TMI Blog2020 (11) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... r powers are set out with clarity under the Act. Reference can also be made to Section 30 of the said Act which provides for specification of a Court of Session in each District to be a Human Rights Court by the State Government so that offences arising out of violation of human rights are tried and disposed of speedily - In view of this statutory regime already in place, it would be futile for the respondents to claim any liberty to torture or use physical violence during the course of search, investigation or interrogation under the CGST Act, 2017 against persons suspected of tax evasion like the petitioners or their employees. The possibility of the use of violence by respondent nos.5 to 9 against petitioner nos.2 to 4 and the other employees of petitioner no.1 cannot be entirely ruled out having regard to Ex.P.4, in particular. The respondents cannot contend that they will interrogate the persons suspected of committing any tax evasion as per their sweet will forceably keeping them in their custody for indefinite period. If it is done, it has to be construed as informal custody and the law relating to an accused in custody has to be expressly or impliedly applied. If a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enquiry in the above proceedings against the 1st petitioner shall not be handled by the 5th respondent, and he shall not participate in such enquiry, and it shall be transferred to another official to be designated by the 2nd respondent - Petition dismissed. - Interlocutory Application No. 1 of 2020 in I.A. No. 3 of 2019 and Interlocutory Application No. 2 of 2020 in I.A. No. 2 of 2019 and Interlocutory Application No. 1 of 2019 in I.A. No. 3 of 2019 in/and Writ Petition No. 28268 of 2019 - - - Dated:- 6-11-2020 - Interlocutory Application No.1 of 2019 in Interlocutory Application No.3 of 2019 in/and Writ Petition No.28268 of 2019 Honourable Sri Justice M.S. Ramachandra Rao And Honourable Sri Justice T. Amarnath Goud For the Petitioner : N Naveen Kumar For the Respondent : N Rajeshwar Raoast Sol Gen COMMON ORDER: PER SRI JUSTICE M.S.RAMACHANDRA RAO The question which arises for consideration in this Writ Petition is whether officials belonging to the G.S.T. Intelligence Department of the Union of India such as respondent nos.5 to 9 in the Writ Petition can resort to physical violence while conducting interrogation of the petitioners and their em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the office of the 2nd respondent to the office premises of the 1st petitioner at around 02:00 p.m. purportedly to assist the officials leaving the 2nd petitioner behind; and the 3rd petitioner was taken only on account of the said individual being the brother of the 2nd petitioner despite repeatedly being informed that the 3rd petitioner was in no manner connected or concerned with the 1st petitioner. 7. It is the further contention of the petitioners that the 2nd petitioner was subsequently called to the office of 1st petitioner around 03:30 p.m.; and it is alleged that respondent nos.5 to 9 coerced 3rd petitioner to call 4th petitioner to the office of the 1st petitioner under the pretext of assisting and helping the 3rd petitioner in the process of enquiry; that 2nd and 3rd petitioners were initially questioned inside the chambers of the 2nd petitioner and thereafter the 4th petitioner was questioned at about 05:30 p.m.; that all the phones of petitioner nos.2 to 4 were seized; during the course of questioning, respondent nos.5 to 9 allegedly abused the 4th petitioner in filthy language for not giving satisfactory replies and physically assaulted 4th petitioner repeatedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmoning the 2nd petitioner to appear in person before the 4th respondent at 00:30 hrs. in the office of the 1st petitioner to tender true and correct statement concerning the alleged enquiry. The said summons dt.12.12.2019 is filed as Annexure P.6 to the Writ Petition. 14. According to petitioners, the illegal and arbitrary search by respondents went on till the afternoon of 12.12.2019, and thereafter, respondent nos.5 to 9 handed over petitioner nos.2 and 4 to local police officials who then released them by issuing notice under Section 41-A of Cr.P.C. asking the petitioners to appear on 08.12.2019. Petitioners contend that at the time of handing over of the petitioners to the police, respondent nos.5 to 9 threatened petitioner nos.2 and 4 that they would force the petitioners to come to Delhi and would see their end. 15. According to petitioners, they came to know that the 9th respondent had filed a false complaint against the petitioners, i.e., FIR.No.232 of 2019 on 11.12.2019 at 20:30 hrs alleging that it was the petitioners who assaulted 5th respondent, that all the petitioners and their relatives misbehaved with the officers who had participated in the search oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established under the CGST Act, 2017. 