KEYUR JAYENDRABHAI PATEL THRO. JALPA JAYENDRABHAI PATEL vs STATE OF GUJARAT

Court
Gujarat High Court

R/SCR.A/4428/2026 JUDGMENT DATED: 07/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 4428 of
2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-

and
HONOURABLE MR.JUSTICE D. M. VYAS Sd/-

================================================================
Approved for Reporting Yes No
√
================================================================
KEYUR JAYENDRABHAI PATEL THRO. JALPA JAYENDRABHAI PATEL
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR MAULIK VAKHARIYA(6628) for the Applicant(s) No. 1
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR UTKARSH SHARMA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
TIRTH NAYAK(8563) for the Respondent(s) No. 2,3
================================================================
CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR.JUSTICE D. M. VYAS

Date : 07/05/2026
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. Captioned writ petition is filed challenging, inter alia, the
entire exercise of the petitioner’s arrest by respondent and remand
proceedings by the Chief Judicial Magistrate to be untenable, illegal,
arbitrary and unconstitutional in connection with File
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R/SCR.A/4428/2026 JUDGMENT DATED: 07/05/2026
no.DGGI/INV/GST/2112/2025-GR-B. Considering the nature of the
prayers prayed for in the captioned writ petition and with the
consent of the learned advocates appearing for the respective
parties, the captioned writ petition is taken up for final disposal.
2. Issue Rule, returnable forthwith. Mr Utkarsh Sharma, learned
Additional Public Prosecutor waives service of notice of Rule for
respondent no.1 and Mr Tirth Nayak, learned advocate waives
service of notice of Rule for respondent nos.2 and 3.
3. Mr Virat G. Popat, learned Advocate, at the outset, submitted
that the challenge is restricted qua the action of the respondent in
not strictly following the provisions of section 69 of the Central
Goods and Services Tax Act, 2017 (hereinafter referred to as “the
Act of 2017”) inasmuch as, the Commissioner has not recorded the
reasons to believe and if recorded, the same are not supplied to the
petitioner. It is a condition precedent that the Commissioner must
record his reasons to believe before authorizing the arrest and
absence of the formation of the reasons to believe, strikes at the
root of the jurisdiction, rendering the arrest illegal. It is further
submitted that the reasons to believe, which is purported to be
supplied, is not signed by the Commissioner but some another
officer who might have been authorized.
3.1 Reliance is placed on the judgment in the case of Radhika
Agarwal v. Union of India reported in (2025) 27 Centax 425 (SC):
2025(392) E.L.T.273(S.C). The issue before the Apex Court, was in
connection with the provisions of Prevention of Money Laundering
Act, 2002 (hereinafter referred to as “the PML Act”) as well as
Customs Act, 1962 (hereinafter referred to as “the Act of 1962”),
dealing with the powers of the officers to arrest. Section 19 of the
PML Act as well as section 104 of the Act of 1962 deal with the
powers to arrest. In both the provisions, the officers named therein
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and the expression ‘any other officer authorized by the Central
Government’ covers within its sweep other officers also, who may
be authorized by the Central Government. It is submitted that as per
sub-section (1) of section 104 of the Act of 1962, the customs officer
empowered by general or special order of the Commissioner, may
record the reasons to believe. As against this, section 69 of the Act
of 2017 only empowers the Commissioner to record the reasons and
no other officer. Hence, it is Commissioner and Commissioner only,
who statutorily has to record the reasons and then pass order
authorizing any officer to arrest such person.
3.2 It is further submitted that while dealing with the provisions of
section 69 of the Act of 2017, the Apex Court has clearly noted that
to pass an order of arrest, in case of cognizable and non-cognizable
offences, the Commissioner must satisfactorily show vide the
reasons to believe recorded by him, that the person to be arrested
has committed a non-bailable offence and the pre-conditions of sub-
section (5) of section 132 are satisfied. Moreover, failure to do so
would result in an illegal arrest. It is submitted that the Apex Court,
has categorically held that the ratio recorded in the judgment in
connection with the Act of 1962 would equally apply to the
provisions of section 69 of the Act of 2017 insofar as maintenance of
the records, obligation of the arresting officers and rights of the
accused person arrested.
3.3 Reliance is also placed on the judgment in the case of Arvind
Kejriwal v. Directorate of Enforcement reported in (2025) 2 SCC 248.
The Apex Court, has held and observed that ‘the reasons to believe’
as recorded in writing are to be furnished. It has been held and
observed that the requirements in sub-section (1) of section 19 of
the PML Act are the jurisdictional conditions to be satisfied for
arrest, the validity of which can be challenged by the accused and
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examined by the Court. The Apex Court has held and observed that
it would not be proper to hold that the accused can be denied and
not furnished a copy of ‘the reasons to believe’, considering the fact
that it would prevent the accused from challenging the arrest and
questioning the reasons to believe. It is therefore submitted that
supply of the reasons to believe, to the arrestee to enable him to
exercise the right to challenging the arrest is a sine qua non.
3.4 It is submitted that the language of sub-section (1) of section
19 of the PML Act and the language contained in section 69 of the
Act of 2017, are in pari materia with and hence, the principle laid
down in the above-referred two judgments applies to the facts of
the present case as this Court is examining the action of the
Commissioner in light of section 69 of the Act of 2017 inasmuch as,
in the case of Radhika Agarwal v. Union of India (supra), the Apex
Court was dealing with the controversy regarding the power to
arrest under the Act of 1962 and the Act of 2017. Exception is
carved out in favour of the department to claim redaction and
exclusion of specific particulars and details; however, it has to be
justified by the officers or the authors of the ‘reasons to believe’.
The Court, has added a word of caution that such kind of redaction
is justified in small number of cases for good cause; however, the
reason is not a good ground to deny the accused access to a copy of
the ‘reasons to believe’ in most cases.
3.5 It is further submitted that the word used in paragraph 41 of
the judgment in the case of Arvind Kejriwal v. Directorate of
Enforcement(supra) furnishing of a copy of the ‘reasons to believe’
and hence, it has to be a verbatim copy of the ‘reason to believe’
recorded by the Commissioner and not something which is recorded
by another subordinate officer as it is likely to create a variation in
the ‘reasons to believe’ recorded by the Commissioner on one hand
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and ‘reasons to believe’ provided by the officer. It is submitted that
it is likely to affect the decision that may be taken by the Chief
Judicial Magistrate, while considering the request of remand of the
arrestee.
4. On the other hand, Mr Tirth Nayak, learned advocate
appearing for the respondent nos.2 and 3, at the outset, has raised
the preliminary objection as regards maintainability of the writ
petition. It is submitted that the petition would not be maintainable
for, at the time of hearing of the remand application, similar such
contentions were raised that are raised before this Court and those
contentions have been considered. When the contentions have been
dealt with while passing the order of remand, the petitioner may not
be permitted to circumvent the remedy that is available to him of
challenging the order of remand passed by the Chief Judicial
Magistrate before the higher forum. It is submitted that no doubt it
is true that writ petition seeking Habeas Corpus is maintainable but,
in the exceptional circumstances and the ordinary course would be
to challenge the order before the appropriate forum.
