Arrest Memo Cannot Substitute Commissioner’s GST Section 69 Order: Punjab and Haryana HC

Mohit Bansal Vs Union of India (Punjab And Haryana High Court)

Summary: The Punjab and Haryana High Court allowed Mohit Bansal’s criminal writ petition challenging his arrest during a GST investigation and directed his release forthwith, unless his custody was otherwise warranted in accordance with law. The Court found that the arrest breached both the Department’s specific undertaking to provide seven working days’ prior notice and the requirement to communicate the Commissioner’s order under Section 69(1) of the CGST Act before arrest. It nevertheless rejected the petitioner’s separate contention that he had not been produced before the Magistrate within twenty-four hours.

The petitioner asserted that, although his arrest was formally recorded at 11:30 P.M. on 20 August 2026, his liberty had actually been restrained from approximately 6:15 A.M., shortly after officers began searching his residence at 5:54 A.M. His statement under Section 70 of the CGST Act was recorded during the search. Since he was produced before the Magistrate at about 11:00 A.M. on 21 August 2026, he claimed a violation of Articles 21 and 22(2) of the Constitution and the corresponding statutory safeguard. The respondents denied any earlier restraint, relied on the petitioner’s contemporaneous regular bail application recording arrest at 11:30 P.M., and objected that his custody rested on three reasoned, unchallenged remand orders. They also alleged suppression of subsequent anticipatory bail proceedings and inconsistent factual positions.

On the twenty-four-hour issue, the Court recognised that the actual deprivation of personal liberty, rather than merely the time entered in an arrest memo, determines when arrest commences. However, arrest and custody are not synonymous in every situation, and participation in search or inquiry proceedings does not automatically establish arrest. The record did not show that the petitioner was physically restrained, prevented from moving within or outside the premises, deprived of his mobile phone, or stopped after expressing a desire to leave. Family members were moving in and out. His first version before the Magistrate also recorded arrest at 11:30 P.M. The Court therefore found no sufficient basis to accept 6:15 A.M. as the commencement of arrest and held that production at approximately 11:00 A.M. the following day complied with the twenty-four-hour requirement.

The prior-notice issue arose from an order dated 18 March 2026 in anticipatory bail application No. 538/2026. Departmental counsel had stated that no FIR or complaint had then been registered, arrest was not required, and seven working days’ prior notice would be given if arrest became necessary. The petitioner consequently withdrew that application. The Court rejected the respondents’ attempt to import a condition of continued cooperation into this categorical assurance. It also held that dismissal of the subsequent anticipatory bail application on 9 April 2026 did not, by itself, establish forfeiture of the notice assurance. Summons dated 18 March and 22 April 2026 sought attendance and documents for an inquiry; they did not communicate a decision or necessity to arrest under Section 69. Their issuance, and the passage of several months before arrest, could not substitute for the distinct notice promised before the Court.

On Section 69 compliance, the Court applied Union of India Vs Sunil Biyani, 2026 INSC 849. The Commissioner’s arrest-authorisation order must embody the requisite reasons to believe, refer to the underlying material and evidence, demonstrate application of mind, and be communicated before arrest so that the affected person can pursue available remedies. The respondents relied on Annexure P-5, the arrest memo, which recited that the Commissioner had reasons to believe that specified offences under Section 132 had been committed and had authorised an officer to arrest the petitioner. The Court held that this recital did not make the arrest memo the Commissioner’s statutory order. Neither the actual Section 69(1) order, its recorded reasons, nor the underlying material had been placed on record, and prior communication was not established.

The Court accordingly held that the arrest stood vitiated ab initio because the mandatory safeguard and the specific prior-notice undertaking had been breached. Subsequent remand orders could not cure or legitimise custody founded on that invalid arrest. The petition was allowed, and pending miscellaneous applications were disposed of as infructuous.

Cases Discussed

• Union of India Vs Sunil Biyani, 2026 INSC 849 (Supreme Court). Applied to hold that prior communication of the Commissioner’s Section 69 order was mandatory and could not be replaced by a recital in the arrest memo.
• Kishan Udaylal Jain Vs State of Uttarakhand, Habeas Corpus No. 23 of 2026, decided on 22/07/2026 (Uttarakhand High Court). The respondents relied on this decision concerning attendance pursuant to summons without proof of actual detention.
• Anuj Kumar Singh Vs Union of India, 2026 SCC OnLine P&H 5458 (Punjab and Haryana High Court). Cited by the petitioner on actual restraint triggering the twenty-four-hour safeguard and subsequent remand not curing a constitutional violation.
• Haneef A.Y. Vs State of Kerala, MANU/KE/1315/2026 (Kerala High Court). Cited by the petitioner concerning actual custody and restraint.
• Radhika Agarwal Vs Union of India and Others, Writ Petition (Criminal) No. 336 of 2018 (Supreme Court). Referred to in the reproduced Sunil Biyani passages concerning reasons to believe, underlying evidence, application of mind and personal liberty.
• Directorate of Enforcement Vs Subhash Sharma, 2025 SCC OnLine SC 240 (Supreme Court). Cited and quoted concerning custody beyond twenty-four hours without production before the nearest Magistrate.
• Muhammed Nisham VP Vs State of Kerala, 2025 SCC OnLine Ker 11387 (Kerala High Court). Cited by the petitioner on the significance of actual custody and restraint.
• Hem Prabhakar Shah Vs State of Maharashtra, 2024 SCC OnLine Bom 3006 (Bombay High Court). Cited by the petitioner in support of the constitutional detention safeguard.
• T. Ramadevi Vs State of Telangana, 2024 SCC OnLine TS 4288 (Telangana High Court). Cited directly and within the reproduced Anuj Kumar Singh passage on computing time from actual restraint.
• V. Senthil Balaji Vs State Represented by Deputy Director and Others, (2024) 3 SCC 51 (Supreme Court). Relied on by the respondents concerning custody authorised by judicial remand.
• Gautam Navlakha Vs NIA, (2022) 13 SCC 542 (Supreme Court). Relied on by the respondents in opposing habeas corpus relief where subsisting judicial remand orders authorised custody.
• Sushila Aggarwal and Others Vs State (NCT of Delhi) and Another, (2020) 5 SCC 1 (Supreme Court). Appears in the reproduced Sunil Biyani discussion concerning the right to seek anticipatory bail.
• Rameswar Talukdar Vs State of Assam, 2019 SCC OnLine Gau 5938 (Gauhati High Court). Cited by the respondents on the commencement of the twenty-four-hour period.
• Serious Fraud Investigation Office Vs Rahul Modi and Another Etc., (2019) 5 SCC 266 (Supreme Court). Relied on by the respondents concerning the effect of judicially authorised custody.
• Gharban Ali Pour Azadi Vs Intelligence Officer, 1996 SCC OnLine Bom 59 (Bombay High Court). Cited by the respondents concerning formal arrest and investigative questioning.
• Munsamy Shanmugam Vs Collector of Customs, 1995 Cri LJ 1740. Cited by the respondents concerning the computation of the twenty-four-hour period.
• Directorate of Enforcement Vs Deepak Mahajan and Another, (1994) 3 SCC 440 (Supreme Court). Both sides referred to the distinction between custody and arrest; the judgment reproduces its explanation of arrest.
• Ashak Hussain Allah Detha @ Siddique and Another Vs The Assistant Collector of Customs (P), Bombay and Another, 1990 SCC OnLine Bom 3 (Bombay High Court). Cited by the petitioner on actual restraint and the twenty-four-hour safeguard.
• Roshan Beevi and Others Vs Joint Secretary to Government of Tamil Nadu and Others, 1983 SCC OnLine Mad 163; 1984 Cri LJ 134 (Madras High Court, Full Bench). Both sides relied on its discussion of arrest, submission to authority and custody.
• Kaiser Otmar Vs State of Tamil Nadu, 1981 Mad LW (Cri) 158 (Madras High Court). Mentioned in the respondents’ submission that Roshan Beevi had rejected the proposition advanced in that decision.
• Gurbaksh Singh Sibbia Vs State of Punjab, (1980) 2 SCC 565 (Supreme Court). Quoted within Sunil Biyani concerning personal liberty and impermissible restrictions on anticipatory bail.
• Maneka Gandhi Vs Union of India, (1978) 1 SCC 248 (Supreme Court). Appears in the reproduced precedent concerning fair, just and reasonable procedure under Article 21.
• Alderson Vs Booth, (1969) 2 All ER 271. Mentioned in the reproduced Roshan Beevi passage on compulsion and submission constituting arrest.
• State of U.P. Vs Deoman, AIR 1960 SC 1125; 1960 Cri LJ 1504 (Supreme Court). Mentioned in the reproduced Roshan Beevi passage concerning submission to custody by word or action.