21. Petitioners also filed I.A.No.2 of 2019 to permit the petitioners to appear before the respondents pursuant to any further summons issued by them only in the presence of their advocates. 22. I.A.No.3 of 2019 was also filed to stay all further proceedings by respondents 2 to 9 including arrest of petitioners 2 to 4 pursuant to the enquiry proceedings F.No.574/CE/198/2019/INV. Events after filing of the Writ Petition 23. On 19.12.2019, the Writ Petition was admitted after hearing submissions of Sri S.Niranjan Reddy, Senior Counsel for Sri N.Naveen Kumar, Counsel for the Writ Petitioners and Sri B.Narasimha Sarma, Senior Counsel for the Central Taxes Dept, Union of India, and: (i) in I.A.No.2 of 2019, this Court directed that the statement of the petitioners shall be recorded only between 10.30 AM and 5.00 PM in the presence of a counsel engaged by them; (ii) I.A.No.3 of 2019, this court granted interim stay of arrest of the petitioners by respondents 2 to 9 up to 31.01.2020. The said order was extended subsequently as well up to 31.03.2020. 24. I.A.No.1 of 2020 was filed by respondents 1 to 4 and 10 to vacate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er No.1 to assist them in the search proceedings. 29. According to them, petitioner No.3 called petitioner Nos.2 and 4 at the premises of petitioner No.4 and they started obstructing the official work under a criminal conspiracy and petitioner no.3 allegedly ran away with crucial evidence on the pretext of being injured. 30. They contended that the search proceedings were carried out under proper and applicable law and procedure, and no harm or damage were done to any human/person or property and no sentiments were hurt which was also clearly mentioned in the panchanama dt.11/12.12.2019 drawn on spot in the presence of two independent witnesses and the copy of the same was given to one of the staff of petitioner No.2. 31. It is contended that there was necessity to record statement of 2nd petitioner (in pursuance of summons issued under Section 70 of CGST Act, 2017) on the spot as preliminary investigation clearly suggested his role in the tax evasion by petitioner No.1; that he was available at the spot i.e. Corporate Office of petitioner No.1 and so he was served summons in his office after midnight, in the early hours of 12.12.2019. According to the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed while examination of a person is being done under the CGST Act. It is alleged that investigation into an offence is the statutory function of the police, that superintendence thereof is vested in the State Government and the Court is not justified, without any compelling and justifiable reason, to interfere with investigation. According to the respondents, frequent interference by superior Courts at interlocutory stages tends to defeat the ends of justice. 39. They relied on the decisions in Rakesh Bagla Vs. Director General Anti Evasion 1997 (93) ELT 668 ALL , P.V.Ramana Reddy and others Vs. Union of India Order dt.18.04.2019 in W.P.No.4764 of 2019 and batch reported in (2019) 73 GST 727 = MANU/TL/0064/2019 (DB) , and decisions of Delhi High Court in W.P. (Crl) No.2686 of 2019 Sudhir Kumar Agarwal Vs. DGGI, and Sudhir Gulati Vs. Union of India 1998 (100) ELT 344 (Delhi) and Poolpandi Vs. Superintendent, Central Excise AIR 1992 SC 1795 . 40. Respondents 6 to 9 filed counter affidavits adopting a similar stand to respondents 1 to 4 and 10. REPLY AFFIDAVIT FILED BY PETITIONERS TO THE STAND OF RESPONDENTS 41. The petitioners denied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : AD 360120001932R dt.16.01.2020. On the said challan apart from endorsing the same as being paid voluntary as instructed by respondent authorities, the employee of petitioner No.1 also endorsed that the said payment was under protest. The authorities on receiving the said challan from Hyderabad and noting that the same was made under protest immediately and in a coercive manner allegedly got a statement recorded from petitioner No.2 that it was inadvertently mentioned by the staff that the same was paid under protest and that otherwise it was voluntarily paid by petitioner No.2. This is pointed out by the petitioners as yet another act of respondents which clinchingly establishes the process of the ongoing enquiry adopted by the authorities was in contravention to the procedure and norms despite the orders of this Court. 