4.1 Reliance is placed on the judgment in the case of Baldev
Singh v. State of Punjab reported in (1971) 2 ILR Punjab & Haryana
235 wherein, it is held that if the detenue has been remanded to
custody by the Magistrate on a police report in a criminal case, the
detention is not illegal and a writ or a direction in the nature of
Habeas Corpus cannot be issued. Reliance is also placed on the
judgment of the Division Bench in the case of Vinodbhai Tilakdhari
Tiwari v. State of Gujarat passed in Special Criminal Application
(Habeas Corpus) no.15962 of 2025. Reference is made to the
judgment of the Apex Court in the case of V. Senthil Balaji v. State
reported in (2024) 3 SCC 51, wherein it is observed that a writ of
Habeas Corpus shall only be issued when the detention is illegal. As
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a matter of rule, an order by a judicial officer culminating into a
judicial function, cannot be challenged by way of a writ of Habeas
Corpus, while it is open to the person aggrieved to seek other
statutory remedies. It is submitted that it is true that when there is a
non-compliance of the mandatory provisions, exception is carved
out for entertaining a writ of Habeas Corpus and that too, by way of
a challenge. Reliance is also placed on the judgment in the case of
Saurabh Kumar v. Jailor, Koneila Jail reported in (2014) 13 SCC 436.
The Apex Court, has observed that the writ of Habeas Corpus, is no
substitute for enlargement of the arrestee from custody.
4.2 While adverting to the submission made as regards scope of
section 69 of the Act of 2017, it is submitted that the requirements
contained therein, are three fold; namely, (i) that the Commissioner
himself is to record ‘reasons to believe’ (ii) that authorization by the
Commissioner to any officer to arrest such person and (iii) that the
authorized officer shall inform the arrestee about the grounds of
arrest. The contention of the petitioner that the requirements are
not followed inasmuch as, the reasons to believe are not supplied as
signed by the Commissioner, is misplaced, for, there is neither any
provision in the Act of 2017 providing that the reasons to believe as
signed by the Commissioner is to be supplied nor is the principle
laid down by the Apex Court in the judgment in the case of Radhika
Agarwal v. Union of India (supra).
4.3 It is next submitted that on merits as well such contention is
fallacious inasmuch as, as per Note # 111, on 19.03.2026 the
Additional Director General has recorded the ‘reasons to believe’
which is in terms of section 69 of the Act of 2017. Besides, the
Additional Director General has authorized the Intelligence Officer to
arrest the petitioner in connection with the commission of offences
of the Act of 2017, as indicated therein. Consequently and on the
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same day i.e. 19.03.2026, the Authorization Letter digitally signed
by the Additional Director General, Director General of GST
Intelligence, Surat Zonal Unit is issued coupled with supply of the
‘reasons to believe’ to the arrestee and hence, the requirement of
section 69 of the Act of 2017 stands sufficiently complied with and
nowhere in the judgment of the Apex Court in the case of Radhika
Agarwal (supra), it is laid down that the ‘reasons to believe’ as
recorded and signed by the Commissioner is to be provided. It is
submitted that recently, in the case of Jai Kumar Aggarwal v.
Directorate General of GST Intelligence and others reported in 2026
SCC OnLine All 376, the Allahabad High Court, has held and
observed that it is for the Commissioner to ascertain and record the
‘reasons to believe’ explicitly and with reference to the material and
evidence underlying his opinion. It is observed that in the judgment
of the Apex Court in the case of Radhika Agarwal (supra), it is
nowhere provided that the ‘reasons to believe’ should be supplied to
the accused.
4.4 It is further submitted that the office of the Director General of
the GST Intelligence has received intelligence regarding a non-
existent ‘Naksh Enterprises’ and it availing a huge amount of input
tax credit. Accordingly, search was carried out followed by recording
of the statement of the authorized person and it connected the
petitioner. Therefore, on 19.03.2026, on the basis of the material
available on the record, the Additional Director General has
recorded the ‘reasons to believe’ and the concerned officer, was
authorized. The ‘reasons to believe’ were provided on 19.03.2026
that is duly received by the petitioner and in lieu thereof the
petitioner has put his signature, further indicating that the contents
have been explained to him in Hindi language. Therefore, to say
that the ‘reasons to believe’ as signed by the Additional Director
General is not supplied, would be incorrect.
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5. Mr Utkarsh Sharma, learned Additional Public Prosecutor,
submitted that it is nobody’s case that the ‘reasons to believe’ are
not supplied. The issue, is as to whether the author of the ‘reasons
to believe’ himself has supplied it or it is supplied by somebody else.
Reliance is placed on the judgment in the case of Arvind Kejriwal v.
Directorate of Enforcement (supra). It is submitted that the
significance of the ‘reasons to believe’ had come into picture by way
of the judicial pronouncement dealing with two aspects, namely, the
intent and whether it is supplied or not. In the case before the Apex
Court, it is noted that for recording reasons of belief, whether the
records and the details are in sync with and if it is not, it is likely to
cause grave prejudice to the accused asmuch as, he could have
challenged those ‘reasons to believe’. In other words, the ‘reasons
to believe’ has to be in sync with the record and the details
available. The Apex Court in the case of Radhika Agarwal (supra)
has clearly noted that judicial intervention is warranted only in
exceptional circumstances when the arrest is prima facie found to
be mala fide or is prompted by extraneous consideration or is made
in contravention of or in breach of the provisions of the concerned
statute; or when the authority acting under the concerned statute
does not have the requisite authority.
5.1 It is further submitted that non-supply of the ‘reasons to
believe’ to the arrestee would not be fatal and it would be
permissible to make available for the perusal and the Court can
examine it and determine whether the non-supply is fatal to the
arrest or not. It is submitted that in the case of Arvind Kejriwal v.
Directorate of Enforcement (supra), the Apex Court has carved out
an exception by pointing out that in a one-off case it may not be
feasible to reveal the material when the investigation is in progress,
giving liberty to the officer concerned to claim redaction. It is
submitted that in the case on hand, the ‘reasons to believe’ is
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furnished except that the author has not put his signature. It is
submitted that the object behind supplying ‘reasons to believe’ is to
facilitate the arrestee to challenge the same indicating that the
‘reasons to believe’ recorded are not proper. Undisputedly, the
‘reasons to believe’ has been supplied to the petitioner, but in the
manner not acceptable to the arrestee; however, the same would
not alter the contents or crux, causing any prejudice to the arrestee.
It is submitted that the course available to the arrestee was to
challenge the ‘reasons to believe’ on merits instead, the arrestee
has approached this Hon’ble Court seeking Writ of Habeas Corpus,
raising technical grounds and in the humble request of the
respondents it may not be entertained.