FULL TEXT OF THE JUDGMENT/ORDER OF PUNJAB AND HARYANA HIGH COURT

1. Criminal writ petition under Articles 226 and 227 of the Constitution of India, 1950, seeking issuance of an appropriate writ, order or direction declaring that the arrest of the Petitioner, for the purposes of the constitutional safeguards guaranteed under Articles 21 and 22(2) of the Constitution of India, commenced from the moment his personal liberty was, in fact, restrained and he was actually detained by Respondent No. 3 at about 6:15 A.M. on 20.08.2026, notwithstanding the subsequent formal recording of his arrest at a later point of time in the Arrest Memo dated 20.08.2026 (Annexure P-5);

1.1. Further, issue an appropriate writ, order or direction declaring that the period of twenty-four hours prescribed under Article 22(2) of the Constitution of India, 1950, for production of the Petitioner before the nearest Magistrate, commenced on 6:15 A.M. of 20.08.2026 being the time when the Petitioner was actually deprived of his personal liberty and taken into custody, consequently stood exhausted at 6:14 A.M. on 21.08.2026;

1.2. Further, issue an appropriate writ, order or direction declaring that, since the Petitioner was produced before the Magistrate only at about 11:00 A.M. on 21.08.2026, i.e. after the constitutionally prescribed period of twenty-four hours had elapsed, the further and continued detention and custody of the Petitioner pursuant to the orders dated 21.08.2026 and 03.09.2026 (Annexures P-11 and P-12), respectively, as also pursuant to all subsequent orders extending such custody, are illegal, unconstitutional and violative of the fundamental rights guaranteed to the Petitioner under Articles 21 and 22(2) of the Constitution of India.

2. Briefly stated, the Petitioner, engaged in lawful business and duly registered under the GST Act, apprehending arrest, approached the Sessions Court, where the Respondents assured that seven working days’ prior notice would precede any arrest. Notwithstanding the said assurance, Respondent No. 3 commenced a search at the Petitioner’s residence on 20.08.2026 at 5:54 A.M., during which the Petitioner’s statement under Section 70 of the GST Act was recorded and his liberty remained effectively restrained from 6:15 A.M. His arrest was formally recorded only at 11:30 P.M., followed by custodial confinement and production before the Magistrate after expiry of twenty-four hours, in breach of Articles 21 and 22(2) of the Constitution of India.

3. Upon notice, the respondents entered appearance through counsel and filed a detailed reply, controverting the allegations and assertions contained in the petition. By way of preliminary objections, it has been contended that the present petition is not maintainable, particularly as the petitioner is presently in judicial custody pursuant to reasoned orders of remand passed by the competent Magistrate. It has further been alleged that the petitioner has suppressed material facts and has sought to approbate and reprobate in respect of the same set of circumstances. On merits, the respondents have asserted that the record, including the petitioner’s own pleadings, does not disclose any arrest or restraint of the petitioner prior to 23:30 hours. It has been specifically contended that the acts of search, issuance of summons and conducting of inquiry, by themselves, do not constitute “arrest”, and that “custody” and “arrest” are distinct legal concepts and cannot be treated as synonymous. According to the respondents, the power of arrest under Section 69 of the CGST Act could be exercised only in the manner and upon fulfilment of the statutory requirements prescribed therein and such power cannot be retrospectively attributed to a point of time when no lawful authority to arrest had either been exercised or existed. The respondents have further maintained that the statement made before the Court on 18.03.2026 was duly honoured and that no undertaking furnished on their behalf was violated.

3.1. On merits, the respondents have denied the material averments and allegations raised in the petition and have sought dismissal thereof, contending that the petitioner has misconstrued the sequence of events and has sought to equate the investigative steps undertaken by the authorities with the exercise of the statutory power of arrest. It has been asserted that the petitioner was not arrested or subjected to any restraint prior to 23:30 hours and that the proceedings undertaken prior thereto were confined to search, inquiry and issuance of summons in accordance with law. The respondents have accordingly maintained that the period of twenty-four hours contemplated under the applicable constitutional and statutory safeguards could commence only from the time at which the petitioner was actually arrested in accordance with Section 69 of the CGST Act. It has also been contended that the earlier statement furnished before the Court regarding notice did not operate in the manner suggested by the petitioner and stood duly complied with. On these premises, the respondents have prayed for dismissal of the petition.

4. Learned counsel for the Petitioner argued that, for the purposes of Article 22(2) of the Constitution of India, the commencement of arrest is required to be reckoned from the point of actual deprivation of personal liberty and effective custodial restraint, and not from the subsequent formal recording of arrest. In the present case, although the search commenced at about 5:54 A.M. on 20.08.2026, the Petitioner, from 6:15 A.M. onwards, remained under the effective control and restraint of Respondent No. 3 and was not free to leave according to his own volition. His statement under Section 70 of the GST Act was also recorded during such restraint. The subsequent Arrest Memo recording his arrest only at 11:30 P.M. could not, therefore, retrospectively postpone the commencement of the constitutional period.