46. It is contended that petitioner No.4 was initially issued summons dt.08.01.2020 for appearance on 16.01.2020. The petitioner No.4 could not appear on the said date as he was travelling abroad from 07.01.2020 to 21.01.2020. The same was informed to the authorities by enclosing his passport; and that on receiving subsequent summons, he appeared bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on being assaulted by the respondent authorities, he was taken to hospital in the presence and on instructions of the respondent authorities with support of the employees carrying him out of the premises as petitioner No.3 was even not able to stand. Petitioner No.3 was carried by employees to hospital which was recorded in the CCTV cameras installed outside the premises of 1st petitioner. 51. It is denied that there is any secret office or flat as alleged by the respondent officials ; that the said flat is owned by 1st petitioner for more than 30 years and it was made a residence for it s employees; that another premises also alleged to be secret office is a rented premises taken by the petitioners for more than 15 years; and that the allegation of evasion of ₹ 5,00,00,000/- is made only to prejudice the Court. 52. It is denied that the employees of 1st petitioner had admitted about evasion of tax and it s modus operandi. It is contended that the respondent authorities, contrary to the established procedure of law, got signed some statements under the threat of assault and arrest. It is contended that no voluntary statement was recorded, and that the petitioners an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts forcibly and when that failed, they started assaulting 4th petitioner; that hearing the loud cries of 4th petitioner, petitioners 2 3 entered cabin and requested respondents 4 5(aged around 30 to 33 years) not to assault 4th petitioner, but it all went to the deaf ears of the respondent officials and they did not stop assaulting 4th petitioner; that on presentation of petitioners 2 3 to not to assault having regard to the old age and ill-health of the 3rd petitioner, 3rd petitioner was severely beaten up by the respondent authorities. 56. It is contended that the respondent officials prepared the statements and coerced the petitioners to sign the same and that the petitioners on being assaulted and under the treat of arrest signed the said statements; that the averments relating to the statements of Raman Kumar Jha, Karunakar Biswal and Pavan Kumar Sharma were also recorded contrary to the procedure contemplated under law after assaulting them and under coercion and threat of arrest; and that the statements were later retracted by making representations to the respondent authorities. 57. It is denied that the 2nd petitioner had given false and misleading affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir employees by respondents 5 to 9 during the said search operations, the respondents deny the same and allege that it was the petitioners and their employees who had obstructed the search operations and allegedly assaulted the 5th respondent. This is vehemently denied by the petitioners. 64. Normally these disputed questions of fact are not to be gone into in a Writ proceeding under Art.226 of the Constitution of India. 65. But we cannot ignore the material such as Annexure P-4 which is the Out patient Discharge advice of Sunshine Hospital given at 7.45 pm after treatment of the 3rd petitioner by the emergency physician there on 11.12.2019 which stated that assault today; injury to the left thigh; unable to walk and bear weight;.. blunt injury at left thigh . 66. This suggests that the 3rd petitioner was injured to such a degree that he was unable to walk and required medical treatment. 67. That the 3rd petitioner was with respondents 5 to 9 on that day from the morning is admitted by them in the counter affidavit filed by respondents 1 to 4 and 10, though they say that such a thing had not happened. 68. Though the respondents seek to suggest that suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysical violence against persons they suspect of being guilty of tax evasion. 76. After India adopted the Constitution of India, protection against torture by State actors has been recognized as part of right to life and liberty guaranteed by Art.21 of the Constitution of India. 77. The Supreme court in D.K. Basu v. State of W.B (1997) 1 SCC 416 . considered this aspect in considerable detail and held: 10. Torture has not been defined in the Constitution or in other penal laws. Torture of a human being by another human being is essentially an instrument to impose the will of the strong over the weak by suffering. The word torture today has become synonymous with the darker side of human civilisation. Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself. - Adriana P. Bartow 11. No violation of any one of the human rights has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguards provided to a person with a view to protect his personal liberty against any unjustified assault by the State. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal Procedure Code, 1973 deals with the powers or arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41 CrPC confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the GST Department / respondents have any privilege to use physical violence or torture against persons suspected of tax evasion, though he disputed that any such thing occurred. 