Uncommunicated Arrest: Liberty and Section 69 of CGST Act, 2017

By Sakshi Priya Goods and Services Tax Articles September 21, 2026

Summary: The Supreme Court’s decision in Union of India v. Sunil Biyani addresses two significant questions concerning arrest under the Central Goods and Services Tax Act, 2017. First, the Court held that once an application for anticipatory bail is dismissed as non-maintainable, a High Court or Sessions Court cannot independently grant temporary protection from arrest, since interim relief is ancillary to a maintainable substantive proceeding. Second, and more significantly for GST enforcement, the Court held that an order passed by the Commissioner under Section 69 authorising arrest must be communicated to the person concerned before arrest. Building upon Radhika Agarwal v. Union of India, the Court reasoned that a Section 69 order is a sine qua non for invoking anticipatory bail jurisdiction and that withholding it could prevent the affected person from seeking pre-arrest bail or judicial review of the Commissioner’s “reasons to believe.” The order may be communicated electronically using registration particulars furnished under Rule 8 of the CGST Rules as well as through other permissible modes. The ruling thus replaces the High Court’s one-week protection with a broader procedural safeguard: without communication of the Section 69 order, the question of arrest would not arise.

I. Introduction
II. Factual Matrix
III. Issues for Determination
IV. The Judgment
V. Doctrinal Foundations
A. The Ancillary Character of Interim Relief
B. Reading a Communication Requirement into Section 69
VI. Critical Appraisal
A. A Trade of Remedies, Not a Net Loss
B. Judicial Supplementation of Statutory Text
C. Practical and Administrative Implications
D. Consistency with the Broader Jurisprudential Trend
VII. Conclusion
Endnotes

I. Introduction

The expansion of coercive powers of arrest under the Central Goods and Services Tax Act, 2017 (“CGST Act”) has, over the last several years, generated a steady stream of constitutional litigation testing the boundary between effective fiscal enforcement and the individual’s right to personal liberty. The Supreme Court’s decision in Radhika Agarwal v. Union of India (2025) attempted a comprehensive reconciliation of these competing interests, holding, among other things, that summons under Section 70 do not by themselves render a person an “accused,” while insisting that any subsequent order of arrest under Section 69 be preceded by recorded “reasons to believe” reflecting genuine application of mind. Union of India v. Sunil Biyani, decided a year later by a Bench of Dipankar Datta and Sheel Nagu, JJ., extends this conversation in a direction not squarely addressed in Radhika Agarwal: it asks not merely what safeguards must precede the passing of an arrest order, but whether and how the affected person is to learn that such an order exists at all.

The decision is in two distinct kinds of doctrinal work. The first is essentially conservative: applying a well-worn principle of remedial law that interim relief cannot outlive the maintainability of the proceeding to which it is ancillary to strike down a High Court’s grant of a week’s protection from arrest appended to an otherwise unsuccessful anticipatory bail application. The second is genuinely innovative: reading into Section 69 an implied, judicially-created obligation of communication, grounded not in the statutory text but in constitutional guarantees of fairness and the practical necessity of rendering the statutory remedy of anticipatory bail meaningful. This article examines both strands of reasoning.

II. Factual Matrix

The dispute arose out of an investigation conducted by the Directorate General of GST Intelligence (“DGGI”), Mumbai Zonal Unit, into M/s. Alphaneon Techsolutions Pvt. Ltd. and its group entities for the alleged wrongful availment and passing of Input Tax Credit without any underlying supply of goods or services, circular invoicing, and non-payment of GST on the import of services. The Respondent, Sunil Biyani, was found present during the inspection of the registered premises and acknowledged the inspection.

Three summonses under Section 70 of the CGST Act were subsequently issued to the Respondent. Rather than complying, he sought adjournments and moved the Sessions Court, Mumbai, for anticipatory bail, an application rejected on 14 October 2025. He then approached the Bombay High Court under Section 438 of the Code of Criminal Procedure. Pursuant to interim directions of the High Court, he appeared before the Department and his statement was recorded. During the hearing, the Department filed an affidavit stating that no order under Section 69 had yet been passed, as the investigation remained at a nascent stage. On 13 February 2026, the High Court held that in the absence of a Section 69 order, there could be no apprehension of arrest, and the application was accordingly not maintainable yet it proceeded to grant the Respondent protection from arrest for one week from the date of intimation of any future Section 69 order. It was this residual protective direction, and not the underlying refusal of bail, that the Union of India challenged before the Supreme Court.