6. Mr Virat Popat, learned advocate in a brief rejoinder,
submitted that the Act of 2017, covers various facets, namely,
arrest, detention and offences etc., depending upon the stake
involved and for which purpose, officers are designated to exercise
the powers and it would not be permissible to the officers to
delegate those powers to the other officers instead exercising
himself. It is submitted that variation in recording the ‘reasons to
believe’ would be impermissible as the slight variation is likely to
enure different result. Therefore, it is inevitable that the reasons of
belief recorded by the designated officer is provided verbatim to the
arrestee with no addition or subtraction, facilitating independent
examination by the learned Judicial Magistrate First Class, while
passing the order of remand or otherwise. It is next submitted that
furnishing the ‘reasons to believe’ to the arrestee, serves twofold
purposes, namely, offering opportunity to the arrestee to challenge
the same before higher forum and facilitating authorized detention
by the learned Judicial Magistrate First Class. It is further submitted
that the requirement, is to supply the ‘copy’ whereas, in the case on
hand, what is supplied cannot be said that the copy of the 'reasons
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of belief' is supplied. It is submitted that sub-section (1) of section
104 of the Act of 1962 uses the word officer while that is not the
case when powers are to be exercised under sub-section (1) of
section 69 of the Act of 2017 as it clearly empowers Commissioner
only to record the ‘reasons to believe’. Therefore, it would be
impermissible for any officers other than the Commissioner to
record the ‘reasons to believe’ and provide the copies. If such
exercise is adopted, it is likely to render section 69 of the Act of
2017 nugatory.
6.1 It is further submitted that the verbatim non-supply of the
‘reasons to believe’ to the arrestee has rendered the detention
illegal. It is submitted that the copy of the ‘reasons to believe’ made
available for the perusal of this Court was never forming part of the
documents before the learned Chief Judicial Magistrate and had no
opportunity to consider the ‘reasons to believe’ recorded by the
Additional Director General and what was placed before the learned
Chief Judicial Magistrate was ‘reasons to believe’ noted by the
Intelligence Officer, Director General of Goods & Services Tax
Intelligence, Vadodara regional unit. When the 'reasons of belief'
recorded by the Commissioner was not placed before the learned
Judicial Magistrate First Class for its scrutiny and the Judicial
Magistrate First Class had no occasion to examine it and it has
rendered the decision illegal and the consequent arrest of the
arrestee as well. Hence, the prayers of the petitioner may kindly be
accepted and the arrest of the petitioner be declared as invalid.
7. Heard the learned advocates appearing for the respective
parties. Perused the documents made available on the record
including the e-office notings.
8. The petitioner, by way of the captioned writ petition has
prayed for the following reliefs:
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“A. Hold and declare the entire exercise leading to the Petitioner's
arrest by Respondent and remand proceedings by the Chief Judicial
Magistrate to be wholly untenable, illegal, arbitrary and
unconstitutional; in connection with File No
DGGI/INV/GST/2112/2025-Gr-B
B. As a sequel and consequence to the Prayer A (ibid), set-aside and
quash the impugned action of arrest of the petitioner and his
subsequent incarceration by way of impugned Remand for judicial
custody dated 20-03-2026 (ANNEXURE-G) passed by Chief Judicial
Magistrate which are patently routine, mechanical and not in
conformity with the obligations/duties cast on the Remand Court; in
connection with File No DGGI/INV/GST/2112/2025-Gr-B
C. As a sequel and consequence of the prayers (ibid.), direct the
forthwith release of the petitioner from custody as his fundamental
rights under Articles 21 as well as 22 (1) & (2) of the Constitution,
along with the sacrosanct provisions of Cr.PC, 1973 and BNSS, 2023,
stand blatantly infringed and violated;
D. As an interim/ad-interim measure, this Hon'ble Court may be
pleased to direct the release of the Petitioner from custody on such
terms and conditions that this Hon'ble Court may deem fit and
appropriate;
E. Pass any such other order(s) or further direction(s) as this Hon'ble
Court may deem fit in the interest of justice.”
9. Pertinently, the challenge raised by the petitioner is to declare
the entire exercise leading to the petitioner’s arrest by the
respondent and remand proceedings by the Chief Judicial Magistrate
to be wholly untenable, illegal, arbitrary and unconstitutional. The
petitioner has also challenged his arrest and subsequent
incarceration by way of the impugned remand of judicial custody
dated 20.03.2026 passed by the Chief Judicial Magistrate. At the
outset, it is required to be noted that Mr Virat Popat, learned
advocate has stated at the bar that the action of the respondent is
challenged solely on the ground of non-supply of the verbatim
'reasons to believe' as recorded by the Commissioner. The learned
advocates have therefore, made their respective submissions and
this Court, has heard accordingly and considered the said ground for
deciding the captioned writ petition.
10. Tersely stated are the facts: Discernibly, intelligence was
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gathered by the officers of the Director General of Goods & Services
Tax Intelligence, Vadodara (hereinafter referred to as “DGGI”) that
M/s Naksh Enterprises, Vadodara is engaged in availment and
passing on of fraudulent Input Tax Credit (hereinafter referred to as
“ITC”) without underlying goods or services or both. Necessary
search was conducted and it was informed that no sales or purchase
related to the goods of M/s Naksh Enterprise, Vadodara are made.
Statement of the proprietor was recorded and during the course of
the further investigation it was found that M/s Naksh Enterprise,
Vadodara is a non-operational entity and was involved in availment
and passing of fake/ineligible ITC without actual supply/receipt of
goods. Similarly, inspection was carried out at the registered
premises of M/s Shakti International and M/s AAI Matelics, Jamnagar.
During the course of further investigation, it revealed that M/s AAI
Metalics has received fraudulent ITC amounting to Rs.9.98 crores. It
was found that ITC received by M/s AAI Metalics, Jamnagar in their
GSTR-2A returns from the fake/non-existent/non-operational firm,
was availed by them in GSTR-3B returns filed by it. Investigation
therefore, further revealed that M/s AAI Metalics, Jamnagar has
passed on fraudulent/ineligible ITC amounting to Rs.10.39 crores in
their GSTR-1M returns without actual supply of goods. So was the
case in the matter of M/s Shakti International as during the course of
further investigation it revealed that it had received
fraudulent/ineligible ITC amounting to Rs.4.03 crores without actual
receipt of goods, on the basis of invoices issued by the firms which
were non-existence/non-operational at their declared principal place
of business.
