they have to comply with such procedural requirements stipulated by criminal procedure, added the bench.
The bench stated that in the larger interest of society, the Revenue Officials should also be continually trained in these procedural matters under criminal law, so that, whenever arrests are genuinely required for the purpose of investigation, they are not defeated on technical grounds.
In view of the above, the bench allowed the bail petition with Rs. 1,00,000/- surety.
Case Title: Sameer Malik v. The Union of India
Case Number: Bail Appln./3951/2025
Counsel for Petitioner/Accused: S.K. Nargis
Counsel for Respondent/Department: S.C. Keyal