4.1. Learned counsel for the petitioner placed reliance upon Roshan Beevi and Others vs. Joint Secretary to Government of Tamil Nadu and Others, 1983 SCC OnLine Mad 163; Directorate of Enforcement vs. Deepak Mahajan and Another, 1994(3) SCC 440; Directorate of Enforcement vs. Subhash Sharma, 2025 SCC OnLine SC 240; and Anuj Kumar Singh vs. Union of India, 2026 SCC OnLine P&H 5458, besides Ashak Hussain Allah Detha @ Siddique and another vs. The Assistant Collector of Customs (P), Bombay and another, 1990 SCC OnLine Bom 3; Hem Prabhakar Shah vs. State of Maharashtra, 2024 SCC OnLine Bom 3006; T. Ramadevi vs. State of Telangana, 2024 SCC OnLine TS 4288; Muhammed Nisham VP vs. State of Kerala, 2025 SCC OnLine Ker 11387; and Haneef A.Y. vs. State of Kerala, MANU/KE/1315/2026, to contend that the constitutional safeguard under Article 22(2) is attracted by the factum of actual custody and restraint and cannot be circumvented by postponing the formal recording of arrest.

4.2. It was, thus, argued that the period of twenty-four hours contemplated under Article 22(2) commenced from 6:15 A.M. on 20.08.2026 and expired at 6:15 A.M. on 21.08.2026, whereas the Petitioner was produced before the Magistrate only after 11:00 A.M. on 21.08.2026. His continued detention beyond the constitutionally prescribed period was, therefore, ex facie violative of Article 22(2) and infringed the fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India. The subsequent orders of remand could not retrospectively validate the antecedent constitutional illegality. Learned counsel accordingly prayed that the petition be allowed and the continued custody of the Petitioner be declared illegal.

5. Learned counsel for the respondents vehemently opposed the petition and argued that the Petitioner is presently in judicial custody pursuant to three reasoned remand orders dated 21.08.2026, 03.09.2026 and 15.09.2026, none of which has been challenged. Relying upon Gautam Navlakha vs. NIA, (2022) 13 SCC 542, V. Senthil Balaji vs. State, (2024) 3 SCC 51 and SFIO vs. Rahul Modi, (2019) 5 SCC 266, it was contended that once judicial custody is authorised by a competent Court through orders which are not ex facie without jurisdiction or wholly mechanical, a petition for habeas corpus is not maintainable merely to assail the antecedent manner or timing of arrest. The legality of the present custody, therefore, has to be examined with reference to the subsisting remand orders and not merely the time of formal arrest.

5.1. Learned counsel further argued that custody and arrest are distinct legal concepts and that the Petitioner’s presence during search and enquiry proceedings under Section 70 of the GST Act could not, by itself, be equated with arrest. Reliance was placed upon Roshan Beevi vs. Joint Secretary to Government of Tamil Nadu, 1984 Cri LJ 134 and Directorate of Enforcement vs. Deepak Mahajan, (1994) 3 SCC 440, to contend that every arrest necessarily involves custody, but every custody does not amount to arrest. It was submitted that the Petitioner’s reliance upon the observations concerning restraint and loss of freedom was misplaced, as the Full Bench in Roshan Beevi had itself rejected the proposition advanced in Kaiser Otmar vs. State of Tamil Nadu, 1981 Mad LW (Cri) 158, and had held that the said view was not good law.

5.2. It was further contended that the twenty-four-hour period under Article 22(2) of the Constitution of India commences from the point of formal arrest and not from the commencement of a search, enquiry or questioning. Reliance was placed upon Gharban Ali Pour Azadi vs. Intelligence Officer, 1996 SCC OnLine Bom 59; Munsamy Shanmugam vs. Collector of Customs, 1995 Cri LJ 1740; Rameswar Talukdar vs. State of Assam, 2019 SCC OnLine Gau 5938; and, particularly, Kishan Udaylal Jain vs. State of Uttarakhand, Habeas Corpus No. 23 of 2026, decided on 22.07.2026, wherein, according to learned counsel, mere presence before the investigating agency pursuant to summons was held insufficient, in the absence of material establishing actual detention or apprehension. It was argued that the Petitioner had not raised any plea of such restraint before the Magistrate at the time of his production and could not seek to introduce the same for the first time in the present proceedings.

5.3. Learned counsel also alleged suppression of material facts and inconsistent stands on the part of the Petitioner. It was submitted that the Petitioner had filed a subsequent anticipatory bail application, BA-573/2026, on 20.03.2026, founded upon the summons dated 18.03.2026, which was dismissed on 09.04.2026 with an adverse observation regarding his non-cooperation in the enquiry. According to learned counsel, the present petition refers only to the earlier proceedings and thereby fails to disclose the complete litigation history. It was further pointed out that, in his regular bail application filed immediately after arrest, the Petitioner himself had stated that his arrest was effected at about 11:30 P.M. and that he had been produced within twenty-four hours of arrest, whereas the present petition proceeds on the premise that his arrest commenced at 6:15 A.M. It was accordingly contended that the Petitioner cannot approbate and reprobate or invoke the extraordinary writ jurisdiction while withholding material and taking mutually inconsistent factual stands.

5.4. Learned counsel further submitted that no breach of the statement made before the Sessions Court on 18.03.2026 had occurred. It was argued that the statement regarding seven working days’ prior notice was made in the context of the Petitioner’s undertaking to cooperate with the enquiry and did not constitute a judicial order restraining arrest or curtailing the statutory power of the competent authority under Section 69(1) of the GST Act. The Petitioner, having failed to cooperate with the enquiry and having thereafter filed a fresh anticipatory bail application, could not claim any continuing legitimate expectation on the basis of the said statement. Reliance was also placed upon the subsequent departmental communication dated 22.04.2026 and the fact that the Petitioner was afforded further opportunity before arrest.

5.5. It was lastly contended that the grounds of arrest were duly furnished to the Petitioner in writing and were preceded by separate Reasons to Believe, setting out the material relied upon by the competent authority and the necessity for arrest. The alleged irregularities concerning the panch witnesses, search of adjoining premises and stock-taking proceedings, according to learned counsel, relate at best to the evidentiary value of the material collected during investigation and have no bearing upon the legality of the arrest or computation of the period under Article 22(2). On these premises, learned counsel submitted that the petition is devoid of merit and is liable to be dismissed.

6. Having heard learned counsel for the parties and, with their able assistance, having perused the paper book and the relevant material on record, this Court finds that the controversy, at this stage, essentially revolves around the legality of the petitioner’s detention and the point of time from which the period of 24 hours prescribed under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. (Section 58 BNS) is required to be reckoned.

6.1. The petitioner asserts that his detention had commenced at the time when he was actually subjected to restraint and his personal liberty stood curtailed, and that his subsequent formal arrest cannot, by itself, be treated as the commencement of the statutory period. It is, accordingly, contended that, reckoned from the point of actual restraint and detention, the petitioner was not produced before the Judicial Magistrate within the prescribed period of 24 hours. Per contra, the respondents maintain that the petitioner was formally arrested at the time recorded in the arrest memo and was produced before the Judicial Magistrate within 24 hours thereof.