11. Perceptibly, search came to be conducted by the officers of
DGGI at the residence of the petitioner, one industrial unit and two
other premises, followed by recording of the statements of in-
charge, proprietor, authorized signatory etc. of the respective units
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and premises. Statement of the petitioner was also recorded on
18.03.2026 under section 70 of Act of 2017. As a result of the
investigation conducted, according to the DGGI, the petitioner was
instrumental and beneficiary of the fake invoicing racket through
M/s AAI Metalics, Jamnagar and M/s Shakti International, Jamnagar
being used as a proxy for the purpose of availing and passing on of
a fake ITC without actual receipt/supply of goods. The total
fraudulent ITC passed on was amounting to Rs.10.39 crores without
supply of goods by M/s AAI Metalics, Jamnagar for the period from
April 2024 and November 2025 and Rs.4.03 crores fradulent ITC
claimed by M/s Shakti International, Jamnagar. The DGGI on the
basis of the records and preliminary investigation, noticed that the
petitioner was personally involved in availment of the fake ITC on
the basis of invoices issued by non-operational firms and received
monetary considerations leading to the evasion of the Goods and
Services Tax by way of availing ITC of Rs.14.01 crores and passing
on of ITC of Rs.10.39 crores without underlying receipts/supply of
goods. The DGGI was of the opinion that the petitioner has
committed an offence under section 132(1)(b) and section 132(1)
(c), punishable under section 132(1)(i) read with sub-section (5) of
section 132 of the Act of 2017.
12. On 18.03.2026, summons under sub-section (1) of section 70
of the Act of 2017 came to be issued by the
Superintendent/Appraiser/Senior Intelligence Officer to the
petitioner requiring the petitioner to appear before him on
19.03.2026 at 10:15 a.m. at the office located at Baroda which was
duly received by the petitioner endorsing that he would on his own
attend the Baroda office. Detailed statement of the petitioner was
recorded on 19.03.2026. The Additional Director General in exercise
of the powers conferred under sub-section (1) of section 69 of the
Act of 2017, authorized the Intelligence Officer, DGGI, Vadodara to
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arrest the petitioner in connection with the offences committed in
nature described under sections 132(1)(b) and 132(1)(c) of the Act
of 2017. The aforesaid authorization was followed by the arrest of
the petitioner on 19.03.2026 around 06:40 p.m. and was produced
before the Chief Judicial Magistrate on 20.03.2026 around 11:00
a.m. The record further reveals that the petitioner was duly supplied
with the grounds of arrest for, it is signed by the petitioner putting
an endorsement in hindi language to the effect that the petitioner
was explained the reason of arrest in hindi and copy was given to
him. Simultaneously, reasons to believe was served upon the
petitioner wherein also, the petitioner has put an endorsement in
hindi language stating that he has been explained the reason of
arrest in hindi language and copy thereof was provided to him.
13. In view of the above, the grievance is raised by the petitioner
that in the absence of supply of the copy of the ‘reasons to believe’
as recorded by the Commissioner, the arrest would be rendered
illegal and unconstitutional and the consequential order of remand
for judicial custody would be patently illegal and not in conformity
with the obligation and duties cast on the remand Court. The
respondents have opposed the said contention by stating that the
‘reasons to believe’ recorded by the Commissioner have been duly
served upon the petitioner and hence, there is no requirement
under the law of providing verbatim ‘reasons to believe’ to the
petitioner. The ‘reasons to believe’ has been furnished and hence,
there is a sufficient compliance of the principle laid down by the
Apex Court in the case of Arvind Kejriwal v. Directorate of
Enforcement (supra) and Radhika Agarwal (supra). Contention is
also raised by the respondents regarding maintainability and/or
entertainability of the captioned writ petition.
14. Before adverting to the contention raised by the petitioner
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that by not following the statutory mandate as contained in section
69 of the Act of 2017 the arrest/detention is illegal, this Court, may
deal with the issue regarding the maintainability and entertainability
of the writ petition, seeking writ of Habeas Corpus. It need not
detain the Court any longer, as the matter is well-settled by the
following judgments of the Apex Court and this Court.
15. In the case of V. Senthil Balaji v. State represented by the
Deputy Director (supra), the Apex Court, has laid down the
proposition pointing out the difference between a detention
becoming illegal for not following the statutory mandate and wrong
or inadequate reasons provided in a judicial order. A writ of Habeas
Corpus may be entertained in the formal case and in the latter the
only remedy available is to seek a relief statutorily given.
Paragraphs 28, 29 and 30 are reproduced hereinbelow for ready
reference:
“28. A writ of Habeas Corpus shall only be issued when the
detention is illegal. As a matter of rule, an order of remand by a
judicial officer, culminating into a judicial function cannot be
challenged by way of a writ of Habeas Corpus, while it is open to the
person aggrieved to seek other statutory remedies. When there is a
non-compliance of the mandatory provisions along with a total non-
application of mind, there may be a case for entertaining a writ of
Habeas Corpus and that too by way of a challenge.
29. In a case where the mandate of Section 167 of the CrPC, 1973
and Section 19 of the PMLA, 2002 are totally ignored by a cryptic
order, a writ of Habeas Corpus may be entertained, provided a
challenge is specifically made. However, an order passed by a
Magistrate giving reasons for a remand can only be tested in the
manner provided under the statute and not by invoking Article 226
of the Constitution of India, 1950. There is a difference between a
detention becoming illegal for not following the statutory mandate
and wrong or inadequate reasons provided in a judicial order. While
in the former case a writ of Habeas Corpus may be entertained, in
the latter the only remedy available is to seek a relief statutorily
given. In other words, a challenge to an order of remand on merit
has to be made in tune with the statute, while non-compliance of a
provision may entitle a party to invoke the extraordinary
jurisdiction. In an arrest under Section 19 of the PMLA, 2002 a writ
would lie only when a person is not produced before the Court as
mandated under sub-section (3), since it becomes a judicial custody
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thereafter and the concerned Court would be in a better position to
consider due compliance.
30. Suffice it is to state that when reasons are found, a remedy over
an order of remand lies elsewhere. Similarly, no such writ would be
maintainable when there is no express challenge to a remand order
passed in exercise of a judicial function by a Magistrate. State of
Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745:
“10. The question as to whether a writ of habeas corpus
could be maintained in respect of a person who is in
police custody pursuant to a remand order passed by the
jurisdictional Magistrate in connection with the offence
under investigation, this issue has been considered in
Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436 :
(2014) 5 SCC (Cri) 702 and Manubhai Ratilal Patel v. State
of Gujarat, (2013) 1 SCC 314 : (2013) 1 SCC (Cri) 475 . It
is no more res integra. In the present case, admittedly,
when the writ petition for issuance of a writ of habeas
corpus was filed by the respondent on 18-3-2018/19-3-
2018 and decided by the High Court on 21-3-2018
Tasneem Rizwan Siddiquee v. State of Maharashtra, 2018
SCC OnLine Bom 2712 her husband Rizwan Alam
Siddiquee was in police custody pursuant to an order
passed by the Magistrate granting his police custody in
connection with FIR No. I-31 vide order dated 17-3-2018
and which police remand was to enure till 23-3-2018.
Further, without challenging the stated order of the
Magistrate, a writ petition was filed limited to the relief of
habeas corpus. In that view of the matter, it was not a
case of continued illegal detention but the incumbent was
in judicial custody by virtue of an order passed by the
jurisdictional Magistrate, which was in force, granting
police remand during investigation of a criminal case.
Resultantly, no writ of habeas corpus could be issued.”
