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TMI Blog2020 (11) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... ith proceedings initiated against the petitioners by the respondents under the C.G.S.T. Act, 2017 and I.G.S.T. Act, 2017. The admitted facts 2. The admitted facts are that the 1st petitioner is a Private Limited Company incorporated under the Companies Act, 1956 involved in the business of steel and 2nd petitioner is its Director. The 3rd petitioner is alleged to be brother of the 2nd petitioner involved in his own business unconnected and unrelated to the business and affairs of the 1st petitioner. The 4th petitioner is a relative of petitioner nos.2 and 3 and is alleged to be engaged in trade with the 1st petitioner but not involved in the business affairs of 1st petitioner. 3. The 1st petitioner is registered under the C.G.S.T. Act, 2017 w.e.f. 01.07.2017. 4. Admittedly, on 11.12.2019, officials attached to the Directorate General of G.S.T. Intelligence, New Delhi (2nd respondent) conducted simultaneous raids on business units of the 1st petitioner and the residential house of the 2nd petitioner around 08:30 a.m., without any prior intimation or show-cause notice. The case of the Writ Petitioners 5. It is claimed by petitioners that the 1st petitioner had always adhered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner nos.2 and 3 without any regard to their old age when they tried to stop the physical assault on the 4th petitioner after hearing his loud cries; and as a result of such assault, the 4th petitioner was hurt on the lips which got swollen and cut with bleeding and also suffered severe tooth pain. It is the contention of the petitioners that several employees of 1st petitioner were also assaulted by the 2nd respondent's officials/ respondent nos.5 to 9 at the other business units of the 1st petitioner. 8. It is contended that when petitioner nos.2 and 3 were requesting repeatedly the respondents not to resort to violence and to spare the 4th petitioner, respondent nos.5 and 6 committed aggravated assault on the person of the 3rd petitioner and grievously hurt his leg. 9. According to petitioners, the 3rd petitioner was unable to stand and with the help of employees of the 1st petitioner, he was rushed to the Sunshine Hospital as a Medico-Legal case. Copy of the Out-Patient Discharge advice is filed as Annexure P-4 along with the Writ Petition which indicated that there was a blunt injury to the thigh of the 3rd petitioner on account of the assault on his person, and he was dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 332, 186, 506, 504 read with Section 34 of I.P.C. 16. Petitioners allege that the said F.I.R. was lodged as a counter-blast to the complaint lodged by the employees of the 1st petitioner with the Police at 06:39 p.m. on 11.12.2019 with false allegations. 17. Petitioners contended that they secured anticipatory bail in Crl.M.P.No.4525 of 2019 on 17.12.2019 in Crl.M.P.No.1503 of 2019 in Crl.M.P.NO.4525 of 2019 from the Special Judge for Trial of Offences under SCs and STs (POA) Act - cum - VI Additional Metropolitan Sessions Judge, Secunderabad. 18. Petitioners allege that they have no intention to scuttle any enquiry initiated against them under the C.G.ST. Act, 2017 and would co-operate with the said enquiry, but the respondent nos.2 to 9, being statutory authorities, are not entitled to violate the petitioners' life and liberty contrary to Article 21, and they cannot subject the petitioners to torture or physical violence. 19. Petitioners sought the following reliefs : "A. Declaring the action of respondent nos.2 to 9 in harassing, manhandling and assaulting petitioner nos.2 to 4 purportedly conducted in furtherance of inquiry proceedings F.No.574 / CE / 198 / 2019 / IN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents 1 to 4 and 10 25. It is contended by the respondents 1 to 4 and 10 that the petitioners are not cooperating with the investigating agency; they are not joining inquiries; vide letter dt.23.12.2019, petitioners 1 and 2 were requested for appearance before the Senior Intelligence Officer on 30.12.2019 for forensic examination of certain electronic devices; vide letter dt.28.12.2019, the 1st petitioner did not agree for appearing before the officers of the 2nd respondent; vide summons dt.31.12.2019, Pramod Aggarwal, 2nd petitioner, has been summoned for 06.01.2020 to witness the forensic examination of the electronic devices; that the inquiries are being conducted in a fair manner by the respondents strictly in accordance with law under the supervision of senior officers. 26. It is contended that preliminary investigation in the matter has revealed evasion of GST of Rs. 5,00,00,000/- by 1st petitioner and this quantum is expected to increase substantially as analysis of all kacchi parchis, digital documents and fake invoices is being conducted. 27. It is contended that during the course of search operation petitioners 2 to 4 tried to hamper and obstruct by way of physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess tycoon in the presence of local police. 33. It is stated that only the complaint of respondent No.9 was taken cognizance by the police and not that of the petitioners and this itself is a testament to the veracity of the complaint made by the 9th respondent. 34. It is stated that the officers of respondent No.1 were rational and professional in their conduct and behaviour, and on the contrary, the language of petitioner No.2 to 4 was discourteous and provocative, aiming to irritate and annoy the search team. However, the Officers, using their wisdom and experience, remained calm and composed throughout the search proceedings, despite incitement, non-cooperation and provocation on the part of petitioners. 