Statement Of Person Summoned By GST Authority Must Be Recorded In Presence Of Counsel Within Office Hours; Can Ask For CCTV Recording: P&H HC

The Punjab and Haryana High Court has reiterated that the statement of a person summoned by the Directorate General of Goods and Services Tax Intelligence (DGGI) officials must be recorded during official working hours and in the presence of their counsel. The Court also observed that the summoned person has the right to request CCTV footage of the proceedings.The developments comes in case of illegal detention of 30-hours, wherein a businessman was kept in in the zonal office overnight and subjected to prolonged interrogation. Justice Harpreet Singh Brar said, "The statement of any person summoned by the DGGI must be recorded during office hours in view of the judgment rendered by a Division Bench of the Bombay High Court in Mahesh Devchand Gala vs. Union Of India of India and others. Further, the person so summoned is well within his rights to record his statement in the presence of his counsel. The counsel may be present in the field of vision of the summoned person but not his hearing range, in terms of the judgment of a Division Bench of the Telangana High Court in Agarwal Foundries..."The judge added further that any person summoned to the DGGI may request his statement to be recorded under CCTV surveillance, in view of the judgment of the Supreme Court in Paramvir Singh Saini case.The Court was hearing habeas corpus plea of Bharat Lal Garg was summoned to record his statement in connection with an ongoing investigation, during which data was extracted from his laptop for forensic analysis. It noted that a cognisable offence had not been established at the time, rendering even consideration of his arrest premature. The proposal to arrest him was moved only at 5.46 pm on June 5 and approved by the Additional Director General an hour later “mechanically, without examining the material available” and without the mandatory Document Identification Number (DIN), making the authorisation “deemed invalid”.Circumstances Orchestrated Where Choice Was Rendered IllusionaryRejecting the contention that Garg stayed at the office for interrogation "voluntarily", Justice Brar observed that at time, erosion of fundamental rights is cloaked by procedural formalities and subtly, such circumstances are orchestrated where choice is essentially rendered illusionary. When one is summoned to the office of a State run agency and kept under constant watch, an atmosphere suggesting stepping out is not an option is created.The very fact that the DGGI officials do possess the power to arrest is sufficient to induce a sense of fear and inhibition in the mind of the detenue, making the matter at hand a prime example of psychological coercion, it added."The unspoken threat that leaving without permission would be met with immediate restraint and give rise to adverse consequences ensures that the detenue does not believe that exercising his fundamental rights is a real option," the bench noted.It further said that even though the DGGI officials claim that the detenue remained present of his own accord, the illusion of voluntariness renders any consent invalid. The constitutional promise of liberty is not a hollow one; therefore, it is the duty of this Court to ensure that the rights of a citizen are rendered merely theoretical. DGGI Officials Failed To Give Reasons For Interrogating At NightThe Court noted that the DGGI officials have failed to indicate any reasons necessitating the continuation of interrogation into the night.Therefore, the Court opined that since the detenue was held in informal custody for an indefinite period, he is entitled to the protections available under Articles 21 and 22 of the Constitution.Courts Needs To Balance Between Reasonable Needs Of Law Enforcement Agency And Protection Of CitizenThe judge observed that, "Courts are required to strike a balance between the reasonable needs of law enforcement agencies and protection of citizens from abuse of power. Further, in this regard, judicial review is available to the extent of examining whether the satisfaction regarding 'reasons to believe' is based upon material which establishes the guilt of the arrestee and, if adequate and due care is taken to ensure that the arrest is not made arbitrarily, on the whims and fancies of the authorities."After examining landmark Supreme Court's decisions the Court concluded that the Commissioner must:1. Record his opinion on the file;2. Consider the nature of offence;3. The role of the person involved;4. The evidence available on record;5. Satisfaction that person involved is guilty of the offence;Observing that DGGI officials put the detenue under restraint at 05:46 PM on June 05, they did not show any urgency in supplying the grounds of arrest to him, the Court held, "the subsequent process of arrest and remand stand vitiated."Mr. Vinod Ghai, Senior Advocate with Mr. Arnav Ghai, Advocate and Mr. R.S. Bagga, Advocate for the petitioner(s) in both petitions.Mr. Manish Bansal, Public Prosecutorwith Mr. Viren Sibal, Addl....

Statement Of Person Summoned By GST Authority Must Be Recorded In Presence Of Counsel Within Office Hours; Can Ask For CCTV Recording: P&H HC

Aiman J. Chishti

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