16. The coordinate Bench of this Court in the case of Vinodbhai
Tilakdhari Tiwari v. State of Gujarat passed in Special Criminal
Application (Habeas Corpus) no.15962 of 2025, dealt with the issue
of maintainability of the writ petitions seeking issuance of a writ of
Habeas Corpus. Reference is made to the judgment of the Apex
Court in the case of V. Senthil Balaji v. State (supra) and the
coordinate Bench, held that writ petition seeking to invoke writ of
Habeas Corpus to question the detention made pursuant to a
judicial order will be made available. Paragraphs 36 to 39 are
reproduced for ease of reference:
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“36. In fact, this proposition of law has been explicitly stated by the
Apex Court in a recent decision, after noticing and considering a
long line of decisions in respect of illegal detention even under
judicial orders, in the following terms:
80. Thus, we would hold as follows: If the remand is
absolutely illegal or the remand is afflicted with the vice
of lack of jurisdiction, a Habeas Corpus petition would
indeed lie. Equally, if an order of remand is passed in an
absolutely mechanical manner, the person affected can
seek the remedy of Habeas Corpus. Barring such
situations, a Habeas Corpus petition will not lie.
37. In fact the same proposition is also reiterated and it is also
clarified as to when a writ for issuance of a habeas corpus would
not lie in the case of V. Senthil Balaji v. State represented by
Deputy Director & Ors. reported in (2024) 3 SCC 51 where it is held
as follows:
28. A writ of Habeas Corpus shall only be issued when
the detention is illegal. As a matter of rule, an order of
remand by a judicial officer, culminating into a judicial
function cannot be challenged by way of a writ of
Habeas Corpus, while it is open to the person aggrieved
to seek other statutory remedies. When there is a non-
compliance of the mandatory provisions along with a
total non-application of mind, there may be a case for
entertaining a writ of Habeas Corpus and that too by
way of a challenge.
29. In a case where the mandate of Section 167 of the
CrPC, 1973 and Section 19 of the PMLA, 2002 are totally
ignored by a cryptic order, a writ of Habeas Corpus may
be entertained, provided a challenge is specifically
made. However, an order passed by a Magistrate giving
reasons for a remand can only be tested in the manner
provided under the statute and not by invoking Article
226 of the Constitution of India, 1950. There is a
difference between a detention becoming illegal for not
following the statutory mandate and wrong or
inadequate reasons provided in a judicial order. While in
the former case a writ of Habeas Corpus may be
entertained, in the latter the only remedy available is to
seek a relief statutorily given. In other words, a
challenge to an order of remand on merit has to be
made in tune with the statute, while noncompliance of a
provision may entitle a party to invoke the
extraordinary jurisdiction. In an arrest under Section 19
of the PMLA, 2002 a writ would lie only when a person is
not produced before the Court as mandated under
subsection (3), since it becomes a judicial custody
thereafter and the concerned Court would be in a better
position to consider due compliance.
38. The Learned PP however sought to rely upon the judgment
rendered in the case of Saurabh Kumar through his Father v. Jailor,
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Koneila Jail and Anr. reported in (2014) 13 SCC 436 and in the case
of State of Maharashtra & Ors. v. Tasneem Rizwan Siddiquee,
reported in (2018) 9 SCC 745 to contend that once an order of
remand had been passed and the custody of the person was
relatable to the order of remand, a writ seeking for habeas corpus
would not lie. It is to be stated here that the Apex Court has
basically stated that an order of remand cannot be questioned by
filing a writ of habeas corpus and it has not laid down the
proposition that a writ petition seeking for habeas corpus would not
be maintainable. As already observed if it is to be urged that the
detention is in violation of a constitutional safeguard or of a specific
statutory mandate, a writ of habeas corpus would be maintainable
since it would basically be a complaint about the infringement of a
constitutional safeguard or a statutory mandate.
39. In the light of the above discussion, it is manifestly clear that a
writ petition seeking to invoke the habeas corpus jurisdiction to
question the detention made pursuant to a judicial order will be
maintainable and the arguments of the Learned PP cannot be
sustained. The 1st question is accordingly answered.”
17. As the writ petition is held to be maintainable, this Court,
would proceed to examine the contention of the petitioner regarding
non-supply of the copy of the ‘reasons to believe’ as recorded by
the Commissioner. In view thereof, at this stage, the provisions of
section 69 of the Act of 2017 would be necessary and for ease of
reference, it is reproduced hereinbelow:
“69. Power to arrest.- (1) Where the Commissioner has reasons to
believe that a person has committed any offence specified in clause
(a) or clause (b) or clause (c) or clause (d) of sub-section (1) of
section 132 which is punishable under clause (i) or (ii) of sub-section
(1), or sub-section (2) of the said section, he may, by order,
authorise any officer of central tax to arrest such person.
(2) Where a person is arrested under sub-section (1) for an offence
specified under subsection (5) of section 132, the officer authorised
to arrest the person shall inform such person of the grounds of
arrest and produce him before a Magistrate within twenty-four
hours.
(3) Subject to the provisions of the Code of Criminal Procedure,
1973,--
(a)where a person is arrested under sub-section (1) for any
offence specified under sub-section (4) of section 132, he
shall be admitted to bail or in default of bail, forwarded to
the custody of the Magistrate;
(b)in the case of a non-cognizable and bailable offence, the
Deputy Commissioner or the Assistant Commissioner shall,
for the purpose of releasing an arrested person on bail or
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otherwise, have the same powers and be subject to the
same provisions as an officer-in-charge of a police station.
”
18. Sub-section (1) of section 69 of the Act of 2017 provides for
recording of ‘reasons to believe’ by the Commissioner, that the
person has committed an offence and is punishable under the
provisions of the Act of 2017 as specified therein, coupled with
passing of the order authorizing any officer to arrest such person.
Recording of reasons to believe is a sine qua non for satisfying the
elements prescribed therein.
19. In the case on hand, the issue revolves around the language
contained in sub-section (1) of section 69 of the Act of 2017 which is
more or less in pari materia with the provisions of sub-section (1) of
section 19 of the PML Act so also sub-section (1) of section 104 of
the Act of 1962 (except the officers named therein). The
requirements as contained in the above-referred provisions are
jurisdictional conditions to be satisfied for the arrest, the validity of
which can be challenged by the accused and examined by the
Court. It is settled law that any arrest not in accordance with law
would straightaway violate a personal liberty of a person and hence,
with a view to facilitating the person to challenge its validity the
‘reasons to believe’ are required to be furnished (save and except in
few cases depending upon the feasibility and the nature of
investigation). The violation of personal liberty and the exercise of
power to arrest in accordance with law, are two important
phenomena and its scrutiny is amenable to judicial review.
Therefore, the issue is whether it is necessary to provide the
‘reasons to believe’ to the arrestee. The issue is no longer res
integra.