81. However, in view of the material on record, we are constrained to observe that the possibility of the use of violence by respondent nos.5 to 9 against petitioner nos.2 to 4 and the other employees of petitioner no.1 cannot be entirely ruled out having regard to Ex.P.4, in particular. 82. In addition to the above, the summons Annexure P-6 issued under Sec.70 of the CGST Act, 2017 to the 2nd petitioner by 4th respondent is also worth mentioning. 83. It bears a date 12.12.2019 and asks the 2nd petitioner to appear before 4th respondent at 00:30 hrs on 12.12.2019. 84. This prima-facie indicates that it was issued after midnight on the intervening night of 11.12.2019 and 12.12.2019 asking the 2nd petitioner to appear at the ungodly hour of 00:30 hrs on that day. 85. What was so important to be recorded at such a time, which cannot wait till the morning of 12.12.2019, is not disclosed by the respondents. 86. We shall here refer to the plea in para 35 of the counter filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2nd petitioner since he was forced to be present with the respondents 5 to 9 at that late hour on that night. 90. In our opinion, the respondents cannot contend that they will interrogate the persons suspected of committing any tax evasion as per their sweet will forceably keeping them in their custody for indefinite period. If it is done, it has to be construed as informal custody and the law relating to an accused in custody has to be expressly or impliedly applied. If accused can get all the benefits under Art.22 of the Constitution, a person in such informal custody can say that he is also entitled to get relief under Art.21 of the Constitution of India. This view has been taken by the Gujarat High Court in Jignesh Kishorbhai Bhajiawala v. State of Gujarat 2017 Crl.L.J.1760 para 19 at pg.1777 while dealing with similar actions of authorities under the Prevention of Money Laundering Act, 2002. 91. In view of the admitted fact that the search operations were continued well past midnight and summons were issued to 2nd petitioner to appear at 00:30 hrs on 12.12.2019, we do not accept the plea of the respondents that they did not act contrary to established proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of this case and the absence of counter affidavit by the 5th respondent denying the allegations of physical violence by him in the course of the search operations against the 3rd petitioner, we feel that it would not be appropriate for the 5th respondent to be a participant in the proceedings initiated by the respondents against the petitioners. Sri Harpreet Singh, learned Additional Solicitor General himself stated, on instructions, that henceforth the 5th respondent will not participate in any proceeding initiated against the petitioners by the respondents. We appreciate the fair statement of the learned Additional Solicitor General appearing for the respondents. 95. Next we shall deal with the question whether presence of a lawyer can be allowed at the time of examination of petitioner nos.2 to 4 and their employees. 96. Though the respondents have strongly objected to the same by placing reliance on the decision of the Supreme Court in Poolpandi (4 supra) and the decisions of the Delhi High Court in W.P. (Crl) No.2686 of 2019 Sudhir Kumar Agarwal and Sudhir Gulati (3 supra), there is no such absolute bar to permit interrogation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.2 to 4 or their employees shall be examined in the visible range of their counsel, though not in hearing range. 101. We may also note that in the reply-affidavit filed by the petitioners they stated that they had co-operated with the respondents and participated in the investigation on several dates after the interim order was granted by this Court on 19.12.2019 in I.A.Nos.2 and 3 of 2019, which has not been disputed by the learned Additional Solicitor General. This conduct of the petitioners supports their plea that they have no intention to scuttle any enquiry initiated against them under the Act. 102. The next point to be considered is with regard to the plea raised by the respondents in their counter-affidavit that they would like to carry on investigation at New Delhi where the Headquarters of DGGI is located. 103. On a query from us, the learned Additional Solicitor General stated that at least 50 persons including petitioner nos.2 to 4 would have to be interrogated at New Delhi by the respondents. 104. We may point out that we are in the midst of the COVID-19 Pandemic and there are serious risks involved in people traveling to and from New Delhi and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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