35. It is alleged that the allegation of torture was made by the petitioners to deliberately get the investigation in the matter transferred from respondent No.1 to respondent No.10 or any local GST Wing with an ulterior motive to influence the investigation and its outcome in their favour by using their local influence and clout. It is stated that Officers of respondent No.1 are responsible officials and they would not do anything which violates basic human and fundamental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the e.devices seized; and that in view of the high handed and unlawful procedures/means adopted by respondent Authorities, the employees of the 1st petitioner were in fear to appear before the authorities as such the same was communicated to respondent Officials. 43. It is contended that a notice dt.31.12.2019 was issued directing appearance of petitioner No.2 or any authorized representative to be present for forensic enquiry of the e.evidence seized from the premises of petitioner No.1, but not as stated that only petitioner No.2 was directed to appear. 44. Thereafter another summons dt.02.01.2019 (wrongly dated) was issued for appearance on 06.01.2020 for conducting forensic examination of the e.devices recovered from the premises of petitioner No.1. That dutifully, in compliance of the above summons, a representative appeared before the Authorities on 06.01.2020 and cooperated with the ongoing enquiry. The said enquiry was continued for 4 days. The petitioner No.1's personnel stayed at Delhi for 4 days and duly assisted with the enquiry. As the petitioners were traveling through train and due to delay caused by fog, the representative of the petitioners could not reach at i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the authorities' likewise; and employees Mr.Ravi Dutt, Jithender Shukla, Raman Kumar Jha, Sanjay Singh Gaur and Raj Kumar Sharma were also issued summons to appear before the authorities. In furtherance to summons issued to two other employees, Karunakar Biswal and Pawan Kumar Sharma couldn't appear on the indicated date due to medical reasons. On subsequent summons, Mr.Karunakar Biswal appeared on 28.01.2020 before the authorities. It is contended that two employees i.e. Naresh Sharma and Arun Kumar Sharma, on whom summons were issued, could not appear since they had resigned from the petitioner Company and the same was informed to the authorities. It is contended that when the employees appeared before the authorities on summons again their statements were recorded by coercing the employees and they i.e. Raj Sharma, Jithender Shukla, Raman Kumar Jha and Dinesh immediately represented to the Deputy Director, DGGI about the retraction of the statement. 48. It is specifically denied that petitioners had tried to hamper and obstruct the enquiry by way of physical assault on the officers of the respondents. In fact it is contended that it was the officials of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental rights of the petitioners, and that no procedure was followed as stipulated under the Law. 54. According to petitioners, enquiry and search operations were conducted without following the due process of law apart from being violative of the provisions of the CGST Act, 2017 and the fundamental rights guaranteed to the petitioners under Article 14 & 21; that the respondent officials further failed to disclose any search authorisation despite repeated insistence of 2nd petitioner and his employees; that the petitioners and their employees were assaulted and manhandled causing injuries; that the respondent officials harassed the employees to give false statement as dictated by the respondent officials; that Medico Legal Case reports and complaint lodged firstly by the petitioners by dialling 100 are the evidence of high handed actions and harassment caused to the petitioners and their employees; that the respondent officials have not allowed the petitioners even to use the landline phone; that one of the employee of the 1st petitioner called up and reported to police No.100 through his personal mobile phone to alert the police, but however, due to the influence of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are mischievously taking advantage of the inadvertent mention of wrong surname and are trying to mislead the Court. 58. It is denied that it was imperative for the authorities to record the statements of 2nd petitioner on spot. It is denied that the statement of 2nd petitioner was recorded as per Section 70 of the GST Act, 2017. It is contended that it is completely untenable and illegal to state that there is no bar in making enquiry in the night as provided under Section 70 of the Act; that the conduct of the proceedings by the authorities running into mid-night itself was improper more particularly in the aforementioned facts. 59. It is contended by the petitioners that they are seeking transfer of the present enquiry and investigation on the reason of the high handed and illegal procedure being adopted by the authorities and that the authorities gave severe threat to the petitioners of seeing their end once they start calling the petitioners to Delhi. It is contended that the petitioners dutifully and obediently assisted and cooperated with the entire proceedings of the enquiry and the material on record clinchingly establishes the manner and procedure of the enquiry more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt instead of searching for a Government hospital at that juncture. 69. We cannot also ignore the Annexure P5 which is an acknowledgement given by the Police at 6.39 pm on 11.12.2019 that there was a call made by an employee of the 1st petitioner to Phone No.100 and that a case No.20190021545598 was assigned to it and that it was assigned to the Mahankali Police station in Secunderabad. 