6.2. The aforesaid rival submissions require examination with reference to the distinction between custody, detention and formal arrest, as explained in the judgments relied upon by the parties. The relevant judicial pronouncements, particularly the observations defining or elucidating the concept of “custody”, are required to be considered in their proper factual and legal context. The mere nomenclature assigned to the restraint or the time recorded in a formal arrest memo may not, by itself, be determinative if the material on record indicates that the person had, in fact, been deprived of his liberty and placed under restraint at an earlier point of time.

6.3. Section 57 Cr.P.C. (Section 58 BNS) mandates that a person arrested without warrant shall not be detained in custody beyond a period of 24 hours, excluding the time necessary for the journey from the place of arrest to the Magistrate’s Court, unless a Magistrate authorises his further detention in accordance with law. The statutory safeguard, therefore, has to be examined in the context of the actual commencement of custody or detention, and not merely by reference to the subsequent formalisation or documentation of arrest. The issue consequently is not confined to determining the time mentioned in the arrest memo, but requires an assessment of when the petitioner’s liberty was, in substance and effect, first subjected to restraint.

6.4. At this stage, the statutory safeguards governing the exercise of the power of arrest under Section 69 of the CGST Act also require consideration in conjunction with the undertaking stated to have been furnished by the Department before the learned Additional Sessions Judge during adjudication of the anticipatory bail application, particularly with regard to whether the notice issued/served upon the petitioner was in due compliance with the terms of such undertaking.

6.5. Thus, the legality of the petitioner’s arrest and the consequential compliance with Article 22(2) of the Constitution of India and Section 57 Cr.P.C. (Section 58 BNS) would require a cumulative consideration of the actual point of restraint, the nature and extent of custody, the time of formal arrest, the circumstances preceding such arrest, the statutory requirements governing the same, and the time at which the petitioner was ultimately produced before the Judicial Magistrate. These aspects, along with the relevant portions of the judgments relied upon by both sides, require careful examination before the rival contentions can be appropriately assessed.

7. The following three questions arise for determination:-

i. Whether the petitioner was produced before the Magistrate beyond 24 hours in violation of Article 22(2) of the Constitution of India and Section 57 of the Cr.P.C. (Section 58 BNS)?

ii. Whether, while effecting the arrest of the petitioner, the respondents violated the undertaking furnished before the Court that, whenever there was a requirement of arrest, seven days’ notice would be served upon the petitioner?

iii. Whether the conditions precedent for arrest of the petitioner contemplated under Section 69 of the CGST Act existed and had been duly complied with before his arrest?

8. Whether the petitioner was produced before the Magistrate beyond 24 hours in violation of Article 22(2) of the Constitution of India and Section 57 of the Cr.P.C.(Section 58 BNS):-

8.1. Learned counsel for the petitioner contended that, in the present case, the raiding party arrived at the petitioner’s residence at about 5:54 A.M., thereafter the petitioner appeared before the said officers at approximately 6:15 A.M. It was submitted that, from that point onwards, the petitioner submitted himself to the authority of the officers and remained under their continuous control and restraint. According to learned counsel, once the petitioner’s liberty stood effectively curtailed and his movements became subject to the control of the arresting agency, the absence of any physical touching, formal confinement or other overt act of restraint would not, by itself, preclude a finding that he had been taken into custody. Reliance was accordingly placed upon the Full Bench judgment of the Madras High Court in Roshan Beevi and Others vs. Joint Secretary to Government of T.N. and Others, 1983 SCC OnLine Mad 163, wherein, in paragraphs No.40 and 41, the Court considered the legal concept of “arrest” and the circumstances in which a person may be regarded as having been arrested, notwithstanding the absence of physical restraint. The relevant observations are reproduced hereunder:-

40. The modality of arrest as contemplated under Section 46 is that while making an arrest, a police officer or other person making the same (arrester)-

“(1) Should actually touch the body of the person to be arrested
or
(2) Should actually confine the body of the person to be arrested.”

41. These kinds of modality of arrest are not necessary in case the person intended to be arrested submits, either by word or by action, to the authority of the arrester. In other words, if the person to be arrested submits to the authority or control of the arrester, the latter need not actually touch or confine the body of the person to be arrested. Conversely, if he does not so submit himself to the authority of the arrester, any of the two conditions mentioned above, viz., the touching or confinement of the body of the person to be arrested should be satisfied.

8.2. Learned counsel for the petitioner further placed reliance upon paragraph No.46 of the aforesaid judgment, which, according to him, elucidates the circumstances in which the factum of arrest is required to be determined with reference to the substance of the restraint exercised over the individual rather than merely the form or manner in which such arrest is formally recorded. The relevant observations contained therein are reproduced hereunder:-

46. The above decision fortifies the view that the actual seizing or touching of the body of the person to be arrested is not necessary in a case where the arrester by word brings to the accused’s notice that the is under compulsion and thereafter he submits to that compulsion. This is in conformity with the modality of the arrest contemplated under Section 46, Cr. P.C. wherein also it is provided that the submission of a person fo be arrested to the custody of the arrester by word or action can amount to the custody of the arrester by word or action (and) can amount to an arrest. The quintessence of the decision in Alderson v. Booth, (1969-2 All ER 271) is that there must be an actual seizing or touching, and in the absence of that, it must be brought to the notice of the person to be arrested that he is under compulsion, and consequent upon it, the said person should submit to that compulsion, and then only the arrest is consummated. Reference also could be made to decision in the State of U.P. v. Deoman, AIR 1960 SC 1125: (1960 Cri LJ 1504), in which it has been ruled “submission to the custody by word or action by a person is sufficient” so as to constitute arrest under Section 46, Cr. P.C. In paragraph 57 of the same judgment (at page 1143): (at p. 1528), it has been observed that,

“S. 46, Cr. P.C. provides that in making an arrest, the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.”

8.3. Learned counsel for the petitioner further placed reliance upon the judgment of the Hon’ble Supreme Court in Deepak Mahajan’s case (supra), wherein, while elucidating the scope and import of the expression “arrest”, the Hon’ble Supreme Court, in paragraph 46 thereof, explained the legal concept of arrest and the circumstances constituting such deprivation of personal liberty. Learned counsel submitted that the said exposition is directly relevant to the question as to when, in law, the petitioner can be regarded as having been arrested for the purposes of the constitutional and statutory safeguards governing detention. The relevant observations are reproduced hereunder:-

46. The word ‘arrest’ is derived from the French word ‘Arreter’ meaning to stop or stay” and signifies a restraint of the person. Lexicologically, the meaning of the word ‘arrest’ is given in various dictionaries depending upon the circumstances in which the said expression is used. One of us, (S. d Ratnavel Pandian, J. as he then was being the Judge of the High Court of Madras) in Roshan Beevi v. Joint Secretary, Government of T.N.17 had an occasion to go into the gamut of the meaning of the word ‘arrest’ with reference to various textbooks and dictionaries, the New Encyclopaedia Britannica, Halsbury’s Laws of England, A Dictionary of Law by L.B. Curzon, Black’s Law Dictionary and Words and Phrases. On the basis of the meaning given in those textbooks and lexicons, it has been held that:

“[T]he word ‘arrest’ when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested.”