20. Pertinently, the challenge to the arrest is limited and solely on
the ground of non-supply of verbatim ‘reasons to believe’ recorded
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by the Commissioner. In the recent judgment in the case of Radhika
Agarwal (supra), the Apex Court, was dealing with the issue
regarding the power to arrest under the Act of 1962 and the Act of
2017. The provisions of the Act of 1962 and specially sub-section (1)
of section 104 vis-a-vis sub-section (1) of section 19 of the PML Act,
were compared and the Apex Court, held and observed that to pass
an order of arrest in case of cognizable and non-cognizable
offences, the Commissioner must satisfactorily show, vide the
‘reasons to believe’ recorded by him, that the person to be arrested
has committed a non-bailable offence and that the preconditions of
sub-section (5) of section 132 of the Act are satisfied and failure to
do so, would result in an illegal arrest. It has been further held and
observed that the Commissioner while recording the ‘reasons to
believe’ should state his satisfaction and refer to the material
forming the base of his finding regarding commission of a non-
bailable offence specified in clauses (a) to (d) of sub-section (1) of
section 132. The Apex Court has also held and observed that the
exercise should be undertaken in right earnest and objectively and
not on mere ipse dixit without foundational reasoning and material.
Therefore, statutory obligation is cast upon the Commissioner that
while recording the ‘reasons to believe’ there has to be foundational
reasoning and the material satisfying the conditions enumerated in
section 132 and it would be incumbent upon the Commissioner to
satisfactorily show vide the ‘reasons to believe’ recorded by him
that the person, to be arrested, has committed a non-bailable
offence. Paragraphs 31 to 33, 39, 40, 44, 52, 56, 57 and 60 are
reproduced hereinbelow for ease of reference:
“31. In Arvind Kejriwal (supra), a combined reading of Pankaj Bansal
v. Union of India and Others, 2023 SCC OnLine SC 1244/[2023] 155
taxmann.com 39 (SC), Prabir Purkayastha v. State (NCT of Delhi)
(2024) 7 SCC 576/[2024] 162 taxmann.com 539 (SC) and Vijay
Madanlal Choudhary v. Union of India 2022 SCC OnLine SC
929/[2022] 140 taxmann.com 610 (SC) was adopted by this Court.
It was held that the power to arrest a person without a warrant and
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without instituting a criminal case is a drastic and extreme power.
Therefore, the legislature had prescribed safeguards in the
language of Section 19 itself which act as exacting conditions as to
how and when the power is exercisable. These safeguards include
the requirement to have "material" in the possession of DoE, and
on the basis of such "material", the authorised officer must form an
opinion and record in writing their "reasons to believe" that the
person arrested was "guilty" of an offence punishable under the
PML Act. The "grounds of arrest" are also required to be informed
forthwith to the person arrested.
32. The contention of the DoE that while "grounds of arrest" were
mandatorily required to be supplied to the arrestee, "reasons to
believe", being an internal and confidential document, need not be
disclosed, was decisively rejected in Arvind Kejriwal (supra). It was
held that "reasons to believe" are to be furnished to the arrestee
such that they can challenge the legality of their arrest. Exceptions
are available in one-off cases where appropriate redactions of
"reasons to believe" are permissible. The relevant portion reads:
"41. Once we hold that the accused is entitled to challenge
his arrest under Section 19(1) of the PML Act, the court to
examine the validity of arrest must catechise both the
existence and soundness of the "reasons to believe", based
upon the material available with the authorized officer. It is
difficult to accept that the "reasons to believe", as recorded
in writing, are not to be furnished. As observed above, the
requirements in Section 19(1) are the jurisdictional
conditions to be satisfied for arrest, the validity of which
can be challenged by the accused and examined by the
court. Consequently, it would be incongruous, if not wrong,
to hold that the accused can be denied and not furnished a
copy of the "reasons to believe". In reality, this would
effectively prevent the accused from challenging their
arrest, questioning the "reasons to believe". We are
concerned with violation of personal liberty, and the
exercise of the power to arrest in accordance with law.
Scrutiny of the action to arrest, whether in accordance with
law, is amenable to judicial review. It follows that the
reasons to believe" should be furnished to the arrestee to
enable him to exercise his right to challenge the validity of
arrest.
42. We would accept that in a one-off case, it may not be
feasible to reveal all material, including names of witnesses
and details of documents, when the investigation is in
progress. This will not be the position in most cases. DOE
may claim redaction and exclusion of specific particulars
and details. However, the onus to justify redaction would be
on the DoE. The officers of the DoE are the authors of the
"reasons to believe" and can use appropriate wordings,
with details of the material, as are necessary in a particular
case. As there may only be a small number of cases where
redaction is justified for good cause, this reason is not a
good ground to deny the accused's access to a copy of the
"reasons to believe" in most cases. Where the
nondisclosure of the "reasons to believe" with redaction is
justified and claimed, the court must be informed. The file,
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including the documents, must be produced before the
court. Thereupon, the court should examine the request
and if they find justification, a portion of the "reasons to
believe" and the document may be withheld. This requires
consideration and decision by the court. DoE is not the sole
judge.
43. Section 173(6) of the Code, permits the police officer
not to furnish statements or make disclosures to the
accused when it is inexpedient in public interest. In such an
the police officer is to indicate the specific part of the
statement and append a note requesting the Magistrate to
exclude that part from the copy given to the accused. He
has to state the reasons for making such request. The
same principle will apply."
33. Arvind Kejriwal (supra) also holds that the courts can judicially
review the legality of arrest. This power of judicial review is
inherent in Section 19 as the legislature has prescribed safeguards
to prevent misuse. After all, arrests cannot be made arbitrarily on
the whims and fancies of the authorities. This judicial review is
permissible both before and after criminal proceedings or
prosecution complaints are filed.
39. In the present context, the power of arrest is provided in
Section 104(1) of the Customs Act. For ease of reference, we have
provided a tabular comparison between Section 19(1) of the PML
Act, envisaging the DoE's power of arrest, and Section 104(1) of the
Customs Act, envisaging the customs officer's power of arrest:
Section 19(1) of the PML Act Section 104(1) of the Customs
Act
19. Power to arrest. (1) If the
Director, Deputy Director,
Assistant Director or any other
officer authorised in this behalf by
the Central Government by
general or special order, has on
the basis of material in his
possession, reason to believe (the
reason for such belief to be
recorded in writing) that any
person has been guilty of an
offence punishable under this Act,
he may arrest such person and
shall, as soon as may be, inform
him of the grounds for such
arrest.
104. Power to arrest.— (1) If
an officer of customs
empowered in this behalf by
general or special
order of the Principal
Commissioner of Customs or
Commissioner of Customs has
reason to believe that any
person in India or within the
Indian customs waters has
committed an offence
punishable under section 132
or section 133 or section 135
or section 135A or section
136, he may arrest such
person and shall, as soon as
may be, inform him of the
grounds for such arrest.