70. In contrast, the FIR 232 of 2019 was registered by the Police at the instance of the respondents much later at 8.30 pm on 11.12.2019 against the petitioners 2 to 4 i.e., 2 hours after the police were contacted by the petitioners employee at 6.39 pm, and 1 hour after the 3rd petitioner was treated in Sunshine Hospital for alleged assault and injury to his left thigh. 71. We are not saying that this material is conclusive of any violence used by the respondents against the petitioner no.2 to 4 or their employees but prima-facie it suggests such a possibility. 72. The fact the police did not register any FIR on the complaint made by the petitioners, in our opinion, is not that significant because it is not at all unusual for the police to refuse to register any complaint against Government Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wounded, civilisation takes a step backward - flag of humanity must on each such occasion fly half-mast. 12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law. 13. "Custodial violence" and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrange for sureties in the event of his arrest for a non-bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes clause (2) of Article 22 of the Constitution of India. There are some other provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold an enquiry into the cause of death." 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. Ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht itself..." 87. We are unable to accept this explanation offered by the respondents to justify the issuance of summons to the 2nd petitioner after the midnight of 11.12.2019 i.e., after 00:00 hrs on 12.12.2019 and asking him to appear before the 4th respondent at 00:30 hrs on 12.12.2019. 88. The Supreme Court in D.K. Basu (5 Supra) also held that even a prolonged interrogation by an investigative agency may take the colour of deprivation of personal liberty in the following manner: "18. However, in spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third-degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt; that if such person who is issued a summons gives false evidence or fabricates false evidence or intentionally offers any insult or causes any interruption to any public servant, under Sections 193 and 228 of the IPC, he would be liable for punishment; that though the High Court can entertain an application for pre-arrest protection under Article 226 of the Constitution of India, such power should be exercised by the High Court sparingly; that under Section 69 of the CGST Act there is power to order arrest in cases where the Commissioner has reasons to believe that a person has committed any offence specified in Clauses (a) to (d) of Sub-Section (1) of Section 132 of the said Act; that such power is confined to cognizable and nonbailable offences; under Sub-Section (3) of Section 69 bail can also be obtained by persons arrested in connection with non-cognizable and bailable offences; and Section 41 and Section 41A of CrPC would apply in the event the Commissioner intends to arrest any person; and that normally relief of protection against arrest ought not to be granted. It is also contended that the Commissioner exercising power under Section 69(1) is not a police officer. 93. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Pandey and another vs. Union of India and another Writ Petition (Cri.) No.28 of 2012 with W.P. (Cri.) No.29 of 2012 decided on 16th April, 2012., Nayasa Exports Pvt. Ltd. vs. Union of India and another W.P.(C).No.822 of 2010 decided on 16th February, 2010 by the Delhi High Court, Sri Parkarsh Aggarwal vs. Union of India and another Writ Petition (Cri.) Nos.85 of 2010 decided on 4th August, 2010., Anandprakash Choudhari vs. Union of India and another CRLMP.No.23956 of 2010 in Writ Petition (Cri.) No.122 of 2010 decided on 24th November, 2010, etc. 98. In Birendra Kumar Pandey (9 supra), referred to in Jignesh Kishorbhai (6 supra), even though the decision in Poolpandi (4 supra) was also cited, the Supreme Court referred to its own decision in Senior Intelligence Officer, Directorate of Revenue Intelligence vs. Jugal Kishore Samra (2011) 12 SC.C. 362 and held : "Taking a cue, therefore, from the direction made in D.K. Basu and having regard to the special facts and circumstances of the case, we deem it appropriate to direct that the interrogation of the respondent may be held within the sight of his advocate or any other person duly authorized by him. The advocate or the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with the alleged GST evasion by the 1st petitioner and make them incur a huge amount of expenditure, is to be considered. 106. When the respondents have a Zonal Unit at Hyderabad where they can certainly carry on any enquiries or interrogation, we do not think that it is desirable, on account of COVID -19 Pandemic situation and the high cost involved, to allow the respondents to summon 50 or more persons in connection with the investigation of alleged GST evasion by the 1st petitioner to New Delhi by endangering their health and lives. 107. The learned Additional Solicitor General fairly stated that petitioner nos.2 to 4 may be directed to attend the New Delhi office of the respondents and submit themselves to interrogation once for duration of two to three days and that the other persons would be interrogated by the officials of the 2nd respondent at Hyderabad in their zonal unit. We place the said statement on record. 108. We therefore allow the Writ Petition with the following directions: (a) the respondents shall not use any acts of violence or torture against petitioner nos.2 to 4 or their employees in furtherance of enquiry proceedings F.No.574 / CE / 198 / 2019 / I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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