8.4. Learned counsel for the petitioner further contended that, if the petitioner is held to have been de facto arrested and taken into custody at about 6:15 A.M. on 20.08.2026, the period of twenty-four hours prescribed under Article 22(2) of the Constitution of India, read with Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 57 Cr.P.C.), would have expired at 6:15 A.M. on 21.08.2026. It was submitted that the petitioner was, however, produced before the Magistrate only at about 11:00 A.M. on 21.08.2026, i.e. beyond the constitutionally prescribed period. Learned counsel, therefore, contended that the petitioner’s continued detention beyond the period which expired at 6:14 a.m. stood vitiated and that the subsequent orders of remand, having been founded upon such antecedent illegality, could not retrospectively validate or cure the foundational defect. It was urged that where the foundation itself is rendered legally unsustainable, the superstructure founded thereon cannot be permitted to survive. In support of the aforesaid proposition, learned counsel placed reliance upon the judgment in Anuj Kumar Singh’s case (supra), wherein the relevant observations are reproduced hereunder:-

11.2. xxxxx

Whether an individual is under “arrest” is a question of fact, not of nomenclature. To hold otherwise would be to allow the Rule of Law to be defeated by a semantic sleight of hand. The record is merely a post facto declaration; it is the de facto restraint that triggers the clock of liberty. Pertinently, in Niranjan Singh (supra) the Supreme Court pointed out this prevalent practice of using of disingenuous subtitles and linguistic evasions by the investigating agency whereby an effort is made to distinguish between informal detention and statutory arrest/preliminary inquiry and de facto custody.

xxxxx

11.3 It is a settled principle of jurisprudence that while interpreting provisions that intend to safeguard fundamental human rights, the Court must adopt a Pro Homine approach. A narrow and pedantic interpretation of “arrest” would not merely be a legal error; it would be a constitutional apostasy. It would defeat the very purpose of the provision, which is to prevent clandestine/illegal detentions. It would tantamount to condoning an illegality that perpetuates under the colour of authority and granting the concerned authorities a temporal immunity to operate in a vacuum where the individual detained is neither free nor yet under the protective aegis of statutory safeguards. Such a vacuum is abhorred by the law as the same is antithetical for a system governed by the Rule of Law.

Ergo, for the twenty-four-hour mandate, as provided under Section 57 CrPC/58 BNSS/Article 22(2) of the Constitution, it must be reckoned from the exact moment of physical deprivation of personal liberty, for any delay beyond this window, however, seemingly minute, constitutes a constitutional trespass that the law cannot and must not condone. As observed by the Bombay High Court Ashak Hussain Allah Detha (supra) it and the Telangana High Court in T. Ramadevi (supra), the period of twenty-four hours is not to be computed from the official time of arrest as shown in the arrest memo but from the time, actual restraint was put upon the individual’s volition to move.

It goes without saying that it is neither pragmatic nor feasible to lay any universal exhaustive yardstick or inexorable set of guidelines for adjudication of this aspect as every case has its own unique factual conspectus, which has to be taken into account by the Court which is seisin of the mater in question. It was said by Lord Denning, an observation which met with approval by the Supreme Court, that:

“…..Each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. In deciding such case, one should avoid the temptation to decide case (As saidby Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, its broad resemblance to another case is not all decisive.”

It must be underscored that the mandate enshrined under Section 57 CrPC/Section 58 BNSS/Article 22(2) is not a surplusage of legal prose; rather a peremptory command, and the violation thereof cannot be cured by the subsequent passing of remand order. As observed by the Supreme Court in Subhash Sharma (supra), in such like cases, the arrest itself stands vitiated and the individual concerned, deserves to be enlarged on bail.

8.5. Learned counsel for the petitioner further placed reliance upon the judgment of the Hon’ble Supreme Court in Subhash Sharma’s case (supra), and invited the attention of the Court to the relevant observations contained therein, which, according to learned counsel, bear directly upon the legal concept of “arrest” and the consequential safeguards attendant upon deprivation of personal liberty. The relevant extract from the aforesaid judgment is reproduced hereunder:-

6. This argument cannot be accepted. Admittedly, the LOC was issued at the instance of the appellant-Directorate of Enforcement. By executing the LOC, the Bureau of Immigration detained the respondent at IGI Airport from 4 ^ (th) March 2022 on behalf of the Appellant. The finding of fact recorded in paragraph 10 is that undisputedly, the physical custody of the respondent was taken over by the appellant from the Bureau of Immigration at 11.00 hours on 5 ^ (th) March, 2022. Thereafter, at 1.15 hours on 6 ^ (th) March 2022, an arrest memo was prepared by ED at Raipur. He was produced before the Court at 3 p.m. on 6 ^ (th) March, 2024. The perusal of the arrest order(Annexure p-1) shows that the typed order was kept ready. The date and time of arrest were kept blank which appear to have been filled in by hand. Admittedly, the respondent was not produced before the nearest learned Magistrate within 24 hours from 11.00 a.m. on 5 ^ (th) March, 2022. Therefore, the arrest of the respondent is rendered completely illegal as a result of the violation of clause 2 of Article 22 of the Constitution of India. Thus, the continuation of the respondent in custody without producing him before the nearest Magistrate within the stipulated time of 24 hours is completely illegal and it infringes fundamental rights under clause 2 of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22(2) of the Constitution, even his fundamental right to liberty guaranteed under Article 21 has been violated..

8.6. Per contra, learned counsel appearing for the respondent-authorities controverted the aforesaid submissions and contended that the petitioner was not arrested at 6:15 A.M. on 20.08.2026, as asserted, but was formally arrested only at about 11:30 P.M. on the same day and was thereafter produced before the Magistrate within twenty-four hours of such arrest. It was further submitted that, once the petitioner’s custody had been duly authorised by the competent Magistrate through judicial orders of remand, the present petition seeking a writ of habeas corpus would not be maintainable, reliance in this regard being placed upon Gautam Navlakha’s case (supra) and the judgment of the Division Bench of the Uttarakhand High Court in Kishan Udaylal Jain’s case (supra). Learned counsel also drew attention to the regular bail application dated 21.08.2026, a copy whereof has been placed on record as Annexure R-4, wherein the petitioner himself stated that he had been arrested at about 11:30 P.M. on 20.08.2026. It was, thus, contended that the petitioner was never subjected to any physical restraint or otherwise deprived of his liberty prior to 11:30 P.M. and, consequently, his production before the Magistrate within twenty-four hours of the formal arrest rendered the arrest as well as the subsequent orders of remand legally valid and unimpeachable in the present writ jurisdiction.