40. Section 104(1) stipulates that arrests may be made if a customs
officer, empowered by general or special order of the Principal
Commissioner of Customs or Commissioner of Customs, has
"reasons to believe" that an offence has been "committed" in terms
of Section 132 or Section 133 or Section 135 or Section 135-A or
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Section 136 of the Customs Act. Thus, Section 104(1), effectively
incorporates safeguards similar to those outlined in Section 19(1) of
the PML Act. The semantical distinction, however, between Section
19(1) and Section 104(1), is twofold: first, Section 104(1) does not
explicitly stipulate the requirement of a customs officer having
"material in their possession"; and second, Section 104(1) does not
explicitly state that the customs officer must reasonably believe
that the arrestee is "guilty of an offence". Instead, Section 104(1)
states that the customs officer must have "reasons to believe" that
the arrestee has "committed an offence".
44. Thirdly, given the framework of the Customs Act, which
explicitly classifies offences into bailable and non-bailable, as well
as cognizable and non-cognizable, the "reasons to believe" must
reflect these classifications when justifying an arrest. The reasoning
must weigh in why an arrest is being made in a specific case,
particularly given the specific severity assigned to the offence by
the legislature. The reasoning must also state how the monetary
thresholds outlined in the Act are met. Subclauses (b) to (d) of
Section 104(4) provide monetary thresholds for cognizable
offences, while subclauses (a) and (c) to (e) of Section 104(6)
provide those for non-bailable offences. The "reasons to believe"
must include a computation and/or an explanation, based on
factors such as the goods seized, from which a conclusion of guilt
can be drawn. This level of detail is crucial, as it facilitates judicial
review of the exercise of the power to arrest. The department's
authority to arrest under Section 104 hinges on satisfying these
statutory thresholds.
52. Section 69 of the GST Acts states that where a Commissioner
has reasons belleve that a person has committed any offence
specified in clauses (a) to (d) of section (1) to Section 132, which is
punishable under clauses (i) or (ii) of sub-section (1), or sub-section
(2) of the said section, he may authorise any officer of central or
state tax to arrest such person. Sub-section (2) requires that when
a person is arrested for an offence specified in sub-section (5) to
Section 132, the officer authorised to arrest, must inform the
person of the grounds of arrest and produce him before the
Magistrate within 24 hours.
56. It is clear from the aforesaid provisions that, to pass an order of
arrest in case of cognizable and non-cognizable offences, the
Commissioner must satisfactorily show, vide the reasons to believe
recorded by him, that the person to be arrested has committed a
non-bailable offence and that the pre-conditions of sub-section (5)
to Section 132 of the Act are satisfied. Failure to do so would result
in an illegal arrest. With regard to the submission made on behalf of
the Revenue that arrests are not made in case of bailable offences,
in our considered view, the Commissioner, while recording the
reasons to believe should state his satisfaction and refer to the
'material' forming the basis of his finding regarding the commission
of a non-bailable offence specified in clauses (a) to (d) of sub-
section (1) to Section 132. The computation of the tax involved in
terms of the monetary limits under clause (i) of sub-section (1),
which make the offence cognizable and non-bailable, should be
supported by referring to relevant and sufficient material.
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57. The aforesaid exercise should be undertaken in right earnest
and objectively, and not on mere ipse dixit without foundational
reasoning and material. The arrest must proceed on the belief
supported by reasons relying on material that the conditions
specified in sub-section (5) of Section 132 are satisfied, and not on
suspicion alone. An arrest cannot be made to merely investigate
whether the conditions are being met. The arrest is to be made on
the formulation of the opinion by the Commissioner, which is to be
duly recorded in the reasons to believe. The reasons to believe
must be based on the evidence establishing to the satisfaction of
the Commissioner that the requirements of sub-section (5) to
Section 132 of the GST Act are met.
60. The findings and the ratio recorded in paragraphs 30 to 47
above with reference to the Customs Act would equally apply
insofar as maintenance of records as well as obligations of the
arresting officer and rights of the accused/person arrested are
concerned. Compliance in this regard must be made.”
21. It is noteworthy that in paragraph 60, the Apex Court, has
clearly stated that the findings and the ratio recorded in paragraphs
30 to 47 of the judgment with reference to the Act of 1962 would
equally apply insofar as maintenance of records as well as
obligations of the arresting officer and rights of the accused/persons
arrested.
22. In this behalf, apt would be the judgment of the Apex Court in
the case of Arvind Kejriwal v. Directorate of Enforcement (supra).
The Apex Court, was dealing with the provisions of section 19 of the
PML Act which gives the officers power to arrest. Sub-section (1)
provides that if the officers stated therein on the basis of material
possessed has a reason to believe and recorded in writing that the
person has been guilty of offence punishable under the Act, may
arrest such person. The Apex Court did not accept the contention
raised by the officer that the ‘reasons to believe’ as recorded in
writing are not to be furnished. In the event, the investigation is in
progress and it is not feasible for the officer concerned to reveal all
material including the name of the witnesses, exception is carved
out for not furnishing the ‘reasons to believe’ to the arrestee. It is
observed that it would be permissible for the Directorate of
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Enforcement to claim redaction and exclusion of specific particulars
and details. Paragraphs 41 to 44 are reproduced hereinbelow for
ready reference:
“41. Once we hold that the accused is entitled to challenge his arrest
under Section 19(1) of the PML Act, the court to examine the validity
of arrest must catechise both the existence and soundness of the
"reasons to believe", based upon the material available with the
authorised officer. It is difficult to accept that the "reasons to
believe", as recorded in writing, are not to be furnished. As observed
above, the requirements in Section 19(1) are the jurisdictional
conditions to be satisfied for arrest, the validity of which can be
challenged by the accused and examined by the court. Consequently,
it would be incongruous, if not wrong, to hold that the accused can be
denied and not furnished a copy of the "reasons to believe". In
reality, this would effectively prevent the accused from challenging
their arrest, questioning the "reasons to believe". We are concerned
with violation of personal liberty, and the exercise of the power to
arrest in accordance with law. Scrutiny of the action to arrest,
whether in accordance with law, is amenable to judicial review. It
follows that the "reasons believe should be furnished to the arrestee
to enable him to exercise his fight to challenge the validity of arrest.
42. We would accept that in a one-off case, it may not be feasible to
reveal all material, including names of witnesses and details of
documents, when the investigation is in progress. This will not be the
position in most cases. DoE may claim redaction and exclusion of
specific particulars and details. However, the onus to justify redaction
would be on DoE. The officers of DoE are the authors of the "reasons
to believe" and can use appropriate wordings, with details of the
material, as are necessary in a particular case. As there may only be
a small number of cases where redaction is justified for good cause,
this reason is not a good ground to deny the accused's access to a
copy of the "reasons to believe" in most cases. Where the non-
disclosure of the "reasons to believe" with redaction is justified and
claimed, the court must be informed. The file, including the
documents, must be produced before the court. Thereupon, the court
should examine the request and if they find justification, a portion of
the "reasons to believe" and the document may be withheld. This
requires consideration and decision by the court. DoE is not the sole
judge.
43. Section 173(6) of the Code, permits the police officer not to
furnish statements or make disclosures to the accused when it is
inexpedient in public interest. In such an event, the police officer is to
indicate the specific part of the statement and append a note
requesting the Magistrate to exclude that part from the copy given to
the accused. He has to state the reasons for making such request.