III. Issues for Determination

The Court’s analysis proceeds along two axes:

The maintainability-interim relief question: Can a court, having found an application for pre-arrest bail not maintainable, nonetheless grant protection against arrest in the nature of interim relief?
The communication question: Is the Commissioner’s order under Section 69 of the CGST Act, authorising arrest, required to be communicated to the person against whom it is made before that person can be arrested?

IV. The Judgment

On the first question, the Court held that once an application for anticipatory bail is found non-maintainable regardless of the specific ground for that finding no ancillary or interim protection against a future arrest can survive the dismissal. It accordingly set aside paragraph 6 of the High Court’s order.

On the second question, the Court ruled that a Section 69 order is a “sine qua non” for invoking the anticipatory bail jurisdiction, and that permitting such an order to remain uncommunicated would create an untenable situation in which the affected person could neither seek anticipatory bail nor challenge the order on available grounds. It therefore directed that the order be communicated to the Respondent through electronic means, given the mandatory registration particulars (email and mobile number) collected under Rule 8 of the CGST Rules, 2017, as well as through any other permissible mode and clarified that “without such communication, question of arrest would not arise.”

V. Doctrinal Foundations

A. The Ancillary Character of Interim Relief

The Court’s reasoning on the first issue draws on a lineage stretching back to the Constitution Bench decision in State of Orissa v. Madan Gopal Rungta (1951), which held that a writ petition under Article 226 cannot be deployed solely to secure interim relief where the underlying petition itself is not maintainable, because interim relief exists only “in aid of and as ancillary to the main relief.” This principle was carried into the criminal sphere by Hema Mishra v. State of U.P. (2014), where Radhakrishnan, J. held that once a writ petition seeking quashing of an FIR or charge-sheet is dismissed, “the question of granting further relief after dismissal… does not arise,” and any interim protection against arrest necessarily falls away with it. Sikri, J., concurring, added that because the grounds for quashing a FIR are narrow, incidental protection against arrest cannot be salvaged “even when a justifiable case for grant of anticipatory bail is made out.”

The Bench in Sunil Biyani extends this reasoning, by analogy, to applications for pre-arrest bail dismissed as non-maintainable for want of an apprehension of arrest. The logic is one of jurisdictional coherence rather than of the merits of protection: an interim order has no free-standing existence independent of a live and maintainable substantive claim.

B. Reading a Communication Requirement into Section 69

The second and more consequential strand of reasoning begins from the Court’s own recent holding in Radhika Agarwal that a person merely summoned under Section 70 is not, without more, an “accused” for the purposes of Article 20(3) of the Constitution, and that an order of arrest under Section 69 must rest on recorded “reasons to believe” reflecting genuine application of mind to the material and evidence available. Building on this, the Respondent argued and the Court accepted that the very existence of a Section 69 order is what “activates the alarm,” converting a person from a mere summoned witness into someone amenable to arrest and therefore entitled to invoke anticipatory bail. If that order can be passed and kept confidential, the affected person is placed in an impossible position: unable to seek anticipatory bail before the order exists, and unaware that it exists once it is passed.

The Court resolved this catch-22 by reading a communication requirement into the statute, invoking the personal-liberty jurisprudence of Gurbaksh Singh Sibbia v. State of Punjab (1980) which cautioned against interpretations that impose “unreasonable restrictions” on statutory provisions safeguarding liberty not found in the text of the provision itself and Sushila Aggarwal v. State (NCT of Delhi) (2020), which reaffirmed the centrality of anticipatory bail to the protection of personal freedom. Since communication would not, in the Court’s assessment, obstruct the investigation in any way, while its absence would foreclose meaningful access to both anticipatory bail and judicial review of the “reasons to believe,” the balance of constitutional considerations favoured reading in the requirement.