8.7. Having considered the rival submissions and the principles emerging from the judgments of the Hon’ble Supreme Court, the Full Bench of the Madras High Court and the co-ordinate Bench of this Court, the question as to the commencement of arrest and the consequential computation of the period prescribed under Article 22(2) of the Constitution of India is required to be examined with reference to the actual deprivation of personal liberty and assumption of custody, rather than merely the time recorded in the formal arrest documentation. The corresponding statutory safeguard is contained in Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 57 Cr.P.C.), which prohibits detention of a person arrested without warrant beyond twenty-four hours, subject to the statutory exception relating to the time necessary for the journey to the Magistrate. The relevant constitutional and statutory provisions are reproduced hereunder:-

Article 22 of the Constitution of India

22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2). Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

&

Section 58 of Bharatiya Nagarik Suraksha Sanhita

58. Person arrested not to be detained more than twenty-four hours.

– No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

8.8. The legal position that emerges is that the commencement of arrest is not to be determined solely by reference to the time recorded in the formal arrest memo. Arrest necessarily entails custody, but every instance of custody does not, ipso facto, amount to arrest. The two expressions, therefore, cannot be treated as synonymous. Custody may, depending upon the nature, degree and circumstances of the restraint exercised, assume the character of arrest; however, such determination must necessarily turn upon the actual curtailment of the individual’s liberty and control over his movements. To equate custody and arrest in every circumstance would lead to anomalous consequences and may have serious ramifications for the exercise of investigative powers. The aforesaid principles, therefore, have to be tested against the factual matrix of the present case.

8.9. In the present case, the raiding party arrived at the petitioner’s residence at about 5:54 A.M. on 20.08.2026 and commenced the search proceedings. The petitioner joined the raiding party at about 6:15 A.M. and thereafter remained present during the search proceedings. During this period, his statement was recorded under Section 70 of the CGST Act. Significantly, the material placed on record does not indicate that the petitioner was physically restrained, prevented from moving within or outside the premises, or otherwise subjected to any coercive restriction upon his movements. The record further indicates that other members of the petitioner’s family were moving in and out of the premises during the search proceedings. There is also no material to suggest that the petitioner’s access to his mobile phone was withdrawn or that he was prevented from using the same. Equally, there is no material indicating that the petitioner, at any point prior to 11:30 P.M., expressed an intention or desire to leave the premises and was prevented from doing so by the raiding party.

8.10. In these circumstances, the mere fact that the petitioner remained present with the raiding party throughout the search and inquiry proceedings cannot, by itself, lead to the conclusion that he had been placed under such restraint as would amount to arrest. His continued presence, in the absence of material demonstrating actual or coercive curtailment of his liberty, is distinguishable from a situation where an individual is deprived of his freedom of movement and placed under the control of the arresting agency. This conclusion is further fortified by the petitioner’s own contemporaneous stand taken before the Magistrate. In the regular bail application filed by him, the petitioner specifically stated in paragraph 5 that he had been arrested on 20.08.2026 at about 11:30 P.M. vide Arrest Memo dated 20.08.2026. The relevant portion of paragraph No.5 of the said bail application is reproduced hereunder:-

5. That notwithstanding the above, and without honouring the undertaking dated 18.03.2026 or affording the notice period assured therein, the Applicant came to be arrested on 20.08.2026 at about 11:30 P.M., vide Arrest Memo dated 20.08.2026, and is presently in the custody of the Respondent Department. The Applicant is being produced before this Hon’ble Court today, i.e., on 21.08.2026, within twenty-four hours of arrest, in terms of Section 69(2) of the CGST Act, 2017 read with Article 22(2) of the Constitution of India.

9. It is significant that the petitioner’s first version before the Judicial Authority, immediately after his arrest, was that he had been arrested at about 11:30 P.M. on 20.08.2026. The plea that his arrest had, in fact, commenced at 6:15 A.M. on the same day has been raised for the first time in the present proceedings. In the totality of the circumstances, and particularly in the absence of any material demonstrating that the petitioner’s liberty was effectively restrained prior to 11:30 P.M., this Court finds no sufficient basis to accept 6:15 A.M. as the point of commencement of his arrest. Consequently, the period of twenty-four hours prescribed under Article 22(2) of the Constitution of India, read with Section 58 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 57 Cr.P.C.), is required to be reckoned from 11:30 P.M. on 20.08.2026. Since the petitioner was produced before the Magistrate at about 11:00 A.M. on 21.08.2026, i.e. well within twenty-four hours of his formal arrest, the constitutional and statutory mandate stood duly complied with. Consequently, the arrest of the petitioner and the detention pursuant thereto cannot, on this ground, be held to be illegal.

10. Whether, while effecting the arrest of the petitioner, the respondents violated the undertaking furnished before the Court that, whenever there was a requirement of arrest, seven days’ notice would be served upon the petitioner:-

10.1. The petitioner’s case is that, in the earlier proceedings, the respondent-Department had undertaken to afford him seven days’ notice prior to effecting his arrest, but, notwithstanding the said undertaking, he was arrested without service of any such notice. It is, therefore, contended that the arrest was effected in breach of the undertaking recorded before the Court and is consequently liable to be interfered with.

10.2. Per contra, learned counsel appearing for the respondents controverted the aforesaid submission and contended that the statement regarding seven days’ notice was made by learned counsel representing the respondents and was subject to the petitioner’s continued cooperation with the inquiry. It was submitted that, pursuant thereto, the petitioner was served with summons under Section 70 of the CGST Act requiring him to join the inquiry and produce the requisite documents. The first such summons was served on 18.03.2026, whereafter the petitioner approached the Sessions Court by filing anticipatory bail application No.573/2026 on 20.03.2026, which came to be dismissed on 09.04.2026. Learned counsel contended that the said application was dismissed on merits, inter alia, in view of the petitioner’s alleged non-cooperation with the inquiry proceedings. It was further submitted that another notice was served upon the petitioner on 22.04.2026, notwithstanding which he neither appeared before the Department nor produced the requisite documents. Attention was drawn to paragraph No.5 of the said notice, wherein the petitioner was specifically cautioned that non-appearance would be construed as non-cooperation and an attempt to delay the proceedings. Learned counsel, therefore, contended that the petitioner had been afforded repeated opportunities and sufficient notice before his eventual arrest, which took place nearly four months after the said communication, and that the undertaking stood duly complied with in substance.

10.3. In order to appreciate the rival submissions in their proper perspective, it would be necessary to first examine the precise nature, scope and import of the undertaking recorded in the earlier proceedings. For this purpose, the order dated 18.03.2026 passed by the learned Sessions Judge, Yamuna Nagar, in anticipatory bail application No.538/2026 assumes significance. The relevant portion of the said order, which forms the foundation of the petitioner’s contention, is reproduced hereunder:-

“Sh. Sanjeev Gupta, Advocate has filed vakalatnama on behalf of respondent No.2. Thereafter, he has made a statement that no FIR/complaint has been registered against the petitioner Mohit Bansal till date and his arrest is not required and if his arrest is necessary in the present matter, a prior notice of seven working days will be given to him. Thereafter, learned counsel for the petitioner has made a statement to the effect that keeping in view the statement of learned counsel for the respondent No.2, he does not want to pursue with the present bail application and withdraws the same with liberty to file fresh bail application if any FIR is lodged against the petitioner. Heard. Keeping in view the statement made by learned counsel for the petitioner, the present bail application is dismissed as withdrawn. File be consigned to record room, after due compliance.”