The same principle will apply.
44. We now turn to the scope and ambit of judicial review to be
exercised by the court. Judicial review does not amount to a mini-trial
or a merit review. The exercise is confined to ascertain whether the
"reasons to believe" are based upon material which "establish" that
the arrestee is guilty of an offence under the PML Act. The exercise is
to ensure that DoE has acted in accordance with the law. The courts
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scrutinise the validity of the arrest in exercise of power of judicial
review. If adequate and due care is taken by DoE to ensure that the
"reasons to believe" justify the arrest in terms of Section 19(1) of the
PML Act, the exercise of power of judicial review would not be a cause
of concern. Doubts will only arise when the reasons recorded by the
authority are not clear and lucid, and therefore a deeper and in-depth
scrutiny is required. Arrest, after all, cannot be made arbitrarily and
on the whims and fancies of the authorities. It is to be made on the
basis of the valid "reasons to believe", meeting the parameters
prescribed by the law. In fact, not to undertake judicial scrutiny when
justified and necessary, would be an abdication and failure of
constitutional and statutory duty placed on the court to ensure that
the fundamental right to life and liberty is not violated.”
23. Observations made in paragraph 41, lays down the principle
that the requirements in sub-section (1) of section 19 of the PML Act
are the jurisdictional conditions to be satisfied for arrest, the validity
of which can be challenged by the accused and examined by the
Court and therefore, the accused cannot be denied and not
furnished a copy of the ‘reasons to believe’ asmuch as, non-supply
of the copy of the ‘reasons to believe’ would prevent the accused
from questioning the ‘reasons to believe’ and challenging the arrest.
Clearly, the arrestee cannot be denied a copy of the ‘reasons to
believe’ so as to prevent him from challenging the arrest
questioning the ‘reasons to believe’. It is held and observed that
scrutiny of the action of arrest, whether in accordance with law, is
amenable to judicial review and that the ‘reasons to believe’ should
be furnished to the arrestee to enable him to exercise his right to
challenge the validity of the arrest. Exception is carved out in
paragraph 42 of the judgment in the eventuality of non-feasibility to
reveal the material, by claiming redaction and exclusion of a specific
particulars and details, with a rider that such a position would not be
in most cases. Therefore, it is well-settled that when it comes to
violation of personal liberty, the ‘reasons to believe’, recorded,
should be furnished to the arrestee so as to enable him to exercise
his right to challenge the validity of the arrest.
24. Essentially, the contention raised by the petitioner, is that the
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verbatim copy of the ‘reasons to believe’ as signed by the
Commissioner is not provided and the so-called ‘reasons to believe’
provided to the petitioner is signed by the respondent no.3, who is
not competent as per the provisions of the Act of 2017. In support of
such contention, ground is raised that formation of ‘reasons to
believe’ by the Commissioner is absent in the present case and the
document purportedly containing ‘reasons to believe’ is not signed,
recorded or approved by the Commissioner, but instead is signed by
the arresting officer himself. According to the petitioner, the statute
mandates clear jurisdictional condition precedent that the
Commissioner must independently form and record his ‘reasons to
believe’ before authorizing arrest and that the power is neither
mechanical nor can be delegated in the absence of proper
authorization. The above-referred grounds raised by the petitioner,
in the facts of the case, are misplaced.
25. As the ground of challenge is limited only to non-supply of the
copy of the ‘reasons to believe’ as recorded by the Commissioner, it
would be relevant to discuss the e-office notings made available for
the perusal of this Court by Mr Tirth Nayak, learned advocate for the
respondent nos.2 and 3 containing recording of remarks, opinions
and decisions. It clearly reflects that a detailed note Note#107
recorded by the Intelligence Officer was submitted for the perusal
and approval before the Senior Intelligence Officer who, vide
Note#108 considered and submitted it for further perusal and
approval before the Assistant Director and the Assistant Director,
vide Note#109 recorded the remarks which was further placed
before the Additional Director who has recorded the Note#110.
Finally, the matter was placed before the Additional Director
General who, vide Note#111, having considered the facts of the
case and the evidence placed, in exercise of the powers conferred
under sub-section (1) of section 69 of the Act of 2017 recorded his
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‘reasons to believe’. Adherence to the instruction no.02/2022-
2023(GST-Investigation) dated 17.08.2022 by the Additional
Director General is noted, coupled with the direction, authorizing the
Intelligence Officer to arrest the petitioner as per the provisions of
sub-section (1) of section 69 of the Act of 2017 for committing
offence under section 132(1)(b) and 132(1)(c) of the Act of 2017,
punishable under section 132(1)(i) read with sub-section (5) of
section 132 of the Act of 2017. The e-office notings, thereafter
travelled back to the Additional Director who, issued instructions to
take necessary action as approved. The file movement took place
once again and the Intelligence Officer, vide Note#114, placed a
draft of authorization of arrest for approval and vide Note#118, the
Additional Director General approved it. Which in turn, was sent
back vide e-office notings with a request to take action accordingly.
It is not in dispute that ‘reasons to believe’ (page no.354 of the
compilation) has been provided to the petitioner which substantially
covers the ‘reasons to believe’, including the opinions, the decision
as recorded in e-office notings. Therefore, this Court, is of the
opinion that the ‘reasons to believe’ recorded by the Commissioner
has been furnished to the petitioner, facilitating him to challenge his
arrest on the grounds as permissible and available to him in law.
26. Having held that the ‘reasons to believe’ has to be provided
and has been provided to the petitioner, the issue which now arises
for the consideration, is whether verbatim copy as signed by the
Commissioner should have been provided to the petitioner.
27. The idea behind furnishing ‘reasons to believe’ as recorded is
to facilitate the arrestee to challenge his/her arrest before the Court
of competent jurisdiction as the reason to believe, is amenable to
the judicial review. Therefore, upon scrutiny of the e-office notings
containing the ‘reasons to believe’ recorded by the Commissioner
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vis-a-vis the ‘reasons to believe’ placed on the record as supplied to
the petitioner (page no.354 of the compilation), in substance, is the
same and are not at variance and hence, the contention of the
petitioner regarding non-furnishing of the verbatim copy of the
‘reasons to believe’ as signed by the Commissioner, is stated to be
rejected. Moreover, it would be impermissible to the petitioner to
find fault with the manner in which the ‘reasons to believe’ has been
supplied as neither the provisions of section 69 of the Act of 2017
nor the judgments, prescribe the mode and manner in which the
‘reasons to believe’ is to be furnished to the arrestee. Crucial
mandatory requirement is furnishing of the ‘reasons to believe’ and
if the arrestee is in receipt of the ‘reasons to believe’ then in that
eventuality, the form and manner would be immaterial.
28. In view of the above discussion, the present petition is devoid
of any merits and is dismissed accordingly. No order as to costs.
Rule is discharged.
Sd/-
(SANGEETA K. VISHEN,J)
Sd/-
(D. M. VYAS, J)
RAVI P. PATEL
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