VI. Critical Appraisal

A. A Trade of Remedies, Not a Net Loss

At first glance, the Court’s ruling appears to leave the Respondent worse off: the one week of guaranteed protection granted by the High Court is withdrawn. On closer analysis, however, the communication mandate substitutes a more durable and structurally sound safeguard for the ad hoc interim relief that was struck down. Rather than a time-bound grace period contingent on judicial discretion, the Respondent now enjoys an unconditional bar on arrest until the Section 69 order is actually communicated to him a protection that, in principle, could extend indefinitely if the Department delays or omits communication. Viewed this way, the judgment does not simply subtract a safeguard; it replaces a fragile, precedentially unsustainable one with a firmer, generally applicable rule benefiting all similarly placed taxpayers, not merely the Respondent.

B. Judicial Supplementation of Statutory Text

The communication requirement is not found anywhere in the text of Section 69, which is otherwise reasonably detailed for instance, expressly requiring that an arrested person be informed of the grounds of arrest and produced before a Magistrate within twenty-four hours under sub-section (2). The absence of an analogous communication requirement for the arrest-authorisation order itself might be read as a deliberate legislative choice, particularly given that GST enforcement often depends on an element of surprise to prevent the destruction of evidence or the dissipation of assets. The Court’s willingness to read in the requirement notwithstanding this textual silence reflects a now well-established interpretive posture in Indian constitutional law: procedural safeguards concerning the deprivation of liberty are tested not merely against the words of the statute but against the substantive requirements of Article 21, which demand that the underlying procedure be “fair, just and reasonable.” Whether this represents legitimate constitutional supplementation or an unwarranted judicial rewriting of a considered legislative scheme is likely to remain a point of debate, particularly from the vantage point of revenue authorities who may see the communication mandate as an additional operational burden imposed without correlative statutory amendment.

C. Practical and Administrative Implications

For DGGI and other CGST field formations, the ruling necessitates the institutionalisation of a reliable mechanism for recording and transmitting Section 69 orders, an administrative adjustment that Rule 8 of the CGST Rules, requiring registered persons to furnish email addresses and mobile numbers, conveniently facilitates. The judgment does not specify the precise timing of communication relative to the actual arrest, nor does it address what remedy follows a defective, delayed, or contested communication; these questions will likely surface in subsequent litigation as the ruling is applied across a range of factual permutations. Nor does the Court address whether communication must itself disclose the “reasons to believe,” or whether a bare intimation of the order’s existence suffices to trigger the taxpayer’s right to challenge it, gap that leaves room for interpretive contestation regarding the adequacy of communication.

D. Consistency with the Broader Jurisprudential Trend

The decision sits comfortably within a broader trajectory of Supreme Court jurisprudence beginning with Gurbaksh Singh Sibbia, reinforced in Sushila Aggarwal, and most recently recalibrated for the GST context in Radhika Agarwal that treats anticipatory bail as a beneficent, liberty-protective mechanism to be construed generously rather than restrictively. Sunil Biyani can fairly be read as the next logical step in this line: having established in Radhika Agarwal that an order under Section 69 must be substantively justified by recorded reasons, it was almost inevitable that the Court would eventually be asked, and would need to answer, whether that order’s existence must be made known to the person it concerns. The Court’s affirmative answer closes what would otherwise have been a significant procedural loophole capable of rendering the substantive safeguards of Radhika Agarwal practically unenforceable.

VII. Conclusion

Union of India v. Sunil Biyani is a modest judgment its holding on the non-survivability of interim relief following a non-maintainable anticipatory bail application is doctrinally unremarkable, a straightforward application of principles traceable to Madan Gopal Rungta and Hema Mishra. Its holding on communication, however, marks a genuine if incremental expansion of procedural protection available to persons under GST investigation, converting what had been an entirely opaque administrative step into one subject to an enforceable disclosure obligation. For tax administrators, the decision imposes a modest but non-negotiable compliance burden; for taxpayers and their counsel, it supplies a concrete procedural foothold from which the substantive safeguards recognised in Radhika Agarwal can actually be invoked. In an enforcement landscape where the boundary between legitimate investigation and coercive overreach has repeatedly required judicial recalibration, Sunil Biyani stands as a further, carefully limited, contribution to that ongoing project of balance.