10.4. A plain reading of the aforesaid order makes it evident that the statement was made by learned counsel appearing for the respondent-Department and was not made subject to any undertaking on the part of the petitioner to cooperate with the inquiry proceedings. On the contrary, the statement, as recorded by the Court, was categorical that, in the event of any FIR/complaint being registered against the petitioner and his arrest becoming necessary in the matter, he would be afforded seven working days’ prior notice before such arrest was effected. The scope and effect of the said statement, therefore, have to be determined from the language in which it was recorded and cannot be enlarged by importing a condition which does not find mention in the judicial order itself. The respondents, however, contend that summons under Section 70 of the CGST Act were served upon the petitioner on 18.03.2026 and thereafter on 22.04.2026 and seek to treat the said communications as sufficient compliance with the aforesaid undertaking. The question that, therefore, arises for consideration is whether a summons issued under Section 70 of the CGST Act, requiring a person to appear before the proper officer and furnish evidence or documents in connection with an inquiry, can be regarded as the seven working days’ prior notice of arrest contemplated by the statement recorded in the aforesaid judicial order. Section 70 of the CGST Act reads as under:-

Section 70. Power to summon persons to give evidence and produce documents.-

(1) The proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry in the same manner, as provided in the case of a civil court under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

(1A) All persons summoned under sub-section (1) shall be bound to attend, either in person or by an authorised representative, as such officer may direct, and the person so appearing shall state the truth during examination or make statements or produce such documents and other things as may be required.]

(2) Every such inquiry referred to in sub-section (1) shall be deemed to be a “judicial proceedings” within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

10.5. Section 70 of the CGST Act empowers the proper officer to summon any person whose attendance is considered necessary either to give evidence or to produce documents or any other thing in connection with an inquiry, in the same manner as provided in the case of a Civil Court under the Code of Civil Procedure, 1908. Sub-section (2) further provides that every such inquiry shall be deemed to be a “judicial proceeding” within the meaning of Sections 193 and 228 of the Indian Penal Code. The statutory scheme thus makes it evident that the power under Section 70 is essentially an investigative power for securing attendance, evidence and documents in the course of an inquiry. In case summons are violated it does not authorise agency to carryout arrest but empowers to proceed against such person for commission of offence under Sections 193 or 223 of IPC

10.6. Learned counsel for the respondents, however, contended that the notice dated 22.04.2026 contained a specific warning regarding the consequences of non-appearance and that the petitioner had failed to cooperate with the inquiry, which, according to the respondents, constituted sufficient compliance with the earlier statement regarding notice before arrest. It was further submitted that the petitioner’s anticipatory bail application had also been dismissed by the learned Sessions Judge, inter alia, on account of his alleged non-cooperation with the inquiry proceedings.

10.7. Perusal of the order dated 09.04.2026 passed by the learned Sessions Judge, Yamuna Nagar, however, indicates that the anticipatory bail application was not rejected solely on the ground that the petitioner had failed to furnish the requisite documents or had otherwise not cooperated with the inquiry. The order, as relied upon by the parties, records the circumstance that no FIR had, at that stage, been registered and also refers to the allegation of non-cooperation in the inquiry proceedings. The said order, therefore, has to be appreciated in the context in which it was passed and cannot, by itself, be treated as establishing that the petitioner had forfeited the benefit of the specific assurance regarding prior notice of arrest.

10.8. The principal question, therefore, is whether the summons dated 18.03.2026 and 22.04.2026 issued under Section 70 of the CGST Act can, in law, be regarded as compliance with the specific assurance recorded by the Court that, if the petitioner’s arrest became necessary, he would be afforded seven working days’ prior notice. In my considered view, the two communications operate in distinct statutory fields. A summons under Section 70 calls upon the person concerned to appear for the purposes of giving evidence or producing documents or other material in an inquiry; it does not, merely by its issuance, communicate that the competent authority has decided to exercise the statutory power of arrest under Section 69 or that arrest has become necessary. Indeed, the statutory scheme itself recognises Section 70 as the power to summon and Section 69 as the distinct statutory source of the power to arrest.

10.9. Consequently, the mere fact that the petitioner received summons under Section 70 and that a period of more than seven days elapsed thereafter cannot, without more, be treated as fulfilment of the undertaking recorded before the Court. What was assured was seven working days’ prior notice in the event arrest was considered necessary, whereas the communications relied upon by the respondents were summonses requiring the petitioner to participate in the inquiry and produce evidence or documents. The two cannot be equated merely by reference to the interval of time between their issuance and the eventual arrest.

10.10. The distinction is of particular significance because the power of arrest under Section 69 of the CGST Act carries a direct consequence upon the personal liberty of the person concerned and is statutorily distinct from the investigative power of summoning under Section 70. The Supreme Court has also recognised the distinct statutory character of the powers to summon and arrest under the GST enactment. Thus, unless the notices dated 18.03.2026 and 22.04.2026 expressly conveyed that the competent authority had reached the stage of contemplating or requiring the petitioner’s arrest and were intended to operate as the very notice contemplated by the judicial undertaking, their mere issuance cannot be treated as substantial compliance with that undertaking.

10.11. In the present case, the material placed before this Court does not indicate that either of the aforesaid communications conveyed to the petitioner that, upon failure to comply, his arrest would be effected after expiry of seven working days pursuant to the exercise of power under Section 69 of the CGST Act. The respondents, therefore, cannot rely merely upon the passage of time between the Section 70 summonses and the eventual arrest to contend that the undertaking recorded before the Court stood duly complied with. On the material presently available, the arrest of the petitioner, without a distinct seven-working-day notice preceding the decision to arrest, was consequently not in conformity with the specific assurance recorded in the earlier judicial proceedings.

11. Whether the conditions precedent for arrest of the petitioner contemplated under Section 69 of the CGST Act existed and had been duly complied with before his arrest:-

11.1. The Hon’ble Supreme Court has now authoritatively settled the issue in Union of India vs. Sunil Biyani, 2026 INSC 849, holding that an order passed by the Commissioner under Section 69(1) of the CGST Act, recording the requisite “reasons to believe” and authorising arrest, is required to be communicated to the person sought to be arrested before the arrest is effected. The requirement of such communication has been read into the statutory scheme on the principles of fairness and natural justice, particularly having regard to the person’s right to avail the remedy of pre-arrest bail and to challenge the reasons forming the basis of the arrest order. The Hon’ble Supreme Court has expressly held that, without such communication, “the question of arrest would not arise.” The relevant observations contained in paragraphs 17 to 22 of the judgment are reproduced hereunder:-

We are inclined to accept the contention of Mr. Agarwal. The order under Section 69 of the CGST Act, as held, being a sine qua non to seek anticipatory bail, it would be an anomaly to hold that the order need not be communicated at all, much less, be communicated after the arrest of such person. In any case, communication of the order would not, in any manner, obstruct the investigation ensued by the department. On the contrary, it reinforces the right of the accused to seek anticipatory bail as stipulated in Sushila Aggarwal v. State (NCT of Delhi)¹³.

