The Hon’ble Gauhati High Court, in the case of Shri Mukesh Agarwal vs. The Union of India and 2 Others (Bail Application No. 3440 of 2025), decided on 24 October 2025, held that the arrest of the petitioner was made in violation of the guidelines laid down by the Hon’ble Supreme Court in Arnesh Kumar Vs. State of Bihar, reported in (2014) 8 SCC 272. Observing that the mandatory safeguards under the said judgment were not followed, the Court ruled that the petitioner was entitled to be released on bail on this ground alone.
This case arose from an arrest made by the GST authorities under Section 69 of the Central Goods and Services Tax (CGST) Act, 2017. The petitioner was accused of offences relating to fraudulent availment of Input Tax Credit (ITC), alleged to be punishable with imprisonment extending up to five years under Section 132 of the Act. Following his arrest, the petitioner approached the Hon’ble Gauhati High Court seeking bail, contending that the arrest was carried out in complete disregard of the procedural safeguards mandated by law.
The primary issue before the Court was whether the arresting authorities had complied with the directions laid down by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar and the provisions of Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 41 of the erstwhile Code of Criminal Procedure, 1973.
The Hon’ble Gauhati High Court observed that the alleged offence in the present case was punishable with imprisonment of up to five years. Therefore, as per the guidelines laid down by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar and the provisions of Section 35(3) of the BNSS, it was necessary for the arresting authority to issue a notice before making an arrest.
The Court further noted that if the authorities decided to dispense with the issuance of such a notice, it was their bounden duty to record proper reasons showing satisfaction under Section 35(1)(b)(ii) of the BNSS, 2023. However, in this case, the Court found that these procedural safeguards were not followed by the respondent authorities.
The Hon’ble High Court referred to the landmark judgment of the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar, wherein detailed guidelines were laid down to be followed before arresting a person in cases involving offences punishable with imprisonment of less than seven years or up to seven years. The Supreme Court had clearly observed that these directions were not confined only to cases under Section 498A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act, 1961, but were equally applicable to all offences carrying a similar quantum of punishment — that is, imprisonment for a term which may be less than or extend up to seven years, with or without fine.
In view of this settled legal position, the Gauhati High Court held that the Arnesh Kumar guidelines squarely applied to the present case as well.
Section 69 of the CGST Act, 2017 empowers the authorities to arrest a person for certain offences under the Act. However, before exercising such power in cases where the alleged offence is punishable with imprisonment of less than seven years or which may extend up to seven years, the arresting authority must provide proper justification in accordance with Section 35(1)(b)(ii) of the BNSS.
In the present case, the Hon’ble Gauhati High Court noted that no such written justification had been provided by the arresting authority while arresting the petitioner. The respondents contended that the petitioner might tamper with evidence or influence witnesses, but the Court observed that no material was placed on record to show that the arresting authority had formed such a satisfaction based on concrete evidence. Moreover, no reasons were recorded in writing to support this claim.
The Court therefore held that the arrest violated the mandatory requirements of Section 35(1)(b)(ii) of the BNSS, 2023, rendering the procedure adopted by the respondents contrary to law.
The Hon’ble Gauhati High Court observed that there was no dispute regarding the Arrest Memo issued by the respondent authorities, which had been prepared in compliance with the formalities prescribed under Section 69 of the CGST Act, 2017. However, the petitioner raised a serious contention that the mandatory requirements of Section 35(3) of the BNSS were not followed by the authorities before making the arrest.
Relying on the judgment of the Hon’ble Supreme Court in Radhika Agarwal v. Union of India, the Court reiterated that although the CGST Act is a special legislation, it cannot be treated as a complete code with respect to the provisions governing search, seizure, and arrest. Therefore, the general provisions of the Code of Criminal Procedure — now replaced by the BNSS, 2023 — continue to apply unless expressly or impliedly excluded by the CGST Act.
In the present case, the Court found that there was clear non-compliance with Section 35(3) of the BNSS, which mandates issuance of notice prior to arrest in offences punishable with imprisonment up to seven years. This requirement, as laid down by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar and reaffirmed in Satender Kumar Antil v. Central Bureau of Investigation, is mandatory in nature. The failure of the authorities to adhere to these safeguards rendered the arrest legally unsustainable.
Conclusion
The decision of the Gauhati High Court in Shri Mukesh Agarwal vs. Union of India and Others reinforces the constitutional principle that personal liberty cannot be curtailed except in accordance with procedure established by law. The judgment serves as a reminder to enforcement authorities that even under special statutes like the CGST Act, the power to arrest must be exercised sparingly, and the procedural safeguards laid down in the BNSS and Arnesh Kumar must be scrupulously followed.
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