19. A 5-Judge Bench of this Court in Gurbaksh Singh Sibbia v. State of Punjab¹⁴, which has also been relied upon by the Bench in Radhika Agarwal (supra), intertwined personal liberty as an important facet of Section 438 of the Code of Criminal Procedure, 1973¹⁵ (equivalent to Section 482, Bharatiya Nagarik Suraksha Sanhita, 2023¹⁶) and cautioned against an interpretation which imposes unreasonable restrictions. The instructive passage from Gurbaksh Singh Sibbia (supra) reads thus:

“26. We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt (2020) 5 SCC 1 (1980) 2 SCC 565 CrPC BNSS can linger after the decision in Maneka Gandhi¹⁷, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.”

(emphasis ours)

20. This also further fortifies the accused’s right to challenge the order and the “reasons to believe” recorded by the Commissioner, which prompted the issuance thereof. Such order, being amenable to judicial review by the constitutional courts, may be tested on settled principles of law. If Section 69 were read as it is, without there being any requirement of disclosure of the “reasons to believe”, withholding of reasons could have drastic consequences on the right to liberty of the accused.

21. We note that Rule 8 of the Central Goods and Service Tax Rules, 2017¹⁸ mandates that a person seeking registration under the CGST Act must provide an email address and mobile number. Thus, the order may be communicated through electronic means in addition to the mode, as permitted under the BNSS, as well as all other permissible modes of communication. This would enable an accused to seek remedy that the law provides to him, if so advised.

22. In view of the aforesaid, we require the Commissioner to communicate the order under Section 69 of the GST Act to the respondent in the manner indicated in the preceding paragraph, whereafter he may pursue such remedy Maneka Gandhi v. Union of India, (1978) 1 SCC 248 CGST Rules as he may be advised. We reiterate, without such communication, question of arrest would not arise.

11.2. Learned counsel appearing for the respondent contended that the requirement laid down by the Hon’ble Supreme Court in Sunil Biyani’s case (supra), stands duly complied with, as the relevant order/authorisation under Section 69 of the CGST Act had been duly communicated to the petitioner. In support of the said submission, reliance has been placed upon Annexure P-5. It was submitted that Annexure P-5 is the arrest memo prepared in respect of the petitioner, wherein it has been recorded that the Principal Commissioner/Commissioner had reasons to believe that the petitioner had committed an offence specified in clauses (a) to (d) of sub-section (1) of Section 132 of the CGST Act, punishable under clause (i) or clause (ii) of sub-section (1), or sub-section (2), thereof, and that Anuj Sirhoi, Inspector in the office of the Principal Commissioner/Commissioner, CGST, Panchkula, had been duly authorised to arrest the petitioner at 11:30 P.M. on 20.08.2026.

11.2.1. It was, thus, argued that the statutory authorisation contemplated under Section 69(1) of the CGST Act, along with the reasons forming the basis thereof, stood duly communicated to the petitioner and, consequently, there was no infraction of the law declared by the Hon’ble Supreme Court in Sunil Biyani’s case (supra).

11.2.2. There is no force in this contention of learned counsel for respondents as no order passed by Commissioner has ever been supplied to petitioner before his arrest. Annexure P-5 cannot be termed as order passed by Commissioner. Requisite contents of order so passed by Commissioner under Section 69(1) of CGST Act has been discussed by Hon’ble Apex Court in para No.15 of the Sunil Biyani’s case (supra). The relevant observations are reproduced hereunder:-

15. Sub-section (1) of Section 69 grants the Commissioner the power to authorise any officer to arrest a person. Such order must, as prescribed, be preceded by “reasons to believe”. Such reasons in turn, must refer to the material and evidence underlying such opinion and evince application of mind. These are, among others, the stipulations laid down in Radhika Agarwal (supra).

11.3. The aforesaid exposition of law leaves no manner of doubt that the order contemplated under Section 69(1) of the CGST Act, which authorises the arrest, must not only record the requisite “reasons to believe” of the Commissioner, but such reasons must also refer to the material and evidence underlying the opinion formed by the Commissioner and must evince due application of mind. Equally, in terms of the law authoritatively laid down by the Hon’ble Supreme Court Sunil Biyani’s case (supra), the said order is required to be communicated to the person sought to be arrested before the arrest is effected.

11.4. In the present case, however, the position emerging from the record is materially different. Though reliance has been placed by learned counsel for the respondents upon Annexure P-5, describing the same as the relevant arrest memo, the said document merely records that the Principal Commissioner/Commissioner had reasons to believe that the petitioner had committed an offence falling within the ambit of Section 132(1)(a) to (d) of the CGST Act and that an officer had been authorised to arrest him. Significantly, neither the actual order passed by the Principal Commissioner/Commissioner under Section 69(1) of the CGST Act, nor the reasons to believe recorded therein, nor the material and evidence forming the basis of such satisfaction, has been placed on record by either side.

11.5. Thus, what assumes significance is not merely whether the petitioner was furnished with an arrest memo, but whether the statutory order contemplated under Section 69(1), embodying the Commissioner’s independent satisfaction and the reasons constituting the foundation for authorising the arrest, was in existence and was communicated to the petitioner prior to the arrest. On the material presently available on record, there is nothing to establish such communication. The mere recital in the arrest memo that the Commissioner had reasons to believe, without production and prior communication of the underlying Section 69(1) order itself, cannot, by itself, be treated as compliance with the mandate enunciated by the Hon’ble Supreme Court in Sunil Biyani’s case (supra).

11.6. The omission assumes added significance in view of the categorical pronouncement of the Hon’ble Supreme Court that communication of the Section 69 order is mandatory before arrest, so as to enable the person sought to be arrested to avail the remedy of pre-arrest bail and to challenge, if so advised, the reasons forming the basis of the Commissioner’s satisfaction. The Hon’ble Supreme Court has expressly reiterated that “without such communication, question of arrest would not arise.”

11.7. Consequently, in the absence of any material establishing prior communication of the order passed under Section 69(1) of the CGST Act, incorporating the requisite “reasons to believe” and the material forming the foundation thereof, the arrest of the petitioner cannot be sustained in law. The arrest, having been effected in breach of the mandatory safeguard enunciated by the Hon’ble Supreme Court and in derogation of the specific undertaking regarding seven days’ prior notice, stands vitiated ab initio. The subsequent orders of remand, being founded upon such invalid arrest, cannot, by themselves, cure or legitimise the resultant deprivation of liberty. The petitioner is, accordingly, entitled to be set at liberty forthwith, unless his custody is otherwise warranted in accordance with law. The petition is, accordingly, allowed.

12. Consequent upon the final adjudication of the principal matter, all pending miscellaneous applications, if any, arising therefrom or otherwise connected with the present proceedings, stand disposed of. In view of the findings and conclusions recorded herein, no separate orders are warranted in respect of such applications, the reliefs sought therein having been rendered infructuous and, consequently, purely academic.